Amendment to the Constitution

1. Introduction
The time is not static, it goes on changing. With it, the life of a nation also changes.
The social, economic and political conditions of the people go on changing. It
therefore requires some mechanism for the law to serve the contemporary needs of
the people. Such a mechanism is known as the amendment of the law, the
amendment of the Constitution of the country.

2. Procedure to Amend the Constitution (Article 368)

Broadly speaking there are two main methods of amendment of the Indian
Constitution:
a) Informal Method of Amendment:
i. The informal method does not mean changing the actual text of the law,
but only changing the understanding and the interpretation of the law.
This method includes amendment by
a. Changing a well-established Convention
b. Amendment by change in the interpretation of the provisions of
the Constitution.
ii. For example, Art 124(2) of the Indian Constitution deals with the
appointment of the Chief Justice of India. According to accepted
custom the senior most judge of the Supreme Court was appointed as
the Chief Justice. However, in 1973, Chief Justice A.N. Ray was
appointed who was not the senior most Judge. This implied a change in
the accepted custom and therefore could be said to be an informal
change to the understanding of Article 124.
b) Formal Method of Amendment:
The Constitution of India provides for the amendment through Amendment
Acts in a formal manner. For the purpose of amendment, the various Articles of
the Constitution are divided into three categories. It enables Indian Parliament
to amend any provisions of Constitution without disturbing its Basic Structure.
The amendments described in Article 368 are of three types:
i. Amendment by simple majority vote of the Parliament
ii. Amendment by special majority vote of the Parliament.
iii. Amendment by special majority vote with half number of States'
legislative Assemblies ratification.

3. Scope of Amending Power of the Parliament

Supreme Court has given various interpretations regarding the amending power of
the Parliament, these are as follows: -
a) Shankari Prasad Case (1951)
The question whether amendment of Fundamental Rights is covered by the
proviso to Article 368 came for the consideration in Shankari Prasad v Union
of India,1. In this case, validity of the First Amendment which inserted Article
31-A and Article 31-B was challenged. The Supreme Court has held that
powers to amend the Constitution including the Fundamental Rights was
contained under Article 368 and that the word ‘law’ in Article 13(2) includes
only an ordinary law and not Constitutional amendments. Therefore, a
1
AIR 1951 SC 455
 Constitutional amendment will be valid even if it abridges or takes away any of
the Fundamental Rights.
b) Sajjan Singh Case (1965)
In Sajjan Singh v State of Rajasthan,2 the validity of the 17th Amendment was
challenged. The Supreme Court approved the majority judgement given in
Shankari Prasad’s case and held that words ‘amendment of the Constitution’
means amendment of all the provisions of the Constitution.
c) Golak Nath Case (1967)
But in Golak Nath v State of Punjab,3 the Supreme Court overruled Shankari
Prasad’s case and Sajjan Singh’s case holding that Parliament had no power to
amend Part III of the Constitution so as to abridge or take away the
Fundamental Rights.
d) The Constitution (24th Amendment) Act, 1971
The Constitution (24th Amendment) Act, 1971 was passed to remove the
difficulties created by Golak Nath’s case. The 24th (Amendment) Act, 1971,
provides that Article 13 does not include the amendment of the Constitution
made under Article 368. It added a new sub-clause in Article 368 which
provides that ‘Notwithstanding anything in the Constitution, Parliament may, in
the exercise of the constituent power amend by way of addition, variation or
repeal any provision of the Constitution.

e) Kesavananda Bharati Case (1973)

The validity of this Amendment was challenged again in Kesavananda Bharti
v State of Kerala,4. In this case, the Supreme Court by majority overruled the
Golak Nath’s case and held that Article 368, even before the 24 th Amendment
contained the power as well as the procedure of the amendment. As regards, the
scope of the amending power contained in Article 368, even before the 24 th
Amendment contained the power as well as the procedure of the amendment,
As regards the scope of the amending power as well as the procedure contained
in Article 368 the Court said that the word “amendment” has been used in
various places to mean different things. In Article 368, it means any addition or
change in any of the provisions of the Constitution. The Fundamental Rights
cannot be abrogated, but they can be amended reasonably. The Court further
said that every part of the Constitution can be amended provided in the result
the basic feature of the Constitution remains the same.

