Constitutional Law Project

7/24/2019 Constitutional Law Project

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Assignment on Amendment Of Fundamental Rights

Faculty: Dr. Asad Malik

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CONSTITUTIONALLAW ASSIGNMENT

ON

Amendment OfFundamental

Rights


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Cntents

1. Acknowledgement2. ntroduction!. Amendment of the "onstitution#. Meaning of Amendment$. Modes of Amendment of the "onstitution%. Fundamental Rights

&. m'ortance of Fundamental Rights(. Power of Parliament to Amend the "onstitution). Princi'les Relating to Amendment of the "onstitution1*. Power of Parliament to Amend the Fundamental

Rights11. "ontro+ersy ,urrounding the Amenda-ility of

Fundamental Rights12. istory of Amending Power of the Parliament in

regard to Fundamental Rights under Article !%(1!. ,hankari Prasad +. /nion of ndia1#. First ,tage:

a0 ,aan ,ingh +. ,tate of Raasthan1$. ,econd ,tage:

a0 olak 3ath +. ,tate of Puna--0 Doctrine of Pros'ecti+e O+errulingc0 2#thAmendment Act4 1)&1

1%. 5hird ,tage:a0 6esa+ananda 7hararti +. ,tate of 6erela-0 ndira 3ehru andhi +. Ra 3arainc0 #2ndAmendment Act4 1)&%d0 #2ndAmendment Act with reference to Article !%(

1&. Fourth ,tage:a0 Miner+a Mills 8imited +. /nion of ndia-0 9aman Rao +. /nion of ndiac0 ,.P. ,am'ath 6umar +. /nion of ndiad0 Raghunath Rao +. /nion of ndiae0 8. "handra 6umar +. /nion of ndia

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f0 M. 3agra +. /nion of ndiag0 .R. "oelho +. ,tate of 5amil 3adu

1(. 5heory of 7asic ,tructure

1). 8imitations on the "onstituent Power of Amendment2*. "onclusion21. 7i-liogra'hy

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ACKNOWLEDGEMENT

would like to e'ress my heartfelt

gratitude and thanks to the +arious authors

whose -ooks ha+e referred to while doing

my 'roect and also the +arious sources of

information from where ha+e collected the

data for my assignment. am duly inde-ted

to them. am also inde-ted to the All ndiaRe'orts of the ,u'reme "ourt and the

udgments of +arious other "ourts.

8ast -ut not the least; would also like to

thank my teacher4 !"# Asad Mali$4 for

'ro+iding us the o''ortunity to do such

'roects and also for hel'ing us with his

+alua-le suggestions.

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AMEN!MENT OF FUN!AMENTALRIG%TS

INTRO!UCTION:?uasia new kind of federalism to meet ndias

'eculiar needs@ ran+ille Austin and as >federal in times of

'eace and unitary in times of war@ -y Dr. Am-edkar. 5his

di+ergence of +iews among the constitutional scholars is due

to the fact that the framers did not follow any set 'attern4 -ut

created an instrument of o+ernment which according to

them would ena-le the 'eo'le of ndia to enoy regional

autonomy in a manner consistent with the 'aramount national

interest. 5hey also 'ro+ided for Fundamental Rights to ensurethat the li-erty of the citiBens of ndia would -e a reality and

not merely a 'romise. 5he inclusion of directi+e 'rinci'les of

,tate Policy in the "onstitution assures to the citiBens a -etter

life wherein social and economic ustice will -e a+aila-le. 5he

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goal which the framers of the ndian "onstitution ke't -efore

the nation is fully e'lained in the Pream-le to the

"onstitution. 5he Pream-le re'resents the as'irations of the

'eo'le of ndia and the other 'ro+isions of the "onstitution are

e'ected to ena-le the 'eo'le of ndia to march towards the

cherished goal enshrined in the Pream-le.

5he o-ecti+es in the Pream-le are a 'art of the C-asic

structure of the "onstitution. ence4 the Pream-le cannot -e

amended so as to destroy the o-ecti+es.1

Amendment of the "onstitution:t

may -e that the "onstitution that this ouse may frame

may not satisfy free ndia. A free ndia will do what it

chooses.@2 e also said that4 >9hile we want this

"onstitution to -e as solid and 'ermanent as we can make

it4 there is no 'ermanence in the "onstitution. 5here should

-e a certain Eei-ility. f you make anything rigid and

'ermanent you sto' the nations growth4 of a li+ing4 +ital4

organic 'eo'le. n any e+ent4 we could not make this

"onstitution so rigid that it cannot -e ado'ted to changing

conditions. 9hen the world is in a 'eriod of transition what

we may do today may not -e wholly a''lica-le tomorrow.

