Amendment (Art 368) & the Basic Structure Doctrine — Constitutional Law II Notes

Amendment of the Constitution (Article 368)

Between 1951 and 1973, one question convulsed Indian constitutional law: can Parliament amend away fundamental rights? Parliament said yes and amended freely; the Court first agreed (Shankari Prasad), then wavered (Sajjan Singh), then said no (Golak Nath), until thirteen judges in Kesavananda Bharati found the middle path — Parliament may amend anything, but may not destroy the Constitution’s basic structure. This topic is the story of that struggle.

How the Constitution changes itself

Why an amendment power. No Constitution can foresee everything; it must be able to change with the times. Article 368 is the provision by which the Constitution amends itself — a constituent power different from ordinary law-making.

What “amendment” means. An amendment is a formal change — addition, variation or repeal — to a provision of the Constitution, made by the special procedure of Article 368 (not by an ordinary Act).

The three procedures.

  1. By simple majority (outside Article 368). Some provisions (e.g. creating new States, citizenship, changing Schedules in certain ways) can be changed by an ordinary majority — these are not “amendments” in the Article 368 sense.
  2. By special majority (Article 368). Most of the Constitution is amended by a majority of the total membership of each House and a two-thirds majority of members present and voting.
  3. Special majority + State ratification. For federal provisions (election of the President, distribution of powers, the Union/State judiciary, representation of States, Article 368 itself), the amendment also needs ratification by the legislatures of at least half the States.

The judicial saga — amendability of fundamental rights.

  1. Shankari Prasad v Union of India (1951) — “law” in Article 13 does not include a constitutional amendment; Parliament can amend fundamental rights.
  2. Sajjan Singh v State of Rajasthan (1965) — reaffirmed Shankari Prasad, but with doubts.
  3. I.C. Golak Nath v State of Punjab (1967) — reversed course: Parliament cannot amend fundamental rights.
  4. 24th Amendment (1971) — Parliament struck back, expressly giving itself power to amend any part, including fundamental rights.
  5. Kesavananda Bharati v State of Kerala (1973) — the settlement: Parliament can amend any provision, but cannot destroy the basic structure (Topic 4).

Article 368(2): “An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill …”

In Simple Terms: Article 368 lets Parliament change the Constitution. Small matters need only a simple majority; most changes need a special majority (two-thirds present + half of total membership); and changes that affect the federal balance also need at least half the States to agree. The big fight was whether Parliament could amend fundamental rights — settled in Kesavananda: yes, but not so as to destroy the basic structure.

🧩 WORKED EXAMPLE — amending a federal provision

Facts. Parliament wishes to amend the manner of election of the President and the distribution of legislative powers between the Centre and the States.

Rule. Under the proviso to Article 368(2), amendments to certain federal provisions — including the election of the President and the Union–State distribution of powers — need the special majority plus ratification by the legislatures of at least half the States.

Apply. Both proposed changes fall in the entrenched federal category, so a special majority in Parliament alone is not enough.

Conclusion. The amendment is valid only if, after the special majority in both Houses, it is also ratified by not fewer than one-half of the State Legislatures. Skipping State ratification would make the amendment unconstitutional.

flowchart TD
    ROOT["Amendment (Art 368)"]:::root
    ROOT --> P1["Simple majority (outside 368)"]:::leaf
    ROOT --> P2["Special majority (2/3 present + 1/2 total)"]:::leaf
    ROOT --> P3["Special majority + 1/2 States ratify (federal provisions)"]:::leaf
    ROOT --> S["Saga: Shankari Prasad -> Golak Nath -> 24th Amdt -> Kesavananda"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

  • Shankari Prasad v Union of India (1951) — an amendment is not “law” under Article 13; fundamental rights are amendable.
  • I.C. Golak Nath v State of Punjab (1967) — Parliament cannot amend fundamental rights (later overtaken).
  • [C-12] Kesavananda Bharati v State of Kerala (1973) — Parliament may amend any provision but not the basic structure.

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Basic Structure Doctrine

On 24 April 1973, in a 703-page judgment by the narrowest of margins (7–6), the Supreme Court gave Indian democracy its ultimate safety-catch: Parliament may amend the Constitution, but it can never abrogate its basic structure. It meant that no majority, however large, could turn India into a dictatorship by amendment. It is arguably the most important idea in Indian constitutional law.

A limit on the amending power

Why it exists. Article 368 gives Parliament a vast power to amend. But if that power were unlimited, a temporary majority could amend away democracy, judicial review or federalism — and the Constitution would protect nothing. The basic structure doctrine solves this: Parliament may amend any provision, but cannot damage or destroy the essential framework of the Constitution.

Where it comes from. It was born in Kesavananda Bharati (1973) — Parliament’s amending power under Article 368 is wide but not unlimited; it cannot alter the “basic structure or framework” of the Constitution.

