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Important Amendments in the Indian Constitution

Amendments Provisions

It added the Ninth Schedule of the Constitution which

1st Amendment
includes a list of Central and State laws that cannot be
Act of 1951
challenged in courts.

– Three terms (i.e., socialist, secular, and integrity) were

42nd
added in the Preamble.
Amendment Act
– It added Fundamental Duties (new Part IVA) in the
of 1976
Constitution.

– It replaced the term ‘internal disturbance’ with ‘armed

44th rebellion’ which was related to National Emergency
Amendment Act (Article 352).
of 1978 – It deleted the Right to Property from the Fundamental
Rights and made it a legal right.

61st
Amendment Act It lowered the voting age from 21 years to 18 years.
of 1988

73rd It introduced the provisions related to Panchayati Raj

Amendment Act Institutions, aiming to decentralize power to the
of 1992 grassroots level.

74th It introduced the provisions related to Urban Local

Amendment Act Bodies, empowering Municipalities and Municipal
of 1992 Corporations.

86th It added that the State shall provide free and

Amendment Act compulsory education to all children aged six to
of 2002 fourteen years.

97th
This amendment gave constitutional status and
Amendment Act
protection to the cooperative societies.
of 2011

101st It introduced the Goods and Services Tax (GST), a

Amendment Act comprehensive indirect tax reform aimed at simplifying
of 2016 the tax structure and promoting economic integration.

102nd It gave Constitutional Status to National Commission

Amendments Provisions

Amendment Act
for the Backward Classes.
of 2018

103rd
It provides 10% reservation for Economically Weaker
Amendment Act
Sections (EWS).
of 2019

It provides for the reservation of seats in the Lok Sabha

104th
and State Legislative Assemblies for members of
Amendment Act
Scheduled Castes and Scheduled Tribes till 25th
of 2020
January 2030.

105th It revived the power of the State Governments to

Amendment Act identify Socially and Educationally Backward Classes
of 2021 (SEBCs).

It reserves one-third of all seats for women in Lok

106th
Sabha, State Legislative Assemblies, and the
Amendment Act
Legislative Assembly of the National Capital Territory
of 2023
of Delhi, including those reserved for SCs and STs.

https://blog.ipleaders.in/the-amendment-of-the-constitution-article-368/

Constitutional Amendments in 2019

Name of
Amendment Objective
Amendment

Clause (6) states that individuals from

economically weaker sections of society can seek
Added Clause (6) to reservation from educational institutions, including
Article 15 Added private institutions. This is notwithstanding
103rd
Clause (6) to Article minority institutions Clause (6) of Article 16
16 established reservation of individuals from
economically weaker sections in government
posts.

 Theabolishment of Legislative councils in

mentioned States.

Amended Article  Dual Citizenship for Indian origin outside

104th the country.
334
 Quota to educationally backward classes
 Quota for religious minorities in
government service.
Introduction

The Amendment of the Constitution refers to the process of making changes such as the addition,
variation, or repeal of any provision of the Constitution in accordance with the procedure laid down for
the purpose. The purpose of Constitutional Amendments is to ensure that the Constitution remains a
living document capable of adapting to changing circumstances while upholding its fundamental
principles and values.

The constitution of Indian is one of the most fascinating documents on this planet. No other country has
a constitution as comprehensive as ours and is the largest constitution in the world. But despite being so
comprehensive, the reason why this document is so interesting is due to the fact that it is extremely
flexible. The fathers of our constitution made it so, they wished that the constitution would not only aid
the country to grow but it would also grow alongside it. Thus, the government can amend the
constitution depending on various issues brought up. These powers are given by Article 368.

But one must ask the question, Isn’t it the constitution that gives power to the government? If that is so,
how can the Government have such a power over a document which gives its authority?

Provisions of Amendment of Indian Constitution

The Indian Constitution, being a living document, provides for its amendment. The detailed provisions
regarding the Amendment of the Constitution of India are contained in Article 368 in Part XX of the
Indian Constitution. These provisions define the process and scope of amending the Constitution.

Various aspects of the Amendment of the Constitution of India are dealt with in detail in the sections
that follow.

Procedure for Amendment to the Indian Constitution

The procedure for the Amendment of the Constitution of India as per Article 368 is as follows:

A bill for the amendment of the Constitution can be introduced only in either house of the Parliament,
not in the State Legislatures.

The bill can be introduced either by a minister or by a private member and does not require prior
permission of the President.
The bill must be passed in each House by a Special Majority, that is, a majority (more than 50 percent) of
the total membership of the House and a majority of two-thirds of the members of the House present
and voting.

Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no
provision for holding a joint sitting of the two Houses for deliberation and passage of the bill.

If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the
legislatures of half of the states by a Simple Majority, that is, a majority of the members of the House
present and voting.

After duly passed by both Houses of Parliament and ratified by the State Legislatures, where necessary,
the bill is presented to the President for his/her assent.

The President must give his assent to the bill. He can neither withhold his assent to the bill nor return
the bill for reconsideration by the Parliament.

After the President’s assent, the bill becomes an Act (i.e. a Constitutional Amendment Act), and the
Constitution stands amended as per the changes made by the Act.

Types of Amendments in Indian Constitution

Article 368 of Indian Constitution provides for two types of amendments:

By a Special Majority of Parliament (50% of the total membership of the House + 2/3rd of the members
present and voting),

By a Special Majority of Parliament plus ratification of 1/2 of the states by a Simple Majority,

One other type of amendment can be done by a Simple Majority of Parliament.

However, these amendments are not deemed to be amendments for the purpose of Article 368.

Therefore, the Constitution can be amended in three ways:

Amendment by a simple majority of the Parliament,

Amendment by a special majority of the Parliament, and

Amendment by a special majority of the Parliament and the ratification of half of the State Legislatures.

The process and scope of each type of amendment are discussed in detail below.

By Simple Majority of Parliament

Several provisions in the Indian Constitution can be amended by a Simple Majority i.e. 50 percent of
members present and voting.

It is to be noted that these amendments fall outside the scope of Article 368.