7ut the framers of our "onstitution were also aware of the

fact that if the "onstitution was too Eei-le4 it would -e a

'laying of the whims and ca'rices of the ruling 'arty. 5hey

were4 therefore4 anious to a+oid Eei-ility of the etreme

1 6esa+ananda 7harati +. ,tate of 6erela4 AR 1)&! ," 1#%1

2 "onstituent Assem-ly De-ates

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ty'e. ence4 they ado'ted a middle course. t is neither too

rigid to admit necessary amendments4 nor Eei-le for

undesira-le changes.

5he machinery of amendment should -e like a safety +al+e4

so de+ised as neither to o'erate the machine with too

great facility nor to reuire4 in order to set in motion4 an

accumulation of force suGcient to e'lode it. 5he

"onstitution5he institutions

under which we li+e are -eing changed continually -y the

Parliament4 -ecause we are ne+er satised with them.

,ometimes they are scra''ed for new ones; sometimes

they are altered; sometimes they are done away with as

nuisances. 5he new ones ha+e to -e stretched in the law

courts to make them t4 or to 're+ent them tting well if

the udges ha''en to dislike them.@$

Meaning of Amendment:7ill@4 it was held in #ola'

(ath&scase that a "onstitution Amendment Act4

though 'assed in eercise of the 'ower conferred

-y Article !%(4 was a Claw su-ect to Article 1!20.#0 5hough the amending 'ower conferred -y Article

!%( was not su-ect to any e'ress limitations4 it

was held in esha$ananadaand Rajnarain&scasesthat it was su-ect to the 'rocedural conditions

im'osed -y Article !%(4 and to the im'lied

limitation that the 'ower to amend could not alter

the C-asic features of the "onstitution or to make

a new "onstitution altogether.

21 7ut e+en this addition has -een foiled -y the ,u'reme "ourt in

Mi+er+a Milla +. /nion of ndia4 AR 1)(* ," 1&()4 holding "lause #0

and "lause $0 as +oid4 on the ground that this amendment sought tototally eclude udicial re+iew4 which was >-asic feature@ of the

"onstitution.

22 .R. "oelho +. ,tate of 5amil 3adu4 AR 2**& ," (%1: 2**&0 2 ,"" 1.

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Article !%( as it stands after 1)&%:

10 t has -een made o-ligatory for the President to

gi+e his assent to a 7ill 'assed under Article !%(S"lause 204 as amended -y the 2#th Amendment

Act4 1)&1T4 though his 'ower to +eto other 7ills

remains intact4 su-ect4 of course4 to ministerial

ad+ice under Article h as amended -y the

#2ndAmendment Act.20 7y inserting "lause 104 the 2#thAmendment Act4

1)&14 has made it clear that amendment would

include Caddition4 +ariation or re'eal of any

'ro+ision of the "onstitution.!0 5he 2#thAmendment Act4 1)&1 re'elled the theory

that a "onstitution Amendment Act 'assed under

the eercise of 'ower conferred -y Article !%( was

a Claw su-ect to Article 1!20. 5he 2#th

Amendment Act re'elled this theory -y inserting

"lause #0 in Article 1! and "lause !0 in Article

!%(.#0 5he #2ndAmendment Act inserted "lause $0 to

say that there are no limitationswhate+er to the

'ower conferred -y Article !%(4 and "lause #0 tosay that a "onstitution Amendment Act shall -e

immune from udicial re+iew altogether4 whether

on su-stanti+e or 'rocedural grounds. 7ut this

amendment has -een annulled -y the ,u'reme

"ourt in Miner$a Millscase. 7y inserting "lause #0

and $0 to Article !%(4 the Parliament tried to re'el

the theory that an amendment could not alter the

C-asic features of the "onstitution.

