Constitutional Amendments

& The Doctrine of Basic Structure

Exploring the dynamism and inviolability of India's foundational law.

Introduction & Summary

The Indian Constitution is designed to be a living document, capable of adapting to changing needs and circumstances without losing its core identity. Part XX of the Constitution, specifically Article 368, provides the procedure for its amendment. This provision strikes a careful balance between the rigidity required to protect fundamental principles and the flexibility necessary for growth and evolution. The amending power of Parliament, however, is not absolute, as affirmed by the landmark 'Basic Structure Doctrine' developed by the Supreme Court, ensuring that the fundamental essence of the Constitution remains inviolable. This section explores the rationale, procedures, types of amendments, and the crucial judicial interpretations that define the scope of Parliament's amending power.

Rationale for Amendment Provisions

Adaptability & Evolution

The Constitution must be adaptable to socio-economic, political, and technological changes. Without amendment provisions, it would become static and unable to address future challenges.

Source: Constituent Assembly Debates; M. Laxmikanth

Balance Rigidity & Flexibility

Avoids stagnation from excessive rigidity or instability from excessive flexibility. Article 368 aims for a judicious blend.

Source: M. Laxmikanth

Prevent Unrest & Revolution

Provides a legitimate and peaceful way to bring about constitutional changes, preventing political unrest, revolutions, or a breakdown of machinery.

Source: M. Laxmikanth

Procedure for Amendment (Article 368)

Article 368 lays down two types of amendment procedures. Here's a step-by-step breakdown:

3.1.2.1: Initiation of the Bill
  • Can be introduced in either House of Parliament (not in State Legislatures).
    • A bill for the amendment of the Constitution can originate in either the Lok Sabha or the Rajya Sabha.
    • State legislatures generally cannot initiate a constitutional amendment (except for passing a resolution for the creation or abolition of legislative councils under Article 169).
  • Can be introduced by a Minister or a Private Member.
  • Does not require prior permission of the President.
  • Source: The Constitution of India, Article 368; M. Laxmikanth
3.1.2.2: Passage in Parliament
  • Must be passed in each House by a Special Majority.
    • A majority of the total membership of that House (irrespective of vacancies or absentees).
    • A majority of not less than two-thirds of the members of that House present and voting.
  • Each House must pass the bill separately (No provision for joint sitting). If there is a disagreement between the two Houses, the bill lapses.
  • Source: The Constitution of India, Article 368; M. Laxmikanth
3.1.2.3: Ratification by States (if applicable)
  • This additional requirement applies only to amendments that affect the federal structure.
  • Must be ratified by legislatures of not less than half of the States by a Simple Majority.
  • No time limit prescribed for State ratification.
  • Federal provisions requiring ratification:
    • Election of the President (Articles 54, 55).
    • Extent of executive power of the Union and the States (Articles 73, 162).
    • Supreme Court and High Courts (Articles 124-147, 214-231, 241).
    • Distribution of legislative powers between Union and States (Part XI, Chapter I; Seventh Schedule).
    • Representation of States in Parliament (Fourth Schedule).
    • Article 368 itself (Amendments to the amendment procedure).
  • Source: The Constitution of India, Article 368; M. Laxmikanth
3.1.2.4: Presidential Assent
  • After passage by both Houses (and ratification by States, if required), the bill is presented to the President for assent.
  • President MUST give assent (24th Amendment Act, 1971 made it obligatory). The President cannot withhold assent or return the bill for reconsideration.
  • Once the President gives assent, the bill becomes an Act, and the Constitution stands amended in accordance with the terms of the Act.
  • Source: The Constitution of India, Article 368; M. Laxmikanth

Types of Amendments

Type of Amendment Required Majority in Parliament Requirement of State Ratification Scope/Examples
Simple Majority (Outside Art 368) Simple Majority (50% + 1 of present & voting) Not required Admission/Establishment of new states (Art 2), Formation of new states (Art 3), Abolition or creation of legislative councils (Art 169), Citizenship, 5th/6th Schedule.
Special Majority (Under Art 368) Special Majority (Majority of Total Membership + 2/3rd present & voting) Not required Fundamental Rights (Part III), Directive Principles of State Policy (Part IV), all other provisions not covered by the first and third categories.
Special Majority + State Ratification (Under Art 368) Special Majority (as above) Required (by 1/2 of states by simple majority) Federal provisions (Election of President, SC/HC, Distribution of legislative powers, Representation of States in Parliament, Art 368 itself).