A few examples of the provisions that can be amended by simple majority are:

Admission or establishment of new states,

Formation of new states and alteration of areas, boundaries, or names of existing states,

Abolition or creation of Legislative Councils in states, etc.

By Special Majority of Parliament

The majority of the provisions in the Constitution can be amended only by a Special Majority (more than
50 percent of the total membership of the House and a majority of two-thirds of the members of that
House present and voting).

The provisions that can be amended by Special Majority are:

Fundamental Rights,

Directive Principles of State Policy,

All other provisions that are not covered by the first and third categories.

By Special Majority of the Parliament and Consent of Half States

The provisions of the Constitution that are related to the federal structure of the Indian polity require
for their amendment a Special Majority of the Parliament along with the consent of half of the state
legislatures by a Simple Majority.

The following points are to be noted w.r.t. these types of amendments:

It does not require that all the states give their consent to the bill. The moment half of the states give
their consent, the formality is completed and the bill is passed.

The constitution has not prescribed any time limit within which the states should give their consent to
the bill.

A few examples of the provisions that can be amended this way are:

Election of the President and its manner,

Extent of the executive power of the Union and the States,

Provisions related to the Supreme Court and High courts, etc.

Basic Structure of the Constitution

The Basic Structure of the Indian Constitution refers to a set of core principles deemed essential, which
cannot be destroyed or altered through amendments by the Parliament. This concept, though not
explicitly mentioned in the Constitution, was established by the Supreme Court in the landmark
Kesavananda Bharati case (1973).

The Doctrine of Basic Structure is a check on the amending power of the Parliament and ensures that
the fundamental ethos, principles, and the underlying framework of the Constitution remain intact,
preserving its spirit.

Significance of the Constitutional Amendment

The provision for amendment of the Indian Constitution carries multifarious significance as listed below:

Adaptability in Governance: The Constitution lays down fundamental principles of governance. A diverse
and constantly evolving country like India cannot be governed by a set of fixed rules. The amendment of
the constitution enables to bring changes in governance as per needs and situations.

Accommodating New Rights: With rising awareness, various sections of society are becoming assertive
of their rights. For example, of late, the LGBT community has been demanding their rights. The
amendment enables providing for such rights.

Evolution of New Rights: New interpretations of the Constitution led to the evolution of new rights. For
example, a new interpretation of the Right to Life and Personal Liberty gave rise to the Right to Privacy.
The amendment enables accommodating such rights.

Addressing Emerging Issues: It enables addressing new emerging trends like bans, vigilantism, etc.

Bringing Social Reform: It enables the eradication of outdated socio-cultural practices to usher in
modernity.

Criticism of the Amendment Procedure

The procedure for amendment of the Indian constitution has been criticized on the following grounds:

There is no provision for a special body for amending the Constitution such as the Constitutional
Convention or Constitutional Assembly. The constituent power is vested in the Legislative Body itself i.e.
the Parliament and the State Legislatures (in a few cases).

There is no provision for a special process for amending the Constitution. Except for the requirement of
Special Majority, the process of amendment is similar to that of a legislative process.
The power to initiate an amendment lies only with the Parliament. The states have no such powers
(except for passing a resolution to create or abolish state legislative councils).

A major part of the Constitution can be amended by the Parliament alone. Only in a few cases, the
consent of the state legislatures is required, and that too, only half of them.

Lack of provision for holding a joint sitting of both Houses of Parliament for a constitutional amendment
bill, sometimes, leads to the situation of a deadlock.

The provisions relating to the amendment procedure, being too sketchy, leave a wide scope for creating
disputes and taking the matters to the judiciary.

The process of amending the constitution is a crucial aspect of maintaining the relevance and
adaptability of India’s legal framework to changing societal needs and circumstances. These
constitutional amendments have played a significant role in shaping the country’s governance and legal
framework. It ensures that the Constitution remains a living document, reflective of its people’s
aspirations, challenges, and evolving societal values, ensuring its relevance and efficacy for generations
to come.

Case Laws :

Power of Parliament to amend the constitution ) the March of Law - Shankari Prasad Vs Union of India
AIR 1951 an amendment to add Article 31 A and 31 B to the constitution was challenged on the ground
that they take away fundamental right of the Citizens and therfore not allowed by Article 13 . It was
argued taht state include parliment and Law includes Constitutional Amendments . However , Supreme
Court reiected the arguments and held that power to amend the constituition including fundamental
rights is given to the parliment by Articles 368 and the Law is Article 13 refers only to ordinary law made
under the legislative Power

In Sajjan Singh Vs State of Rajasthan Supreme Court followed the Judgment given in ths case of Shankari
Prasad and held that words " Amendment of the Constitution" means amendment of all provisions of
the constitution

However, in Golk Nath V State of Punjab Supreme Court reversed its previous judgement and held that
Parliment has no power from the date of this judgement to Amend Part III of the Constitution so as to
take away any fundamental right . It held that amendment is law as meant under Article 13 and so is
limited by Artcile 13 (2).
To over come the judgement in the case of Galk NAth, the parliment added another clause in Article 13
by the 24th Amendment in 1971. It says that this article does not apply to the amendment of the
constitution done under Article 368. A Similar clause was added in Article 368 for clarity in the same
amendment , which says that amendment done under articles 368 shall not come under the purview of
Article 13.

Keshavanand Bharathi V State of Kerala This amendment itself was challenged . In this case Supreme
Court reversed its judgement again and held that Law in Article 13 only means ordinary law made under
legislative power. The 24th Amendment is only clarifying that position and so its valid. However, it
further held that amendment means that the orginal spirit of the constitution must remain intact after
the amendment. Thus , the basic structure or feature or features of the constitution cannot be
changed .

