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PARLIAMENTS POWER TO AMEND THE CONSTITUTION

Subject title Constitutional PhilosphySubmitted to - Prof. G.P TripathiSubmitted by- Class- BBA. LLBYear- 5th Semester- 9th

ACKNOWLEDGEMENT

I would like to express my gratitude to Prof. G.P Tripathi, for assigning me Parliaments power to amend the constitution as my project topic which is a part of our Ninth Semester syllabus. I learnt in depth about the aforementioned topic and hence was enlightened about it.

Thank You

TABLE OF CONTENT

1. INTRODUCTION

2. SHANKARI PRASAD V. UNION OF INDIA AND SAJJAN SIGH V. STATE OF RAJASTHAN

3. GOLAKNATH V. STATE OF PUNJAB

4. KESAVANANDA BHARTI V. STATE OF KERALA

5. INDIRA NEHRU GANDHI V. RAJ NARAIN, MINERVA MILLS LTD V. UNION OF INDIA, S.R BOMMAI V. UNION OF INDIA AND I.R COEHLO V. STATE OF TAMIL NADU

6. TEST FOR DETERMINING THE BASIC FEATURE OF THE CONSTITUTION

7. CONCLUSION

TABLE OF STATUTES AND CASESCases-1. Shankari Prasad v. Union of India [AIR 1951 SC 458]2. Sajjan Singh v. State of Rajasthan [ AIR 1965 SC 845]3. Golaknath v. State of Punjab [AIR 1967 SC 1643]4. Kesavananda Bharti v. State of Kerala [(1973) 4 SCC 225]5. Indira Nehru Gandhi v. Raj Naraine [ 1975 supp SCC 1]6. Minerve Mills ltd. v. Union of India [(1986) 4 SCC 222]7. S.R Bommai v. Union of India [(1994) 3 SCC 1]8. I.R Coehlo V. State of Tamil Nadu [(2007) 2 SCC1]

Statutes-1. Land acquisition Bill, 20112. 24th Amendment Act, 19713. 25th Amendment Act, 19714. 29th Amendment Act, 19725. 86th Amendment Act, 2002

CHAPTER 1- INTRODUCTION

Fundamental Rights are those rights and freedoms of the people of India, which enjoy constitutional recognition and guarantee. The Supreme Court of India and State High Courts have the power to enforce Fundamental Rights through writs. Supreme court is the guardian protector of fundamental rights. Fundamental Rights in the Constitution of India are in a very detailed and comprehensive form given. It contains 24 Articles from 12 to 35. These describe in detail the fundamental rights of the people of India. People enjoy only the rights given in the Constitution. The Constitution of India does not give any recognition to natural or un-granted rights to the people of India and they enjoy only fundamental rights enshrined in the part III of the constitution. The Constitution makes the rights binding upon all authorities the Union, the States, the Parliament, and all other State authorities. But no doubt the fundamental rights of the people of India are not absolute. Some limitations have been placed on them. While describing the scope of each right, the Constitution also describes its limitations. These have been laid down for protecting public health, public order, morality and security of India. The fundamental rights contained in the constitution can be amended by the Parliament. The Parliament has, in practice, exercised this power on several occasions.Apart from the amendment procedure given under article 368 of the Indian constitution, it also provides for a suspension of fundamental rights during an emergency. However, such a suspension automatically ends when the emergency ceases or when the President withdraws it.[footnoteRef:1] [1: V.N Shukla by Mahendra p. Singh 11th edition(pg-997)]

Initially, the Constitution granted to the citizens the fundamental right to property. However, because of the hindrances posed by this right in the way of implementation of some socio-economic reforms, right to property was deleted from the list of Fundamental Rights. It was made a legal right under Article 300A. This was done by the 44th Amendment of The Constitution. Now right to property is a legal right and not a fundamental right of the people. By 86th Amendment Act, Article 21A has been inserted in the Bill of Rights which ensures Right to Education a Fundamental Right and it also gives 25% free seats to children between the ages of 6 to 14 years in Government, Private aided and unaided institution except in minority institution, the Rights of Education. These features clearly bring out the nature of Indian Bill of Rights. It is indeed a very detailed and an essential part of the Constitution of India which is not only enforceable through writs but can be amended by an act of parliament.