Princi'les relating to Amendment of the "onstitution:to the etent of the inconsistency or

contra+ention@ with the fundamental right. 5his means that

an Act may not -e +oid as a whole; only a 'art of it may -e

+oid and if that 'art is ser+a-le from the rest then the rest

of the Act may continue to stand and remain o'erati+e. 5he

Act will then -e read as if the in+alid 'ortion was there. f4

howe+er4 it is not 'ossi-le to se'arate the +alid from the

in+alid 'ortion4 then the whole of the statute will ha+e to

go.!%

o CONTRO2ERS3 SURROUN!ING T%E

AMEN!A4ILIT3 OF FUN!AMENTAL

RIG%TS&'

5he elementary uestion in contro+ersy has -een

whether Fundamental Rights are amenda-le so as to

take away the -asic rights guaranteed -y the"onstitution. Another contro+ersy deals with the etent4

sco'e and authority of Parliament to amend

"onstitution. 5he answer has -een gi+en -y the

,u'reme "ourt from time to time4 sometimes under

immense 'ressure. 5he uestion whether fundamental

rights can -e amended under Article !%( came for

consideration of the ,u'reme "ourt in Shankari

!ra"ad v. Union of India.!&n this case the +alidity of

!% 6ameshwar Pd. +. ,tate of 7ihar4 AR 1)%2 ," 11%%; Madhya

Pradesh +. Ranoirao ,hinde4 AR 1)%( ," 1*$!.

!& AR 1)$1 ," #$$ at 'g. #$(.

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the "onstitution was challenged. 5he Amendment was

challenged on the ground that it 'ur'orted to take away

or a-ridge the rights conferred -y Part which fell

within the 'rohi-ition of Article 1!20 and hence was

+oid. t was argued that the term >,tate@ in Article 12

included Parliament and the word >8aw@ in Article 1!204

therefore4 must include constitution amendment. 5he

,u'reme "ourt4 howe+er4 reected the a-o+e argument

and held that the 'ower to amend the "onstitution

including the fundamental rights is contained in Article

!%(4 and that the word C8aw in Article 1! 204 includes

only an ordinary law made in eercise of the 8egislati+e

'owers and does not include constitutional amendmentwhich is made in eercise of constituent 'ower.

5herefore4 a constitutional amendment will -e +alid

e+en if it a-ridges or takes any of the fundamental

rights.

istory of Amending Power of the Parliament in

regard to Fundamental Rights under Article !%(:7ut make it clear that must not -e

understood to ha+e su-scri-ed to the +iew that the word

Claw in Article 1!20 does not control "onstitutional

amendments. reser+e my o'inion on that case for

a''rehend that it de'ends on how wide is the word Claw in

that Article.@Madholkar4 =. also made the following o-ser+ations: >n

+iew of these considerations and those mentioned -y my

learned -rother idayatullah feel reluctant to e'ress adenite o'inion on the uestion whether the word Claw in

Article 1!20 of the "onstitution ecludes an Act of

Parliament amending the "onstitution and also whether it

is com'etent to 'arliament to make any amendment at all

to Part of the "onstitution.@

Se.nd Stage&'

n Go&ak Na#h v. S#a#e of !'nja(, AIR 1971 SC 1$%)4the +alidity of the "onstitution 1&th Amendment0 Act4

1)%#4 which inserted certain ,tate Acts in 3inth ,chedule

#2 A..R. 1)%$ ," (#$.

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was again challenged. 5he ,u'reme "ourt laid down -y a

maority si out of ele+en =udges0 that there was no

distinction -etween legislati+e and constituent 'ower. 5he

,u'reme "ourt 'ros'ecti+ely o+erruled its earlier decision

in ,hankari Prasads case and ,aan ,inghs case and held

that Parliament had no 'ower from the date of this decision

to amend Part of the "onstitution so as to take away or

a-ridge fundamental rights. ence4 an amendment of the

"onstitution that a-ridged or curtailed any of the

fundamental rights was su-ect to Article 1!20. 5he "ourt

laid down that Parliament had no 'ower to curtail or

a-ridge fundamental rights. 5he "ourt also laid down that

Article !%( merely laid down the 'rocedure for anamendment of the "onstitution4 the 'ower to amend was

to -e traced to the residuary 'ower of legislation. 5he "ourt

howe+er did not declare the amendment made to the

"onstitution u' to the date of the udgment i.e. 2&+octrine o! prospecti$e

o$erruling,.

n this case three 9rit Petitions one against ,tate ofPuna- and two against ,tate of Mysore0 were led to

challenge the +alidity of certain land reforms as well as of

the "onstitution 1&thAmendment0 Act4 1)%# on the ground

of +iolation of fundamental rights under Articles 1#4 1) and

!1.