Minerva Mills Ltd V Union of India

Section 55 of the Constitution (42 nd Amendment) Act is beyond the amending power of the Parliament
and is void since it removed all limitations on the power of the parliment to amend the constitution and
confers power upon it to amend the constitution so as to damage or destroy its basic or essential
feature or its basic structure

Kesavananda Bharati v. State of Kerala, 1973

Facts

The plaintiff, Swami Kesavananda Bharati was the leader of Edneer Matt, a Hindu monastic institution
which is located in Kerala. He challenged the two-state Land Reform Act, imposed by the Kerala
government which sought to restrict the way his property was managed. He stated that his
fundamental rights under Articles 25 (Freedom of conscience and free profession, practice, and
propagation of religion), Article 26 (Freedom to manage religious affairs), Article 14 (Equality before
law), Article 19(1)(f) (Right to property which has been omitted) and Article 31 (the right of private
ownership without restrictions) had been violated.

The case was handled by a 13 Judge Bench. It came to be one of the most important cases in Indias and
established the Basic Structure Doctrine of the constitution. In the case, they considered the
constitutionality of the 24th, 25th, and 29th amendments.
24th Amendment

Changes made to Article 13 are as follows:

Article 13 regulates government policy-making and checks that the laws made by parliament that
infringe on the rights of the people.

The amendment made changes to Article 13. Clause (4) was inserted. It stated that any amendment
done under Article 368 would not be subject to Article 13.

Changes made to Article 368

Changes were made to the power of Parliament to amend.

It stated that despite whatever is mentioned in the constitution, the Parliament would be able to add,
repeal and amend any section of the constitution according to the procedures set down by Article 368,
even provisions mentioned in the proviso of Article 368. After being passed by a majority, such a Bill or
Act merely required the assent of the President.

25th Amendment

Changes made to Article 31

Article 31 states that no one shall be deprived of his property. Clause (2) was inserted.

The clause stated that any law which allowed the state to take property for a certain amount, that
amount would not be questioned by a court of law.

Clause 9(b) after (2A) was inserted that nothing mentioned in Article 19 (1)(f) shall affect such laws.

Insertion of Article 31C

This was with regard to laws that enforced the fundamentals of the Directive Principles. It stated that
laws made to ensure Directive Principles were enforced would not be subject to the scrutiny of Articles
14, 19 and 31. They shall not be declared void if they abridged such rights.

This is only if the law has been passed by state legislation and has got the assent of the President.

29th Amendment

The Kerala Land Reforms Act, 1963 (Act 1 of 1964) and other such land reform Acts were added to the
Ninth Schedule.

Arguments of the Petitioners

They argued that restructuring Parliament’s powers amending are a part of the Basic Structure of the
Constitution. He also stated his fundamental rights to property were being violated. He pleaded to the
court to receive recourse.

Issue

The constitutional validity of the 24th, 25th, and 29th Amendment Act.

The extent of the powers of the Parliament to amend the constitution.

Held

The court upheld the 24th Amendment and stated that the 2nd part of the 25th Amendment was ultra
vires.

The court in this judgment answers an extremely important question that was left unanswered in Golak
Nath v. State of Punjab i.e. the extent of Parliament to amend. The court observed that such a power
should be a balance between the Parliaments’ duty to follow the constitution and its duty to perform
socio-economic duties.

To answer this question, they established the Doctrine of Basic Structure. While they admitted that the
Parliaments’ power to amend the constitution was unrestricted with regards to the portion of the
constitution they wished to amend, there were certain contours of the constitution that should be left
untouched. Hedge.J and Mukherjee.J in their opinions stated that the Indian constitution was more of a
social document based on social philosophy than a political document. Just like every philosophy, the
constitution contains certain basic features that should not be touched.

The majority bench left it up to the courts to decide what the basic features of the constitution were
because, in their opinion, they were not exhaustive.

The major findings of the court are as follows:

There is a difference between an amendment and ordinary laws.

Overruled Golak Nath v. State of Punjab by stating the power of Parliament to Amend is not unfettered.
It can’t violate the Basic Structure of the Constitution.

They established the extent of amendment under Article 368 and stated that it was restrictive and they
could not make fundamental changes.

It stated that parliament can amend any provision in the constitution, including fundamental rights. But
this was again subject to the fact that they could not alter the basic structure

The court mentioned a few basic structures which they could locate such as “Free and Fair Elections”
and the “Federal Structure of the Nations”. They also stated that the list was not exhaustive and it was
up to the courts to decide whether it was a basic structure or not.

The court upheld the 24th Amendment and struck down the second part of the 25th Amendment.
However, the 25th Amendment was to be subjected to two conditions-

The word ‘amount’ does not only relate to compensation and it should be related to the market value of
the property at that time.

The part which barred judicial review was struck down as ‘no law can prevent scrutiny by the courts’.

By validating the first part of the 25th Amendment, the courts recognized the Parliaments’ duty to fulfill
their socio-economic duties. They also saved the citizens from parliamentary totalitarianism by striking
down the second part which barred legal remedy.

They stated that the judgment was an improvement from Golaknath as:

Golak Nath v. State of Punjab was only restricted to the protection of fundamental rights.

By preventing the Parliament from amending the fundamental Rights, it made the constitution rigid. The
concept of Basic Structure is an improvement.
Procedure to Amendment

Article 368

Article 368 lays down the process by which the Parliament can amend the constitution. The process is as
followed.

Step 1

The Bill is introduced in either house of the parliament.

Step 2

The Bill must be passed by a total majority (irrespective of vacancies or absentees) and by a majority,
not less than 2/3rd of people present and voting by both the houses. There is no provision of joint sitting
if there is a disagreement between both the houses.

Step 3

After acquiring the majority, the Bill is presented to the President who will then give his assent to the
Bill.

In the case of amendment of provisions mentioned in Article 368, It needs to be ratified by not less than
half of the states. Ratification should be done by a resolution passed by the state legislature. However,
this must be passed before the amendment Bill is presented to the President for his assent.

Amendment of Fundamental Rights

The backbone of human rights in this country is the fundamental rights stated in Part III of the
constitution. The judiciary of this country in numerous landmark cases have proved time and again that
the fundamental right of an individual or private organization is not something that can be tampered
with. These rights have been given preference in numerous cases with regards to the other sections of
the constitution and it can be said that they make up an extremely important part of it.
But given that the parliament has the power to amend the constitution, could they also amend the
fundamental rights of the constitution? And do they constitute the basic features of the constitution? By
analyzing the case of Sajjan Singh v. State of Rajasthan and Golak Nath v. the State of Punjab, we shall
answer the following questions.