In moving the motion in the constituent assembly for consideration of the draft constitution, the chairman of the drafting committee, Dr. Ambedkar, observed: The provisions relating to amendment of the constitution have come in for a virulent attack at the hands of the critics of the draft constitution. It is said that the provisions contained in the draft make amendments difficult. It is proposed that the constitution should be amendable by a simple majority at least for some years. The argument is subtle and ingenious. It is said that this constituent assembly is not elected on adult suffrage while the future parliament will be elected on adult suffrage and yet the former has been given the right to pass the constitution by simple majority while the latter has been denied the same right. It is paraded as one of the absurdities of the draft constitution. I must repudiate the charge because it is without foundation. To know how simple are the provisions of the draft constitution in respect of amending the constitution one has only to study the provisions for amendment contained in the American and Australian constitution. Compared to them those contained in the draft constitution will be found to be the simplest. The draft constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or a referendum. The powers of amendment are left with the legislature- central and provincial. It is only for amendments of specific matters-and they are only few-that the ratification of the state legislatures is required. All other articles of the constitution are left to be amended by parliament. The only limitation is that it shall be done by a majority of the total membership of each house. It is difficult to conceive a simpler method of amending the constitution. What is said to be the absurdity of the amending provision is founded upon a misconception of the position of the constituent assembly and of the future parliament elected under the constitution. The constitutent assembly in making a constitution has no partisan motive. Beyond securing a good and workable constitution it has no axe to grind. In considering the articles of the constitution it has no axe to grind. In considering the articles of the constitution it has no eye on getting through a particular measure. The future Parliament, if it met as a constituent assembly, its members will be acting as partisans seeking to carry amendments to the constitution to facilitate the passing of party measures which they have failed to get through parliament by reason of some article of the constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the constituent assembly has none. That is the difference between the constituent assembly and future parliament. That explains why the constituent assembly though elected on limited franchise can be trusted to pass the constitution by simple majority and why the parliament though elected on adult suffrage cannot be trusted with the same power to amend it.[footnoteRef:2] [2: V.N Shukla by Mahendra p. Singh 11th edition(pg-998-999)]

CHAPTER 2- SHANKARI PRASAD V. UNION OF INDIA AND SAJJAN SIGH V. STATE OF RAJASTHAN

In Sankari Prasad Singh v. Union Of India[footnoteRef:3], The Constitution (First Amendment) Act, 1951,which has inserted, inter alia, Arts. 31A and 3lB in the Constitution of India is not ultravires or unconstitutional. Articles 31A and 3lB inserted in the Constitution by the Constitution (First Amendment) Act, 1951, do not curtail the powers of the High Court under Art. 226 to issue writs for enforcement of any of the rights conferred by Part III or of the =Supreme Court under Arts. 132 and 136 to entertain appeals from orders issuing or refusing such writs; but they only exclude from the purview of Part III 'certain classes of cases. These articles therefore do not require ratification under clause (b) of the proviso to Art. 368. Articles 31A and 31B are not invalid on the ground that they relate to land which is a matter covered by the State List (item 18 of List II) as these articles are essentially amendments of the Constitution, and Parliament alone has the power to enact them. One very important question in the present case was whether the word law in clause (2) of article 13 also includes a constitutional amendment and on this the court held that the word law in clause (2) did not include law made by parliament under article 368. The word law in article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the constitution made in exercise of constitutional power and, therefore, article 13(2) did not affect amendments made under article 368. Now, since the word law in clause (2) did not include law made by parliament under article 368 so therefore now this is not applicable to article 368 [article 13 (4)] and now as a result parliament would be empowered to make laws. The decision in Sankari Prasad Singh v. Union of India, was upheld by supreme court in Sajjan singh v.State of Rajasthan[footnoteRef:4]. [3: AIR 1951 SC 458] [4: AIR 1965 SC 845]

CHAPTER 3-GOLAKNATH V. STATE OF PUNJAB

In Golaknath v. State of Punjab[footnoteRef:5], three writ petitions were involved. One was filed by the son, daughter and granddaughters of golak nath. In this petition, the inclusion of the Punjab security of land tenures act, 1953 in the ninth schedule was challenged on the ground that the seventeenth amendment by which it was so included as well as the first and the fourth amendments abridging the fundamental rights were unconstitutional. In the other two petitions, inclusion of mysore land reforms act (10 of 1962 as amended by act 14 of 1965) had been attacked on the same grounds. Most of the contentions raised on behalf of the petitioners and respondents summarized in the judgment had already been raised before the supreme court in sankari Prasad and sajjan singh cases. [5: AIR 1967 SC 1643]

