Reading The Constitution’s Soul - Case Law Perspectives On Constitutional Amendments And Their Judicial Fate

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:50:19.10283+00:00

Updated: 2026-08-26T17:09:55.671+00:00

READING THE CONSTITUTION’S SOUL: CASE LAW

PERSPECTIVES ON CONSTITUTIONAL AMENDMENTS

AND THEIR JUDICIAL FATE

Anamika Gautam1, PhD Scholar, Department of Law, Central University of Punjab, Bathinda. Dr. Sukhwinder Kaur2, Associate Professor, Department of Law, Central University of Punjab, Bathinda. Diganta Sarania3, PhD Scholar, Department of Law, RIMT University, Punjab.

ABSTRACT

The dynamic nature of law suggests its ability to provide for the changed circumstances in the future. And the Constitutional Law, which is the supreme law of the land, must be able to adapt itself to the changing life of the society. In that sense only, the Constitution is considered a ‘Living law. ’ In that context, the power of Amendment and the scope of Judicial Review become essential features of constitutional law. Through the lens of Constitutionalism, these two are not mutually exclusive, rather a complementarity, a harmony exists between these two concepts; which ultimately impinges upon the existence of certain fundamental principles for the smooth governance of the nation.

These principles are so very innate to the social fabric of the nation that they have found their place not just in the Preamble of The Constitution, but have been time and again reiterated by the judicature under the ‘Theory of Basic Structure’. Theory of Basic Structure has established a system of checks against the amending powers of the parliament, so that the core elements of the social fabric can be preserved against any unfettered exercise of constituent powers aiming to robe the Indian society of its Constitutionalism. The ‘Basic Structure’ has not been exactly defined but its constituents as pronounced by the judiciary over time have reiterated the scope of the constitutional framework within which the state and its instrumentalities must restrict their actions.

Some of the constituents as mentioned in the Keshavananda Bharti judgment, are the Rule of Law, Sovereignty, Federal and Republic nature of India, Judicial Review, Separation of powers, Secularism, Dignity and Freedom of Individual, and Fundamental Rights, etc. These phrases are not

1 PhD Scholar, Department of Law, Central University of Punjab, Bathinda.

2 Associate Professor, Department of Law, Central University of Punjab, Bathinda.

3 PhD Scholar, Department of Law, RIMT University, Punjab.

mere words, but they are intertwined concepts essential in the very governance of the nation. Keywords: ‘Basic Structure’, ‘Rule of Law’, ‘Separation of Powers’, ‘Fundamental Rights’, ‘Constitutionalism’. I.

INTRODUCTION

In the India's constitutional history, the tussle between the Judiciary and the Legislature for constitutional supremacy has often been a subject of discussion both inside as well as outside the courtrooms. And this conflict has often surfaced in numerous incidents involving challenges against violation of constitutional provisions or practices or for interpretation of a law passed. One such query has been revolving around the inherent basic features of the Constitution that make it ‘The Constitution’. These basic features are so important in a democratic polity that if we abridge the constitution of these features, it loses its essence, and is no more a reflection of the aspirations of the people who constituted it for themselves. Throughout the constitutional fabric, be it the Preamble or the express provisions, a glimpse of these features can be traced.

Among these have been included; Supremacy of the Constitution, Republican and Democratic form of government, Secular character of the Constitution, Separation of powers between three organs of state, Federal Character of the Constitution. These features promote the basic foundation i. e. the dignity and freedom of the individual. And hence, these cannot be changed or destroyed. “In any event it cannot be destroyed from within. In other words. One cannot legally use the Constitution to destroy itself. ” The concern of ‘Basic Features’ is attracted when there is reasonable apprehension that the legislature has transgressed the boundary defined under the Constitution. The Constitution has enabled the legislature to frame laws to meet the requirements of the society, but there are restrictions in terms of inherent limitations on exercise of amendment by the legislature.

This was recognised by the Supreme Court in the Kesavananda Bharti v State of Kerala4, when it postulated the ‘Theory of Basic Structure’. It connotes that the Parliament has ample powers to cause amendment to any of the Articles of the Constitution, however, the said power is restricted in its exercise by some implied or inherent limitations under Article 368 itself. “The word ‘Amendment’ postulates that the old Constitution must survive without the loss of

4 AIR 1973 SC 1461.

identity and must be retained though in amended form and thus, the power does not include the power to abrogate the basic structure”5. Abrogation and amendment are different in meaning. II.

