BASIC STRUCTURE DOCTRINE

Whether the Fundamental Rights were amendable so as to dilute or take away any
Fundamental Right through a constitutional amendment?

Since 1951, a number of amendments have been effectuated in the Fundamental

Rights. The cumulative effect of these amendments has been to curtail, to some
extent, the scope of some of these rights.
The worst affected Fundamental Right has been the right to property contained in Art.
31 which has been amended several times. The basic trend of these amendments has
been to immunize, to some extent, state interference with property rights from
challenge under Arts. 14, 19 and 31 as well as to seek to exclude the question of
compensation for acquisition or requisitioning of property by the state from judicial
purview.

The constitutional validity of these amendments has been challenged a number of

times before the Supreme Court.

Let us examine some of the cases

1) Shankari Prasad Singh v Union of India AIR 1951 SC 458

The first case on amendability of the Constitution, the validity of the Constitution (First
Amendment) Act, 1951, curtailing the right to property guaranteed by Art. 31 was challenged.
The argument against the validity of the First Amendment was that Art. 13 prohibits enactment
of a law infringing or abrogating the Fundamental Rights, that the word ‘law’ in Art. 13 would
include any law, even a law amending the Constitution and, therefore, the validity of such a law
could be judged and scrutinised with reference to the Fundamental Rights which it could not
infringe.

Here was thus posed a conflict between Arts. 13 and 368. Adopting the literal interpretation of
the Constitution, the Supreme Court upheld the validity of the First Amendment. The Court
rejected the contention and limited the scope of Art. 13 by ruling the word ‘law’ in Art. 13 would
not include within its compass a constitution amending law passed under Art. 368. The Court
stated on this point: “We are of the opinion that is the context of Art. 13 law must be taken to
mean rules and regulations made in the exercise of ordinary legislative power and not
amendments to the Constitution made in the exercise of constituent power with the result that
Art. 13(2) does not affect amendments made under Art. 368”.
The Court held that the terms of Art. 368 are perfectly general and empower Parliament to
amend the Constitution without any exception. The Fundamental Rights are not excluded or
immunized from the process of constitutional amendment under Art. 368. These rights could not
be invaded by legislative organs by means of laws and rules made in exercise of legislative
powers, but they could certainly be curtailed, abridged or even nullified by alterations in the
Constitution itself in exercise of the constituent power.

The Court, thus, disagreed with the view that the Fundamental Rights are inviolable and beyond
the reach of the process of constitutional amendment. The Court, thus, ruled that Art. 13 refers to
a ‘legislative’ law, i.e., an ordinary law made by a legislature, but not a constituent’ law, i.e., a
law made to amend the Constitution. The Court thus held that Parliament could by following the
‘procedure’ laid down in Art. 368 amend any Fundamental Right.

b) Sajjan Singh v Rajasthan AIR 1965 SC 845

The validity of the Constitution (Seventeenth Amendment) Act, 1964, was called in question.
This Amendment again adversely affected the right to property. By this amendment, a number of
statutes affecting property rights were placed in the Ninth Schedule and were thus immunized
from Court review.

The Supreme Court again rejected the argument by a majority of 3 to 2. The majority ruled that
the ‘pith and substance’82 of the Amendment was only to amend the Fundamental Right so as to
help the State Legislatures in effectuating the policy of agrarian reform. If it affected Art. 226 in
an insignificant manner, that was only incidental; it was an indirect effect of the Seventeenth
Amendment and it did not amount to an amendment of Art. 226. The impugned Act did not
change Art. 226 in any way.

