Amending power and the basic structure

The first principle

A constitution has to change, or it will be broken by the society it governs; but if it can be changed without limit, it stops being a constitution and becomes an ordinary law. India's answer sits between the two. Parliament may amend almost any provision through a procedure harder than ordinary law making, but it may not use that power to destroy the identity of the document that created it. Everything in this note, from Article 368 to the basic structure doctrine, follows from that one balance between flexibility and permanence.

The core

What Article 368 provides

• Source of the power. Article 368 gives Parliament the power to amend "by way of addition, variation or repeal" any provision of the Constitution. After the Twenty fourth Amendment (1971), the Article says expressly that this is a constituent power, and that an amendment is not "law" under Article 13, so it cannot be struck down merely for touching a Fundamental Right.
• Who can start it. An amendment Bill can be introduced only in Parliament, in either House, by a minister or a private member, and needs no prior recommendation of the President. State legislatures cannot initiate an amendment; the only exceptions are resolutions for creating or abolishing a Legislative Council under Article 169, which is not an amendment under Article 368 at all.
• No joint sitting. Each House must pass the Bill separately with the required majority. If the Houses disagree, the Bill fails, because Article 108 on joint sittings does not apply to amendment Bills.
• Assent is bound. The Twenty fourth Amendment also made it obligatory for the President to give assent to a duly passed amendment Bill. The President can neither withhold assent nor return it for reconsideration.

Three levels of rigidity

• Simple majority, outside Article 368. Some provisions can be changed by the ordinary law making process, such as forming new states (Articles 2 to 4), creating or abolishing Legislative Councils, and the Fifth and Sixth Schedules. The Constitution itself says these are "not deemed to be amendments" for the purpose of Article 368.
• Special majority of Parliament. Most provisions, including Fundamental Rights and Directive Principles, need a majority of the total membership of each House and two thirds of the members present and voting.
• Special majority plus ratification by half the states. Provisions that shape the federal balance need, in addition, ratification by the legislatures of at least half the states by simple majority. These include the election of the President, the extent of Union and state executive power, the Supreme Court and High Courts, the distribution of legislative powers, the lists in the Seventh Schedule, representation of states in Parliament, and Article 368 itself.

How the limit on the power was discovered

• The early view (1951 to 1965). In Shankari Prasad (1951) and Sajjan Singh (1965) the Supreme Court held that Parliament could amend any part of the Constitution, including Fundamental Rights, because an amendment is not "law" under Article 13.
• The reversal (1967). In Golaknath, an eleven judge bench held by six to five that an amendment is "law" under Article 13, so Parliament could not abridge Fundamental Rights at all. The ruling froze the rights chapter against change.
• Parliament's reply (1971). The Twenty fourth Amendment restored the power to amend Fundamental Rights, and the Twenty fifth curtailed the right to property and protected some laws from challenge.
• The settlement (1973). In Kesavananda Bharati, a thirteen judge bench held by seven to six that Parliament can amend any provision, including Fundamental Rights, but cannot alter the "basic structure or framework" of the Constitution. Golaknath was overruled, the Twenty fourth Amendment upheld, and the power was declared wide but not unlimited.
• The test of the doctrine (1975 to 1980). In Indira Nehru Gandhi v Raj Narain (1975) the Court struck down a clause of the Thirty ninth Amendment that put the Prime Minister's election beyond judicial scrutiny, because free and fair elections are part of the basic structure. The Forty second Amendment (1976) then added clauses (4) and (5) to Article 368 declaring the amending power unlimited and beyond review. In Minerva Mills (1980) the Court struck both clauses down, holding that a limited amending power is itself a basic feature: Parliament cannot convert a limited power into an absolute one by using that very power.

Dimensions

• Legal. The doctrine is an implied limitation: the word "amend" is read to mean change within the framework, not replacement of it. Its strength is that the Court has never closed the list, so it can protect features the framers took for granted. Its weakness, according to critics, is the same openness, since the list grows case by case.
• Democratic. The objection is that unelected judges override a two thirds majority of elected representatives. The usual reply is that the doctrine protects democracy itself, because the features it guards (elections, judicial review, the rule of law) are the conditions under which majorities are formed and checked.
• Federal. Ratification by states for federal provisions, and the listing of federalism as a basic feature in S. R. Bommai (1994), mean that the Centre cannot use its majority in Parliament alone to redraw the federal bargain.
• Political history. The doctrine was born in the conflict of the 1970s, when Parliament used amendments to protect land reform, nationalisation and finally the Emergency. It is widely credited with preventing a repeat of the Thirty ninth and Forty second Amendments.
• Comparative. Germany writes its unamendable core into the text (Article 79(3) of the Basic Law, the "eternity clause"). India arrives at the same result by judicial interpretation, and the Supreme Court of Bangladesh, among others, has since borrowed the Indian doctrine.