Source: M. Laxmikanth

Scope of Parliament's Amending Power – Judicial Evolution

The power of Parliament to amend the Constitution has been a subject of intense legal and political debate, leading to landmark Supreme Court judgments, shaping the 'Basic Structure Doctrine'.

Shankari Prasad Case (1951)

Context: Challenged the validity of the 1st Constitutional Amendment Act, 1951 (which amended FRs, particularly Right to Property).
Ruling: The SC held that the power to amend under Article 368 includes the power to amend Fundamental Rights. It ruled that 'law' in Article 13(2) refers only to ordinary laws, not constitutional amendment acts.
Implication: Parliament had unlimited power to amend any part of the Constitution, including FRs.

Source: Shankari Prasad Deo v. Union of India (AIR 1951 SC 458)

Sajjan Singh Case (1965)

Context: Challenged the validity of the 17th Constitutional Amendment Act, 1964.
Ruling: The SC reaffirmed its decision in Shankari Prasad, holding that Parliament can amend any part, including Fundamental Rights. (Note: While upholding, two judges expressed doubt about the correctness of the decision in Shankari Prasad).

Source: Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

I.C. Golaknath Case (1967)

Context: Challenged the validity of the 17th Constitutional Amendment Act, 1964.
Ruling: The SC, by a narrow majority (6:5), reversed its earlier stand. It held that Fundamental Rights are given a 'transcendental and immutable position' and are beyond Parliament's amending power. A constitutional amendment IS a 'law' under Article 13(2), and if it abridges FRs, it would be void.
Implication: Parliament could not amend Fundamental Rights.

Source: I.C. Golaknath & Ors. v. State of Punjab & Anr. (AIR 1967 SC 1643)

24th Amendment Act (1971)

Context: Enacted by Parliament to nullify the Golaknath judgment and reassert its power.
Provisions: Amended Article 13: Added clause (4), stating constitutional amendments are not 'laws' for Art 13(2). Amended Article 368: Restored Parliament's power to amend any part (including FRs); made President's assent obligatory.
Significance: Directly nullified the Golaknath judgment, reasserting Parliament's supremacy in amending the Constitution.

Source: The Constitution of India (24th Amendment Act, 1971); M. Laxmikanth

Kesavananda Bharati Case (1973)

Context: Challenged the validity of the 24th, 25th, and 29th Constitutional Amendments.
Ruling: The SC (7:6 majority) upheld the validity of the 24th Amendment Act (thereby restoring Parliament's power to amend FRs). However, it simultaneously propounded the 'Basic Structure Doctrine'. It held that Parliament's power to amend is not absolute and does not extend to altering or destroying the 'basic structure' or framework (e.g., secularism, democracy, federalism, judicial review, rule of law).
Implication: Established a balance between parliamentary sovereignty and judicial supremacy. Parliament can amend any part, but cannot change its essential features.

Source: Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (AIR 1973 SC 1461); M. Laxmikanth

Criticism of the Amendment Procedure

  • No special body for amending the Constitution, power primarily rests with Parliament.
  • States have limited role in initiating amendments (except for Article 169).
  • A significant portion of the Constitution can be amended by Parliament through a special majority, without the explicit consent of the states.
  • The Constitution is silent on whether a state, once it has ratified an amendment, can later withdraw its ratification.
  • Disagreement between the two Houses on an amendment bill cannot be resolved through a joint sitting, leading to potential deadlocks.
  • Critics argue that the amendment procedure is not sufficiently distinct from the ordinary legislative process, especially in terms of the initial stages and the lack of a referendum provision.
  • The absence of a specific time limit for state ratification can lead to delays in the amendment process.

