This article has been written by Arka Prasad Roy, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

It has been published by Rachit Garg.


The interplay of Article 13 and Article 368  of the Indian Constitution has always been a controversial matter. There is a constant clash between the Supreme Court of India and the legislature. The deeper we dive into this topic we will be able to find several amendments made by the state to secure itself, or to make itself immune, on the other hand we can see the Supreme Court of India making several attempts to put certain reasonable restrictions and check to the powers of the state. In Indian democracy, it is an important aspect so that the administration of justice and the functioning of the judiciary is not made irrelevant by the other organs of the state. Article 13 deals with the laws in derogation of the Fundamental Rights, and Article 368 provides for amendment of the Constitution and the procedure for the same. The scope of amending the Constitution was there for a long time, and then came the question of whether the fundamental rights can be amended at all. This article discusses the interplay of Articles 13 and 368 thereby helping readers understand the Doctrine of Basic Structure in regard to the Indian judiciary. 

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Article 13 of the Indian Constitution 

The fundamental rights of the citizen are reserved and protected by Article 13 for regulations that could otherwise restrict our freedom. According to Article 13, all laws and changes made by the Parliament must be evaluated for compliance with the Indian Constitution. The procedure for judicial review is described under Article 13 of the Indian Constitution. It requires the Indian State to uphold and carry out the fundamental rights. Additionally, it gives judges the authority to declare a statute or other action invalid if it violates fundamental rights. The protector of rights indicated in Part III of our Constitution is Article 13. The stated Article’s Clause (1) emphasises that any incompatible existing laws are nullified as of the date the Constitution takes effect. 

The Supreme Court first interpreted Article 13 (1) when deciding whether Article 13 had any retroactive application to laws that violate fundamental rights. A seven-judge bench considered the appeal of a petitioner who had been charged under the Indian Press (Emergency Powers) Act, 1931 in Keshavan Madhava Menon v. The State of Bombay (1951). Whether Article 13 (1) of the Indian Constitution might “declare all legislation inconsistent with the fundamental rights to be void as if they had never been passed and existed or be declared unconstitutional from the very beginning” was one of the questions raised in the appeal. The Court ruled that Article 13(1) did not, for all intents and purposes, render existing laws incompatible with fundamental rights or void from the start. However, Article 13 declares such legislation “ineffective and void” going forward due to the exercise of fundamental rights both before and after the Constitution’s start date.

The Hon’ble Supreme Court got the chance to observe the addition of personal laws in Article 13 in the 2017 case Shayara Bano v. Union of India and Ors (commonly known as the Triple Talaq judgement). The Court, however, held that Muslim men’s rights to issue triple talaq and obtain divorces were arbitrary and unjustified because Shariat law is a statutory law that has been codified by the central legislative assembly.

All you need to know about Article 13(2) of the Indian Constitution, 1950

According to Article 13(2) of the Indian Constitution, the State may not enact legislation that is not “consonant” with the Constitution. Additionally, if a legislation was designed that interfered with a person’s fundamental rights, such law would be void to the extent of the violation. This is a specific justification for judicial review following enactment. 

One of the many cases that further complicates the task of interpreting Article 13 is the State of Gujarat And Another v. Shri Ambica Mills Ltd (1974). To provide some perspective in this case it can be said that,  after the State of Bombay was split in two in May 1960, the State of Gujarat passed the Bombay Welfare Fund (Gujarat Extension and Amendment Act) in 1961. The 1953 Bombay Welfare Fund Act saw a number of revisions thanks to the Amendment Act. A business formed under the Companies Act of 1956, the respondent, made “many contentions.” One of them claimed that some Amendment Act provisions “violated the fundamental freedom of citizen employers and employees under Article 19 (1)(f).” As a result, the Act was illegal and in violation of Article 13 (2). The Constitutional Bench of the Supreme Court was asked, among other things, whether “Ambika Mill,” a noncitizen, might assert that Article 13 (2) of the Constitution rendered the statute void or non-est.