5he main ground in fa+our of un


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Article 1!20. f fundamental rights are a-ridged or taken

away -y amendment4 this could -e 'ossi-le only -y a

"onstituent Assem-ly4 which may-e con+oked -y

Parliament -y enacting a law under residuary 'owers.

All the three amendments challenged in the 9rit Petitions

were u'held -y the "ourt on the ground that they were

made on the -asis of earlier decisions of the ,u'reme

"ourt and holding them in+alid after such a long time

would create chaos and would unsettle the conditions in

the country. ,ince the land reform legislations challenged

were 'rotected -y the "onstitution 1&thAmendment0 Act

and the amendment was held +alid4 the "ourt held that the

legislation in uestion could not -e challenged anddismissed the 'etitions. owe+er4 the "ourt a''lied the

doctrine of 'ros'ecti+e o+erruling and held that in future

Parliament could not a-ridge fundamental rights -y

"onstitutional amendments or legislation.

Doctrine of Pros'ecti+e O+erruling Meaning0:!o*er of #he !ar&ia+en# #o

A+end #he Con"#i#'#ion and !roed're

-herefor.@ 5his Act made it clear that a constitution amendment

is not >law@ as mentioned in Article 1!. Article !%(

was amended with a +iew to ensuring that Parliament

has 'ower to amend any 'ro+isions of the

"onstitution. 5his was done to negati+e the eHects of

the #ola' (ath&s udgment. 5he ,u'reme "ourt in

the esa$ananda *harati case u'held the +alidity of

the amendment.

5o the -enet of the 8egislators4 the 2#th

Amendment Act4 1)&1 restored and etended thesco'e of 'ower of Parliament to amend the

"onstitution -y adding the words >amend -y way of

addition or +ariation or re'eal any 'ro+ision in

accordance with the 'ro+isions laid down in this

Article@ Further4 the amendment 'ro+ided that

>3othing in Article 1! shall a''ly to any amendment

made under this article@ -y way of an addition of

"lause ! to Article !%(.

Thi"d Stage&'

5he +alidity of the "onstitution 2#th Amendment0

Act4 1)&1 was challenged in e"avananda /hara#i

v. S#a#e of ere&a, AIR 197) SC 1%$14 'o'ularly

known as the 0'nda+en#a& Righ#" case. n this

case4 is oliness ,wami 6esa+ananda 7harti ,ri

Padagalwaru was the head of a Math in 6erela. 8and

reform legislation in 6erela had aHected the 'ro'erty

of his religious institution. ,u-seuently4 these

changes in the 8and Reform 8aw were 'laced in the

3inth ,chedule -y the 2)th Amendment. 5he

'etitioners had challenged the +alidity of the 6erela

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8and Reforms Act4 1)%!. 7ut during the 'endency of

the 'etition4 the 6erela Act was amended in 1)&1 and

was 'laced in the 3inth ,chedule -y the 2)th

Amendment Act4 1)&2. 5he 'etitioner was 'ermitted

to challenge the +alidity of the 2#thAmendment Act4

2$thAmendment Act and also the 2)th Amendment

Act. 5he uestion in+ol+ed was as to what was the

etent o! the amending po%er con!erred by Article

-./ o! the ConstitutionV On -ehalf of the /nion of

ndia it was claimed that amending 'ower was

unlimited and short of re'eal of the "onstitution any

change could -e eHected. On the other hand4 the

'etitioner contended that the amending 'ower waswide -ut not unlimited. /nder Article !%(4 Parliament

cannot destroy the >-asic feature@ of the

"onstitution. A ,'ecial 7ench of 1! =udges the

largest -ench -y far in our country0 was constituted

to hear the case. 5he decision in this case would

com'letely alter the constitutional landsca'e of ndia

for generations to come.

5his decision continues to -e one of the longest

re'orted udgement and co+ers $)# 'ages of All ndiaRe'orter. 5he 1! =udges ga+e ela-orate reasons and

analysing them critically is etremely strenuous.

,e+eral 'ro'ositions ha+e -een re'eated again and

again.