Source: M. Laxmikanth

Important Constitutional Amendments

A chronological overview of key amendments and their impact, demonstrating the Constitution's dynamism:

1st Amendment Act, 1951

Provisions: Added 9th Schedule (to protect land reform laws from judicial review); added Art 31A and 31B; amended Art 15(4) (reservation for backward classes); amended Art 19(2) (new grounds for reasonable restrictions on speech).

Significance: Parliament's first attempt to overcome judicial interpretations (Champakam Dorairajan case on reservations, land reform challenges). Laid groundwork for 9th Schedule controversies.

7th Amendment Act, 1956

Provisions: Reorganized states on linguistic lines (based on Fazl Ali Commission); abolished Part A, B, C, D states; provided for common High Courts for two or more states.

Significance: Enabled large-scale linguistic reorganization of states, shaping India's current federal map.

24th Amendment Act, 1971

Provisions: Amended Art 13 and 368, declaring that Parliament has the power to amend any part of the Constitution, including FRs, and that constitutional amendments are not 'laws' under Art 13. Made President's assent obligatory.

Significance: Directly nullified the Golaknath judgment, reasserting Parliament's supremacy in amending the Constitution. However, its full impact was immediately limited by the Kesavananda Bharati case.

25th Amendment Act, 1971

Provisions: Curtailed Right to Property; added Art 31C (giving primacy to Art 39(b) and (c) over Arts 14, 19, 31, and immunity from judicial review for such laws).

Significance: Further attempt to facilitate socio-economic reforms and land redistribution by reducing judicial hurdles. The judicial review immunity part was struck down in Kesavananda.

42nd Amendment Act, 1976 (Mini-Constitution)

Provisions: Preamble: Added 'Socialist', 'Secular', 'Integrity'. FRs: Added 10 Fundamental Duties (Part IV-A). DPSP: Added three new DPSPs (Art 39A, 43A, 48A) and amended 39(f). Parliament/Judiciary: Curtailed power of High Courts to issue writs; increased life of Lok Sabha/state assemblies to 6 years; made President bound by advice of Cabinet. Art 31C: Extended its scope to give primacy to all DPSPs over Arts 14, 19 (struck down by Minerva Mills).

Significance: Sweeping changes reflecting the political climate of the Emergency. Attempted to enhance the power of Parliament and the executive, widely considered controversial.

44th Amendment Act, 1978

Provisions: Right to Property: Repealed it as a FR, made it a legal right (Art 300A). Emergency Provisions: Substituted 'armed rebellion' for 'internal disturbance' for National Emergency; made emergency proclamation subject to written advice of Cabinet; restored safeguards for FRs during emergency (Art 20 & 21 cannot be suspended). President: Restored President's power to return advice to Cabinet for reconsideration. Life of LS/State Assembly: Restored to 5 years.

Significance: Largely nullified many of the authoritarian tendencies introduced by the 42nd Amendment, aimed at strengthening democratic safeguards and protecting individual liberties.

52nd Amendment Act, 1985

Provisions: Added 10th Schedule (Anti-defection law).

Significance: Aimed at curbing political defections by MPs and MLAs, promoting political stability and party discipline.

61st Amendment Act, 1988

Provisions: Reduced voting age for Lok Sabha and state assembly elections from 21 to 18 years.

Significance: Expanded democratic participation, empowering younger citizens.

69th Amendment Act, 1991

Provisions: Granted special status to Delhi, designating it as the National Capital Territory of Delhi, with a Legislative Assembly and a Council of Ministers.

Significance: Addressed the unique administrative and governance needs of the capital.

73rd Amendment Act, 1992

Provisions: Granted constitutional status to Panchayati Raj Institutions (rural local self-government); added Part IX and 11th Schedule.

Significance: Ushered in a new era of decentralized governance and grassroots democracy.