The Bombay High Court had to determine the constitutionality of the Bombay Prevention of Hindu Bigamous Marriages Act 1946 in the case of State of Bombay v. Narasu Appa Mali (1951). The Court provided an answer to the question of whether personal laws might be considered “laws in force” as described in Article 13(3)(a). Hon’ble Justice M.C. Chagla believed that the word “law” did not include “personal law” in the ambit of Article 13 (3) (a). The question was whether or not personal law should be included by Article 13 (3) (a) (b). The former comprises statutory law, whilst the latter include all laws that have been in effect since 1950.

The Supreme Court, however, ruled in Ahmedabad Women’s Action Group v. Union of India (1997) that if religious personal laws are included in the laws that the legislature has codified, then the codification must be for the fundamental rights. The problem that first surfaced in the Narasu decision persisted in the Triple Talaq decision and even after that, further muddying the scope and definition of law and “law in force” in Article 13(3)(a) and (b).

Article 368 of the Indian Constitution

Any article of the Indian Constitution may be added to, changed, or repealed by Parliament in accordance with the prescribed procedure, according to Article 368 of the Constitution, which deals with modification by a special majority and ratification. An amendment may be proposed in either House of Parliament, according to Article 368(2). It must be approved by a majority of all members present and voting in addition to at least two-thirds of the members of that House.

The Parliament of India has the authority to change the Indian Constitution and its processes under Article 368. The Indian Constitution is not easily amended, and doing so necessitates adhering to additional rules. The right to change it while maintaining its essential structure is granted to Parliament under Article 368. Two different sorts of modifications to the Indian Constitution are listed in Article 368. The first type of amendment requires the support of a simple majority in both the Lok Sabha and the Rajya Sabha, the second type requires a special parliamentary majority, and the third type requires the support of a special majority plus 50% of the state’s population. 

Time is not constant; it is ever-changing. The Constitution needs revision. The social, cultural, and political climate of the population is beginning to change. If the constitutional amendments weren’t made, we wouldn’t be able to handle upcoming challenges, and it would become a roadblock to progress. Why our forefathers established the Constitution as strong as it is today has a justification. To make sure that the plans adapt to the expansion of the nation. As a result, in accordance with Article 368, Parliament has unrestricted authority to alter any portions of the Constitution that it sees fit.

Article 13 vis a vis Article 368 of the Indian Constitution

The Constitution must be changed in order to meet modern demands and to reflect shifting social, economic, and political circumstances. However, the government is able to alter the terms of the nation’s ultimate law to its advantage because of the infinite amending powers of the Parliament. This enables the government to use its authority arbitrarily, which could result in violations of human rights and undermine democracy. The Supreme Court judges’ sharp minds have always been able to anticipate potential outcomes that would be detrimental to the country and its people whenever the Parliament attempted to modify the Constitution in order to acquire unlimited powers. They then issued rulings to remind the Parliament that the Constitution is the country’s top legislation and the source of all of the Parliament’s authority. Below is a summary of some of the pivotal Supreme Court rulings and amendments that helped pave the way for the “basic structural doctrine.”

Shankari Prasad v. Union of India (1951)

In the instance of Shankari Prasad v. UOI  (1951), the validity of the Constitution First Amendment Act, 1951 was challenged before the Supreme Court of India. In this curtailing the right to property as under Article 31 was challenged before the apex court. The argument made was as under Article 13 of the Constitution of India, the word “law” included all sorts of law including the law which can amend the constitution, and therefore the validity of such law can be judged with respect to the fundamental rights guaranteed by the Constitution. Article 13 of the Constitution of India states that “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.” It also prevents the state from making any such law.

The Court used the literary rule of interpretation and held that the word “law” included merely the rules, regulations or any such laws made in the course of ordinary legislative power and that a Constitutional Amendment Act is no such ordinary law. Thus, the apex court upheld the validity of the Constitution First Amendment Act, 1951, and said that Article 13(2) does not affect amendments made under Article 368 of the Constitution of India. The court held that the terms made under Article 13 are perfectly general and empowers our parliament to amend the constitution by virtue of the powers as given under Article 368.