1. Basic Structure Doctorine

a) There is no mention of the term “Basic Structure” anywhere in the Indian
Constitution. The idea that the Parliament cannot introduce laws that would
amend the basic structure of the constitution evolved gradually over time and
many cases. The idea is to preserve the nature of Indian democracy and
protect the rights and liberties of people. This doctrine helps to protect and
preserve the spirit of the constitution document.
b) It was the Kesavananda Bharati case,5 that brought this doctrine into the
limelight. It held that the “Basic structure of the Constitution could not be

2
AIR 1965 SC 845
3
AIR 1967 SC 1643
4
AIR 1973 SC 1461
5
AIR 1973 SC 1461
 abrogated even by a constitutional amendment”. The judgement listed some
basic structures of the constitution as:
i. Supremacy of the Constitution
ii. Unity and sovereignty of India
iii. Democratic and republican form of government
iv. Federal character of the Constitution
v. Secular character of the Constitution
vi. Separation of power
vii. Individual freedom
c) Over time, many other features have also been added to this list of basic
structural features. Some of them are:
i. Rule of law
ii. Judicial review
iii. Parliamentary system
iv. Rule of equality
v. Harmony and balance between the Fundamental Rights and DPSP
vi. Free and fair elections
vii. Limited power of the parliament to amend the Constitution
viii. Power of the Supreme Court under Articles 32, 136, 142 and 147
ix. Power of the High Court under Articles 226 and 227
d) Any law or amendment that violates these principles can be struck down by
the SC on the grounds that they distort the basic structure of the Constitution.

f) Indira Nehru Gandhi v Raj Narain Case (1975)

In Indira Nehru Gandhi v Raj Narain Case, the SC applied the theory of basic
structure and struck down Clause (4) of Article 329-A, which was inserted by
the 39th Amendment in 1975 on the grounds that it was beyond the
Parliament’s amending power as it destroyed the Constitution’s basic features.
This Act placed the election of the President, the Vice President, the Prime
Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
This was done by the government in order to suppress Indira Gandhi’s
prosecution by the Allahabad High Court for corrupt electoral practices.
g) The 42nd Amendment Act, 1976
The 42nd Amendment Act, 1976 removed the difficulties created by the
Supreme Court’s decision in Kesavananda Bharti v State of Kerala. It added
two new clauses to Article 368. Clause 4 provides that no constitutional
amendment or purporting to have been made under Article 368 whether before
or after the commencement of the Constitution 42nd (Amendment) Act, 1976
shall be called in question in any Court or any ground. Clause (5) declares that
there shall be no limitation whatever on the constituent power of Parliament to
amend by way of addition, variation, or repeal the provisions of the
Constitution under this Article.
h) Minerva Mills Ltd. v Union of India
In Minerva Mills Ltd. v Union of India,6 the Supreme Court has held Clause
(4) and Clause (5) of Article 368 as void because these clauses removed all
limitations on the amending power of Parliament. The Court held that
Parliament cannot have unlimited power to amend the Constitution. The
Supreme Court also held that the exclusion of judicial review is destructive of

6
AIR 1980 SC 1789
 the basic feature of the Constitution. The Court also held that the exclusion of
judicial review is destructive of the basic features of the Indian Constitution.
i) Waman Rao vs. Union of India (1981)
Also known as the ‘Doctrine of Prospective Overruling’, the court decided that
all the laws placed under Ninth Schedule before the Kesavananda judgment cannot
be called into question for violating Fundamental Rights. However, the laws post
the judgment can be raised before a court of law.
j) IR Coelho v. State of Tamil Nadu (2007)
All Constitutional modifications enacted after April 24, 1973 must pass a test to
see if they adhere to the fundamental principles of the Constitution, which are
stated in Article 21, read in conjunction with Articles 14 and 19.

2. Conclusion
Today there is no dispute regarding the existence of the doctrine, the only problem
that arises time and again is the contents of the same. Certain contents have been
reaffirmed again and again by the Courts whereas some of them are still in the
process of deliberations. The basic structure doctrine grants the fine balance
between flexibility and rigidity that should be present in the amending powers of
any Constitution.