DEVELOPMENT OF BASIC STRUCTURE DOCTRINE IN INDIA

The quest for determining ‘Basic Structure’ or ‘Implied Limitations upon amendment power’ under Indian Constitution started with the very first amendment to the constitution. A couple of Land Reform Legislations passed around 1951 by certain state legislatures jeopardized with the Fundamental right of Property (as it then was) of the people. The first Constitutional Amendment in 1951, brought two Articles, 31A & 31B; which provided for compulsory acquisition of private lands and 9th Schedule, respectively to the Constitution. The 9th Schedule was brought to incorporate laws restricted from judicial scrutiny. And a practice developed among states to put the laws apparently violating the Right to Property into 9th Schedule, so as to prevent these from being questioned in courts6.

The First Constitutional Amendment Act was considered for its constitutional validity in Sankari Prasad Singh Deo vs Union Of India And State of Bihar7. The Majority view opined that the term ‘Law’ as under Article 13 connotes rules and regulations evolved out of the exercise of ordinary legislative power and not the constitutional amendments brought through exercise of constituent power under Article 368. Though Article 13(2) prohibits state from making any law that contravenes any of the provision under Part III of the Constitution, Article 368 didn’t contain any such provision. Speaking of extent of Amending power of the legislature, the Court observed that “Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect.

” The decision in effect maintained that constitutional amendments are out of scope of judicial review, even if they violate the fundamental rights of individuals. In Sajjan Singh v State of Rajasthan8, constitutional validity of 17th Constitutional Amendment was determined. This amendment curtailed the jurisdiction of certain High

5 supra note 5.

6 Shreya Priyadarshni, “Doctrine of Basic Structure: Consequence of tussle between Parliament and Judiciary”, 1, JCLJ, 35, 2021.

7 AIR 1951 AIR 458.

8 1965 SCR (1) 933.

Courts under Article 226, defying the requirements of Article 368, which mandates ratification by one-half of the states before the law takes effect. This concern was not entertained by the Court, but they delved upon the issue of reconsideration of judgement under the Sankari Prasad Deo Case. It was reiterated by the majority opinion that the words “amendment of this constitution” under Article 368 plainly and ambiguously meant amendment of all the provisions of the constitution. It would therefore be unreasonable to hold that the scope of Article 13(2) extended to render invalid an amendment through Article 368. I. C. Golak Nath vs State Of Punjab, 19679 involved the question of revocation of Fundamental Rights under Part III through an amendment of Constitution under Article 368.

It was once again declared that Fundamental rights were transcendental and inviolable and the parliament had no power to take away or abridge any of the fundamental rights by way of constitutional amendment. It was observed that there are already mentioned reasonable restrictions, and no further limitations should be imposed on the liberty of Individual. The 24th Constitutional Amendment Act, 1971, made certain amendments including insertion of word ‘power’ in marginal heading for Article 368, defined ‘amend’ in terms of ‘addition, variation or repeal’ inserted Clause ‘3’ in Article 368 excluding the amendment under Article 368 from purview of Article 13 & complimentary Clause ‘4’ in Article 13 with similar mandate.

Article 31C was also added through the 25th Constitutional Amendment, 1971, that gave primacy to Directive Principles of state policy under Part IV over Fundamental Rights under Part III, with a bar against court’s power to judicial review of a law on ground that it doesn’t give effect to such policy. The 26th Amendment Act, 1971, was related to abolition of Privy Purses and related rights, liabilities and obligations towards erstwhile Rulers. And the 29th Constitutional Amendment Act, 1972 was related to insertion of Kerala Land Reform (Amendment) Acts of 1969 & 71 into the IXth Schedule so that protection of Article 31B against judicial scrutiny could be granted to these two amending Acts. All this was to ensure that the prohibition under Article 13(2) doesn’t nullify the amendment of Constitution under Article 368.