Article 13 and Article 368 the two articles which are very widely phrased, and the court using the harmonious rule of construction to avoid conflicts can be seen in the following cases.

Sajjan Singh v. State of Rajasthan (1964)

The validity of the Constitution Seventh Amendment Act was put in question, again this amendment severely affected the right to property, a number of property rights were placed in the 9th schedule, thus far-fetched and immunised from judicial review. It was also argued in this instance that the amendment reduced the area for judicial review and thus was in violation or affected the Article 226. And that if such was to be made then that has to follow the procedure for amending the ‘entrenched provision’, that is the concurrence of at least half of the states should have been obtained for such amendment to be valid. 

The Court held that the pith and substance of the amendment was the only way to amend the Fundamental Right so as the state is able to implement agrarian reform. If it somehow affected Article 226 that that was merely incidental and not intended, that does not lead to amendment of Article. The institution rejected the arguments made by a majority of 3:2, and held that the impugned act did not change Article 226 in any way or whatsoever.

LC Golak Nath v. State of Punjab (1967)

In the history of Indian law, one of the defining instances is Golaknath v. State of Punjab (1967). In this situation, several issues were brought up. The most crucial question, however, concerned whether or not the parliament had the authority to change the fundamental rights guaranteed by Part III of the Constitution of India. While the respondents said that our Constitution’s framers never intended for it to be rigid and non-flexible, the petitioners argued that the parliament lacked the authority to modify basic rights. According to the Court, the parliament cannot change the fundamental rights.    

This was a positive judgement for the fundamental rights, the majority took the position that the “transcendental” position was occupied by the fundamental rights and that no authority made by the provisions of the Constitution of India had the amending power by virtue of Article 368 to amend the fundamental rights and this also included the parliament. This was a positive judgement who was the fundamental rights are concerned, the court might have probably thought that when these rights are completely eroded as a nation we might gradually pass under a totalitarian regime. Chief Justice Subba Rao (then) characterised these as “the primordial rights necessary for the development of human personality,” and further compared fundamental rights to natural rights.

Kesavananda Bharati v. State of Kerala (1973)

In this case, Kesavananda Bharati v. State of Kerala (1973), the primary petitioner, filed a writ petition contesting the Kerala Land Reforms Act, 1963. The petition’s primary arguments were that the Act contravened property owners’ rights and went against the ideas of justice and equality. The Supreme Court’s 13-judge bench heard the case and decided in Kesavananda Bharati’s favour. The key points of the decision were that the Constitution could not be changed by the Parliament in a way that would undermine its fundamental principles and thus affect the basic structure of the Constitution.

In this case, the Supreme Court ruled that while the Parliament has the authority to amend a constitutional provision, it may not alter the basic structure of the Constitution of India. According to the majority bench, under Article 368 of the Constitution of India, the Parliament may change the fundamental makeup of the constitution, and consequently, its actual substance. As a result, the court fully affirmed the 24th Amendment Act, and two provisions of the 25th Amendment were determined to be ultra and intra-vires. The 25th Constitutional (Amendment) Act stated that if the government of a state taking private property, then it would not be the responsibility of the state to compensate the owner equally.

The basic structure idea holds that the Parliament has complete authority to alter the constitution’s fundamental provisions, but with the caveat that certain provisions may never be changed. It also claims that if the constitution’s basic structure is changed, its actual character and essence will be lost, leaving it spiritless. In this case, the bench did not define the phrase “basic structure,” leaving it up to the court to provide an interpretation based on the ‘Constituent Assembly Debates.’