Sajjan Singh v. State of Rajasthan, 1965

In this case, it was held that fundamental rights could be amended as long as they were indirect,
incidental or insignificant on the power given under Article 226, the article under which the High Court
received its powers.

Facts

In order to back up several legislatures with regard to agrarian reforms done by various states, the
parliament had amended certain sections of the constitution. This was done through Acts such as the
Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, and the Constitution
(Seventeenth Amendment) Act 1964. The Constitution (Seventeenth Amendment)Act 1964, an Act that
was questioned had amended 31A (acquisition of the estate by the state) and added 44 Acts to the
Ninth Schedule.

The contentions of the Petitioners

The petitioners who were aggrieved by the legislatures stated that none of these legislatures could be
allowed as the Constitution (Seventeenth Amendment) Act was unconstitutional. They contended:

The powers prescribed by Article 226 will be affected by the Seventeenth Amendment and thus the Act
should follow the special provisions set down by Article 368.

The decision held in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar should be
reconsidered.

The Seventeenth Amendment Act deals with land. Parliament has no right to make laws with respect to
land and thus the Act is invalid.

The Act went against decisions of courts of competent jurisdiction and was thus unconstitutional.

Issues

Whether the Acts violated the powers prescribed by Article 266?

Should the decision of Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar be considered?

Whether the Acts deal with the land?

Can Parliament validate laws that have been ruled as invalid by the courts?

Held

Laws did not affect Article 226

If the effect of the Act on the powers of Article 226 is indirect, incidental or insignificant, then it shall not
be governed by the provisions under Article 336. In order to understand the effects of the Act, one must
analyze the pith and substance of the Act.

The Act solely wishes to amend the fundamental rights with the goal of removing obstacles in the
fulfillment of socio-economic policies. Thus its effects on the powers of 266 are incidental and
insignificant and do not invoke the procedures under 336.

Sri Sankari Prasad shall not be reopened

In order to review the decisions of a previous case, the court must ask itself, “Is it absolutely necessary
and essential that a question already decided should be reopened?”. One must analyze the harm done
by the decision, its effect on the public good, the validity of the question and how compelling the
question is.

It was held by the bench that according to the guidelines placed, the case should not be reopened.
Besides, it shall gravely endanger the laws passed under the amendment Act.

Parliament made no laws on land

The court held that through these Acts, Parliament did not make any laws regarding land. They merely
validated land-legislatures which were previously passed.

Parliament can validate laws that were ruled invalid

The power given under Article 368 can be done both prospectively and retrospectively. Thus, the
parliament can validate laws that have been called invalid by the courts.
Importance

The dissenting opinion of Justice J.R. Mudholkar theorized the ‘basic features’ of the Indian constitution
for the first time. It was his dissent that was used in the famous Kesavananda Bharati case.

He asked “it is also a matter for consideration whether making a change in a basic feature of the
constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the
constitution; and if the latter, would it be within the purview of Article 368 ?”

He questioned whether one could harmonize a duty to the constitution and the power to amend it.

He further observed that it was strange that rights stated to be fundamental to one’s self can be so
easily amended. He believed that while Article 368 stated the provision and process to amend the
constitution, it did not necessarily give the power or the right to amend it.

He also stated that the preamble is the greatest indicator of the basic features of the constitution.

He went on to question, whether Article 368 provides the power to amend any of the basic features
stated there.

I. C. Golaknath & Ors vs State Of Punjab & Anrs., 1971

This case went and reversed the judgment of Sajjan Singh v. the State of Rajasthan. It stated that the
parliament does not have the power to amend fundamental rights.

Facts

The petitioner filed a writ petition against Constitution (Seventeenth Amendment) Act, 1964, which
included in the Ninth Schedule, among other Acts, the Punjab Security of Land Tenures Act, 1953 (Act 10
of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965.
Issue

Could fundamental rights be amended?

HeldArticles 245, Article 246 and Article 248 of the constitution deal with the power of parliament to
amend. Article 368 merely talks about the procedure to amend.

Along with this, an amendment can only become a law if it abides by Article 13 of the constitution.
Thus, if a certain amendment takes away or abridges any rights mentioned in Part III, it is considered
void.

However, the difficulty that the court had to face was the Acts in question may have abridged
fundamental rights, but they were considered valid by previous judgments. They used the doctrine of
prospective overruling and stated for those laws, the amendment will still be considered. But they also
explicitly stated that from the date of the judgment onwards, Parliament would not have the power to
amend any provisions of Part III of the constitution.

Importance

While the ratio of this case was reversed in the case of Kasavananda Bharati, some of Golak Nath’s
arguments were used in the case.

It was ruled that there were no limitations on amending under Article 368. But this was with the
restriction that “Parliament cannot do indirectly what it cannot do directly.” That is amending is strictly a
legislative power, not a constitutional one.

Is the Theory of Basic Structure a limitation on Amending Power?

The government has a duty to perform certain socio-economic goals. To achieve them, they must
sometimes amend the constitution. But what happens when these amendments mess with the basic
structure. Shall duty to perform socio-economic duties trump their duty to abide by the constitution.
The following cases answer that question.

Indira Nehru Gandhi vs Shri Raj Narain & Anr, 1975

When this case was filed to the High Court, Indira Gandhi was at the height of power and her party was
enjoying the majority in Parliament. But later on, Indira Gandhi was found guilty for electoral
malpractices. She called emergency and passed certain amendment Acts, one of them being Article 329-
A which barred judicial review. What needed to be asked was whether judicial review was a part of the
Basic Structure of the Indian Constitution. The court held that the emergency was passed in mala fide
and Article 329A passed under the amendment Act was unconstitutional.

Facts

In the 1971 Indian general election, Raj Narain contented against Indira Gandhi in a constituency of
Uttar Pradesh. The results of the elections were that Indira Gandhi was re-elected and that the Indian
National Congress won a sweeping majority in the Parliament.