5he "ourt -y maority o+erruled the #ola' (ath&s

case which denied Parliament the 'ower to amend

fundamental rights of citiBens. 5he maority held that

Article !%( e+en -efore the 2#th Amendment

contained 'ower as well as the 'rocedure ofamendment. 5he 2#th Amendment merely made

e'licit what was im'licit in the unamended Article

!%(


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Amendment is declaratory in nature. t only declares

the true legal 'osition as it was -efore that

amendment4 hence it is +alid. 5he "ourt laid down

that:10 Article !%( does not em'ower Parliament to

amend the -asic structure of the "onstitution.20 5he 2#thAmendment Act is +alid.!0 5he rst 'art of ,ection ! of the 2$thAmendment

Act is +alid. 5he 'art of the ,ection4 namely4 >no such

law containing the declaration that is for gi+ing eHect

to such 'olicy shall -e called in uestion in any court

on the ground that is does not gi+e eHect to such

'olicy@4 is in+alid.#0 5he "ourt also u'held the +alidity of other

'ro+isions which related to an amendment of the

"onstitution and which were challenged in the case.

n this case4 it was urged that there are im'lied

limitations on the amending 'ower of Parliament.

owe+er4 the maority did not u'hold this 'lea. Only

+e out of the thirteen udges su-scri-ed to the +iew

of im'lied limitations.

5he "ourt also laid down that the Parliament has

'ower to amend e+en the 'ro+isions relating to

fundamental rights. For4 the maority did not hold

that fundamental rights are a -asic feature of the

"onstitution; -ut the Parliament has no 'ower to

amend the "onstitution so as to aHect the -asic

structure of the "onstitution.

t was also held in this case that the ,u'reme "ourt

may strike down e+en an amendment of the

"onstitution.

o 5he Decision in esa$ananda *haraticase was also

followed in the famous case of S+#. Indira Nehr'

Gandhi v. Raj Narain, AIR 1975 SC 22994 also

known as the Electioncase. n this case4 the election

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of Mrs. ndira andhi was set aside -y the Allaha-ad

igh "ourt on grounds of corru't 'ractices. nstead of

gracefully waiting for the outcome of her a''eal

-efore the ,u'reme "ourt4 the Parliament 'assed the

!)th Amendment Act4 1)&$ on 1*th August 1)&$4

taking the election of President4 Jice President4 and

Prime Minister outside the 'ale of =udicial Re+iew. 5he

amendment was tailor made to nullify the decision of

the Allaha-ad igh "ourt. 5he constitutional +alidity

of this amendment came u' for consideration in the

aforesaid ndira andhis case. Article !2)


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ordinary law making 'owers of Parliament. 5his

udgment is also im'ortant from the 'oint of +iew of the

meaning of the e'ression >constituent 'ower@. 5he

'ower eercised -y a "onstituent Assem-ly in framing a

new "onstitution is a 'lenary 'ower and is not su-ect to

any limitations. 7ut the constituent 'ower eercised -y

a -ody em'owered to amend the "onstitution is su-ect

to limitations.

After the udgments of esa$ananda *harati case and

0ndira #andhi Election case were deli+ered4 Parliament

amended the "onstitution in 1)&% Forty


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udiciary with the 'ur'ose of taking away the

urisdiction of the ,u'reme "ourt as regards deciding

the +alidity -y a constitutional amendment4 a+oiding

the inter'retation of constitutional 'ro+isions. 5his

amendment -ecame one of the to'ics of general

election to Parliament at the end of the emergency

'eriod.

#2nd Amendment Act with reference to Article

!%(NN

Lncouraged -y the decision in e"avananda

/hara#i"%) case4 "lauses #0 and $0 were insertedin Article !%( -y the #2ndAmendment Act4 1)&%4 -y

Mrs. andhis o+ernment4 to control another 'art of

the esa$andanda decision that though the

Fundamental Rights constituted no limitation on the

amending 'ower4 there were other Cim'lied

limitations4 namely4 that the 'ower to amend could

not -e used to alter the C-asic features of the

"onstitution or to make a new "onstitution. 5his

latter +iew in esa$ananda&scase was intended to -esu'erseded -y "lause #0


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amendment sought to totally eclude udicial re+iew4

which was C-asic feature of the "onstitution.