9 AIR 1967 SC 1643.

In Kesavananda Bharati v. State of Kerala10, 1973 considered the validity of the 24th, 25th and 29th Amendments of the Constitution. and reviewed the decision in Golaknath v. State of Punjab. The petitioner, pleaded for protection of his Mutt Property and enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution, prayed that the Amending Act of 1969 to Kerala Land Reforms Act, 1963, be struck off as unconstitutional, ultra vires and void. The constitutionality of 24th Amendment Act was upheld by Supreme Court in Keshavananda Case. The Second part of 25th Constitutional Amendment, which curtailed the fundamental right under 19(1)(f) and gave primacy to legislation under disguise of state policy for securing socio-economic obligations, was declared to be ultra vires.

Additionally, Article 31C (added through 25th amendment) was declared unconstitutional and invalid on the ground that judicial review is a feature of basic structure and hence cannot be taken away. 29th Amendment that put the impugned Land Reform Acts into IXth Schedule was declared valid, however prospective Constitutional Amendments were kept open for judicial review, if they purport to violate the basic structure. The Court held that parliament is empowered to take away or abridge any of the fundamental rights, in so far that such changes do not alter the ‘basic structure’ of the constitution. “Basic structure of the Constitution could not be abrogated even by a constitutional amendment". Indira Nehru Gandhi vs Shri Raj Narain & Anr11 is another important case wherein Doctrine of Basic Structure was reaffirmed.

Four basic features; Sovereign, Democratic, Republic status, Equality of Status and Opportunity to individual, Secularism and Freedom of Conscience and Religion & Government of Law and not of men, i. e. Rule of Law; were considered to be unamendable. The case involved issue of constitutional validity of Section 4 of 39th Constitutional Amendment, 1975 that inserted Article 329A, in effect putting a bar on Courts jurisdiction in matters concerning election of prime minister and speaker of Lok Sabha. The impugned legislation was hastily brought during the pendency of a proceeding in supreme court, filed by the then prime minister Mrs. Gandhi. It challenged Allahabad High Court’s Judgement cancelling her election as void on ground of mal practices and barring her from contesting for

10 supra note 4.

11 AIR 1975 SC 2299.

a period of 6 years. The said legislation was given retrospective effect to do away with the whole situation and to restrict Supreme Courts’ jurisdiction in that regard. The impugned legislation was struck off on the ground that it undermines the standards of free and fair elections, an important feature of the basic structure of the Constitution. It bars the judicial review without providing for another forum where validity of election process be discussed, and violates the principle of separation of power by authorizing parliament to appoint a committee for adjudication, thus it was struck down.

42nd Constitutional Amendment, 1976: To overcome the effects of above two judgements and with an objective to remove certain difficulties in attaining Socio-economic objectives, it added; among other things: Clause 4 in Article 368 excluding constitutional amendment from judicial scrutiny even if it violates, and Clause 5 in Article 368 refuting any limitation on constituent power of parliament to amend by way of addition, variation or repeal the provisions of Constitution; Thus asserting supremacy to the parliament. Minerva Mills Ltd. v Union of India, 198012 both the clauses (Clause 4 & 5) added in 1976 into Article 368 were declared to be invalid by Supreme Court on the ground of violation of two essential features of basic structure; Judicial Review and Limited Amending Power; respectively. The court ruled that ‘limited amending power’ is a basic feature of the constitution.

Thereafter, the concept of basic structure has since been further developed by the Supreme Court in subsequent cases, such as Waman Rao v. Union of India13 (Laws put under IXth Schedule after Keshvananda Bharti Judgement open to Judicial review on basis of Doctrine of Prospective Overruling), Bhim Singh v. Union of India14 (fundamental right to personal liberty, freedom, and life with dignity under Article 20 and Article 21), S. P. Gupta v. President of India15 (known as Transfer of Judges case, Independence of Judiciary), P. Sambamurthy v. State of Andhra Pradesh16 (An amendment, i. e. Proviso to Clause 5 of Article 371D rendered

12 (1980) 2 SCC 591.