Raj Narain filed a petition to appeal to the Allahabad High Court with the appeal to reverse the elections.
He blamed Mrs. Gandhi for using unfair means such as bribery and misusing government machinery to
win the elections.

The Allahabad High Court held that Mrs. Gandhi was guilty of election malpractices. The election in that
constituency was declared null and void. It was also held that she could not stand in elections in that
constituency for 6 years.

Aggrieved, Mrs. Gandhi tried to move to the Supreme Court but they shifted the judgment to a future
date as the court was on vacation. This led to Indira Gandhi calling for an emergency. President
Fakhrudeen Ali when declaring emergency stated it was because of internal emergencies. But in reality,
the real reason was the judgment of the Allahabad High Court.

The Supreme Court tried to stop this order and shift deliberations against it to a future date, but
Parliament added Article 329-A to the 39th Constitutional (Amendment) Act, 1975 which made such
matters out of the jurisdiction of the court.

Thus, the 39th Constitutional (Amendment) Act, 1975 was challenged in the court.

39th Amendment
Clause 4 of Article 329 A

This was with regard to the election of Prime Minister to the Parliament. It stated that the election of
the Prime Minister or the Speaker of the House of the People would not be questioned by any authority
other than the ones mentioned in the law made by the Parliament. It was also stated that the validity of
such laws will not be questioned by the courts. Arguments of the Respondents

Relying on the judgment of Kesavananda Bharati, the respondents argued that the amendment in
question violated the basic features of the constitution.

Parliament under Article 368 was only able to lay down general principles governing the organs of the
state.

The question of whether the elections were valid or not depends on the judiciary under Article 329 and
Article 136. Thus, such an amendment is violative of the democratic structure of India.

The amendment is violative of the principle of equality as it states no rational basis for the need to
demarcate between people who hold high offices and others.

It goes against democracy as it makes The Representation of the People Act, 1951 inapplicable to the
election of the Prime Minister and the Speaker.

Cancellation of the Allahabad High Court judgment is a denial of political justice which is a basic feature
in the constitution. The amendment is a slap on the face to not only judicial review but the Separation of
Power.

Issue

Is the 39th Constitutional (Amendment) Act, 1975 constitutional valid?

Held

The court upheld the ratio of the Kesavananda Bharati case and stated that Clause 4 of Article 329 as
unconstitutional.

The majority bench stated that the clause tore at the fabric of democracy. A free and fair election is a
part of the Basic Structure of the Constitution. To take that away from the people of India is a huge
infringement of their rights. The bench also found it violated other basic features of the constitution
such as rule of law (restriction of arbitrary power by law) and principles of natural justice i.e. Audi
Alteram Partem.
The opinion of Justice Chandrachud J.

Justice Chandrachud J. also added that the Act was violative of the policy of Separation of Power as it
gave the parliament, powers of the Judiciary. He also believed that it was violative of Article 14, as it
created an unequal advantage for some considering despite not being under the scrutiny of a free and
fair elections, they could hold such a powerful office.

Minerva Mills Ltd. & Ors vs Union Of India & Ors,1980

In case, the court examined the implication of the government being able to amend articles in the
constitution which gave them the power to amend. They also examined the relationship between
Directive Principles and fundamental rights. The bench ruled Clause 5 of 368 (expanded their powers of
amendment), Clause 4 of 368 (removing judicial review) and Section 4 of the Amendment Act of 1976
(removing judicial review) to be unconstitutional.

Facts

In order to save mills that are being managed in a way detrimental to public interests, the government
passed the Sick Textile Undertakings (Nationalisation) Act, 1974. By this Act, the government could take
over the management of these mills.

Minerva Mills, a limited company dealing with textiles was accused of being a ‘sick industry’ by the
government. A committee was set up to investigate the matter. The report claimed that the company
was ‘sick’. Thus, under Section 18A in The Industries (Development and Regulation) Act, 1951 the
company was put under the management of the government.

The mill questioned the constitutionality of such an Act that was made possible under the Constitution
(Forty Second Amendment) Act, 1976. Due to this, the constitutionality of the amendment Act came
into question.

Issue

The constitutionality of Constitution (Forty Second Amendment) Act, 1976.

Held

Clause 5 of the Article of 368

The amendment included clause 5 of Article of 368 stated that the parliament had no limitation on what
part of the constitution which they wished to amend. The bench ruled that the newly introduced
amendment was unconstitutional. It expanded the government’s limited power to absolute power. Such
expansion was against the social, political, and economic justice of the people. Thus, Parliament cannot
expand its powers and ruin the Basic Structure of the Constitution.

Clause 4 of Article 368

The amendment also included clause 4 of 368 which stated that no amendment made under Article 368
could be reviewed by the court. The court also ruled this to be unconstitutional. There is an important
balance between the three wings of the government- namely the legislative, the executive and the
judiciary. If this clause is to be valid then the judiciary would not be able to markdown any amendment
passed under this provision, even if it goes against the Basic Structure of the Constitution. It would the
legislature that would decide the validity of the law. That power belongs to the judiciary.

Thus, this clause gives a power to the legislature which clearly belongs to the judiciary. By destroying
this separation of power and depriving the common person of a source of redressal, they go against the
fabric of democracy.

Section 4 of the Amendment Act of 1976

The section tries to isolate Article 14 (equality before law) and Article 19 (freedom of speech) from
Article 31(C). After amendment, Article 31(C) stated that any law giving effect to certain Directive
Principles shall not be said to be invalid if it violates Article 14 and 19. No court will be able to question
such laws. The court ruled this amendment to be unconstitutional. These two rights that have been
violated by these laws are not only an essential part of the Universal Declaration of Human Rights but
also essential to the Basic Structure of the Constitution. It was also said that by the ratio of the
Kesavanda Bharati case, they cannot be emasculated by these amendments.