74th Amendment Act, 1992

Provisions: Granted constitutional status to Urban Local Bodies (Municipalities); added Part IXA and 12th Schedule.

Significance: Strengthened urban governance and decentralization.

86th Amendment Act, 2002

Provisions: Made elementary education a Fundamental Right (Art 21A); changed subject matter of Art 45; added new FD Art 51A(k).

Significance: Pivotal for universalizing elementary education, making it a justiciable right.

91st Amendment Act, 2003

Provisions: Restricted size of Council of Ministers (15% of LS/State Assembly strength); banned defectors from holding public office; strengthened anti-defection law.

Significance: Aimed at curbing jumbo cabinets and promoting political stability by addressing legislative defection.

97th Amendment Act, 2011

Provisions: Granted constitutional status to cooperative societies (made right to form co-op societies a FR under Art 19, added Art 43B in DPSP, added Part IXB).

Significance: Promoted the cooperative movement and its democratic functioning.

99th Amendment Act, 2014

Provisions: Established the National Judicial Appointments Commission (NJAC) for appointment of SC/HC judges.

Significance: Attempted to reform the collegium system of judicial appointments. Was struck down by the Supreme Court in 2015 for violating judicial independence (a Basic Structure element).

100th Amendment Act, 2015

Provisions: Gave effect to the Land Boundary Agreement (LBA) with Bangladesh, facilitating exchange of enclaves.

Significance: Resolved long-standing border disputes, requiring a constitutional amendment as per the Berubari case.

101st Amendment Act, 2016

Provisions: Introduced the Goods and Services Tax (GST).

Significance: Transformed India's indirect tax regime, creating a unified common market. Required significant changes to Centre-State financial relations and powers.

102nd Amendment Act, 2018

Provisions: Granted constitutional status to the National Commission for Backward Classes (NCBC); clarified its powers and functions.

Significance: Strengthened the institutional mechanism for the welfare of OBCs.

103rd Amendment Act, 2019

Provisions: Provided 10% reservation for Economically Weaker Sections (EWS) in government jobs and educational institutions (Arts 15(6) and 16(6)).

Significance: Introduced economic criteria for affirmative action, a significant shift in reservation policy. Upheld by SC in 2022.

104th Amendment Act, 2019

Provisions: Extended the reservation of seats for SCs and STs in the Lok Sabha and state assemblies for another 10 years (till 2030); removed the reservation of seats for the Anglo-Indian community in the Lok Sabha and state assemblies.

Significance: Ensured continued political representation for marginalized communities, while ending special provision for a specific minority.

105th Amendment Act, 2021

Provisions: Restored the power of state governments to identify and notify Socially and Educationally Backward Classes (SEBCs), i.e., their own OBC lists.

Significance: Clarified the roles of Centre and states in identifying OBCs, addressing federal concerns raised by the 102nd Amendment.

106th Amendment Act, 2023

Provisions: Provides for 33% reservation for women in Lok Sabha, state legislative assemblies, and the Legislative Assembly of the National Capital Territory of Delhi.

Significance: Aims to enhance women's political representation. Implementation will be post-delimitation and census.

Source: The Constitution of India (various Amendments); M. Laxmikanth; PIB.

Prelims-ready Notes

  • Part XX, Article 368: Deals with amendment procedure.
  • Rationale: Adaptability, balance rigidity/flexibility, avoid extra-constitutional changes.
  • Procedure (Art 368): Initiation: Either House (not States), Minister/Private Member, No prior President permission.
  • Passage: Each House by Special Majority (Total Membership AND 2/3rd present & voting). Separate passage (No joint sitting).
  • Ratification (for federal provisions): Half of States by Simple Majority. No time limit.
  • Federal provisions: Election of President, Union/State executive power, SC/HC, Legislative powers distribution (7th Sch.), Representation of States in Parliament (4th Sch.), Art 368 itself.
  • President's Assent: MUST give assent (24th Amend, 1971). Cannot withhold or return.
  • Types: Simple Majority (Outside Art 368), Special Majority (under Art 368), Special Majority + State Ratification (under Art 368).

