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This article is written by Millia Dasgupta, a second-year student studying at Jindal Global Law School. This article covers the amendment provision of the constitution and discusses various landmark cases relating to the topic. 

It has been published by Rachit Garg.

Table of Contents


The constitution of Indian is one of the most fascinating documents on this planet. No other country has a constitution as comprehensive as ours and is the largest constitution in the world. But despite being so comprehensive, the reason why this document is so interesting is due to the fact that it is extremely flexible. The fathers of our constitution made it so, they wished that the constitution would not only aid the country to grow but it would also grow alongside it. Thus, the government can amend the constitution depending on various issues brought up. These powers are given by Article 368. 

But one must ask the question, Isn’t it the constitution that gives power to the government? If that is so, how can the Government have such a power over a document which gives its authority?

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In this article, we will be exploring the extent to which the government can amend, the process of amendment, the essential judicial questions pertaining to it, and various landmark cases in hopes of answering these questions. 

The necessity of Amending provisions in the Constitution

There is a reason why the fathers of our constitution made the constitution as flexible as it is today. This is to ensure that the document evolves and grows along with the nation. Thus, under Article 368, the powers of the Parliament to amend the constitution is unrestricted with regards to sections of the constitution they wish to amend.

But the Parliament having absolute power over amending the constitution is dangerous. Instead of being the backbone of our democracy, the constitution will be reduced to a tool to establish Parliament’s totalitarianism. The government will amend various provisions to make sure it’s powers are unfettered.

While this is a scary thought, it is not far away from the truth. The government in multiple amendments such as the 39th Amendment and in the second clause of the 25th Amendment has tried to establish a state where the legislative is supreme.

That is why the judiciary through various landmark cases has established The Basic Structure Doctrine of The Indian Constitution. 

What is the Basic Structure?

The Basic Structure Doctrine states there are certain fundamental structures and founding principles of the constitution which make the backbone of the constitution. In simple terms, they are ideologies of the constitution which are essential for the survival of the constitution. Some examples are Free and Fair Election, the Federal nature of the Nation, Judicial review and Separation of Power. The government is restricted from touching these contours of the constitution through amendment.

The Supreme Court has not given us a list of these ideologies. It is up to the courts to decide what they are when certain judicial questions are presented before them. But if one wants to describe the nature of the structures, it can be said that if these ideologies are violated, then not only democracy but the entire working of this country will fall flat on its face. The country will either fall into total anarchy or totalitarianism. It is because of these mechanisms that India is still one of the largest democracies in the world.

Thus, while Parliament has unrestricted powers to amend various sections of the constitution, but they cannot touch amend, repeal or add sections into the constitution which would affect its basic structure in the process.

Below are a few more cases to understand this concept further.

Kesavananda Bharati v. State of Kerala, 1973


The plaintiff,  Swami Kesavananda Bharati was the leader of Edneer Matt, a Hindu monastic institution which is located in Kerala. He challenged the two-state Land Reform Act, imposed by the Kerala government which sought to restrict the way his property was managed.  He stated that his fundamental rights under Articles 25 (Freedom of conscience and free profession, practice, and propagation of religion), Article 26 (Freedom to manage religious affairs), Article 14 (Equality before law), Article 19(1)(f) (Right to property which has been omitted) and Article 31 (the right of private ownership without restrictions) had been violated.

The case was handled by a 13 Judge Bench. It came to be one of the most important cases in Indias and established the Basic Structure Doctrine of the constitution. In the case, they considered the constitutionality of the 24th, 25th, and 29th amendments.

24th Amendment

Changes made to Article 13 are as follows:

Article 13 regulates government policy-making and checks that the laws made by parliament that infringe on the rights of the people. 

The amendment made changes to Article 13. Clause (4) was inserted.  It stated that any amendment done under Article 368 would not be subject to Article 13.

Changes made to Article 368

Changes were made to the power of Parliament to amend. 

It stated that despite whatever is mentioned in the constitution, the Parliament would be able to add, repeal and amend any section of the constitution according to the procedures set down by Article 368, even provisions mentioned in the proviso of Article 368. After being passed by a majority, such a Bill or Act merely required the assent of the President. 

25th Amendment

Changes made to Article 31

Article 31 states that no one shall be deprived of his property. Clause (2) was inserted.

The clause stated that any law which allowed the state to take property for a certain amount, that amount would not be questioned by a court of law. 