The case was heard by an eleven-judge bench of the supreme court which by a majority of 6:5 held that the fundamental rights were outside the amendatory process if the amendment took away or abridged any of the rights and that sankari Prasad case and sajjan singh case conceded the power of amendment over part III on an erroneous view of article 13(2) and article 368 and to that extent they were not good law. The judgment was, however, given a prospective effect and therefore it did not invalidate any of the amendments disputed in the case. The judgment proceeded on the following reasonings:(a) The constitution incorporates an implied limitation that the fundamental rights are out of the reach of parliament. It declares certain rights as fundamental rights; makes all the laws infringing the said rights, void; preserves only the laws of social control infringing the said rights and expressly confers power on parliament and the president to amend or suspend them in specified circumstances. The constitution has given by its scheme a place of permanence to the fundamental freedoms. In giving to themselves the constitution, the people have reserved the fundamental freedoms to themselves. Article 13 merely incorporates that reservation. That article is, however, not the source of the protection of fundamental rights but the expression of that reservation. The importance attached to the fundamental freedoms is so transcendental that a bill enacted by a unanimous vote of all members of both the houses is ineffective to derogate from its guaranteed exercise. It is not what parliament regards at a given moment as conducive to the public benefit, but what part III of the constitution declares protected, which determines the ambit of the freedom. The incapacity of parliament, therefore, in exercise of its amending power to modify, restrict or impair fundamental freedoms in part III arises from the scheme of the constitution and the nature of the freedoms.(b) Article 368 does not contain power to amend but it merely provides the procedure for amending the constitution. The power to amend the constitution is a legislative process and is included within the plenary legislative power of parliament.(c) The power to amend the constitution should be found in the plenary legislative power of parliament. As is clear from articles 245,246 and 248 and entry 97 of list I of the seventh schedule, the residuary power of legislation is vested in parliament. The residuary power of parliament certainly takes in the power to amend the constitution. Articles 4 and 169 and para 7 of the fifth schedule and para 21 of the sixth schedule have expressly conferred such power. There is, therefore, no inheritent inconsistency between the legislative process and amending process. Whether in the field of constitutional law or statutory law amendment can be brought about only by law. Articles 245 and 392 do not indicate the contrary intension. The limitation in article 245, insofar as it is subject to the provisions of the constitution, is in respect of the power to make law and not of the content of the law made within the scope of the power. As regards article 392, apart from the limited scope of the article, which is intended only for the purpose of removing difficulties and for bringing about a smooth transition, an order made by the president cannot attract article 368, as the amendment contemplated by that provisions can be initiated only by the introduction of the bill in parliament.(d) Amendments to the constitution, either under article 368 or under other articles, are made only by parliament by following the legislative process adopted by it in making other laws. An amendment of the constitution can be nothing but law. If amendment is intended to be something other than law, the constitutional insistence on the legislative process is unnecessary. The fact that there are other conditions, such as, larger majority and in the case of articles mentioned in the proviso a ratification by legislatures is provided, does not make the amendment any the less a law. The imposition of further conditions is only a safeguard against hasty action or protection to the states but does not change the legislative character of the amendment. The word law in article 13(2) includes the constitutional amendments and, therefore, the fundamental rights are outside the powers of amendment given to parliament under article 368, if such an amendment seeks to abridge or take away any of the fundamental rights.(e) The contention that the power to amend is a soverign power, that he said power is superior to the legislative power, that it does not permit any implied limitations and that amendments made in exercise of that exercise of that power involve political questions which are outside the scope of judicial review and cannot be accepted. One need not cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power conferred by a particular constitution. When there are conflicting articles couched in the widest terms, the court has jurisdiction to construe and harmonise them. There is nothing in the nature of the amending power which enables parliament to override all the express or implied limitations on that power.(f) If at all the provisions guaranteeing the fundamental rights must be amended so as to curtail those rights, this could be done only by a constituent assembly which might be convoked by parliament by enacting a law for that purpose in the exercise of its residuary power. Each of the above contentions of the majority judgment was controverted in the minority judgment.In sum Golaknath case decided that the constitution did not provide for a specific power to take away or abridge the fundamental rights enshrined in part III of the constitution, even by an amendment under article 368 and suggested that a constituent assembly could be summoned for this purpose by parliament in the exercise of its residuary power contained in entry 97 of list I of the seventh schedule read with article 248. This decision led to the passing of the constitution (24th amendment act, 1971) which made significant changes in article 368. Firstly, it sought to nullify the effect of golaknath by adding clause (4) to article 13 which provides that nothing in article 13 shall apply to any amendment of the constitution made under article 368. It means that the meaning of the word law in terms of article 13 will not extend to an amendment made under article 368. This position is reassured by adding clause (3) to article 368 of the constitution which provides that nothing in article 13 sahll apply to an amendment made under this article. Secondly, this amendment made a change in the marginal note to article 368 by substituting power of parliament to amend constitution and procedure therefor for procedure for amendment of the constitution. This was done because Subba Rao, C.J in Golaknath case was of the view that article 368 provided only the procedure for amendment of the constitution and the power to amend the constitution is to be found elsewhere. In order to make it sure, it is provided in the opening paragraph of article 368, now numbered as clause (1), that parliament may in the exercise of its constituent power amend by way of addition, variation or repeal any provision of the constitution in accordance with procedure laid down in that article. Parliament is thus empowered to amend any provision of the constitution, including the fundamental rights. This amendment, therefore, recognizes the distinction between an ordinary law and a constitutional amendment, a position not acceptable to the majority in Golaknath. Besides, any doubt about the meaning of the word amend is removed by providing amend by way of addition, variation or repeal. Thirdly, in the next paragraph, now numbered as (2), this amendment substituted the words it shall be presented to the president for his assent and upon such assent being given to the bill. This change takes away any discretion, if any, with the president in giving his assent to the bill proposing amendment to any provision of the constitution, and makes the position of the president in the matter of giving assent to bills under article 368 somewhat different from that of article 111 which deals with an ordinary bill. Subsequently, 25th, 26th and 29th amendments to the constitution were made abridging or taking away the fundamental rights in some respects.

CHAPTER 4-KESAVANANDA BHARTI V. STATE OF KERALA

The validity of the above amendments was questioned in Keasavabharti v. State of Kerala[footnoteRef:6], wherein a writ petition was filed initially to challenge the validity of the Kerala land reforms act of 1963 as amended in 1969. But as the act was amended in 1971 during the pendency of the petition and was placed in the 9th schedule by the 29th amendment act, the petitioner was permitted to challenge the validity of the 24th, 25th and 29th amendment also. The petition was heard by a bench of 13 judges of the Supreme Court. It was urged by the petitioner that if the power of amendment is to be construed as empowering parliament to exercise the full constituent power of the people authorizing it to destroy or abrogate the essential features as is conferred on it by the constitution which is given by the people unto themselves, parliament cannot enlarge its own power so as to abrogate the essential features, basic elements and fundamental provisions of the constitution, such a construction must be held unconstitutional. This is so because- [6: (1973) 4 SCC 225]