Scope of Amending Power (Judicial Evolution)

Mains-ready Analytical Notes

Contemporary Relevance

Current Affairs and Recent Developments

December 2023

Supreme Court Verdict on Abrogation of Article 370: The Supreme Court, in In Re: Article 370 of the Constitution, upheld the abrogation of Article 370 by a Presidential Order and the subsequent reorganization of the State of Jammu and Kashmir. While the abrogation itself was primarily done through a Presidential Order and not a direct constitutional amendment under Article 368, the case involved intense debates on the nature of Article 370 (temporary or permanent?), federalism, and the scope of Parliament's power to affect the constitutional status of a state. The judgment indirectly reinforced the Parliament's wide powers in reshaping the Union's territory, although the Basic Structure doctrine implicitly remained relevant in the backdrop. (Source: Supreme Court of India website, PIB).

September 2023

106th Constitutional Amendment Act, 2023 (Women's Reservation Bill): This is the most recent constitutional amendment passed. It reserves 33% of seats for women in the Lok Sabha, state legislative assemblies, and the Legislative Assembly of the National Capital Territory of Delhi. Its implementation is deferred until after the next census and subsequent delimitation exercise. This amendment demonstrates Parliament's exercise of its Article 368 power for significant social engineering. (Source: Parliament of India, PIB).

November 2022

EWS Quota Upheld by Supreme Court: A 3:2 majority of the Supreme Court upheld the validity of the 103rd Constitutional Amendment Act, 2019, which provides for 10% reservation for Economically Weaker Sections (EWS). This judgment significantly affirmed the Parliament's power to amend the Constitution to introduce new forms of affirmative action and implicitly confirmed that such amendments do not violate the Basic Structure. (Source: Supreme Court of India website, news reports).

Ongoing

Calls for Constitutional Review: Periodically, there are discussions from various political quarters for a comprehensive review of the Constitution or specific articles, reflecting the ongoing debate about its adaptability and the relevance of various provisions. This is a general trend rather than a specific event but highlights the dynamic nature of constitutional interpretation. (Source: Political statements, academic discussions).

UPSC Previous Year Questions (PYQs)

Prelims MCQs

1. UPSC CSE 2021: A law made by Parliament for the purposes of enabling the exercise of Fundamental Rights can be placed in the Ninth Schedule of the Constitution of India. The validity of a law placed in the Ninth Schedule cannot be examined by any court and no judgment can be made on it.
Which of the statements given above is/are correct?

Answer: (d)
Hint: This question tests the understanding of the 9th Schedule and its evolution in judicial review. The 1st Amendment added 31B and the 9th Schedule. The I.R. Coelho case (2007) ruled that laws placed in the 9th Schedule after Kesavananda Bharati (April 24, 1973) are open to judicial review if they violate the Basic Structure.

2. UPSC CSE 2017: Which of the following statements is/are correct regarding the Preamble of the Indian Constitution?
1. The Preamble is based on the 'Objectives Resolution' moved by Jawaharlal Nehru in 1946.
2. It is enforceable in courts of law.
Select the correct answer using the code given below:

Answer: (a)
Hint: This question relates to the amendability of the Preamble, which was established in Kesavananda Bharati case. The Preamble is not enforceable in courts of law.

3. UPSC CSE 2013: The 'Instrument of Instructions' contained in the Government of India Act 1935 has been incorporated in the Constitution of India in the year 1950 as:

Answer: (b)
Hint: This links the historical context of the Constitution (which is subject to amendment) to a key part.

Mains Questions

Original MCQs for Prelims

1. Which of the following statements regarding the amendment of the Indian Constitution is/are correct?

  1. A bill for the amendment of the Constitution can be introduced by a private member in Parliament.
  2. No provision for a joint sitting of Parliament exists in case of disagreement over a constitutional amendment bill.
  3. The President of India has the power to return a constitutional amendment bill for reconsideration by Parliament.

