ASSIGNMENT

TOPIC- AMENDMENT OF CONSTITUTION, DOCTRINE OF BASIC

STRUCTURE

SUBJECT- CONSTITUTIONAL LAW

ASSIGNMENT SUBMITTED TO

Faculty of law University of Lucknow

For the Partial Fulfilment of the Requirement in B.A.LL.B.(Hons.)-

3rd SEM

Submitted to: Submitted By:

Mr. Abhijeet mishra Himanshu Kumar Singh
Guest faculty ROLL NO. 200013015007
University of Lucknow LLB (Hons.)
 ACKNOWLEDGEMENT
In preparation of my assignment, I had to take the help
and guidance of some respected persons, who deserve
my deepest gratitude. As the completion of this
assignment gave me much pleasure, I would like to show
my gratitude towards ,Course instructor, for giving me a
good guidelines for assignment throughout numerous
consultations. I would also like to expand my gratitude to
all those who have directly and indirectly guided me in
writing this assignment.

Many people, especially my classmates have made

valuable comment suggestions on my paper which gave
me an inspiration to improve the quality of the
assignment.
INTRODUCTION
According to Indian constitution the parliament and state legislature can make laws with in their
jurisdiction. The power to amend the constitution is only with the parliament and not with state
legislative assembly but the power to amend constitution is not absolute .If the supreme court
find any law inconsistent with the constitution it has power to declare that law invalid. Thus to
preserve original identity of constitution the supreme court has laid down the basic structure
doctrine ,according to this doctrine the parliament can not destroy or alter the basic structure of
constitution

Amendment means making any change to the constitution is an amendment. Like, inserting an
article, deleting an article, rewording an article is amendment and parliament has power to
amend the constitution.

Procedure for Amendment

Indian Constitution is both rigid as well as flexible i.e. it is difficult to amend but practically
flexible. As per Article 368 of the Indian Constitution, an Amendment can be introduced in
either of the houses, later it can be passed by a special majority or by a simple majority. Later if
the bill is passed by the majority it will be sent to the president for his assent.

1. A bill for the Amendment can be introduced in any house of the Parliament.
2. That bill can be introduced as a Government Bill or a Private Member Bill.
3. Prior recommendation of the President not needed.
4. Bill must be passed from both the houses by Absolute + Special majority i.e. more
than 50% or 2/3 Special majority.
5. And some time required the majority from the state legislature also like in case of
G.S.T.

For purpose to understand basic structure of constitution we will have to go through some articles
of constitution of India-
 Article 13
1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent

of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention,
be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be then
in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article
368

Article 368
Power of Parliament to amend the Constitution and procedure therefore

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its

constituent power amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill
for the purpose in either House of Parliament, and when the Bill is passed in each House by
a majority of the total membership of that House present and voting, it shall be presented to
the President who shall give his assent to the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill: Provided that if such amendment seeks to
make any change in

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the
Legislature of not less than one half of the States by resolution to that effect passed by those
Legislatures before the Bill making provision for such amendment is presented to the President
for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting
to have been made under this article whether before or after the commencement of Section 55
of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any
court on any ground
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on
the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article PART XXI TEMPORARY,
TRANSITIONAL
AND SPECIAL PROVISIONS

Evolution of basic structure

The word basic structure is not mentioned in the constitution of India. The concept developed
gradually with the interference of judiciary from time to time to protect basic right of people and
preserve the spirit of constitution document. The concept of basic structure of constitution
evolved over time .we will discuss evolution with some landmark cases-

Sankari Prasad case (1951) 1

The first constitution amendment act ,1951 was challenged in this case. The amendment was
challenged on ground that it violates the part 3 of constitution so it should be considered invalid.

The supreme court contended that under article 368 parliament has power to amend any part of
constitution including fundamental rights guaranteed in part 3.

1 Sri Sankari Prasad Singh Deo vs Union Of India And State Of ... on 5 October, 1951
1951 AIR 458, 1952 SCR 89
Sajjan singh case 196523

In this case also the supreme court held that parliament can amend any part of
constitution including fundamental rights. In this case two dissenting judge remarked that
whether fundamental right of citizen could become plaything of majority party of
parliament

Golaknath case 19674

In this case supreme court overruled its earlier decision that fundamental right can be amended.it
is said that parliament has no power to amend part 3 of constitution as fundamental right are
immutable and transcendental. Supreme court ruling that article 368 only lays down procedure to
amend constitution and does not give absolute power to parliament to amend any part of
constitution .

The parliament in 1971 passed 24th constitution amendment act. This act gave absolute power to
the parliament to make any change in constitution including the fundamental rights.it also made
it obligatory for president to give his assent on all constitution amendment bills sent to him

Kesavananda bharati case (1973) 5

This was a landmark case in defining the concept of basic structure doctrine , the supreme court
upheld the validity of 24th constitution amendment act by reviewing its decision in Golaknath
case .the supreme court held that parliament has power to amend any provision of constitution
but doing so ,the basic structure of constitution is to be maintained but apex court did not made
clear definition of basic structure ,it was held that basic structure of constitution could not be
abrogated even by constitutional amendment .in this judgement some of the basic feature of
constitution listed by judges are-

• Supremacy of constitution
• Republican and democratic form of government

2 Sajjan Singh vs State Of Rajasthan(With ... on 30 October, 1964

3 AIR 845, 1965 SCR (1) 933

4 Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762)
5 Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973
 • Secular character of constitution
• Federal character of constitutions
• Separation of power
• Unity and sovereignty of India
• Individual freedom

Over time, many others features have also been added to list of basic structure;

• Rule of law
• Judicial review
• Parliamentary system
• Rule of equality
• Harmony and balance between the fundamental rights and DPSP
• Free and fair election
• Limited power of parliament to amend constitution
• Power of Supreme court under article 32,136,142 and 147
• Power of high court under article 226 and 227

Indira Nehru Gandhi vs.Raj Narain case (1975)6

In this case supreme court applied the theory of basic structure and struck down clause(4) of
article of 329-A which was inserted by 39th constitution amendment act in 1975 on ground that it
was beyond parliament power to amend because it destroy the constitution basic features. The 39
the amendment act was passed by parliament during emergency period .this act placed the
election of president ,vice president , prime minister and speaker of lok sabha beyond the
scrutiny of judiciary. This was done by government in order to suppress Indira Gandhi
prosecution by Allahabad high court for corrupt electoral practices.

Minerva Mills case (1980)7

6 Indira Nehru Gandhi vs Shri Raj Narain & Anr on 7 November, 1975
This case again strengthens the basic structure doctrine, the judgement struck down two change
made to constitution by 42nd constitution amendment act 1976 court declare them to be violative
of basic structure .this judgement made it clear that the constitution is supreme not parliament. In
this case court added two feature to list of basic structure they were: Judicial review and balance
between fundamental rights and DPSP.

CONCLUSION
Constitution is the aspiration of people and aspirations changes. That’s why, Under article 368
parliament has prerogative to amend the constitution. Plethora of times it was witnessed that
political superiors have used this power without any proper reason and cause. This is the reason
as to why Judiciary used its judicial powers to protect the interest of the citizen. Moreover,
Judiciary proposed Basic Structure (Kesavananda Bharati Case) guiding the parliament not to
alter with the basic structure of the constitution. Because if basic structure of the constitution
would be changed then it would have substantial impact on the whole constitution. Now
parliament cannot amend the basic structure of the constitution.

7 Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980
1980 AIR 1789, 1981 SCR (1) 206