Indira Nehru Gandhi v. Raj Narain (1975)

Indira Nehru Gandhi v. Raj Narain (1975) was a case heard by the Allahabad High Court in 1975. The case was filed by Raj Narain, a political opponent of Indira Gandhi, the then Prime Minister of India, who alleged that she had used government resources for her election campaign. The court found Gandhi guilty of electoral malpractice and unseated her from her parliamentary seat. The judgement also barred her from contesting any election for an additional 6 years. The judgement led to widespread political turmoil and ultimately to the declaration of emergency in India in 1975. The emergency lasted for 21 months and resulted in widespread human rights violations and suppression of political dissent. The judgement was later overturned by the Supreme Court in 1978.

The basis for this case was a complaint made against the then-prime minister, Indira Gandhi, regarding irregularities in the voting process. In the Rae Bareli seat during the 1971 Lok Sabha elections, the respondent contested against the appellant. Raj Narain, the respondent, had made a lavish argument, but in a shocking turn of events, the election results showed that Indira Gandhi had been re-elected and the victory of the Congress had been reinstated with a large majority. In order to do this, the respondent had to file a lawsuit in the Allahabad High Court against the appellant, accusing her of electoral fraud, including bribery, the use of state resources and machinery for a personal campaign, as well as other frauds like the distribution of alcohol, etc. 

The Allahabad High Court removed Indira Gandhi from her position as prime minister and barred her from running for office for a period of six years after finding the appellant guilty of violating Section 123(7) of the Representation of Peoples Act, 1951, for abuse of position. Unhappy with the decision, following the declaration of an emergency in 1975, the 39th Constitution Amendment Act was passed, limiting the court of laws’ ability to decide election-related disputes involving the President, Prime Minister, Vice President, and Speaker of the Lok Sabha and transferring that authority to a committee established under the direction of Parliament.

The key questions in this case involved whether the Constitution 39th Amendment Act was valid or not and if the Representation of the People’s Act 1951 was in violation of the Basic Structure of the Constitution. The Honourable Court ruled with a majority that the Amendment Acts of 1951 and 1974 violate the fundamental principles of the Constitution of India and should be repealed because they limit the courts’ ability to exercise their legal authority and undermine the judicial review principle. 

The 39th Amendment Act’s Clause (4) of Article 329-A was also declared invalid on the grounds that it is outside the purview of Parliament to amend because it contradicts the fundamental basic structure of the Constitution of India. The court determined that “free and fair elections” are a fundamental aspect of our democracy and are therefore the foundation of the Constitution. In the event that elections are being manipulated through nefarious means, the judiciary should step in to ensure justice. The Supreme Court relied on the Kesavananda Bharati ruling in supporting the respondent’s case and the Allahabad High Court’s judgement while stating that Article 329 A Clause 4 is unconstitutional.

The 39th Amendment was repealed because it violated the separation of powers concept and was devoid of a judge’s exclusive jurisdiction over evaluating and deciding legislative issues involving the Constitution’s fundamental principles. Finally, the court decided that because the amendment created an unjustifiable function for one person as opposed to others, it was in breach of Article 14 of the Constitution. It was held in this case that democracy is a basic feature of the constitution. No amending body under Article 368 of the Constitution is competent to pass an ordinary law with a retrospective effect to validate the election. Another significant point which emerged from the opinions presented in the instant case was that ‘basic features’ is applicable to constitutional amendments and not ordinary legislation.

Minerva Mills v. Union of India & Ors (1980)

The questions involved in the instant case are the constitutionality of Section 4 and Section 55 of The Constitution 42nd Amendment Act 1976 and constitutional validity of Clause 4 & Sub Clause 5 of Article 368.  Section 55 of the Constitution 42nd Amendment Act attempted to remove all limitations on the power of the Parliament, and also gave such powers so as the Parliament is able to amend the constitution violating the Basic Structure of our constitution. Section 4 of the Constitution 42nd Amendment Act attempted to deprive the courts of their power to review the constitutional amendments made thereof. This is also an attempt to overturn the judgement of Kesavananda Bharati v. State of Kerela (Article 31C) and Indira Nehru Gandhi v. Raj Narain (few sections of the 39th Amendment), by inserting Clause 4 & Clause 5 in Article 368 vide section 55 of The Constitution 42nd Amendment Act 1976. This is completely evident that the amendment was brought in to remove the limitations brought in by the Kesavananda Bharati case to amend the constitution.