A uestion may -e asked here4 can we say that anamendment made -y Parliament is an amendment

made -y 'eo'leV 5he #2nd amendment was intended

to achie+e this o-ect. t was argued that the

amending -ody under Article !%( has the full

constituent 'ower. n other words4 the Parliament

acts in the same ca'acity as the "onstituent

Assem-ly when eercising the 'ower of amendment

under Article !%(. t is su-mitted that this 'ro'osition

is totally wrong. 5he reasons are:more 'erfect4 eHecti+e and

meaningful@. An amendment should not result in

>a-rogation or destruction@ of its -asic structure or loss of

its original identity and character and render the

"onstitution unworka-le@f an amendment tres'asses its limits and im'airs and

alters the -asic structure or essential features of the

"onstitution then the "ourt has 'ower to undo that

amendment. >An amendment of the "onstitution -ecomes

ultra +ires if the same contra+enes or transgresses the

limitations 'ut on the amending 'ower -ecause there is no

touchstone outside the "onstitution -y which the +alidity of

the eercise of the said 'owers conferred -y it can -e

tested.@5he ,u'reme "ourt has stated that >unity and integrity of

ndia@ and the 'rinci'le of euality contained in Article 1#constitute the >-asic structure@ of the "onstitution.

o n a landmark udgment in . Chandra '+ar v. Union

of India, AIR 1997 SC 11254 a se+en


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"onstitution 7ench of the ,u'reme "ourt has unanimously

while reconsidering the Sampath umar&scase4 has struck

down "lause 2d0 of Article !2!po%er o! judicial

re$ie% o$er legislati$e action $ested in the 1igh Courts

under Article 22. and the Supreme Court under Article -2

o! the Constitution is an integral and essential !eature o!

the Constitution and !ormed part o! its basic structure.@COrdinarily4 therefore4 the 'ower of igh "ourts and the

,u'reme "ourt to test the constitutional +alidity of

legislations can ne+er -e ousted ecluded. Following the

esa$ananda *harati&s case4 the "ourt declared

unconstitutional "lause 2d0 of Article !2!


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o n M. Nagraj v. Union of India, AIR 27 SC 714 the

'etitioners challenged the "onstitutional +alidity of the

"onstitution &&thAmendment Act4 1))$4 introducing Article

1% #


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=ain4 ==.0 held that any law 'laced in the 3inth ,chedule

after 2#th A'ril4 1) when esa$ananda *harati&s

udgment was deli+ered will -e o'en to challenge. 5he

"ourt said that e+en though an Act is 'ut in 3inth ,chedule

-y a "onstitutional Amendment4 its 'ro+isions would -e

o'en to challenge on the ground that they destroy or

damage the -asic feature4 if the !undamental rights are

taken away or a-rogated 'ertaining to the -asic feature of

the "onstitution. 5he 3inth ,chedule was introduced to the

"onstitution through Article !1 -0 -y the First

"onstitutional Amendment0 Act4 1)$1. 5he o-ect of the

3inth ,chedule was to sa+e 8and Reform 8aws enacted -y

+arious states from -eing challenged in the court. 8ater on4it -ecame an omni-us and e+ery kind of law whether it

related to election4 mines and minerals4 industrial relations4

reuisition of 'ro'erty4 mono'olies4 coal or co''er

nationaliBation4 general insurance4 sick industries acuiring

the Altcock Ashdown "om'any4 6erela "hillies Act4 5amil

3adu reser+ation of %)X and so on were inserted in it. 3o

'rinci'le under lies this selection. 5oday the total num-er

of Acts4 inserted in 3inth ,chedule of the "onstitution is

2(#. 5he 5amil 3adu law in it was included -ecause of the,u'reme "ourts rulings in the 0ndra Sa%hney&scase that

o+erall reser+ation cannot eceed $*X. n the instant case4

the 'oliticians had challenged the +alidity of the +arious

"entral and ,tate laws 'ut in the 3inth ,chedule including

the 5amil 3adu Reser+ation Act. 5he "ourt said that the

+alidity of any 3inth ,chedule law has -een u'held -y the

A'e "ourt and would not -e o'en to challenge it again4

-ut if a law is held to -e +iolati+e of Fundamental Rights

incor'orated in the 3inth ,chedule after the esa$ananda*harati&scase4 such a +iolation shall -e o'en to challenge

on the ground that it destroys or damages the -asic

structure of the "onstitution.