Relationship between Part III and IV of the Constitution

The court also explains the relationship between Part III and Part IV of the constitution,i.e., the
fundamental rights and the directive principles. They stated that both created the foundation of the
constitution and if one was to be given preference over the other, it would shake the foundation of the
constitution and make it weak. They must both be read in harmony.

Dissent

Bhagwati J. dissented with regard to the amendment to Article 31(C). He was of the opinion that one
should not rule a law to be unconstitutional at first glance and should first analyze its pith and substance
before ruling against it.

Waman Rao And Ors vs Union Of India (UOI) And Ors.1981

In this case, the ratio of Minerva Mills Ltd. v. Union of India was reversed. It also cleared major doubts in
the Kesavananda Bharati case such as; Validity of Acts passed before the judgment.

Facts

The Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962 violated several fundamental rights.
The amendment Act that not only made The Maharashtra Agricultural Lands (Ceiling on Holdings) Act
1962 valid but also introduced Articles 31A and 31B had on the Basic Structure of the Constitution. The
42nd Amendment Act was questioned in the Bombay High Court but the appeals were dismissed. In
Dattatraya Govind Mahajan & Ors. vs State Of Maharashtra & Anr, the same issues were presented in
the court but the court dismissed the appeal. But the judgment came out during the emergency, so
there was an appeal to review the judgment. This case is a review of Dattatraya Govind Mahajan & Ors.
vs State Of Maharashtra & Anr,.

Articles in question

Article 31(A)

This Article protects laws that violate Articles 14 (equality before law) and Article 19 (right to freedom)
with regards to the acquisition of estate. The law states that laws dealing with:

Acquisition of state that led to the extinguishment or modification of any right,

Taking over management of property for public interest or for proper management,

The amalgamation of estates for public interest or for proper management,

The encroaching of rights of managing agents, secretaries and treasurers, managing directors, directors
or managers of corporations, or of any voting rights of shareholders thereof,

The encroaching of rights for a license for the purpose of searching for, or winning, any mineral or
mineral oil, or the premature termination or cancellation of any such agreement, lease or license.

shall not be deemed to be void if they are inconsistent with Article 14 and Article 19.

This was provided that the laws in question were not only formulated by the legislature of the state but
had also got the assent from the President.

It also stated land that is under one’s own personal cultivation can not be taken by the State above the
ceiling limit applicable to him. But if the State does take land above the ceiling limit, then the State must
provide compensation which shall not be less than the market value.

Article 31(B)

This Act stated that no Act or regulation in the Ninth Schedule shall be deemed to be void on the
grounds that it violates any fundamental right, regardless of an order or judgment from any court in this
country.

It shall be the job of the legislature to repeal or amend such Acts.

Article 31(C)

This Act was established to protect laws that secured and furthered the goal of the Directive Principles.
It stated that regardless of the guidelines put down by Article 13 ( ensured protection against draconian
laws), if the laws secured the principles of the Directive Principles, then even if they violated Article 14
and Article 19, they would be considered to be valid.

This was provided that the laws in question were not only formulated by the legislature of the state but
had also got the assent from the President.

Arguments of the parties

The appellants argued that the protective shield like nature of Articles 31-A, B and C, which prevented
any law to be challenged, is unconstitutional.

Issue

Whether by facilitating their power to amend the constitution under Article 31(a), The government
transgressed their power of constitutional amendment?

Whether Article 31(A) is a shield to laws that transgress Article 14, Article 19 and Article 31?

Whether Article 31(B) can be challenged on the grounds that it infringes on the fundamental rights of
the citizens?

Whether Article 31C can be challenged on the grounds that it infringes on the fundamental rights of the
citizens?

Whether the emergency was proclaimed in bad faith and whether the 40th amendment is valid or not?

Whether the doctrine of stare decisis ( the doctrine of looking at previous precedents to guide one’s
judgment) can apply on the validity of constitutional Articles or on the laws that are protected by the
Articles?

Held

Issue 1 and 2 Article 31(A)

Article 31(A) went with the dissenting opinion of Bhagwati J in Minerva Mills Ltd. v. Union of India and
analyzed the pith and substance of the law. They looked at the 1st amendment Act of the Constitution
and believed that the law was placed to aid the zamindari abolition laws and other difficulties that may
arise. They also observed that in the process to abolish socio-economic disparities, it may make way for
other small inequalities that might be impossible for the government to address.

Thus, the court held that Article 31(A) does not jeopardize the Basic Structure of the Constitution.

Issue 3- Article 31(B)

Several Acts by state legislatures were put into the Ninth Schedule and Article 31(B) protected these
laws from the scrutiny of the court.
The bench used the ratio of the Kesavananda Bharati case. They said that Acts put into the Ninth
Schedule prior to the Keshavananda Bharati case would receive protection from Article 31(B). But Acts
and laws inserted in the Ninth Schedule after the case would be open to scrutiny by the courts. They
shall only pass their scrutiny if they do not infringe the Basic Structure of the Constitution.

Issue 4- Article 31(C)

The court upheld the majority view in the Kesavananda Bharati case and ruled Article 31(C) was not
unconstitutional. They stated this Article was closely linked to Article 39 (Guidelines in order to ensure
the betterment of public interest).

Issue 5- Emergency

The House of People (Extension of Duration) Act extended the normal tenure of parliament by one year.
The House of People (Extension of Duration) Amendment Act extended the period by another year.

The bench held that the emergency was constitutional. The evidence against the emergency was
insufficient and reasonable safeguards were taken under Article 352 Clause (3) were applied when
declaring it.

The court held there was a genuine threat to the security and sovereignty of the country and thus, there
was an apt reason for the president to declare an emergency.

But, the court also ruled that the President could no longer declare an emergency unless the Union
Cabinet communicated it to him in writing.

Issue 6- Doctrine of Stare Decisis

The court held it was the laws protected by the Article that would be examined by the doctrine of stare
decisis and not the Article itself.

The three reasons it gave were:

Article 31(a) stands constitutionally valid on its own merits and rests on the foundation of the
constitution.

There are numerous cases which uphold the validity of Article 31(a).

Stare Decisis is not only rigid, but it is limited as well. It would not be wise to apply it to the constitution
as it would be deprived of its flexibility.