In practice

How the doctrine has been applied

• I. R. Coelho v State of Tamil Nadu (2007). A nine judge bench held that laws placed in the Ninth Schedule after 24 April 1973, the date of Kesavananda, are open to review if they violate the basic structure, including the core of Articles 14, 19 and 21. The Ninth Schedule is therefore no longer a complete shield.
• L. Chandra Kumar v Union of India (1997). The Court held that the power of judicial review of High Courts under Article 226 and of the Supreme Court under Article 32 is part of the basic structure, so tribunals created under Articles 323A and 323B cannot exclude it.
• National Judicial Appointments Commission (NJAC) case (2015). The Ninety ninth Amendment and the NJAC Act, 2014 were struck down because giving the executive a decisive role in appointments would compromise the independence of the judiciary, a basic feature.
• Waman Rao v Union of India (1981). The Court fixed 24 April 1973 as the dividing line, so amendments made before Kesavananda were not reopened under the new doctrine.
• Janhit Abhiyan v Union of India (2022). By three to two the Court upheld the One hundred and third Amendment, which created reservation for economically weaker sections. The majority held that reservation on economic criteria alone does not violate the basic structure, which shows the test at work.

Amendments that changed the working of the Constitution

• First Amendment (1951) added the Ninth Schedule and reasonable restrictions on public order and friendly relations.
• Forty second Amendment (1976) added "socialist", "secular" and "integrity" to the Preamble, Fundamental Duties, and limits on judicial review, many of which were reversed.
• Forty fourth Amendment (1978) restored most of what the Forty second had taken, made "armed rebellion" the ground for an emergency in place of "internal disturbance", and removed property from the Fundamental Rights.
• Seventy third and Seventy fourth Amendments (1992) gave constitutional status to panchayats and municipalities.
• One hundred and first Amendment (2016) created the Goods and Services Tax (GST) and the GST Council, and needed state ratification because it altered the taxing powers of both levels.
• One hundred and sixth Amendment (2023) reserved one third of seats in the Lok Sabha and state Assemblies for women, to take effect after the delimitation that follows the next census.

Issues and way forward

• An open list. Because no court has listed the basic structure exhaustively, Parliament cannot know in advance which change will fail. The answer is not to codify the list, which would freeze it, but for the Court to state the principle behind each feature it recognises, as Minerva Mills did, so that the test is predictable.
• Ease of amendment. More than a hundred amendments in about seventy five years shows that the special majority is not a high bar when one party or coalition is strong. Proposals include wider consultation with states on changes that touch their interests, even where ratification is not required, and public consultation on the draft of every amendment Bill under the Pre Legislative Consultation Policy (2014).
• Weak scrutiny in Parliament. Several amendments have been passed with little debate. Referral of every amendment Bill to a Departmentally Related Standing Committee would add deliberation without adding a veto.
• Judicial overreach concerns. Critics argue that the doctrine lets judges substitute their views for those of Parliament. The safeguard is restraint: the doctrine should strike down only changes that destroy a feature, not those that merely alter or weaken it, which is the standard the Court itself applied in Janhit Abhiyan.

Common confusions

• Amendment and ordinary law. An amendment under Article 368 is tested only against the basic structure. An ordinary law is tested against every provision of the Constitution, including each Fundamental Right. The NJAC Act fell along with the amendment because the amendment that supported it fell.
• Simple majority amendments and Article 368. Changing state boundaries or creating a Legislative Council changes the text of the Constitution, but the Constitution says such laws are not amendments for the purpose of Article 368, so the special majority does not apply.
• Basic structure and basic features. The basic structure is the idea (the identity of the Constitution); basic features are the individual elements courts have identified, such as judicial review or secularism.
• Golaknath and Kesavananda. Golaknath said Parliament cannot amend Fundamental Rights at all. Kesavananda said it can amend them, but not destroy the basic structure. The second overruled the first.

For the exam

• Keyword bank: Article 368, constituent power, special majority, ratification by half the states, implied limitation, basic structure, Kesavananda Bharati, Golaknath, Twenty fourth Amendment, Minerva Mills, limited amending power, Ninth Schedule, I. R. Coelho, judicial review, constitutional identity.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "The Constitution has been amended more than a hundred times since 1950, yet its core has survived each change because the Supreme Court has held, since Kesavananda Bharati (1973), that the power to amend is not the power to destroy."
  • Introduction with a judgement: "In Minerva Mills (1980) the Supreme Court held that a limited amending power is itself a basic feature, so Parliament cannot enlarge that power into an absolute one."
  • Conclusion: "The basic structure doctrine has turned Article 368 from a power of revision into a power of renewal, allowing the Constitution to change with society while keeping its identity."
  • Conclusion: "The legitimacy of the doctrine depends on restraint, striking down only what destroys a basic feature, and on a Parliament that debates amendments as seriously as the framers debated the text."