Clause 9(b) after (2A) was inserted that nothing mentioned in Article 19 (1)(f) shall affect such laws. 

Insertion of Article 31C

This was with regard to laws that enforced the fundamentals of the Directive Principles. It stated that laws made to ensure Directive Principles were enforced would not be subject to the scrutiny of Articles 14, 19 and 31. They shall not be declared void if they abridged such rights. 

This is only if the law has been passed by state legislation and has got the assent of the President. 

29th Amendment

The Kerala Land Reforms Act, 1963 (Act 1 of 1964) and other such land reform Acts were added to the Ninth Schedule.

Arguments of the Petitioners

They argued that restructuring Parliament’s powers amending are a part of the Basic Structure of the Constitution. He also stated his fundamental rights to property were being violated. He pleaded to the court to receive recourse.


  1. The constitutional validity of the 24th, 25th, and 29th Amendment Act.
  2. The extent of the powers of the Parliament to amend the constitution.


The court upheld the 24th Amendment and stated that the 2nd part of the 25th Amendment was ultra vires.

The court in this judgment answers an extremely important question that was left unanswered in  Golak Nath v. State of Punjab i.e. the extent of Parliament to amend. The court observed that such a power should be a balance between the Parliaments’ duty to follow the constitution and its duty to perform socio-economic duties. 

To answer this question, they established the Doctrine of Basic Structure. While they admitted that the Parliaments’ power to amend the constitution was unrestricted with regards to the portion of the constitution they wished to amend, there were certain contours of the constitution that should be left untouched. Hedge.J and Mukherjee.J in their opinions stated that the Indian constitution was more of a social document based on social philosophy than a political document. Just like every philosophy, the constitution contains certain basic features that should not be touched.

The majority bench left it up to the courts to decide what the basic features of the constitution were because, in their opinion, they were not exhaustive.

The major findings of the court are as follows:

  1. There is a difference between an amendment and ordinary laws.
  2. Overruled Golak Nath v. State of Punjab by stating the power of Parliament to Amend is not unfettered. It can’t violate the Basic Structure of the Constitution.
  3. They established the extent of amendment under Article 368 and stated that it was restrictive and they could not make fundamental changes.
  4. It stated that parliament can amend any provision in the constitution, including fundamental rights. But this was again subject to the fact that they could not alter the basic structure
  5. The court mentioned a few basic structures which they could locate such as “Free and Fair Elections” and the “Federal Structure of the Nations”. They also stated that the list was not exhaustive and it was up to the courts to decide whether it was a basic structure or not.
  6. The court upheld the 24th Amendment and struck down the second part of the 25th Amendment. However, the 25th Amendment was to be subjected to two conditions-
  • The word ‘amount’ does not only relate to compensation and it should be related to the market value of the property at that time.
  • The part which barred judicial review was struck down as ‘no law can prevent scrutiny by the courts’.
  1. By validating the first part of the 25th Amendment, the courts recognized the Parliaments’ duty to fulfill their socio-economic duties. They also saved the citizens from parliamentary totalitarianism by striking down the second part which barred legal remedy. 
  2. They stated that the judgment was an improvement from Golaknath as:
  • Golak Nath v. State of Punjab was only restricted to the protection of fundamental rights.
  • By preventing the Parliament from amending the fundamental Rights, it made the constitution rigid. The concept of Basic Structure is an improvement.  

Procedure to Amendment 

Article 368

Article 368 lays down the process by which the Parliament can amend the constitution. The process is as followed.

Step 1

The Bill is introduced in either house of the parliament. 

Step 2 

The Bill must be passed by a total majority (irrespective of vacancies or absentees) and by a majority, not less than 2/3rd of people present and voting by both the houses. There is no provision of joint sitting if there is a disagreement between both the houses. 

Step 3

After acquiring the majority, the Bill is presented to the President who will then give his assent to the Bill. 

In the case of amendment of provisions mentioned in Article 368, It needs to be ratified by not less than half of the states. Ratification should be done by a resolution passed by the state legislature. However, this must be passed before the amendment Bill is presented to the President for his assent. 

Amendment of Fundamental Rights

The backbone of human rights in this country is the fundamental rights stated in Part III of the constitution. The judiciary of this country in numerous landmark cases have proved time and again that the fundamental right of an individual or private organization is not something that can be tampered with. These rights have been given preference in numerous cases with regards to the other sections of the constitution and it can be said that they make up an extremely important part of it.