13 AIR 1981 SC 271.

14 AIR 1981 SC 234.

15 AIR 1982 SC 149.

16 AIR 1987 SC 663.

invalid on ground of conferring power on State Government to modify or annul final order of Administrative Tribunal and violative of basic structure doctrine, against concept of justice and principle of Rule of law), S. R. Bommai v. Union of India17 (Federalism, proclamation of President’s Rule under Article 356 is subject to judicial review. ), Kihoto Hollohon v. Zachilhu and others18 (validity of Anti defection law empowering Speaker to determine finally on eligibility of a member of house), L. Chandra Kumar v. Union of India and others19 (Power of Judicial Review vested in High Court through Article 226 and Right to Constitutional Remedies before Supreme Court under Article 32), I. R. Coelho v. State of Tamil Nadu and others20, M. Nagaraj & Others vs Union Of India & Others,21 (Reservation in Promotion, promoting Equality held valid), National Legal Services Authority v.

Union of India22 (Recognition of Transgenders as Third Gender and their Right to Equality), Justice K. S. Puttaswamy (Retd) vs Union Of India23, 2018 (Privacy as a fundamental Right) have been clearly stated to be essential features of the Constitution. III.

REQUIREMENT OF AMENDING POWERS AND OF JUDICIAL REVIEW

The Constitution is not a mere legal document, it a reflection of the Socio-political life of the people of the nation. And in as much as the change and progress in life of people is inevitable, the dynamic nature of constitutional law to cater for the needs of people at a particular time, is an essential requirement. By adopting itself to the changed circumstances, it only strengthens the governance mechanisms and helps overcome the crisis. Therefore, in any Constitutional framework the provision for amendment is required to take care of the contingencies in the future, when the existing provisions are of no more relevance to the situation affront. Under the Indian Constitution, Judiciary has been bestowed upon with the power to interpret and adjudicate upon the constitutional validity of all the laws.

In a democratic system whenever a law made by parliament or state legislature is purported to have violated any provision of the constitution, the Apex Court being the guardian of Constitution, has the

17 (1994) 3 SCC 1.

18 (1992) 1 SCC 309.

19 AIR 1997 SC 1125.

20 (2007) 2 SCC 1.

21 AIR 2007 SC 71.

22 (2014) 5 SCC 438.

23 AIR 2017 SC 4161.

authority to declare such a law invalid or ultra vires. This process of judicial scrutiny of legislative acts is termed as Judicial Review. Doctrine of Basic Structure or the Theory of Implied Limitations in practice lays down an approach to sort out the tussle between the Judiciary’s power to Judicial review of any law introduced by the legislature and the Legislature’s power to bring amendment to the Constitution through application of Article 368 of the Constitution. Thus, these two powers although entrusted to two separate organs of the governance, and apparently opposite in context; are not mutually exclusive in a system that promotes Constitutionalism. Infact, these two are essential attributes of a democratic polity. Constitutionalism recognises the need of governance, simultaneously insists upon limitations on government powers.

It contemplates a system of checks and balances that puts powers of legislature and executive under some restraint, preventing to jeopardize freedom of people through an authoritarian and oppressive regime. Therefore, to preserve basic freedoms of individual and to maintain his dignity, a Constitution should be permeated with Constitutionalism, it should have some inbuilt restriction on powers. In essence, the Constitutionalism connotes ‘limited governance. ’ It is antithesis of arbitrary power. Only when Constitution of a country seeks to decentralize power instead of concentrating it at one point, does a country have both- Constitution and Constitutionalism. IV.

CONCLUSION

The basic features of the Constitution have not been determined concretisely by the Judiciary, though several additional features have been added by the Supreme Court under this umbrella, over the years and the claim of any particular feature to be a "basic" feature of the Constitution is determined by the court in the case before it. In the light of the above case laws and discussion, it can be concluded that the Basic Structure of the constitution cannot be derogated from through an amendment so as to defy the very essence of the Constitution. Focusing on the historical background, the Preamble, Fundamental Rights; entire scheme of the constitution and including Article 368, there can be no difficulty in ascertaining the basic elements of the basic structure of the constitution.

So, for the protection of welfare state, Fundamental rights, Unity and integrity of the nation, Sovereign democratic republic nature of the state, Rule of Law and Courts’ power of judicial review is mandatory. Indeed, it

wouldn’t be wrong to assume that the doctrine of Basic Structure or Theory of Implied limitations fosters Constitutionalism.