Recent instances of the Constitution being amended by the Parliament, in
relation to fundamental rights and the Preamble, included within its basic
structure, indicate the relevance of Article 368 even today. There is a constant
need to amend the Constitution, including its fundamental rights because it was
first framed in accordance with the socio-political needs deemed essential for
that era, which may not be sufficient or suitable for today's fast-growing
socio-economic, technological and legal climate.
For instance, the right to education became a fundamental right by virtue of the
86th Constitutional Amendment in 2002. Similarly, the 44th Amendment in 1978
removed Articles 19(f) and 31 from Part III of the Constitution, effectively
rendering right to property as not a fundamental right. The higher Indian courts
have interpreted the extent of powers to modify fundamental rights under Article
For example, the dissenting opinion in Sajjan Singh v. State of Rajasthan
that Article 368 did not grant absolute powers to the Parliament and could not
be used indiscriminately to usurp the fundamental rights of the citizens. Though
there is ample literature available with regards to examining Article 368
through the lenses of amending the basic structure as a whole, but few papers
recently on specifically amending fundamental rights from a legal perspective,
so the author aims to fill that research gap.
The author aims to trace the journey from the 1st Constitutional Amendment Act,
1951 in relation to Shankari Prasad v. Union of India
to the position
settled in Waman Rao v. Union of India.
The author will attempt to gauge
the rationale behind the bench of various judgments challenging or upholding
certain amendments made by the Parliament to the fundamental rights and include
their own opinion on the same under the analysis component. The author will
tackle the legal and constitutional principles as well as offer socio-political
context for the decisions made, through the use of doctrinal and methods for
conducting in-depth research.
Basic structure encompasses the basic or essential features of the Indian
Constitution that permeates throughout the Constitution or something that forms
the basis of our Constitution. It links important provisions of our
Constitution, without the grundnorm is baseless.
For example, The Constitution (One Hundred and Third Amendment) Act, 2019,
introducing reservation for economically backward sections, has applications to
Article 14 of the Constitution, the first fundamental right, because of its
objective of bringing about equity.
Furthermore, on February 4th, 2022, the Rajya Sabha debated on the issue of BJP
Kerala MP K.J. Alphons wanting to introduce a private member's bill therein to
amend the Preamble of the Constitution. This was opposed by the RJD MP Manoj Jha
and MDMK MP Vaiko in December 2021, on the grounds of violating the rule in the Kesavananda judgement which
was that the rule of law is part of the basic structure of the Indian
This means that anything within the basic structure of the Constitution could
not be amended by the Parliament at all. Within the Constitution, the basic
structure includes fundamental rights, which are found under Part III. As laid
down by A.V. Dicey, the country is said to follow the rule of law only when it
upholds the individual liberties of citizens. Amending powers to alter certain
parts of the Constitution, conferred upon the Parliament, are granted and
limited by Article 368 of the Constitution.
The Constant Tussle Between Article 13 and Article 368: 1st Constitutional
Article 13 of the Indian Constitution states that the Parliament cannot make any
laws which violate, infringe or abdriges the fundamental rights laid down under
Part III of Constitution. On the other hand, Article 368 confers the Parliament
with the power to amend certain parts of the Constitution. The question of
whether the two articles can exist together in harmony still remains unanswered
Many argue that the Constitution is akin to a piece of cloth enveloping the
fundamental rights, Preamble, basic structure and other aspects necessary to
regulate the three organs of governance as well as the people of India. The
scissors used to cut or change the cloth, moulding it to something else,
symbolises the extent of Parliament's power under Article 368 to amend the
When the 1st Constitutional Amendment Act, 1951 was introduced, the Constitution
only contained seven fundamental rights, including the right to property under
Article 31A and 31B, which was later removed by the 44th Constitutional
The rationale behind introducing this right in the first place around the time
of independence was two-fold: firstly, to increase agricultural
production; secondly, to secure opportunities, land and job security for
farmers, cultivators and rural population who were oppressed by the zamindari
system prevalent pre-independence.
They used socialist welfarist techniques and placed a ceiling as to how much
land a person can own, such that too much land and power is not concentrated in
the hands of a few people; a concept similar to constitutionalism. Apart from
this, the State was also allowed to take measures to lawfully seize someone's
property in lieu of compensation for rehabilitation after being displaced.
Such an exploitative structure was later established by an revolutionary policy
of the Indian National Congress, bridging the gap between rampant inequality in
land ownership. Further reforms were set up by the political party through the
Agrarian Reforms Committee with the Chairman J.C. Kumarappa, defeating the need
to keep right to property as a fundamental right any longer in an independent
The 1st Amendment Act also inserted the 9th Schedule and reasonable restrictions
under Article 19(1)(g), thus allowing the government to acquire anyone's person
whether partially or completely. Many citizens were unhappy about the fact that
this Act gave too much power to the Centre to interfere with their lives and
reduced the scope of the most crucial aspect of the Constitution, which were the
They challenged this Amendment Act by filing a case in the Supreme Court of
India on the grounds that the Parliament did not have the power to amend
fundamental rights, which came to be known as the landmark judgement, Shankari
Prasad v. Union of India.