(i) Having only such constituent power as is conferred on it by the constitution which is given by the people unto themselves, parliament cannot enlarge its own power so as to abrogate the limitation in the terms on which the power to amend was conferred;(ii) Being a functionary created under the constitution, parliament cannot arrogate to itself the power of amendment so as to alter or destroy any of the essential features of the constitution;(iii) Purporting to empower itself to take away or abridge all or any of the fundamental rights, parliament does not become competent to destroy the basic human rights and fundamental freedoms which were reserved by the people for themselves when they gave to themselves the constitution; (iv) Initially having no power to alter or destroy all or any one of the fundamental rights, or, in other words, parliament cannot abrogate the limits of its constituent power by repealing those limitations and thereby purporting to do what is forbidden by those limitations.

All the judges were of the view that the 24th amendment is valid, and that by virtue of article 368, as amended by the 24th amendment, parliament has power to amend any or all the provisions of the constitution including those relating to the fundamental rights. However, seven of the judges (Sikri C.J, shelat, hedge,, grover, Jagmohan reddy, khanna and mukherjee) held that the power of amendment under article 368 is subject to certain implied and inherent limitations, and that in the exercise of amending power parliament cannot change the basic structure or framework of the constitution. Six of them (excluding khanna) thought that the fundamental rights enshrined in part III of the constitution are the basic structure and therefore not amendable. Six Judges (Ray, Palekar, Mathew, Beg, Dwivedi and chandrachud) were by and large not prepared to accept any limitation on the plenary power of parliament to amend the constitution. Khanna, however held that the right to property did not form a part of the basic structure or framework of the constitutionand tilted the balance in forming the majority with (Ray, Palekar, Mathew, Beg, Dwidevi and chandrachud) in its conclusions.Sikri C.J explained the concept of basic structure by way of giving illustrations such as (i) Supremacy of the constitution(ii) Republican and democratic form of government.(iii) Secularism.(iv) Separation of powers between the legislative, executive and judiciary.(v) Federal character of the constitution.This structure as pointed out by him is built on the basic foundation i.e the dignity and freedom of the individual and this cannot by any form of amendment be destroyed. Shelat and Grover illustrated the basic elements of the constitutional structure by adding to those already enumerated by Sikri C.J-(i) The mandate to build a welfare state contained in Part IV of the constitution(ii) Unity and integrity of the nation.In the same vein hedge and mukherjee illustrated the basic elements of the constitution as-(i) Sovereign character(ii) Democratic nature(iii) Unity of the country(iv) Individual freedoms secured to the citizens (v) Mandate to build a welfare stateand egalitarian societyJagmohan Reddy found elements of the basic structure of the constitution as indicated in its preamble and translated in its various provisions. In his view, for example, a sovereign democratic republic, parliamentary democracy an the three organs of the state certainly constitute the basic structure, and at any rate without fundamental principles in Part III and directive principles in Part IV of the constitution will not be the constitution. From the above enumeration or description of the basic elements of the constitution it could not be easy to identify with certainty the relevant provisions of the constitution forming part of its basic structure and the position could become clear only after further pronouncement of the Supreme Court in this regard. However, the individual freedom secured to the citizens was regarded by all the six judges as a basic feature of the constitution which could not be altered or destroyed by invoking the powers of amendment under article 368.Five judges (Sikri C.J, Shelat, Grover, Mukherjee and hedge) found inherent or implied limitations on the power to amend in the language of article 368 (before the 24th amendment) itself. According to Sikri C.J powers and limitations are implied in the scheme of the constitution, and in that way the expression amendment of the constitution had a limited meaning. Shelat and Grover pointed out that the argument that there were no implied limitations because there were no express limitations was a contradiction in terms because implied limitations could only arise where there were no express limitations. So also Hegde and Mukherjee said that it was a general feature of all statutes, including the constitution, that a grant of power was qualified by the implications of the context or by considerations arising out of the general scheme of the statute, and in this respect there was no distinction between other powers and the amending power under the cconstitution.According to these judges the implied or inherent limitations on the power to amend under the unamended article 368 would still hold true even after the amendment of article 368, and the 24th amendment was valid by virtue of the exercise of the power to amend along with its implied or inherent limitations which could not be eliminated within the present constitutional structure or framework. For Jaganmohan Reddy, it was not necessary to consider the question of existence or non- existence of implied or inherent limitations. He explained that the word amendment read with other provisions indicated that