The conclusion of the Supreme Court in Shankari Pd. as regards the relation between Arts. 13
and 368 was reiterated by the majority. It felt no hesitation in holding that the power of amending
the Constitution conferred on Parliament under Art. 368 could be exercised over each and every
provision of the Constitution.
The majority refused to accept the argument that Fundamental Rights were “eternal, inviolate,
and beyond the reach of Art. 368.”
The Court again drew the distinction between an ‘ordinary’ law and a ‘constitutional’ law made
in exercise of ‘constituent power’ and held that only the former, and not the latter, fell under Art.
13.

c) Golak Nath v State of Punjab AIR 1967 SC 1643

The constitutional validity of the Constitution (Seventeenth Amendment) Act was challenged in
a very vigorous and determined manner. Eleven Judges participated in the decision and they
divided 6 to 5.
The majority now held, overruling the earlier cases of Shankari Prasad and Sajjan Singh, that the
Fundamental Rights were non-amendable through the constitutional amending procedure set out
in Art. 368, while the minority upheld the line of reasoning adopted by the Court in the two
earlier cases.

The majority now took the position that the Fundamental Rights occupy a “transcendental”
position in the Constitution, so that no authority functioning under the Constitution, including
Parliament exercising the amending power under Art. 368, would be competent to amend the
Fundamental Rights. The majority was worried at the numerous amendments of the Fundamental
Rights which had taken place since 1950. It apprehended that if the courts were to hold that
Parliament had power to take away or abridge the Fundamental Rights, a time might come when
these rights are completely eroded and India would gradually and imperceptibly pass under a
totalitarian regime. This fear coloured and conditioned the approach of the majority to the
question of amendability of the Fundamental Rights. The majority thus sought to make the
Fundamental Rights inviolable by constitutional amendment by ruling that Parliament could not,
under Art. 368, amend any Fundamental Right.

PROSPECTIVE OVERRULING

The power of Parliament to amend the Fundamental Rights, and the First and the Seventeenth
Amendments specifically, had been upheld previously by the Supreme Court in Shankari Pd. and
Sajjan Singh. Also during 1950 to 1967, a large body of legislation had been enacted bringing
about an agrarian revolution in India. This legislation was based on the premise that Parliament
had authority to amend Fundamental Rights. If the Supreme Court were now to give effect, to its
view of non-amendability of Fundamental Rights with retrospective effect and were to hold the
Seventeenth Amendment void, it would affect the constitutional validity of this legislation,
introducing chaos and unsettled conditions in the country. Therefore, the present decision was
not to invalidate the amendments made so far to the Fundamental Rights. But, in future,
Parliament would have no power to take away or abridge any of the Fundamental Rights.

The following four major propositions can be drawn from the majority opinion in Golak Nath:
(1) The substantive power to amend is not to be found in Art. 368, this Article only contains the
procedure to amend the Constitution;
(2) A law made under Art. 368 would be subject to Art. 13(2) like any other law;
(3) The word ‘amend’ envisaged only minor modifications in the existing provisions but not any
major alterations therein;
(4) To amend the Fundamental Rights, a Constituent Assembly ought to be convened by
Parliament.

The majority opinion in Golak Nath emanated from the premise that Fundamental Rights are
fundamental and need to be protected. The majority was afraid of a possible erosion of the
Fundamental Rights if the process of amendment of these rights continued unabated and was not
halted. The majority set up the major premise that these rights are transcendental and must not,
therefore, be allowed to be whittled down by Parliament.

TWENTY FOURTH AMENDMENT ACT

To neutralise the effect of Golak Nath, Nath Pai, M.P., introduced a private member’s bill in the
Lok Sabha on April 7, 1967, for amending Art. 368, so as to make it explicit that any
constitutional provision could be amended by following the procedure contained in Art. 368. The
proposed bill was justified as an assertion of the “Supremacy of Parliament” which principle
implied “the right and authority of Parliament to amend even the Fundamental Rights.

In 1971, Parliament enacted the Constitution (Twenty-fourth) Amendment Act introducing

certain modifications in Arts. 13 and 368 to get over the Golak Nath ruling and to assert the
power of Parliament, denied to it in Golak Nath, to amend the Fundamental Rights. Thus, an
attempt was now made to undo the effect of Golak Nath.