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The"< f 4asi. St"u.tu"e&'

5he 5heory of 7asic ,tructure +ery eHecti+ely 'ro+ed to -e

a limitation on the amending 'ower of the Parliament. 5he

7asic ,tructure doctrine a''lies only to the

"onstitutionality of amendments and not to ordinary Acts

of Parliament4 which must conform to the entirety of the

"onstitution and not ust its -asic structure. 5he theory of

-asic structure which cannot -e altered -y amendment4 is

gaining ground internationally as a doctrine of

constitutional inter'retation which 'rotects li-eral

"onstitutions of nascent democracies and 're+ents

encroachments on 'eo'les human rights.Although the -asic structure doctrine has -een criticiBed as

udicial legislation4 it has hel'ed to 'rotect the "onstitution

against dictatorial law


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9hat then are the essentials of the -asic structure of the

"onstitutionV Although the =udges enumerated certain

essentials of the -asic structure of "onstitution4 -ut they

also made it clear that they were only illustrati+e and not

ehausti+e. 5hey will -e determined on the -asis of the

facts in each case.n e"avananda /hara#i v. S#a#e of ere&a4 the =udges

has enumerated certain essentials of -asic structure

theory. Most im'ortantly se+en of the thirteen udges4

including "hief =ustice ,ikri who signed the summary

statement4 declared that ParliamentIs constituent 'ower

was su-ect to inherent limitations. Parliament could not

use its amending 'owers under Article !%( to 3damage343emasculate34 3destroy34 3abrogate34 3change3 or 3alter3 the

3basic structure3 or !rame%or' o! the Constitution.

Lach udge laid out se'arately4 what he thought were the

-asic or essential features of the "onstitution. 5here was

no unanimity of o'inion within the maority +iew either.o Si$"i6 C#=. e'lained that the conce't of -asic

structure included:

o su'remacy of the "onstitutiono re'u-lican and democratic form of go+ernmento secular character of the "onstitutiono se'aration of 'owers -etween the legislature4

eecuti+e and the udiciaryo federal character of the "onstitution

o Shelat6 =. and G"8e"6 =. added two more -asic

features to this list:

o the mandate to -uild a welfare state contained

in the Directi+e Princi'les of ,tate Policyo unity and integrity of the nation

Page #(


49/55


o %egde6 =# and Mu$he">ea6 =. identied a se'arate

and shorter list of -asic features:

o so+ereignty of ndiao democratic character of the 'olityo unity of the countryo essential features of the indi+idual freedoms

secured to the citiBenso mandate to -uild a welfare state

o =aganmhan Redd


50/55


court. Ray4 =. held that all 'arts of the "onstitution were

essential and no distinction could -e made -etween its

essential and non


51/55


a05he e'ression >Amendment of the "onstitution@ in

Article !%( means >any addition or change in any of

the 'ro+isions of the "onstitution within the -road

counters of the 'ream-le@ and the constitutional

amendment does not include the re'eal of the

"onstitution.-05here are no im'lied limitations on the 'ower of the

amendment.c0Article 1!20 is not a''lica-le to an amendment of

the "onstitution. "handrachud4 =. rightly 'ointed out

that Article !%( a+oids with scru'ulous care the use

of the word >law@4 -ecause this is a fundamental

distinction -etween >constitutional law@ and>ordinary law@.

!. n Minerva Mi&&"case4 the ,u'reme "ourt laid down

the following 'rinci'les:a05he 'ower to destroy is not a 'ower to amend.-05he "onstitution is founded on a nice -alance of

'ower among the three wings of the ,tate4 namely4

the Lecuti+e4 the 8egislature and the =udiciary.c05he a-ridgement of a fundamental right may in+ol+e

+iolation of -asic structure. t would all de'end on thenature of the fundamental right4 the etent and

de'th of the infringement4 the 'ur'ose for which the

infringement is made and its im'act on the -asic

+alues of the "onstitution. ence the "ourt

concluded that >the conferment of the right to

destroy the identity of the "onstitution cou'led with

the 'ro+ision that no court of law shall 'ronounce

u'on the +alidity of such destruction seems to -e a

trans'arent case of transgression of the limitationson the amending 'ower.@

#. Parliament4 howe+er4 has no 'ower to amend the -asic

features of the "onstitution.