But given that the parliament has the power to amend the constitution, could they also amend the fundamental rights of the constitution? And do they constitute the basic features of the constitution? By analyzing the case of Sajjan Singh v. State of Rajasthan and Golak Nath v. the State of Punjab, we shall answer the following questions. 

Sajjan Singh v. State of Rajasthan, 1965 

In this case, it was held that fundamental rights could be amended as long as they were indirect, incidental or insignificant on the power given under Article 226, the article under which the High Court received its powers.  


In order to back up several legislatures with regard to agrarian reforms done by various states, the parliament had amended certain sections of the constitution. This was done through Acts such as the Constitution (First Amendment) Act, 1951, Constitution (Fourth  Amendment) Act, and the  Constitution (Seventeenth Amendment) Act 1964. The Constitution (Seventeenth Amendment)Act 1964, an Act that was questioned had amended 31A (acquisition of the estate by the state) and added 44 Acts to the Ninth Schedule. 

The contentions of the Petitioners

The petitioners who were aggrieved by the legislatures stated that none of these legislatures could be allowed as the Constitution (Seventeenth Amendment) Act was unconstitutional. They contended:

  • The powers prescribed by Article 226 will be affected by the Seventeenth Amendment and thus the Act should follow the special provisions set down by Article 368.
  • The decision held in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar should be reconsidered. 
  • The Seventeenth Amendment Act deals with land. Parliament has no right to make laws with respect to land and thus the Act is invalid.
  • The Act went against decisions of courts of competent jurisdiction and was thus unconstitutional. 


  1. Whether the Acts violated the powers prescribed by Article 266?
  2. Should the decision of Sri Sankari Prasad  Singh Deo v. Union of India and State of Bihar be considered?
  3. Whether the Acts deal with the land?
  4. Can Parliament validate laws that have been ruled as invalid by the courts?


Laws did not affect Article 226

If the effect of the Act on the powers of Article 226 is indirect, incidental or insignificant, then it shall not be governed by the provisions under Article 336. In order to understand the effects of the Act, one must analyze the pith and substance of the Act. 

The Act solely wishes to amend the fundamental rights with the goal of removing obstacles in the fulfillment of socio-economic policies. Thus its effects on the powers of 266 are incidental and insignificant and do not invoke the procedures under 336.

Sri Sankari Prasad shall not be reopened

In order to review the decisions of a previous case, the court must ask itself, “Is it absolutely necessary and essential that a question already decided should be reopened?”. One must analyze the harm done by the decision, its effect on the public good, the validity of the question and how compelling the question is.

It was held by the bench that according to the guidelines placed, the case should not be reopened. Besides, it shall gravely endanger the laws passed under the amendment Act.

Parliament made no laws on land

The court held that through these Acts, Parliament did not make any laws regarding land. They merely validated land-legislatures which were previously passed. 

Parliament can validate laws that were ruled invalid 

The power given under Article 368 can be done both prospectively and retrospectively. Thus, the parliament can validate laws that have been called invalid by the courts. 


The dissenting opinion of Justice J.R. Mudholkar theorized the ‘basic features’ of the Indian constitution for the first time. It was his dissent that was used in the famous Kesavananda Bharati case.

He asked “it is also a matter for consideration whether making a change in a basic feature of the constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the constitution; and if the latter, would it be within the purview of Article 368 ?”

He questioned whether one could harmonize a duty to the constitution and the power to amend it. 

He further observed that it was strange that rights stated to be fundamental to one’s self can be so easily amended. He believed that while Article 368 stated the provision and process to amend the constitution, it did not necessarily give the power or the right to amend it.

He also stated that the preamble is the greatest indicator of the basic features of the constitution. 

He went on to question, whether Article 368 provides the power to amend any of the basic features stated there.

I. C. Golaknath & Ors vs State Of Punjab & Anrs., 1971 

This case went and reversed the judgment of Sajjan Singh v. the State of Rajasthan. It stated that the parliament does not have the power to amend fundamental rights. 


The petitioner filed a writ petition against Constitution (Seventeenth Amendment) Act, 1964, which included in the Ninth Schedule, among other Acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965. 


Could fundamental rights be amended?


new legal draft

Articles 245, Article 246 and Article 248 of the constitution deal with the power of parliament to amend. Article 368 merely talks about the procedure to amend.