it was used in the sense of empowering a change in contradiction to destruction which a repeal or abrogation would imply, and article 368 empowers only a change in the constitution. He agreed with the chief justice that the amplitude of the power of amendment in article 368 could not be enlarged by amending the amending power, though for a different reason.On the other hand Ray observed that all provisions of the constitution were essential and no distinction could be made between essential and non-essential features from the point of view of amendment unless the makers of the constitution made it expressly clear in the constitution itself. In his view an amendment of the constitution could make fundamental, and even radical, changes in the constitution and the power of amendment was unlimited so long as the constitution existed as an amended constitution, that is, an organic instrument which provides for the making, interpretation and implementation of the law. It means that short of withdrawing a system according to which a state or a nation is governed, an amendment of the constitution includes making fundamental the changes in the constitution. So also was the opinion of Palekar (judge) when he said that all provisions in a constitution must be conceded the same character and it was not possible to say that one was more and the other was less important. He stated clearly that so far as the wording of article 368 were concerned, there was nothing in it which limited the power of amendment expressly or by necessary implication, and it was not the function of the court to invent limitations where there were none. Mathew (judge) after having explored the political philosophy of the fundamental rights and directive principles in the constitution, concluded that there were no express or implied limitations upon the power of parliament to amend the fundamental rights in such a way as to destroy or damage the core or essence of the rights, and the 24th amendment by its language made it clear beyond doubt. In the opinion of Mathew (Judge) these rights were liable to be taken away or limited in special circumstances for securing higher values in a society or for its common good. Parliament was the guardian of the rights and liberties of the people in greater degree than the courts and the courts could not go into the validity of the amendment on any substantive ground. Almost to the same effect Beg (Judge) observed that the control of judicature was limited to seeing that the form and procedure of amendment was properly observed. Beyond that the authority of the judicial organ over the constituent power vested in the constituent bodies mentioned in article 368 did not exist. Yet he conceded that the implication of the word amendment could exclude a possible complete abrogation of the present constitution although that cannot be done step by step by the bodies empowered to amend. Dwidevi (Judge) discarded any test to distinguish essential features of the constitution. He emphasized upon the rigidity of the procedure prescribed in the constitution, the more rigid was the procedure, the more essential was the provision amendable to it. Accordingly, he found that the provisions specified in the proviso to article 368 were more essential than the rights enshrined in Part III, but they too were within the sway of the amending power in article 368. Chandrachud (judge) saw a clear distinction between constitutional and an ordinary law and observed that a law amending the constitution was made in the exercise of a constituent power acquired the character of constitutional law. He found it difficult to read inherent limitations into the amending power in view of the rule of interpretation that if the text is explicit, it is conclusive alike in what it directs and what it forbids.Khanna (Judge) agreed in principle with Sikri C.J, Shelat, Grover, Jagmohan, Hegde and Mukherjee that an amendment of the constitution could not have the effect of destroying or abrogating the basic structure of the constitution. According to him, for instance, changing the democratic government into dictatorship or hereditary monarchy, abolishing Lok sabha or Rajya Sabha or doing away with the secular character of the state, would not be competent or permissible under the grab of amendment. However, he differed from the above named judges in that he found it not possible to read in article 368 a limitation on the power of parliament to amend the provisions relating to fundamental rights and to differentiate between the scope and width of the power of amendment with respect to the fundamental rights and other provisions of the constitution. In his view the power to amend fundamental rights could not be denied by describing them as natural or human rights so long as the basic structure of the constitution remained unaffected. In other words, subject to the retention of the basic structure of the constitution was the power of amendment plenary and would include the power to add, alter or repeal various provisions including the fundamental rights. In his considered opinion, the right to property could not be said to pertain to the basic structure of the constitution.According to the summary signed by 9 out of 13 judges in Kesavananda Bharti the majority in that case overruled Golaknath and held that article 368 did not enable parliament to alter the basic structure of the constitution. The majority also invalidated the 2nd part of article 31-C introduced by the 25th amendment which excluded the jurisdiction of the courts to inquire whether a law protected under that article gave effect to the policy of securing the directive principles mentioned in that article, the directives in article 39 (b) and (c).

