Amendment of The Constitution & Basic Structure: By: Kartikey Chaudhary

Amendment of the Constitution &
Basic Structure
BY : KARTIKEY CHAUDHARY
Amendment of the Constitution
Amendment of the Constitution
Like any other written Constitution, the Constitution of India also
provides for its amendment in order to adjust itself to the changing
conditions and needs .
Article 368 in Part XX of the Constitution deals with the powers of

Parliament to amend the Constitution and its procedure. It states that the
Parliament may, in exercise of its constituent power, amend by way of
addition, variation or repeal any provision of the Constitution in accordance
with the procedure laid down for the purpose. However, the Parliament
cannot amend those provisions which form the ‘basic structure’ of the
Constitution
PROCEDURE FOR AMENDMENT
1. An amendment of the Constitution can be initiated only by the

introduction of a bill for the purpose in either House of Parliament
2. The bill can be introduced either by a minister or by a private member and
does not require prior permission of the president.
3. The bill must be passed in each House by a special majority, that is, a
majority (that is, more than 50 per cent) of the total membership of the
House and a majority of two-thirds of the members of the House present
and voting.
4. Each House must pass the bill separately. In case of a disagreement
between the two Houses, there is no provision for holding a joint sitting
of the two Houses for the purpose of deliberation and passage of the bill
5. After duly passed by both the Houses of Parliament and ratified by the
state legislatures, where necessary, the bill is presented to the president
for assent.
6. The president must give his assent to the bill. He can neither withhold his
assent to the bill nor return the bill for reconsideration of the Parliament.
7. After the president’s assent, the bill becomes an Act (i.e., a constitutional
amendment act) and the Constitution stands amended in accordance with
the terms of the Act
TYPES OF AMENDMENTS
Constitution can be amended in three ways:

(a) Amendment by simple majority of the Parliament,
(b) Amendment by special majority of the Parliament, and
(c) Amendment by special majority of the Parliament and the ratification of
half of the state legislatures.
By Simple Majority of Parliament
These provisions include:

1. Admission or establishment of new states.
2. Formation of new states and alteration of areas, boundaries or names of
existing states.
3. Abolition or creation of legislative councils in states.
4. Second Schedule—emoluments, allowances, privileges and so on of the
president, the governors, the Speakers, judges, etc
5. Salaries and allowances of the members of Parliament.
By Special Majority of Parliament
The majority of the provisions in the Constitution need to be amended by a

special majority of the Parliament, that is, a majority (that is, more than 50
per cent) of the total membership of each House and a majority of two-thirds
of the members of each House present and voting
The provisions which can be amended by this way includes: (i)

Fundamental Rights;(ii) Directive Principles of State Policy; and (iii) All
other provisions which are not covered by the first and third categories
By Special Majority of Parliament and
Consent of States
1. Election of the President and its manner.
2. Extent of the executive power of the Union and the states.
3. Supreme Court and high courts.
4. Distribution of legislative powers between the Union and the states.
5. Any of the lists in the Seventh Schedule.
6. Representation of states in Parliament.
7. Power of Parliament to amend the Constitution and its procedure (Article
368 itself).
BASIC STRUCTURE OF CONSTITUTION
EMERGENCE OF THE BASIC STRUCTURE

he question whether Fundamental Rights can be amended by the
Parliament under Article 368 came for consideration of the Supreme
Court within a year of the Constitution coming into force. In the Shankari
Prasad case1 (1951), the constitutional validity of the First Amendment Act
(1951), which curtailed the right to property, was challenged. The Supreme
Court ruled that the power of the Parliament to amend the Constitution under
Article 368 also includes the power to amend Fundamental Rights
Therefore, the Parliament can abridge or
take away any of the Fundamental Rights by enacting a constitutional
amendment act
But in the Golak Nath case (1967), the Supreme Court reversed its
earlier stand. In that case, the constitutional validity of the Seventeenth
Amendment Act (1964), which inserted certain state acts in the Ninth
Schedule, was challenged. The Supreme Court ruled that the
Fundamental Rights are given
a ‘transcendental and immutable’ position and hence, the Parliament
cannot abridge or take away any of these rights
The Parliament reacted to the Supreme Court’s judgement
in the GolakNath case (1967) by enacting the 24th
Amendment Act (1971).
It declared that the Parliament has the power to

abridge or take away any of the Fundamental Rights under
Article 368
However, in the Kesavananda Bharati case3 (1973), the Supreme Court
overruled its judgement in the Golak Nath case (1967). It upheld the
validity of the 24th Amendment Act (1971) and stated that Parliament is
empowered to abridge or take away any of the Fundamental Rights. At
the same time, it laid down a new doctrine of the ‘basic structure’ (or
‘basic features’) of the Constitution.
ELEMENTS OF THE BASIC STRUCTURE
The present position is that the Parliament under Article 368 can amend any
part of the Constitution including the Fundamental Rights but without
affecting the ‘basic structure’ of the Constitution. However, the Supreme
Court is yet to define or clarify as to what constitutes the ‘basic structure’ of
the Constitution. From the various judgements, the following have emerged
as ‘basic features’ of the Constitution or elements / components / ingredients
of the ‘basic structure’ of the constitution:
1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the

judiciary
5. Federal character of the Constitution

6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system

11. Harmony and balance between Fundamental Rights
and Directive Principles
12.Principle of equality
13. Free and fair elections
14. Independence of Judiciary

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Amendment of the Constitution &

Article 368 in Part XX of the Constitution deals with the powers of

1. An amendment of the Constitution can be initiated only by the

Constitution can be amended in three ways:

These provisions include:

The majority of the provisions in the Constitution need to be amended by a

The provisions which can be amended by this way includes: (i)

EMERGENCE OF THE BASIC STRUCTURE

It declared that the Parliament has the power to

2. Sovereign, democratic and republican nature of the Indian polity

3. Secular character of the Constitution

4. Separation of powers between the legislature, the executive and the

5. Federal character of the Constitution

7. Welfare state (socio-economic justice)

9. Freedom and dignity of the individual

10. Parliamentary system

13. Free and fair elections

14. Independence of Judiciary

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