Along with this, an amendment can only become a law if it abides by  Article 13 of the constitution. Thus, if a certain amendment takes away or abridges any rights mentioned in Part III, it is considered void. 

However, the difficulty that the court had to face was the Acts in question may have abridged fundamental rights, but they were considered valid by previous judgments. They used the doctrine of prospective overruling and stated for those laws, the amendment will still be considered. But they also explicitly stated that from the date of the judgment onwards, Parliament would not have the power to amend any provisions of Part III of the constitution.


While the ratio of this case was reversed in the case of Kasavananda Bharati, some of Golak Nath’s arguments were used in the case. 

It was ruled that there were no limitations on amending under Article 368. But this was with the restriction that “Parliament cannot do indirectly what it cannot do directly.” That is amending is strictly a legislative power, not a constitutional one. 

Is the Theory of Basic Structure a limitation on Amending Power?

The government has a duty to perform certain socio-economic goals. To achieve them, they must sometimes amend the constitution. But what happens when these amendments mess with the basic structure. Shall duty to perform socio-economic duties trump their duty to abide by the constitution. The following cases answer that question. 

Indira Nehru Gandhi vs Shri Raj Narain & Anr, 1975 

When this case was filed to the High Court, Indira Gandhi was at the height of power and her party was enjoying the majority in Parliament. But later on, Indira Gandhi was found guilty for electoral malpractices. She called emergency and passed certain amendment Acts, one of them being Article 329-A which barred judicial review. What needed to be asked was whether judicial review was a part of the Basic Structure of the Indian Constitution. The court held that the emergency was passed in mala fide and Article 329A passed under the amendment Act was unconstitutional. 


In the 1971 Indian general election, Raj Narain contented against Indira Gandhi in a constituency of Uttar Pradesh. The results of the elections were that Indira Gandhi was re-elected and that the Indian National Congress won a sweeping majority in the Parliament. 

Raj Narain filed a petition to appeal to the Allahabad High Court with the appeal to reverse the elections. He blamed Mrs. Gandhi for using unfair means such as bribery and misusing government machinery to win the elections. 

The Allahabad High Court held that Mrs. Gandhi was guilty of election malpractices. The election in that constituency was declared null and void. It was also held that she could not stand in elections in that constituency for 6 years.  

Aggrieved, Mrs. Gandhi tried to move to the Supreme Court but they shifted the judgment to a future date as the court was on vacation. This led to Indira Gandhi calling for an emergency. President Fakhrudeen Ali when declaring emergency stated it was because of internal emergencies. But in reality, the real reason was the judgment of the Allahabad High Court.

The Supreme Court tried to stop this order and shift deliberations against it to a future date, but  Parliament added Article 329-A to the 39th Constitutional (Amendment) Act, 1975 which made such matters out of the jurisdiction of the court. 

Thus, the 39th Constitutional (Amendment) Act, 1975 was challenged in the court. 

39th Amendment

Clause 4 of Article 329 A

This was with regard to the election of Prime Minister to the Parliament. It stated that the election of the Prime Minister or the Speaker of the House of the People would not be questioned by any authority other than the ones mentioned in the law made by the Parliament. It was also stated that the validity of such laws will not be questioned by the courts. Arguments of the Respondents

  1. Relying on the judgment of Kesavananda Bharati, the respondents argued that the amendment in question violated the basic features of the constitution.
  2. Parliament under Article 368 was only able to lay down general principles governing the organs of the state. 
  3. The question of whether the elections were valid or not depends on the judiciary under Article 329 and Article  136. Thus, such an amendment is violative of the democratic structure of India. 
  4. The amendment is violative of the principle of equality as it states no rational basis for the need to demarcate between people who hold high offices and others.
  5. It goes against democracy as it makes The Representation of the People Act, 1951 inapplicable  to the election of the Prime Minister and the Speaker.
  6. Cancellation of the Allahabad High Court judgment is a denial of political justice which is a basic feature in the constitution. The amendment is a slap on the face to not only judicial review but the Separation of Power. 


Is the 39th Constitutional (Amendment) Act, 1975 constitutional valid?


The court upheld the ratio of the Kesavananda Bharati case and stated that Clause 4 of Article 329 as unconstitutional.  