CHAPTER 5- INDIRA NEHRU GANDHI V. RAJ NARAIN, MINERVA MILLS LTD V. UNION OF INDIA, S.R BOMMAI V. UNION OF INDIA AND I.R COEHLO V. STATE OF TAMIL NADU

Indira Nehru Gandhi v. Raj Narain[footnoteRef:7], gave an opportunity to the supreme court to examine and apply Kesavananda Bharti. In that case the appellant filed an appeal against the decision of the Allahabad High Court invalidating her election on the ground of corrupt practices. Pending the appeal, Parliament enacted 39th amendment to overcome the effect of the High Court Judgment by withdrawing the jurisdiction of all courts over election disputes involving the Prime Minister. Following Kesavananda Bharti it was argued that the amendment affected free and fair elections and judicial review, these being parts of the basic structure of the constitution and therefore was unconstitutional. It was further argued that parliament in the exercise of constituent power was not competent to exercise power to validate an election declared void by the high court. This challenge was unanimously upheld by the Supreme Court. Khanna and Mathew held that democracy was an essential feature forming part of the basic structure of the constitution. The exclusion of judicial review in election disputes in this manner damaged the basic structure. Chandrachud identified four unamendable features as forming part of the basic structure thus- [7: 1975 Supp SCC 1]

(i) Sovereign, democraric and republic status(ii) Equality of status and opputunity of an individual.(iii) Secularism(iv) Govt. of law and not of menHe held that the exclusion of judicial review by the amendment was an outright negation of the right to equality. However Mathew (Judge) regarded the right to equality otherwise as not forming part of the basic structure of the constitution. Beg said that according to the majority in Kesavananda Bharti Supremacy of the constitution and separation of powers were basic feature.Ray C.J observed that the constituent power was above the constitution and it being not boung by separation of powersdid not preclude exercise of judicial power by law. The Constituent authority was competent to exclude judicial review, if necessary, in election disputes. In his Opinion, democracy was a basic feature but not free and fair elections or judicial determination of election disputes. Moreover, according to him, ordinary legislation was not subject to the doctrine of basic features. Mathew (Judge) agreed with the chief justice in keeping ordinary legislation out of the purview of the doctrine of basic features. However, Beg asserted that the doctrine of basic features controlled ordinary legislation too. This aspect of the case defies logic because a basic feature of the constitution must be part of the constitution which cannot be taken away even by an amendment of the constitution. How can logically any part of the constitution be disregarded by the legislature and be immune from challenge.Beg was not prepared to subscribe to the view expressed by Ray C.J that the constituent power was superior to the constitution otherwise it would be unnecessary to have a constitution. He maintained that parliament should not perform judicial and quasi-judicial functions as judicial powers are vested in the Supreme court and high courts, otherwise it would be violation of the basic structure of the constitution. Chandrachud though not fully subscribing to the theory of separation of powers, recognized the conscious adherence to checks and balances and said that just as courts ought not to enter into problems entwined withpolitical thicket, parliament must also respect the preserve of courts.A significant feature of the opinion of Ray, C.J is the application of the rule of law as a criterion of validity and invalidating on this ground the ousting of judicial review, rather disposing of a pending appeal, by the amendment.The difference of approach between the opinion expressed in this case is found in the application of the doctrine of basic structure to test the validity of both constitutional as well as ordinary law- making. The majority view appears to be that it was not available to test the validity of the impugned provisions of the Representation of the people act as there was no ambiguity to be resolved about the ordinary law-making powers of parliament. On the other hand it was applied to interpret the ambit of the constituent power as there was some uncertainty about its scope. However, all the judges seemed to rely in varying degrees, either expressly or implied, upon the basic structure theory, as revealed by the express provisions of the constitution to hold that under the guise of exercising a legislative power parliament could not adjudicate on merits in an election dispute.In Minerva mills v. Union of India[footnoteRef:8], the petitioners challenged the validity of sections 4 and 55 of the constitution (42nd amendment act, 1976) on the ground of violation of the basic structure of the constitution as laid down in Kesavananda bharti. These sections amended respectively articles 31-C and article 368. In article 31-C laws implementing any directive principles were exempted from challenge on the ground of violation of articles 14, 19 and 31 and in article 368 clauses (4) and (5) validated all invalidated and existing amendments and removed all limitations on future amendments. While the court unanimously invalidated the amendment of article 368, it invalidated the amendment of article 31-C by 4:1. Applying the basic structure doctrine with respect to article 368 it held that: [8: (1986) 4 SCC 222]

Since the constitution had conferred a limited amending power on the parliament, the parliament cannot under the exercise of that land limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our constitution and therefore, limitations on that power cannot be destroyed.In respect of Article 31-C the court held that harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the constitution. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our constitution. As the amended article 31-C gave primacy to all directive principles over the core fundamental rights, it violated harmony between the two and accordingly destroyed the basic structure of the constitution.

In S.R Bommai v. Union of India[footnoteRef:9], Court held that secularism is the basic structure of the constitution. [9: (1994) 3 SCC 1]

In I.R. Coehlo v. State of Tamil Nadu[footnoteRef:10], the nine judges' Bench presided by Mr. Justice Y.K. Sabharwal, the then C.J.I. delivered a unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu and others, upholding the 'Basic Structure Doctrine', and the authority of the judiciary to review any such laws , which destroy or damage the basic structure as indicated in Art.21 read with Art.14, Art.19 and the principles underlying there under, even if they have been put in 9th Schedule after 14th April, 1973. This case is popularly known as The Ninth Schedule Case [10: (2007) 2 SCC 1]