S.P. Sampath Kumar Etc vs Union Of India & Ors, 1987

While it has been established that judicial review is a Basic Structure of the Constitution, what happens
when judicial review needs to be sacrificed in order to secure goals essential to democracy, such as
speedy justice? In this case, the court held that while tribunals were exempt from the jurisdiction of the
High Court, it was necessary in order to secure speedy justice.

Facts

The petitioners appealed to the courts against Section 6 & 28 of the Administrative Tribunals Act, 1985.
This Act facilitated the appointment of a tribunal court to handle matters relating to servicemen and the
appointment of members on the board.

Sections of the Act in question

Article 323-A

Clause (1) of this section allowed Parliament to legislate laws for adjudication or trials by administrative
councils regarding disputes and complaints about recruitment and conditions of individuals appointed to
public service.

Clause 2(d) stated that such matters will be out of the jurisdiction of all courts, except the Supreme
Court under Article 136.

Section 28 of the Administrative Tribunals Act, 1985

Enacted under the ambit of Article 323-A, the jurisdiction of the Supreme court for such matters has
been codified under Article 32, with regards to original jurisdiction and Article 136, with regards to
appeals.
Section 6 of the Administrative Tribunals Act, 1985

This section deals with the qualifications needed to be on the tribunal court.

Subsection (1) of the Act lays down the qualification of the Chairman for such tribunals. The
qualifications are:

Has been a Judge of a High Court;

Has held the office of Vice Chairman for at least 2 years;

Has held the office of Secretary of the Government for at least 2 years.

Subsection (2) of the Act states the Vice-Chairman should have at least been:

A judge of the high court.

Held office of Secretary of the Government for at least 2 years.

For a period of not less than three years been a Judicial Member of an Administrative Tribunal.:

Subsection (3) states that the Judicial member should at least be:

Qualified to be a Judge of a High Court;

For at least 3 years been a member of the Indian Legal services.

Subsection 3(A) states a person to be appointed as an Administrative Member should:

For at least two years have held the post of Additional Secretary to the Government of India.

Been the Joint Secretary to India for at least three years.

Contentions of the Parties

They contended that the exclusion of the High Court in service matters under Article 226 and Article 227
was unconstitutional. They also questioned the validity of the prescribed mode of appointment. They
believed it was outside the powers of parliament under Article 323-A, as they were appointing non-jurist
men.
Issue

The constitutional validity of the Administrative Tribunals Act 1985.

Held

The court held that such tribunals are necessary to ensure principles such as speedy justice, uniformity
in the decision and predictability of the decisions. Even if it came at the cost of such tribunals remaining
out of the jurisdiction of the High Court.

It was also important that along with jurists, esteemed members with specialized knowledge of the
subject should also be appointed. They will be able to add points of view and inputs which the judiciary
will not be able to provide. Thus, the indiscriminate appointment of such esteemed members will have
little to no effect on the workings of the tribunals.

L. Chandra Kumar vs Union Of India And Others, 1997

This case continues from the S.P. Sampat Kumar case.

Facts

Before the administrative tribunal was even established, several writ petitions had been filed. The
following case deals with the issues raised in the S.P. Sampath Kumar case.

Articles in Question

Article 323 B

The Act set up tribunals for other matters. The certain matters were:

Levy, assessment, collection and enforcement of any tax;

Foreign exchange, import, and export across customs frontiers;

Industrial and labor disputes;

Land reforms by way of acquisition by the state of any estate as defined in Article 31A or of any rights
therein or the extinguishment or modification of any such rights or by way of the ceiling on agricultural
land or in any other way;

The ceiling on the urban property;

Elections to either House of Parliament or the House or either House of the Legislature of a state, but
excluding the matters referred to in Article 329 and Article 329A;

Production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and
such other goods as the President may, by public notification, declare to be essential goods for the
purpose of this Article and control of prices of such goods;

Offences against laws with respect to any of the matters specified in sub-clause (a) to (g) and fees in
respect of any of those matters;

Any matter incidental to any of the matters specified in sub-clause (a) to (h)

Issues

The doubts, arguments, and contentions regarding the Administrative Tribunal were grouped under
three large issues:

Whether the power upon the Parliament under Article 323-A and upon the State by Article 323-B to
exclude the jurisdiction of all courts other than the Supreme Court opposes the power of judicial review
of the High Court?

Can these tribunals competently test the constitutional validity of a statute or a rule?

Can the tribunals be said to be effective substitutes of the High Court for judicial review? What changes
should be made to the tribunals in order to make them suitable substitutes?

Held

Issue 1- Article 323 (A) and 323 (B)

In the final hearing of the Sampath Kumar case, the jurisdiction of the Supreme Court was amended to
be saved not under Article 136, (Special leave to appeal) but Article 32 (under this article, one can move
to the Supreme Court when one’s rights have been unduly undermined).

In this case, the court did not address the issue of whether Article 323A (2) needed a similar
amendment. But they did mention that the main intention of the Act was to provide for a body for
speedy justice, and made clear that the tribunals performed a substitution role, not a supplementary
one.

They took into view the suggestions of the learned counsel who stated that Article 323A (2) (d) and
Article 323B (3) (d) should be declared unconstitutional as they shield themselves from the scrutiny of
the learned court. Another counsel stated that the power of judicial review can not be entrusted to
newly formed quasi-judicial courts that are vulnerable to executive influences.

They also came to the conclusion that judicial review is a basic feature of the constitution and that
Article 25 (corresponding to Article 32) was the very soul of the Constitution.

Issue 2- Constitutional Competence of Tribunals

The court ruled that tribunals have the constitutional competence to rule a statute or rule as
constitutional or unconstitutional.

With regard to the power of judicial review, the court took help from American precedents as they
stated that judicial review in America and India are very similar. In America, all courts regardless of their
rank had judicial review. No court, other than the US Supreme Court has the power to prevent granting
of judicial review.