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CONCLUSION&'

5he 'ro-lem of the nature and sco'e of constituent andamending 'ower raised e+er since4 #ola' (aths case still

remains unresol+ed. As a matter of strict law4 it remains

'ossi-le to argue e+en now that esa$ananda *harati&s

case did not decide that -asic structural limitations

contained the amending 'ower; that the decision in 0ndira

(ehru #andhi&s case was -ased on the concessions; that

there is no warrant either to acce't the es$ananda

*harati&ssummary as -inding or to acce't the gloss 'laced

-y =ustice 6hanna in ndira 3ehru andhi as -eing

elucidati+e of esa$anandarationes; and the Miner$a Mills

case and 5aman Raocase in so far as they regard either

esa$ananda *harati or 0ndira (ehru #andhi as -inding.

5his strategy of argument remains o'en to the go+ernment

in future and it is idle to say that it eists only -y way of

>Eutter in i+ory towers@. ndeed4 the +ery arguments used

-y the "ourt for reecting Cstare decisis may well a''ly to

this strategy.7ut e+en if the 'resent holdings that esa$ananda

udgment im'oses -asic structural limitations on amending'ower is acce'ted as re'resenting the "onstitutional

consensus4 the decisions so far do not fully elucidate what

these limitations 'recisely are. t a''ears howe+er that

certain limitations are emergent. Firstly4 a total re'eal of

the "onstitution would -e +iolati+e of -asic structure.

,econdly4 any e'ansion of Article !%( 'owers to achie+e

this conseuence would also -e similarly +iolati+e. 5hirdly4

any attem't to de'ri+e the court of the 'ower of udicial

re+iew o+er "onstitutional amendments would also -etransgressi+e of -asic structure. Fourthly4 the 'ower to

amend may not -e used to adudicate s'ecic dis'utes.

Fifth4 the freedoms guaranteed -y Article 1#4 1) and 21

constitute limits to 'ower of amendment. ,ith4 any

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attem't to a-rogate Part J of the "onstitution may +iolate

the -asic structure. ,e+enth4 the Cdemocratic nature of the

"onstitution may not -e +alidly transformed -y the use of

Article !%( 'ower.5he sco'e of -asic structure limitations on the amending

'ower a-o+e and -eyond these se+en categories remains

indeterminate. t would a''ear that the ,u'reme "ourt is

inclined to delineate these limitations case -y case4 rather

than a-stractly.,ince esa$ananda *harati case4 the matter has -een

considered -y the ,u'reme "ourt in se+eral cases and the

"ourt has had occasion to declare se+eral features of the

"onstitution as fundamental features or -asic structures ofthe "onstitution.t is generally agreed that all fundamental Rights do not

constitute -asic features. For eam'le4 in esa$ananda

itself it has -een held that the right to 'ro'erty does not

'ertain to the -asic structure of the "onstitution$!. 3ow

that Article !1 has -een re'ealed4 and Article !**5heory of 7asic ,tructure@ of

the "onstitution dened in esa$ananda *harati&scase.

$! =ilu-hai 3an-hai 6hachar +. ,tate of urat4 AR 1))$ ," 1#2.

$# =.3. 6hachar +. ,tate of urat AR 1))$ ," 1$#.

Page $!


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t may -e said that the issue of the -asic structure of the

"onstitution has not -een 'ronounced -y the ,u'reme

"ourt NN a scenario that is unlikely to change in the near

future. 9hile the idea that there is such a thing as a -asic

structure to the "onstitution is well esta-lished; its

contents cannot -e com'letely determined with any

measure of nality until a udgment of the ,u'reme "ourt

s'ells it out. 3e+ertheless theso$ereign4 democratic and

secular character o! the polity4 rule o! la%4 independence o!

the judiciary4 !undamental rights o! citi9ens4etc. are some

of the essential features of the "onstitution that ha+e

a''eared time and again in the a'e courtIs'ronouncements. One certainty that emerged out of this

tussle -etween Parliament and the =udiciary is that all laws

and constitutional amendments are now su-ect to udicial

re+iew and laws that transgress the -asic structure are

likely to -e struck down -y the ,u'reme "ourt. n essence

ParliamentIs 'ower to amend the "onstitution is not

a-solute and the ,u'reme "ourt is the nal ar-iter o+er

and inter'reter of all constitutional amendments.

4i9lig"a-h

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