The Supreme Court's dictum was that the changes made by the 1st Constitutional
Amendment stands and that Article 368 allowed Parliament to amend any of the
fundamental rights through Constitutional Amendments. This ratio suppressed the
power struggle between the legislature and the judiciary, because they clarified
that Article 13 only applied to ordinary rights and not to Constitutional
Following this judgement, many State Governments inserted their respective Land
Reforms Acts into the 9th Schedule of the Constitution. This had a huge impact
because any law in derogation of fundamental rights would usually be struck down
as void, but inserting it in the 9th Schedule would make the laws immune to
being struck down irrespective of whether they violate fundamental rights.
This loophole as laid down under the 17th Constitutional Amendment was
challenged in the case of Sajjan Singh v. State of Rajasthan
. The 5-judge
bench with a 3:2 majority held that Article 13 doesn't apply to the 17th
Constitutional Amendment Act. Chief Justice P.B. Gajendragadkar examined the
deeper intent of Constitution framers and interpreted it as them not wanting to
give absolute protection to the fundamental rights because they had not laid
down an expression provision prohibiting fundamental rights from being amended.
Thus, both Shankari and Sajjan seemed to give more power and weightage to
Article 368 over Article 13.
The dissenting opinion given by Justice M. Hidayatullah and Justice J. R.
Mudholkar put forward the question as to whether changing a basic feature of the
Constitution would be considered as an amendment or as a rewriting, and in turn,
whether the power to make this change was conferred by Article 368.
This reframing of the framers' intent led the Court to refer the case to a
larger bench, shaping it into the Golaknath v. State of Punjab
challenged the Sajjan decision. The 11-judge bench agreed with the majority
opinion in Sajjan and held that parliamentary powers under Article 368 were not
absolute and that the Parliament cannot abridge fundamental rights as they are
included under Part III, giving them a transcendental position beyond the scope
of the Parliament's functioning. It further stated that any amendment taking
away, abridging upon or in contravention to a fundamental right conferred by
Part III is unconstitutional, thus subjecting the Parliament's powers to
limitations and judicial review.
Thus, unlike Shankari and Sajjan, Golaknath gave priority to Article 13 over
Article 368 because the Court said that the Parliament uses its power to enact a
Constitutional Amendment. This Supreme Court judgement through a larger bench
effectively reversed its own previous two decisions and supported those who were
not in favour of amending the fundamental rights.
Comeback of the Parliament: 24th Constitutional Amendment
Soon after Golaknath, the courts were burdened with many cases from the public
challenging all amendments curtailing fundamental rights, such as the 17th
Constitutional Amendment removing the right to property as a fundamental right
previously inserted by the 1st Constitutional Amendment. To avoid all this
chaos, the Apex Court had to issue a clarification that Golaknath would apply
retrospectively to past amendments.
While the 1st Constitutional Amendment reduced the scope of fundamental rights,
the Golaknath case reduced the scope of the Parliament's powers. In pursuance of
the Parliament intending to strengthen their amending powers, they decided to
enact the 24th Constitutional Amendment, effectively amending both Article 13
and Article 368 by inserting a 4th sub-clause to both articles.
To reverse the Golaknath decision, the 24th Amendment stated under Article
368(4) that if Parliament enacts another Constitutional Amendment, it would not
be applied to Article 13, while Article 13(4) laid down the vice versa
statement. Thus, the position after the 24th Amendment Act was that the
Parliament can amend any part of the Constitution including fundamental rights.
Other constitutional amendments came after the 24th one in order to remove past
constitutional amendments against the rights of citizens. While the 25th
Constitutional Amendment reduced the extent of property rights, the 29th
Amendment brought land reforms. The 26th Constitutional Amendment abolished
the Privy Purse concept, which was the payment made to ruling families to give
up their powers and merge their princely states in 1947 as it had become
redundant. Golaknath's position as well as the 24th, 25th, 26th, 29th
Constitutional Amendments were challenged in Kesavananda Bharati v. State of
The Supreme Court clarified that the Parliament has all the authority to amend
the fundamental rights even before the 24th 26th Constitutional Amendment. The
Court also upheld the validity of the 24th Constitutional Amendment, which made
the parliamentary powers more explicit. The question of the extent of this power
of the Parliament regarding the amendability of fundamental rights arose again
in this case. The Court did not look into whether Article 13 or Article 368 is
more powerful, but decided to take a balanced approach in furtherance of a
harmonious interpretation, known as the basic structure doctrine.
Judiciary's Tussle With Erstwhile Prime Minister Indira Gandhi: 39th
On 12th June 1975, Allahabad High Court laid down a historical decision wherein
they quashed the electoral victory of Indira Gandhi's government, citing
evidence of electoral fraud. As a punishment, they also held that all the
members of her cabinet could not take up any electoral office post for 6 years.
Indira Gandhi then filed an appeal before the Supreme Court. She enacted the
39th Constitutional Amendment Act just a day before the hearing and imposed a
national emergency within one day after that on the grounds of internal
disturbances within the country.
