The Constitution's authors provided Parliament the right to alter the Constitution by making it neither too rigid nor too flexible, with the intention that the Parliament would amend it to meet the evolving needs and requests of "we the people."
Article 368 of the Indian Constitution gives the Parliament the ability to change any of the Constitution's provisions, including Article 368. The "Doctrine of Fundamental Structure" is a judge-created doctrine that limits Parliament's amending powers so that the "basic structure of the basic law of the land" cannot be changed in the exercise of the Constitution's "constituent power." So the question is whether or not the Parliament's modifying powers are unrestricted?
If the answer to this issue is no, because the Constitution makers did not intend for such a limitation, else they would have included it in the Constitution, then another question arises: to what extent may the Parliament modify the fundamental law of the land?
And, if the Parliament's amending authority is unrestricted, isn't there a risk that this power of amendment may be exploited in the name of "constituent power"? Through judicial rulings, this article aims to answer these questions and their breadth.
The Indian Constitution was modified in 1951, “and the much-discussed Article(s) 31A and 31B were added. Article 31B established the 9th Schedule, which specified that any law enacted under it could not be challenged for violating Article 13(2) of the Constitution's Fundamental Rights. According to Article 13(2), the Parliament shall not draft any law that abridges the rights conferred under Part III, and any such law shall be null and void to that extent.”
Article(s) 31A and 31B have been challenged in the Supreme Court of India on the grounds “that they abridge or take away rights granted under Part III of the Constitution, which is contrary to the spirit of Article 13(2) and hence should be declared unlawful. The Hon'ble Supreme Court concluded in Sankari Prasad Singh Deo v. Union of India that the power to alter the Constitution, including the Fundamental Rights, is bestowed under Article 368, and that the term ‘law’ as used in Article 13(2) does not encompass a constitutional amendment. There is a contrast between the legislative authority of Parliament and the power of Parliament to alter or constituent powers.”
Following this, the Constitution was amended multiple times, and the extent of the revisions was once again contested in the case of Sajjan Singh v. State of Rajasthan. “The constitutionality of the 17th Constitutional Amendment, which added about 44 acts to the 9th Schedule, was decided by a five-judge bench in Sajjan Singh. Though all of the judges agreed with Shankari Prasad's verdict, the concurring opinion by Hidyatullah and Mudholkar JJ cast doubt on Parliament's unrestricted capacity to modify the Constitution and constrain people' fundamental rights for the first time.”
GOLAK NATH v. STATE OF PUNJAB
Three writ petitions were consolidated in this matter. The first was a protest by Golak Nath's children against the Punjab Security of Land Tenures Act, 1953 being included in the Ninth Schedule.
The placement of the Mysore Land Reforms Act in the Ninth Schedule was contested in the other two cases. It is an 11-judge bench decision in which the Hon'ble Supreme Court, by a 6:5 majority, decided that fundamental rights were not covered by the Constitution's amendment, based on the following reasoning:
● The power of Parliament to amend the Constitution is drawn from Article 245, read in conjunction with Entry 97 of List I of the Constitution. Article 368 was explicitly meant to exclusively provide for the Amendment Procedure and nothing else.
● The Court further stated that a modification to the Constitution is included in the definition of 'law' under Article 13(2).
As a result, any change that violated the Fundamental Rights was null and void.
● The argument that the authority to change the Constitution is a sovereign power separate from legislative power and hence beyond the reach of judicial review was dismissed.
The 1st, 4th, and 17th Amendments, however, were not deemed illegal by the Court because the decision was made prospectively. This meant that no additional alterations to the Constitution could be made that would infringe on fundamental rights. However, the Court ruled that the cases of Shankari Prasad and Sajjan Singh were defective in law because Article 13(2) does not constitute a constitutional change under Article 368.
24TH AMENDMENT IN CONSTITUTION
“The Golak Nath case stripped Parliament of the ability to freely modify the Constitution, hence the 24th Constitutional Amendment was introduced to restore the previous situation.
The Amendment Act not only restored the previous situation, but also expanded Parliament's powers.” The following modifications were made as a result of the amendment:
● “Nothing in this Article shall apply to any change of this Constitution made under Article 368,' according to a new clause (4) inserted to Article 13.
● Article 368's marginal header was changed from 'Procedure for amending the Constitution' to 'Power of Parliament to modify the Constitution and Procedure, consequently.'
● 'Notwithstanding anything in this Constitution, Parliament may, in the exercise of its Constituent Power, change by way of addition, variation, or repeal any provision
of this Constitution in accordance with the procedure established in this Article,' was added to Article 368.
● By changing the words 'it shall be presented to the President who shall give his assent to the Bill and thereupon' to 'it shall be presented to the President for his assent and upon such assent being given to the Bill,' the President was made obligated to give assent to any Bill amending the Constitution.
● Article 368 was also given a reassuring clause (3), which said that nothing in Article 13 shall apply to any alteration made under this Article."
KESAVANANDA BHARATI v. STATE OF KERALA
“The original purpose of this litigation was to question the constitutionality of the Kerala Land Reforms Act of 1963.
The Constitution's 29th Amendment, however, moved it to the Ninth Schedule. The petitioner was allowed to contest the legitimacy of the 24th and 25th Amendments as well as the 29th Amendment.
The historic decision was handed down by a 13-judge panel with a 7:6 majority, overturning the Golak Nath case. It was decided that while Parliament's power to alter the Constitution is broad and covers all Articles, it is not boundless to the point of destroying the Constitution's core elements or framework.”