Select the correct answer using the code given below:

Answer: (b)
Explanation: Statement 1 is correct. A constitutional amendment bill can be introduced by a Minister or a Private Member. Statement 2 is correct. There is no provision for a joint sitting to resolve deadlocks on constitutional amendment bills. Statement 3 is incorrect. The 24th Amendment Act, 1971, made it obligatory for the President to give assent to a constitutional amendment bill, meaning the President cannot withhold assent or return the bill for reconsideration.

2. Consider the following constitutional amendments:

  1. Addition of 'Socialist' and 'Secular' to the Preamble.
  2. Granting constitutional status to Panchayati Raj Institutions.
  3. Reduction of voting age from 21 to 18 years.

Which of the amendments given above would require ratification by the legislatures of not less than half of the States as per Article 368?

Answer: (d)
Explanation: 1. Addition of 'Socialist' and 'Secular' (42nd Amendment) does not affect federal provisions, so it requires only special majority in Parliament. 2. Granting constitutional status to Panchayati Raj Institutions (73rd Amendment) does not affect federal provisions in a way that requires state ratification. It falls under the special majority category. 3. Reduction of voting age (61st Amendment) does not affect federal provisions. It only changes a qualification for voting, which is not a federal structure provision listed under Art 368 requiring state ratification. Therefore, none of these would require state ratification.

Original Descriptive Questions for Mains

1. "The Indian Constitution's amendment procedure is a testament to its character as a 'living document', but it is not without its critics." Discuss the strengths and weaknesses of the amending process as enshrined in Article 368, and analyze how judicial interpretations have shaped its scope. (15 marks)

Key Points/Structure:

  • Introduction: Introduce Article 368 as balancing rigidity and flexibility, making the Constitution a living document.
  • Strengths of the Amending Procedure: Judicial balance, adaptability, peaceful change, federal safeguards (state ratification).
  • Weaknesses/Criticisms: No special body, limited state role in initiation, no joint sitting, ambiguity on state withdrawal of ratification, general similarity to ordinary law.
  • Judicial Shaping of Scope: Trace the evolution from Shankari Prasad & Sajjan Singh (unlimited power) to Golaknath (FRs unamendable) and finally to Kesavananda Bharati (Basic Structure Doctrine), establishing judicial review over amendments.
  • Conclusion: Conclude that despite criticisms, the procedure, refined by judiciary, has allowed the Constitution to be dynamic and enduring, adapting while preserving core values.

2. "The series of constitutional amendments dealing with reservation policies (e.g., 1st, 77th, 81st, 85th, 103rd, 105th) reflect a continuous effort to achieve substantive equality in India, alongside the judiciary's role as guardian of the Basic Structure." Discuss. (10 marks)

Key Points/Structure:

  • Introduction: Briefly state that reservation policies are a key aspect of India's commitment to substantive equality (Articles 15 & 16) and have led to numerous amendments.
  • Evolution of Reservation through Amendments: Detail key amendments (1st - Art 15(4) for SEBC/SC/ST; 77th & 85th - Art 16(4A) for promotion reservations; 81st - Art 16(4B) for carry-forward rule; 103rd - EWS reservation; 105th - restoring states' power to identify OBCs). Explain the socio-political context and impact of each.
  • Judiciary's Role as Guardian of Basic Structure: Discuss how the judiciary has continuously reviewed these amendments (e.g., in cases like M. Nagaraj, EWS quota case 2022). Emphasize how the Basic Structure Doctrine ensures that amendments aiming for equality do not violate other basic features like efficiency or fundamental equality, often by imposing conditions (e.g., quantifiable data, creamy layer, 50% ceiling (with nuances)).
  • Conclusion: Conclude that the amendment process, in conjunction with judicial review, has been instrumental in India's complex and evolving journey towards achieving substantive equality, balancing historical disadvantage with administrative efficiency and contemporary needs.