What counts as “basic structure.” The Court has never given a closed list; it is decided case by case. Recognised features include: supremacy of the Constitution; rule of law; separation of powers; judicial review; federalism; secularism; democracy and free elections; the sovereign, democratic, republican character; and the balance between fundamental rights and directive principles.

How it developed (learn the arc).

  1. Kesavananda Bharati (1973) — the doctrine is born.
  2. Indira Nehru Gandhi v Raj Narain (1975) — struck down an amendment shielding the PM’s election from review; free and fair elections and judicial review are basic features.
  3. Minerva Mills v Union of India (1980) — struck down parts of the 42nd Amendment; judicial review and the balance between Parts III and IV are basic structure; the amending power itself is limited.
  4. Waman Rao v Union of India (1981) — applied the doctrine prospectively to laws placed in the Ninth Schedule after 24 April 1973 (the date of Kesavananda).
  5. Kihoto Hollohan (1992), I.R. Coelho v State of Tamil Nadu (2007) — even Ninth-Schedule laws are testable against the basic structure.

The doctrine (as stated in Kesavananda): the power to amend under Article 368 “does not include the power to alter the basic structure or framework of the Constitution.”

In Simple Terms: Parliament can change any part of the Constitution, but it cannot destroy its core identity — things like democracy, the rule of law, judicial review, federalism and secularism. There is no fixed list; courts decide feature by feature. The doctrine was born in Kesavananda and strengthened in Indira Gandhi, Minerva Mills and Waman Rao. It is the final guarantee that India cannot be amended into a dictatorship.

🧩 WORKED EXAMPLE — an amendment abolishing judicial review

Facts. Parliament, by a validly passed constitutional amendment, seeks to abolish the power of judicial review of the High Courts and the Supreme Court.

Rule. Under the basic structure doctrine (Kesavananda, Minerva Mills), Parliament may amend any provision but cannot destroy an essential feature; judicial review has been held to be part of the basic structure.

Apply. Removing judicial review would strip the Constitution of the mechanism that keeps every organ within limits — a destruction of an essential feature, not a mere modification.

Conclusion. The amendment is unconstitutional and void, even though it was passed by the required special majority — the basic structure is beyond the reach of the amending power.

flowchart TD
    ROOT["Basic Structure Doctrine"]:::root
    ROOT --> O["Born: Kesavananda Bharati (1973)"]:::leaf
    ROOT --> F["Features (open list)"]:::leaf
    F --> F1["Supremacy of Constitution; rule of law"]:::leaf
    F --> F2["Judicial review; separation of powers"]:::leaf
    F --> F3["Federalism; secularism; democracy"]:::leaf
    ROOT --> D["Developed: Indira Gandhi, Minerva Mills, Waman Rao, I.R. Coelho"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

  • [C-12] Kesavananda Bharati v State of Kerala (1973) — the basic structure cannot be amended away.
  • Indira Nehru Gandhi v Raj Narain (1975) — free and fair elections and judicial review are basic features.
  • [C-13] Minerva Mills v Union of India (1980) — the amending power is limited; the Part III–IV balance and judicial review are basic structure.
  • Waman Rao v Union of India (1981) — basic-structure review applies to post-Kesavananda Ninth-Schedule laws.
  • I.R. Coelho v State of Tamil Nadu (2007) — even Ninth-Schedule laws are subject to basic-structure review.

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Schedules & Review of the Working of the Constitution

Two syllabus-listed short notes

The Schedules of the Constitution. A Schedule is an appended list that supplements the Articles by holding detailed matter. There are twelve Schedules; the ones worth knowing:

  1. First — the States and Union Territories.
  2. Second — salaries/allowances of high offices (President, Governors, judges).
  3. Third — forms of oaths and affirmations.
  4. Seventh — the three legislative Lists (Union, State, Concurrent) — the backbone of Unit I.
  5. Ninth — laws immunised from challenge (but now testable against the basic structure, I.R. Coelho).
  6. Tenth — the anti-defection law (Unit III).
  7. Eleventh & Twelfth — powers of Panchayats and Municipalities (Unit I).

Review of the Working of the Constitution (NCRWC). The National Commission to Review the Working of the Constitution (NCRWC) was set up in 2000 (headed by Justice M.N. Venkatachaliah) and reported in 2002. Its brief was not to write a new Constitution but to recommend improvements within the existing framework. Its main recommendations touched electoral reform, strengthening fundamental rights, curbing the misuse of Article 356, and improving the working of Parliament and the judiciary. Most were advisory and not all were implemented.

In Simple Terms: The Schedules are appended lists that carry detail — the Seventh (the three Lists), the Tenth (anti-defection) and the Ninth (protected laws) are the ones to remember. The NCRWC (2000–02) was a commission that suggested reforms to make the existing Constitution work better; it did not propose replacing it.

Case Laws

  • I.R. Coelho v State of Tamil Nadu (2007) — laws in the Ninth Schedule are still subject to basic-structure review.

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