The Hon'ble Supreme Court, on the other hand, “ruled that the 24th Amendment was legal because it just says what was already known.
It does not expand Parliament's powers; Article 368 has always included the authority and mechanism for amending the Constitution.”
The judges did not specify what comprises the basic structure, although they did present an example of what might be considered the basic structure. The basic structure, according to C.J. Sikri, consists of the following elements:
· “The supremacy of the Constitution
· Republican and Democratic forms of Government
· Secular character of the Constitution
· Separation of Powers between the legislature,
the Executive, and the Judiciary
· Federal Character of the Constitution”
Shelat, J. and Grover, J. added some more basic features to the list:
· “The mandate to build a welfare state contained in the Directive Principles of State Policy
· Maintenance of the unity and integrity of India
· The sovereignty of the country”
Hedge, J. and Mukherjee, J. also added some more basic features to the list:
· “The sovereignty of India
· The democratic character of the polity
· The unity of the country
· Essential features of individual freedom
· The mandate to build a welfare state”
Whereas, according to Jaganmohan Redd, J, the Preamble lays out the
fundamental aspects of the Constitution, which are:
· “A sovereign democratic republic
· The provision of social, economic, and political justice
· Liberty of thought, expression, belief, faith, and worship
· Equality of status and opportunity”
Following this decision, the widespread consensus was that the judiciary was attempting to reform Parliament, but the Court was soon given the opportunity to study the concept.
EVOLUTION OF BASIC STRUCTURE
In the case of Indra Nehru Gandhi v. Raj Narain, “trust in the doctrine was affirmed and established. The appellant in this case had filed an appeal against the Allahabad High Court's ruling invalidating her election as Prime Minister.
While the Supreme Court's appeal was ongoing, the 39th Amendment was enacted and implemented, which stated that no court has jurisdiction over the Prime Minister's election challenges.”
Based on the ruling of Kesavananda Bharati, “the Hon'ble Supreme Court said that democracy is a fundamental aspect of the Constitution and is part of its basic structure. The bench also added the rule of law and the power of judicial review to the basic structure's list of components.”
The fundamental structure was established in the case of “Minerva Mills Ltd. v. Union of India, in which the Supreme Court clarified the concept and stated that the power of amendment under Article 368 is limited and cannot be exercised in an absolute manner.
The essential structural theory of the Constitution included a limited amending power. Furthermore, the basic structure includes the harmony and balance between fundamental rights and directive principles, and anything that disrupts that balance is an ipso facto breach of the doctrine.”
“The decision of L. Chandra Kumar v. Union of India reaffirmed that judicial review powers under Article 32 of the Supreme Court and Article 226 of the High Court are part of the basic structure concept, and that these powers cannot be reduced by moving them to administrative tribunals.”
Now we can claim that there is no hard and fast rule regarding basic constitutional features. Different judges have differing opinions on the theory of basic structure. However, they share the belief that parliament has no ability to demolish, alter, or emasculate the constitution's 'fundamental structure' or framework.
"If the historical context, preamble, complete scheme of the constitution, and relevant articles thereof, including article 368, are kept in mind, defining what are the core elements of the basic structure of the constitution should be straightforward."
Because the federal and democratic framework of the constitution, the separation of powers, and our state's secular character are significantly more defined than negligence or natural justice, these terms apply with greater force to basic structure theory. As a result, judicial interpretation is necessary to protect the welfare state, fundamental rights, national unity and integrity, sovereign democratic republic, and freedom of expression, religion, faith, and worship. We may argue that no one, even the legislature and the courts, is above the constitution.
--  Sri Sankari Prasad Singh Deo vs Union Of India And State 1951, AIR 458, 1952 SCR 89  Sajjan Singh vs State Of Rajasthan, 1965 AIR 845, SCR (1) 933  I. C. Golaknath & Ors vs State Of Punjab & Anrs. 1967 AIR 1643, SCR (2) 762  Kesavananda Bharati vs State of Kerala & Anrs. 1973 4 SCC 225, AIR SC 1461  Indira Nehru Gandhi vs Shri Raj Narain & Anr. 1975 AIR, 2299 SCR (2) 347  Minerva Mills Ltd. & Ors vs Union Of India & Ors. 1980 AIR 1789, SCR (1) 206  L. Chandra Kumar vs The Union Of India & Ors. 1995 AIR 1151, SCC (1) 400
Sri Sankari Prasad Singh Deo vs Union Of India And State Of ... on 5 October, 1951, 1951 AIR 458, 1952 SCR 89
Sajjan Singh vs State Of Rajasthan, 1965 AIR 845, SCR (1) 933\
C. Golaknath & Ors vs State Of Punjab & Anrs. 1967 AIR 1643, SCR (2) 762
Kesavananda Bharati vs State of Kerala & Anrs. 1973 4 SCC 225, AIR SC 1461
Indira Nehru Gandhi vs Shri Raj Narain & Anr. 1975 AIR, 2299 SCR (2) 347
Minerva Mills Ltd. & Ors vs Union Of India & Ors. 1980 AIR 1789, SCR (1) 206
L. Chandra Kumar vs The Union Of India & Ors. 1995 AIR 1151, SCC (1) 400
Article on Basic Structure of Constitution – Myth or Reality
Amendment of Indian Constitution - Article 368
This article is written by HRITIK GAMBHIR of DELHI METROPOLITAN EDUCATION, IPU.