This case is famously known as the Ninth Schedule case due of the politics involved and the exhaustive discussions on the validity of the Article 31 (b) of our Indian Constitution.The contentions rose were:1. Is it permissible to make the Ninth Schedule immunized from the Judicial Review of the Supreme Court?No, it is absolutely not permissible to make the Ninth Schedule immunized from the Judicial Review of the Constitution.As it has been said that the Doctrine of Basic Structure is the very essence of the Constitution of India and therefore, there cannot be any act, rules or regulations which can overrule the Basic Structure doctrine. Since, the Fundamental Rights forms a part of the Basic structure, therefore, every act inserted in the Ninth Schedule has to undergo the Fundamental Rights test.The Fundamental Rights test means that the law etc. which has been inserted in the Ninth Schedule has to be tested that whether they are transgressing their border and violating the Part III of the Constitution. If they are seen and observed that they are doing so then, that law, rule or regulation would be said to be inconsistent to the Fundamental Rights and hence liable to be struck down from the Constitution.As Honble Justice Khanna inKesavananda Bharti v. State of Keralahad observed that the Legislature can frame any law for any part of the country, but that law should not violate the Fundamental Rights of the citizens of India. The power to make any law at will that transgresses Part III in its entirety or even partially, would be incompatible with the Basic Structure of the Constitution.As we all know, that all those rules, acts etc. which are not in consistence with Article 14, 19 or 31 are to be placed in the Ninth Schedule, the basic motive behind inserting the Ninth Schedule in the Constitution, and then to insert the laws which are not in consistent with Fundamental Rights was to make all those laws, rules and regulations immune from the Supreme Courts power of Judicial Review.Since, Ninth Schedule is the part and the parcel of the Indian Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing the amendments of the Constitution. The Basic Feature phenomenon cannot be altered with the wish of the Legislature under Article 368 of the Constitution.The Amendment provision is there only for making the Constitution and the provisions more effective and useful for the society. And therefore, this provision should not in contrary provide the abrogation and destruction to the Constitution and the citizens who are governed by it.The legislature & the executive are politically partisan bodies. They have certain commitment and some programmes which they wish to implement. They therefore cannot be trusted with the final power of the constitutional interpretation. They often bend the constitution to suit their own ends and policies. The judiciary therefore can be expected to expound the constitution with a sense of detachment.It is not settle that power of Judicial Review is part of basic structure of the constitution and this said power cannot be taken away even by a constitutional amendment. It is the duties of the Supreme Court to upheld the constitutional values and enforce constitutional limitation as the ultimate interpreter of the constitution. The degree of invasion is for the court to decide.The greater the invasion into the essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so, then to what extent.The Framers of the Constitution have built a wall around certain parts of the Fundamental Rights, which have to remain forever, limiting ability of majority to intrude upon by them. Therefore, every inclusion in the Ninth Schedule is subject to the Judicial Review and hence triggers Article 32 in the field.Therefore, the amendment of the Constitution should be said to be ultra virus if the amendment transgress the boundaries of the limitations which has been imposed on the amending power on the touch stone of the Constitution.2. Whether the Basic Structure test would include Judicial Review of Ninth Schedule laws on the touchstone of the Fundamental Rights?Yes, the Basic Structure test would include Judicial Review of Ninth Schedule laws on the touchstone of the Fundamental Rights.Basic Structure is the very basic and also the most important organ of the Constitution. On the contrary, the definition has not been given anywhere in the Constitution, but the Supreme Court in theKesavananda Bharti v. State of Kerala[A.I.R. 1973 S.C. 1461] case sought to define the Basic Structure. The consequence of the evolution of the principles of Basic Structure is that Ninth Schedule laws cannot be conferred with constitutional immunity of the kind created by Article 31B.The court held that the Basic Structure is the fundamental aspects of the Constitution which cannot be abridged or destroyed. Some of the phenomenon of the Basic Structure is Judicial Review; Arts.32 and 226; Federalism; Secularism; The sovereign, democratic, republican structure; Freedom and dignity of the individual; Unity and integrity of the Nation.Looking upon Justice Khanna's opinion in the Kesavananda Bharti's case, we can notice that the fundamental rights can be amended, abrogated or abridged so long as the Basic Structure of the Constitution is not destroyed. Moreover, Article 32 is the very part of the Fundamental Rights chapter and therefore, the inclusion of an act in 9th Schedule does not exclude the check of Part III including that of Art.32.The absence of such guidelines for exercising such power means absence of constitutional control would result in destruction of constitutional supremacy and creation of parliamentary hegemony. The Parliament has the power to amend the provisions of Part III, but subject to the limitations of the Basic Structure doctrine. Since full judicial review is also integral part of the constitutional scheme, the essence of the principles behind Art.14, 19 and 21 are also part of Basic Structure.

A law inserted in the Ninth Schedule or in any other part of the Constitution would either abrogate or abridge the rights guaranteed in the Part III of the Constitution may violate the Basic Structure doctrine or may not. If the above condition is tested to be positive, then law would be in validated by the Judicial Review power of the court.The Constitutional validity of the Ninth Schedule laws on the touchstone of the Basic Structure doctrine, which can be adjudged by applying the direct impact and effect of the rights test. This test would see the determinative factor of the law and not the particular law.In the two very famous cases of the Supreme Court i.e.Kesavananda Bharti v. State of Kerala[A.I.R. 1973 S.C. 1461] andSmt. Indira Nehru Gandhi v. Raj Narain[A.I.R. 1975 S.C. 2299], the Supreme Court in a majority held that each new constitutional amendment would be determined in its own merits. The actual effect and impact of the law on the rights guaranteed under the Part III of the Constitution has to be taken into account for determining whether or not a law is violating the Basic Structure doctrine.The doctrine of basic Structure is an axiom, and therefore it is the invasion of a persons of the societys rights which is violated then this doctrine is attracted. The Parliaments power to amend the Constitution under Article 368 is only not important to check out the validity of the amendment, but the laws inserted in the Ninth schedule has to be tested on the very touchstone of the Basic Structure of the Constitution.Whatever might be amended, but the Basic Structure or the mere life and soul of the Constitution cannot be changed. The Parliament under Article 368 cannot, so amend the Constitution as to destroy the basic features. Therefore, the Basic Structure cannot be amended simply by following the procedures laid down in the Article 368.The doctrine of basic structure provides a touchstone to test the amending power or its exercise, there can be no doubt and it has to be so accepted that Part III of the Constitution has a key role to play in the application of the said doctrine.Fundamental rights enshrined in Part III were added to the Constitution as a check on the State power, particularly the legislative power. Through Article 13, it is provided that the State cannot make any laws that are contrary to Part III. However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise.And moreover, the fundamental rights have always enjoyed a special and privileged place in the Constitution.Therefore, since the Fundamental Rights are the most important part of the Constitution along with the Basic Structure, it is essential that Ninth Schedule laws should be tested on the touchstone of the Fundamental Rights.The result of the aforesaid discussion can be concluded that since the Basic Structure of the Constitution includes some of the Fundamental Rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case.The Supreme Court ultimately decided the case and the judgement were delivered on 11th January 2009. The then Chief Justice Y.K. Sabharwal said that if the validity of any 9th Schedule law has already been upheld by the Supreme Court (in its earlier judgements), it would not be open to challenge such law again on the principles declared by this judgment.However, if a law is held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April 1973, such a violation/ infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying there under.