If the power given to the Supreme Court through Article 32 can be conferred to other courts, there is no
reason that the same can not be done with the powers given to the High Court through Article 226.
However, it is important to note that the original jurisdiction of the Supreme Court and the High Court
remain and the tribunals Act as supplementary bodies.

They said that tribunals should have the power of judicial review for the following reasons:

It is important to clear the backlog cases.

Even though the tribunals have underperformed, it is wrong to blame their founding principles on their
performance. The reasons why such tribunals were established are still at large and the existence of
tribunals can help rectify those wrongs.
But such tribunals would be subject to review of the High Court under Article 266/ Article 277.

Issue 3- Tribunals as Complementaries to the High Court

The court stated that tribunals are not substitutes but complementaries to the High court. They
suggested the following changes:

Decisions of the tribunals will be subject to review before division bench of the High Court.

The appointment of a mix of jurists and experts in the field is beneficial to the tribunals.

Tribunals shall be made subject to the supervisory jurisdiction of the High Court.

In order to keep tabs on the tribunals, the Ministry may be able to appoint supervisory bodies.

M. Nagaraj & Others vs Union Of India & Others, 2007

Facts

Several write petitions against The Constitution (Eighty-fifth Amendment) Act, 2001 was filed.

Arguments of the Petitioners

The petitioner’s aggrieved by The Constitution (Eighty-fifth Amendment) Act, 2001, pleaded to the court
to quash the amendment Act with regards to Article 16(4A) (that provides for reservation in promotion
with consequential seniority). They say that such an Act is violative of the basic structure and is
unconstitutional.

They also contend that the Article reverses the decisions of various previous cases. By reversing the
decisions of such judgments, the petitioners contended that they have acted like a judiciary body. The
use of such powers is violative of the Basic Structure of the Constitution.

The amendment also sought to alter the fundamental right of equality. By attaching “consequential
senior” to “accelerated promotion” under Article 16(1), it violates Article 14 (equality before law).

They argued that adding the clause “consequential senior” impairs efficiency.

The petitioners’ questioned The Constitution (Seventy-Seventh Amendment) Act, 1995. They contended
that if accelerated seniority is given to roster point promotees, they would have an unprecedented
advantage. For example- A roster-point promotee in the graduate stream would reach the 4th level by
the time he attains the age of 45 years. On the other hand, the general merit promotee would reach the
3rd level out of 6 levels at the age of 56.
Issue

The issue was the constitutionality of the Constitution (Eighty-fifth Amendment) Act, 2001.

Held

The amendments to Article 16 were considered to be valid and did not alter the structure of Article 16.

I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors, 2007

Facts

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari), Act, 1969, was struck down by
the court as it was not a form of agrarian reform protected by Article 31-A. Similarly Section 2(c) of the
West Bengal Land Holding Revenue Act, 1979 was also struck down as being not only arbitrary but also
unconstitutional.

Consequently, by The Constitution (Thirty-Fourth 34th Amendment) Act, and The Constitution (Sixty-
Sixth 66th Amendment) Act, the Janman Act, and the West Bengal Land Holding Revenue, Act. 1979
were inserted into the ninth schedule.

Contentions of the Petitioners

The contention was:

To insert a provision in the ninth schedule that has been ruled to be unconstitutional is against a judicial
review that is a basic feature of the constitution

To insert an Act which has been stated to violate the fundamental rights of an individual is against the
Basic Structure of the Constitution.

Issues

Can the 9th Schedule be immune to judicial review of the Supreme Court?

Whether judicial review of Ninth Schedule laws would include the basic structure test on the touchstone
of fundamental rights?

Held
Issue 1- Judicial Review

The 9th Schedule can not be immune to judicial review of the constitution and every Act inserted in the
Ninth Schedule has to pass the test of fundamental rights. If review that such Acts do not comply with
fundamental rights, then such an Act will be considered invalid.

In the Kesavananda Bharati case, it was observed that the Parliament did not have the power to make
any law that transgressed the fundamental rights. If the Parliament did have such powers, that would go
against the Basic Structure of the Constitution.

Ninth Schedule is a part of the Indian constitution and no additions can be made to it that is against the
basic structure. Article 368 cannot be amended to allow that.

Issue 2- Judicial Review as a Basic Structure

It was held by the court that the Basic Structure of the Constitution would include judicial review of the
Ninth Schedule, read with the fundamental rights.

Using the Kesavananda Bharati case, they stated that all sections of the constitution are open to
amendment other than the contours of the basic structure, and judicial review is one of them. Including
an Act in the Ninth Schedule does not exclude it from the scrutiny of the court.

If the Act passes the test of The basic structure then it shall be stated as valid, but if it does not pass the
test, it shall be stated as void to avoid Parliamentary Totalitarianism.

Such a test would check the impact and effect of the law i.e the pith and substance, not the law itself.

They also stated the principles of fundamental rights should not be violated by such laws’ While Article
13 ensures this, Parliament still goes unchecked in establishing laws contrary to the fundamental rights.
These rights have always enjoyed a special place in the constitution, thus it is necessary that laws in the
Ninth Schedule abide by them.
Conclusion

Through this article, we explored the amendment of the constitution. We found that there is something
called the Basic Structure of the Constitution and it is against the basic principles of justice to breach it.
The judiciary was at first of the opinion that the preamble was what constituted the basic structure of
the constitution but later on, it was ruled that other aspects of the constitution such as judicial review
could also be the aspects of the Basic Structure of the Constitution.

The government in many landmark cases tried to amend the constitution in order to make it easier to
ensure the best for the public interest. The judiciary was absolutely against the whole idea, in later
judgments we see the judges opening up to the idea of the executive being able to override certain
aspects of the basic structure in order to ensure the best for the public interest. But in later on
judgments, unless the judiciary was absolutely convinced that such Acts would be beneficial in ensuring
greater public welfare, they were strict about amendments that violated the basic structure.

What we must realize is that the constitution is the backbone of this democracy. While it was
revolutionary of the fathers of our constitution to provide provisions to amend the constitution, it is
essential that such provisions are not misused. Misuse could result in excessive power of the legislative
or the executive which could tear the fabric of our democracy.