The following changes were sought to be made in Arts. 13 and 368:

(a) It was now clarified that Art. 13 would not stand in the way of any constitutional amendment
made under Art. 368. This was sought to be achieved by adding a clause to Art. 13 declaring that
Art. 13 shall not apply to any constitutional amendment made under Art. 368.16
(b) As a matter of abundant caution, a clause was added to Art. 368 declaring that Art. 13 shall
not apply to any constitutional amendment made under Art. 368.
(c) The marginal note to Art. 368 was changed from “Procedure for Amendment of the
Constitution” to “Power of Parliament to amend the Constitution and Procedure therefore”.

TWENTY FIFTH AMENDMENT

(i) The word “amount” was substituted for the word “compensation” in Art. 31(2). This was
done to remove any contention that the Government was bound to give adequate compensation
for any property acquired by it;
(ii) Art. 19(1)(f) was delinked from Art. 31(2);
(iii) a new provision, Art. 31C, was added to the Constitution saying—
(i) that Arts. 14, 19 and 31 would not apply to a law enacted to effectuate the policy underlying
Arts. 39(b) and (c), and
(ii) that a declaration in the law that was enacted to give effect to the policy under Arts. 39(b)
and (c) would immunize the law from such a challenge in the Court

Directive Principles had been treated as subservient to Fundamental Rights. Now this
relationship was sought to be reversed; Directive Principles contained in Arts. 39(b) and (c) were
now sought to be given precedence over Fundamental Rights contained in Arts. 14, 19 and 31.
The Twenty-fifth Amendment thus further diluted the right to property.

d) Kesavananda Bharati v State of Kerala AIR 1973 SC 1461

The constitutional validity of both the Amendments, viz., XXIV and XXV, was challenged in the
Supreme Court through an Art. 32 writ petition in Kesavananda Bharati v. State of Kerala, by
Swami Keshavananda Bharati, a mutt chief of Kerala. The matter was heard by a bench
consisting of all the 13 Judges of the Court because Golak Nath, a decision by a Bench of 11
Judges were under review.
Wide ranging arguments were advanced before the Court for over 60 days both for and against
the validity of the Amendments. Eleven opinions were delivered by the Judges on April 24,
1973.

The amending power was now subjected to one very significant qualification, viz., that the
amending power cannot be exercised in such a manner as to destroy or emasculate the basic or
Fundamental Features of the Constitution. A constitutional amendment which offends the basic
structure of the Constitution is ultra vires.
(d) Some of the features regarded by the Court as fundamental and, thus, non amendable are:

(i) Supremacy of the Constitution:

(ii) Republican and democratic form of government;
(iii) Secular character of the Constitution;
(iv) Separation of powers between legislative, executive and the judiciary;
(v) Federal character of the Constitution.

This means that while Parliament can amend any constitutional provision by virtue of Art. 368,
such a power is not absolute and unlimited and the courts can still go into the question whether
or not an amendment destroys a fundamental or basic feature of the Constitution. If an
amendment does so, it will be constitutionally invalid.
The justification for this judicial view is that the expression ‘amend’ in Art. 368 has a restrictive
connotation and could not comprise a fundamental change in the Constitution. The words
“amendment of the Constitution” in Art. 368 could not have the effect of destroying or
abrogating the basic structure of the Constitution”.
The 2/3rd majority in Parliament may not represent the majority of the votes of the people in the
country. This means that there are inherent or implied limitations on the power of amendment
under Art. 368.

The list given above is not final or exhaustive of such features. It is for the courts to decide
as and when a question arises whether a particular amendment of the Constitution affects any
‘basic’ or “fundamental” feature of the Constitution or not.
The question of basic features has to be considered in each case in the context of the concrete
problem.

Some Basic Features Identified by the Court

(1) Supremacy of the Constitution;

(2) Separation of Powers between the legislature, the executive and the judiciary;
(3) Republican and democratic form of Government;
(4) Secular character of the Constitution.
(5) Federal Character of the Constitution.
(6) The dignity of the individual secured by the various Fundamental Rights and the mandate to
build a welfare state contained in the directive principles;
(7) The unity and integrity of the nation.
(8) Parliamentary system