The Doctrine of Basic Structure
evolved through series of verdicts in
India, one such case was of Shankari Prasad Vs. Union of India.
was result of the ongoing struggles between the judiciary for sovereignty in
independent India. Under this case question was raised of whether the
fundamental rights can be amended under Article 368 by the parliament or not.
Herein, the validity of the First Amendment of the Constitution 1951 was also
challenged which curtailed the Fundamental Right to Property under Article
31.The major augment that was brought forward was that Article 13 prohibits the
enactment of law abridging the Fundamental Right.
Facts Of Cases:
- Herein Supreme Court conceded absolute power to Parliament in amending
- The court gave the verdict that the term law in Article 13 means rules
or regulations made in exercise of ordinary legislative power and not
amendments to the Constitution made in exercise of constituent power
under Article 368.
- According to this verdict the Parliament had the power to amend any part
of the Constitution including Fundamental rights.
- Article 13 of the original constitution said that the state shall not
make any law that takes away or abridges the rights given to the citizens in
Part III and any such law made in contravention of this article shall be
deemed void to the extent of contravention. Therefore, the parliament cannot
amend the constitution in a way that takes away the fundamental rights of
the citizens. This concept was tested in the case of Shankari Prasad vs
Union of India, by the Supreme Court.
- Herein, it was said that that Amendment (in this case an amendment to
Article 31A and 31B) that take away fundamental right of the citizens is not
allowed by article 13. They argued that State¯ includes
parliament and Law¯ includes Constitutional Amendments.
- It was held that Law in Article 13 is ordinary law made under the
legislative powers. And therefore, the parliament has power to amend the
- The Supreme Court applied the principle of harmonic construction as
there is a conflict between Article 368 and Article 13. The provisions of
constitution should be interpreted in a manner that they do not conflict
with each other and there must be harmony among them.
- To cancel the zamindari framework pervasive all over India, some state
councils took certain measures for agrarian changes in especially Bihar,
Uttar Pradesh and Madhya Pradesh by establishing Zamindari Abolition Act.
- Under such enactment tremendous property of land that lay with rich
zamindars was to be and rearrange them among the inhabitants. Certain
Zamindars, feeling themselves distressed, tested the demonstration in the
courts of law as being illegal and violative of their Fundamental Right for
example Right to Property gave on them by Part III of the Constitution.
- The High Court at Patna held that the Act passed in Bihar was unlawful
while the high court at Allahabad in Uttar Pradesh and high court at Nagpur
in Madhya Pradesh maintained the legitimacy of the enactment in the states.
- Advances from those choices and petitions documented by some different
zamindars in these courts were forthcoming. Amidst it, Union Parliament, so
as to put an end all suits, presented a Bill to change the Constitution.
- The Bill, subsequent to going through different changes, was passed by
the necessary dominant part as the Constitution (First Amendment) Act, 1951.
- The Amendment Act was adequate as approving the Zamindari Abolition Laws
and restricting the Fundamental Right to Property.
- New Articles 31A and 31B were remembered for the Constitution to approve
the denounced measures.
- As a response, the zamindars brought the current petitions under Article
32 of the Constitution recording a writ request under the watchful eye of
the Supreme Court testing the Amendment Act, expressing it as illegal and
Implications Of Judgement
- The Supreme court precluded that the ability to alter the Constitution
under Article 368 additionally incorporated the ability to correct basic
rights and law¯ in Article 13(2) incorporates just a common law made in
exercise of the administrative powers and does exclude sacred revision which
is made in exercise of constituent forces. In this way, a sacred revision
will be substantial regardless of whether it compresses or takes any of the
- The court applies the standard of Harmonic Construction as there is a
contention between article 368 and article 13. The arrangements of
constitution ought to be deciphered in a way that they dont struggle with
one another and there is concordance between them.
- In this manner, the court maintained the legitimacy of first
Constitutional (Amendment) Act, 1951 and the petitions were excused with
- Fundamental rights, the basic human rights are enforceable. These
fundamental rights are protected by the court of law by issuing writs.
- Though under Article 352 and 356, the fundamental rights or some parts
of them can be suspended during emergency yet they can be amended by
- The constitutional validity of first amendment (1951), which curtailed
the right to property, was challenged.
- The SC ruled out that the power to amend the Constitution under Article
368 also included the power to amend fundamental rights and that the word law¯
in Article 13 (8) includes only an ordinary law made in exercise of the
legislative powers and does not include Constitutional amendment which is
made in exercise of constituent power. Therefore, a Constitutional amendment
will be valid even if it abridges or takes any of the fundamental rights.
- (1951 SCR 89: AIR 1951 SC 458)