Parliament approved the Sick Textiles Undertakings (Nationalisation) Act of 1974. It was created to achieve a purpose of broad public interest, namely the rebuilding of the textile company’s underperforming assets and the creation of a workable solution. Its aim was to protect the common populace by ensuring that goods were accessible at fair prices. Mills Ltd. was a textile company. It belonged to the sector that produced silk clothes. In 1970, the Central Government established a committee to look into the operation of Minerva Mills Ltd. under Section 15 of the Industries (Development Regulation) Act, 1951. In his pleadings, the petitioner addressed a number of issue, questioned the and constitutional validity of Clause 4 & Clause 5 of Article 368 of the Constitution because if these were held true then the petitioners cannot question the validity of the 39th Amendment Act, which introduced the Sick Textile Undertaking (Nationalisation) Act under Entry 105 of the 9th Schedule, and the central government’s authority to seize management and control of Minerva Mills Ltd.

According to the Supreme Court, Parliament has the power to amend the Constitution without endangering its basic structural principles. As long as they adhere to the fundamental structure (basic structure) theory, Parliament may change fundamental rights. The Court struck down the clause that restricted judicial review. Depriving the courts, the power of judicial review will mean that the Fundamental Rights are a ‘mere adornment,’ and become a right without remedy. If such amendments were to be held valid, then a ‘controlled’ constitution becomes an ‘uncontrolled’ one, these amendments were not made based on a broad consensus to uphold the nation’s interest but made by the brute majority of the ruling party sitting in the parliament.

We can see the constant attempt made by the judiciary in these cases so as to uphold what the constitution makers desired, to make an amendable constitution, but in a ‘controlled’ manner. The check and balances of the power between the organs of the government under the constitution must be maintained so as harmony of law and order is maintained in a country like India. It is very true that in a country like India, with such diverse people with different cultural heritage and backgrounds, a rigid constitution will not be a well-accepted and adopted framework, for such amendments are necessary. We have the concept of a “Living Constitution,” so that new ideas are adopted in it, but that does not justify that the complete power resides with the Legislature, as such can lead to our Constitution becoming an empty shell with no substance.

It is currently held that the Fundamental Rights mentioned in Part III of the Constitution of India can be amended but such should not violate or be in conformity with the Basic Structure of the Basic Features of the Constitution. The basic structure laid down is an attempt to maintain a fine balance between rigidity and at the same time ensuring the flexibility to amend the Constitution by the powers granted under Article 368 and in conformity to Article 13 of the Constitution of India.


It is clear from the discussion above that the Parliament’s ability to amend laws has experienced significant modifications. To understand whether and to what degree the Parliament can change fundamental rights, it was essential to examine the legal past. This was divided into three major phases.

  1. The court granted the Parliament the freedom to alter the Constitution without any restrictions prior to the Basic Structure concept, which effectively empowered the Parliament to amend the fundamental rights.
  2. The development of the “basic structure” theory, in which we examined the court’s futile attempt to infer restrictions from the wording of an amendment and Article 368. The main thrust of the argument was that no part of the Constitution could be changed by the Parliament in a way that would cause it to lose its original meaning. Regarding how far the Parliament could modify the fundamental rights, the court remained mute. In other words, does the Constitution’s essential tenet of fundamental rights exist?
  3. The court concluded that the limited amending power itself is a part of the basic structure and highlighted that not all, but some, of the fundamental rights form part of the basic structure. The law of the land: amending power following the “basic structure” theory. The court has established various standards for determining how far fundamental rights can be modified. To sum up, if any aspect of a fundamental right satisfies the twin test, effectively indicating that it is a part of the “basic structure,” then the Parliament is unable to change that right. The court cannot change fundamental rights based on equality, social justice, reasonableness, and secularism under the current legal framework.



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