The effect of the 39th CAA was that it inserted Article 329A and removed Article
71. At this time, the election dispute was still pending before the Court.
Article 329A stated that the Supreme Court had no power to try electoral
disputes regarding the President, Vice President, Prime Minister (then, Indira
Gandhi) and the Speaker of the Lok Sabha, and instead, all these would be dealt
with by an independent body.
Due to the passing of this CAA, the pending court case against her could no
longer be in effect. Thus, the intention of the 39th CAA was clear - to let
Indira Gandhi continue serving her term as the Prime Minister of India without
any interference. The electoral results ironically showed that Janata Dal Party
won the election by a great margin, making Morarji Desai the new Prime Minister.
Thus, Indira Gandhi had to reluctantly resign from her post. The ruling party
now decided to reverse all wrongdoings done by the previous government,including
39th CAA and the unsolicited national emergency, by removing Article 329A.
Article 329A was thus declared unconstitutional in the case of Indira Gandhi
v. Raj Narain
, applying the principles of the Kesavananda case. Article 71
was also brought back, which gave back the powers to try electoral disputes to
the Supreme Court.
The Mini Constitution: 42nd Constitutional Amendment
The 42nd Constitutional Amendment brought in a huge amount of alterations after
the emergency period under the Indira Gandhi rule in 1975 to prevent such a
misuse of power from happening again. There were two major changes it
made; firstly, it added sub-clause 4 to Article 31C, which talks about the right
to property; secondly, it inserted Article 368(4) and (5).
Article 31C (4) stated that any law can be put in Part IV under Directive
Principles of State Policy (DPSP), even if it violates fundamental rights under
Part III, making it immune to even someone challenging it before the courts,
while Article 368 (4) stated that Parliament can amend, alter or remove any
fundamental rights under Part III and cannot be subjected to judicial review
like Article 31C(4).
Thus, Parliament can insert or remove any provision from Part III and IV.
Article 368 (5) gave absolute amending powers to the Parliament. Because the
judicial powers were reduced and the balanced approach in Keshavananda, the 42nd
Constitutional Amendment was challenged in Minerva Mills v. Union of India &
The petitioners in Minerva were owners of the Bombay Minerva Mills company, a
property that the government occupied in the garb of nationalisation. The 42nd
Amendment and all its changes were declared unconstitutional in this case,
because of the three basic features laid down by the Supreme Court:
Firstly, judicial review, where rights as conferred by courts of law are
considered basic features and thus cannot be suppressed by Parliament through
Secondly, limited amending power of the Parliament, which meant that Parliament
has limited amending powers and cannot use those limited powers to expand its
powers; thirdly, balance has to maintained between Part III and IV so that
fundamental rights and DPSPs do not clash with each other.
All the Constitutional Amendment Acts after the Kesavananda basic doctrine case
was challenged in Waman Rao v. Union of India
, where the most pertinent
issue that arose before the court was whether these amendments undermined the
basic structure or not.
The Court solved this peculiar proposition by stating that the test of basic
structure as laid down in Kesavananda will follow prospective application in
respect of future amendments/laws. Thus, the Court clarified that any
Constitutional Amendment after 24th April 1973 can be challenged if they do not
follow the basic structure doctrine.
Thus, this case brought back the relevance of Kesavananda rule, allowing the
Parliament to cut and alter parts of the cloth (symbolising the Constitution),
but not throw away or rip up the entire cloth altogether. No part of the
Constitution, including Fundamental Rights, was beyond the Parliament's amending
power, but that does not mean that the basic structure of the Constitution could
be abrogated even by a Constitutional Amendment, indicating the strength of the
Constitution even in today's socio-political context.
- India Const. art. 368.
- MP Jain, The Constitution Of India 2319 (8th ed., LexisNexis 2018).
- Sajjan Singh v. State of Rajasthan, AIR 1964 SC 845.
- Rishabh Guha, The Scope of Article 368 under Article 13: A Timeline, 2
Jus Corpus L.J. 157 (2021).
- Shankari Prasad v. Union of India, 1951 SCR 89.
- Waman Rao v. Union of India, (1981) 2 SCC 362.
- Private Member's Bill to amend the Preamble to the Constitution: An
Explainer, The Leaflet (Feb. 20, 2022, 6:46 PM), https://theleaflet.in/private-members-bill-to-amend-the-preamble-of-the-constitution-an-explainer/
- Rajya Sabha debates use of private bills to amend Preamble to
Constitution, The Hindu (Feb. 15, 2022, 5:00 PM), https://www.thehindu.com/news/national/rajya-sabha-debates-use-of-private-bills-to-amend-preamble-to-constitution/article38377476.ece
- Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225..
- R.S. Gae, Amendment of Fundamental Rights, 9 J.I.L.I. 475-520 (1967
- India Const. art. 13.
- India Const. art. 31A, 31B.
- India Const. art. 19(1)(g).
- Supra note 5.
- Supra note 3.
- Golaknath v. State of Punjab, 1967 AIR 1643.
- Supra note 9.
- India Const. art. 329A.
- India Const. Art. 71.
- Indira Gandhi v. Raj Narain, 1975 AIR 865.
- Minerva Mills v. Union of India & Ors., AIR 1980 SC 1789.
- Supra note 6.