CHAPTER 6-TEST FOR DETERMINING THE BASIC FEATURE OF THE CONSTITUTION

After having enumerated several basic features of the constitution in different cases, in M. Nagaraj v. Union of india, the court has tried to formulate a general test to decide if an amendment is against the basic structure of the constitution. In the matter of application of the principle of basic structure, the court held that twin tests have to be satisfied, namely, the width test and the test of identity. Upholding the validity of three amendments in article 16 inserting clauses (4-A) and (4-B) and making an amendment in the former as well as in article 335, a five judge bench of the court unanimously held that applying the width test we do not find obliteration of any of the constitutional limitations. Applying the test of identity we do not find any alteration in the existing structure of the equality code. Relying upon the earlier cases especially Kesavananda bharti , it clarified that not an amendment of a particular article but an amendment that adversely affects or destroys the wider principles of the constitution such as democracy, secularism, equality or republicanism or the one that changes the identity of the constitution is impermissible. To destroy its identity is to abrogate the basic structure of the constitution, concluded the court. A little later in I.R coehlo v. state of tamil nadu a nine judge bench unanimously re-emphasising the identity test, varied it in respect of the fundamental rights. While according to Coehlo, Nagaraj held that in respect of the amendments of the fundamental rights not the change in a particular article but the change in the essence of the right must be the test for the change in identity, in coehlo the court held that if the triangle of article 21 read with 14 and 19 is sought to be eliminated not only the essence of right test but also the rights test has to apply. Pointing out the difference between the right test and essence of right test, the court observed that both form part of application of the basic structure doctrine, but:When in a controlled constitution constitution conferring limited power of amendment, an entire chapter is made inapplicable, the essence of right test as applied in M. Nagaraj case will have no applicability. In such a situation, to judge the validity of the law, it is the rights test which is more appropriate.In the context of amendments to the IX schedule the court concluded that the validity of each new constitutional amendment must be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge. Long before these cases one of the main architects of basic structure doctrine had said that as the amending power is intended to be very wide only cleares casesof transgression would justify judicial intervention, as a remedy of last resort. Regularly such cases will be discernible by an element of abuse of power, of some collateral purpose appearing behind the purported scope of the amendment. In the absence of such elements a general presumption of constitutionality must operate even more than in the case of ordinary legislation.By its very nature basic structure will remain vague to be worked out in each and every case. It consists of some sort of eternal values located in the constitution. The presumption is that except in extra ordinary situations as existed during 1975-1977 emergency when it may be influenced by the exigencies of the situation, the amending body knows and respects these values. The eternal values are also not static. With the growth of the constitution associated with the growth of the society they will also grow and vary. With the maturity of our democracy they will be crystallized and will be discernable more easily. These values cannot be anti-democracy. By their very nature they must sustain and nourish democracy. From India the doctrine of basic structure has travelled into the constitutions of the neighbouring countries such as Bangladesh and Nepal and to some extent also Pakistan

CONCLUSION

Whether fundamental rights can be amendable or not was a very debatable topic right from Shankari Prasad and Sajjan Singh to I.R Coehlo. Now presently the situation is that the whole of the Part III can be amended (fundamental rights) except for the basic structure. I am of a very different view on this, if fundamental rights are amended then in this way legislators are undermining the authority of courts by diminishing the value of writs in order to enforce fundamental rights and one must not forget writs under article 226 (High Court) and article 32 (Supreme Court) are another basic feature of the constitution. But if now with the societal change if these amendments are not done then also this may adversely affect the very purpose of law. The best example is recent agitation by the farmers in U.P, where lands were taken by the government and were given to builders and now when half of the residential houses were finished farmers protested and asked for their land. Now farmers plea was very logical that the land acquired by the government should serve a social purpose because when land is acquired it is only for the public purpose and by building residential houses it does not fulfill the purpose of land acquisition act. Now just because with the 44th amendment Right to property was omitted from the chapter of fundamental rights government arbitrarily gave away land to the builders for commercial purpose. Now this instance shows that if fundamental rights are amended then government may arbitrarily use it. In the instant case one who is directly affected is the common man who booked in that residential buildings. So we see the consequences of the same. Now in order to avoided these lopeholes new land acquisition bill is there in proposal which is likely to come in this or the next the parliament session. This new land acquisition bill very specifically gave the definition of Public PurposePublic Purpose is made very specific i.e linear infrastructure. Irrigation, multipurpose dam, in social sectors schools, hospitals, drinking water, sanitary issue and no land for the private businesses. With these kinds of statutes meance could to very extent be removed. Hence concluding one can say that with proper statute and with bonafide intension if amendment of the Part III of the constitution is done then there would not be miscarriage of justice.