The majority bench stated that the clause tore at the fabric of democracy. A free and fair election is a part of the Basic Structure of the Constitution. To take that away from the people of India is a huge infringement of their rights. The bench also found it violated other basic features of the constitution such as rule of law (restriction of arbitrary power by law) and principles of natural justice i.e. Audi Alteram Partem.

The opinion of Justice Chandrachud J.

Justice Chandrachud J. also added that the Act was violative of the policy of Separation of Power as it gave the parliament, powers of the Judiciary. He also believed that it was violative of Article 14, as it created an unequal advantage for some considering despite not being under the scrutiny of a free and fair elections, they could hold such a powerful office. 

Minerva Mills Ltd. & Ors vs Union Of India & Ors,1980 

In case, the court examined the implication of the government being able to amend articles in the constitution which gave them the power to amend. They also examined the relationship between Directive Principles and fundamental rights. The bench ruled Clause 5 of 368 (expanded their powers of amendment), Clause 4 of 368 (removing judicial review) and Section 4 of the Amendment Act of 1976 (removing judicial review) to be unconstitutional. 


In order to save mills that are being managed in a way detrimental to public interests, the government passed the Sick Textile Undertakings (Nationalisation) Act, 1974. By this Act, the government could take over the management of these mills. 

Minerva Mills, a limited company dealing with textiles was accused of being a ‘sick industry’ by the government. A committee was set up to investigate the matter. The report claimed that the company was ‘sick’. Thus, under Section 18A in The Industries (Development and Regulation) Act, 1951 the company was put under the management of the government.

The mill questioned the constitutionality of such an Act that was made possible under the Constitution (Forty Second Amendment) Act, 1976. Due to this, the constitutionality of the amendment Act came into question.


The constitutionality of  Constitution (Forty Second Amendment) Act, 1976


Clause 5 of the Article of 368

The amendment included clause 5 of Article of 368 stated that the parliament had no limitation on what part of the constitution which they wished to amend. The bench ruled that the newly introduced amendment was unconstitutional. It expanded the government’s limited power to absolute power. Such expansion was against the social, political, and economic justice of the people. Thus, Parliament cannot expand its powers and ruin the Basic Structure of the Constitution. 

Clause 4 of Article 368

The amendment also included clause 4 of 368 which stated that no amendment made under Article 368 could be reviewed by the court. The court also ruled this to be unconstitutional. There is an important balance between the three wings of the government- namely the legislative, the executive and the judiciary. If this clause is to be valid then the judiciary would not be able to markdown any amendment passed under this provision, even if it goes against the Basic Structure of the Constitution. It would the legislature that would decide the validity of the law. That power belongs to the judiciary. 

Thus, this clause gives a power to the legislature which clearly belongs to the judiciary. By destroying this separation of power and depriving the common person of a source of redressal, they go against the fabric of democracy. 

Section 4 of the Amendment Act of 1976

The section tries to isolate Article 14 (equality before law) and Article 19 (freedom of speech) from Article 31(C). After amendment, Article 31(C) stated that any law giving effect to certain Directive Principles shall not be said to be invalid if it violates Article 14 and 19. No court will be able to question such laws.  The court ruled this amendment to be unconstitutional. These two rights that have been violated by these laws are not only an essential part of the Universal Declaration of Human Rights but also essential to the Basic Structure of the Constitution. It was also said that by the ratio of the Kesavanda Bharati case, they cannot be emasculated by these amendments. 

Relationship between Part III and IV of the Constitution

The court also explains the relationship between Part III and Part IV of the constitution,i.e., the fundamental rights and the directive principles. They stated that both created the foundation of the constitution and if one was to be given preference over the other, it would shake the foundation of the constitution and make it weak. They must both be read in harmony.


Bhagwati J. dissented with regard to the amendment to Article 31(C). He was of the opinion that one should not rule a law to be unconstitutional at first glance and should first analyze its pith and substance before ruling against it.  

Waman Rao And Ors vs Union Of India (UOI) And Ors.1981

In this case, the ratio of Minerva Mills Ltd. v. Union of India was reversed. It also cleared major doubts in the Kesavananda Bharati case such as; Validity of Acts passed before the judgment. 


The Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962 violated several fundamental rights. The amendment Act that not only made The Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962 valid but also introduced  Articles 31A and 31B had on the Basic Structure of the Constitution. The 42nd Amendment Act was questioned in the Bombay High Court but the appeals were dismissed. In Dattatraya Govind Mahajan & Ors. vs State Of Maharashtra & Anr, the same issues were presented in the court but the court dismissed the appeal. But the judgment came out during the emergency, so there was an appeal to review the judgment. This case is a review of Dattatraya Govind Mahajan & Ors. vs State Of Maharashtra & Anr,.

Articles in question

Article 31(A)

This Article protects laws that violate Articles 14 (equality before law) and Article 19 (right to freedom) with regards to the acquisition of estate. The law states that laws dealing with:

  • Acquisition of state that led to the extinguishment or modification of any right,
  • Taking over management of property for public interest or for proper management,
  • The amalgamation of estates for public interest or for proper management,
  • The encroaching of rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof,
  • The encroaching of rights for a license for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license.

shall not be deemed to be void if they are inconsistent with Article 14 and Article 19. 

This was provided that the laws in question were not only formulated by the legislature of the state but had also got the assent from the President.

It also stated land that is under one’s own personal cultivation can not be taken by the State above the ceiling limit applicable to him. But if the State does take land above the ceiling limit, then the State must provide compensation which shall not be less than the market value. 

Article 31(B)

This Act stated that no Act or regulation in the Ninth Schedule shall be deemed to be void on the grounds that it violates any fundamental right, regardless of an order or judgment from any court in this country. 

It shall be the job of the legislature to repeal or amend such Acts.

Article 31(C)

This Act was established to protect laws that secured and furthered the goal of the Directive Principles. It stated that regardless of the guidelines put down by Article 13 ( ensured protection against draconian laws), if the laws secured the principles of the Directive Principles, then even if they violated Article 14 and Article 19, they would be considered to be valid. 

This was provided that the laws in question were not only formulated by the legislature of the state but had also got the assent from the President.

Arguments of the parties

The appellants argued that the protective shield like nature of Articles 31-A, B and C, which prevented any law to be challenged, is unconstitutional. 


  1. Whether by facilitating their power to amend the constitution under Article 31(a), The government transgressed their power of constitutional amendment?
  2. Whether Article 31(A) is a shield to laws that transgress Article 14, Article 19 and Article 31? 
  3. Whether Article 31(B) can be challenged on the grounds that it infringes on the fundamental rights of the citizens?
  4. Whether Article 31C can be challenged on the grounds that it infringes on the fundamental rights of the citizens? 
  5. Whether the emergency was proclaimed in bad faith and whether the 40th amendment is valid or not?
  6. Whether the doctrine of stare decisis ( the doctrine of looking at previous precedents to guide one’s judgment) can apply on the validity of constitutional Articles or on the laws that are protected by the Articles?


Issue 1 and 2 Article 31(A)

Article 31(A) went with the dissenting opinion of Bhagwati J in Minerva Mills Ltd. v. Union of India and analyzed the pith and substance of the law. They looked at the 1st amendment Act of the Constitution and believed that the law was placed to aid the zamindari abolition laws and other difficulties that may arise. They also observed that in the process to abolish socio-economic disparities, it may make way for other small inequalities that might be impossible for the government to address.

Thus, the court held that Article 31(A) does not jeopardize the Basic Structure of the Constitution.  

Issue 3- Article 31(B) 

Several Acts by state legislatures were put into the Ninth Schedule and Article 31(B) protected these laws from the scrutiny of the court. 

The bench used the ratio of the Kesavananda Bharati case. They said that Acts put into the Ninth Schedule prior to the Keshavananda Bharati case would receive protection from Article 31(B). But Acts and laws inserted in the Ninth Schedule after the case would be open to scrutiny by the courts. They shall only pass their scrutiny if they do not infringe the Basic Structure of the Constitution. 

Issue 4- Article 31(C)

The court upheld the majority view in the Kesavananda Bharati case and ruled Article 31(C) was not unconstitutional. They stated this Article was closely linked to Article 39 (Guidelines in order to ensure the betterment of public interest). 

Issue 5- Emergency

The House of People (Extension of Duration) Act extended the normal tenure of parliament by one year. The House of People (Extension of Duration) Amendment Act extended the period by another year. 

The bench held that the emergency was constitutional. The evidence against the emergency was insufficient and reasonable safeguards were taken under Article 352 Clause (3) were applied when declaring it.

The court held there was a genuine threat to the security and sovereignty of the country and thus, there was an apt reason for the president to declare an emergency.  

But, the court also ruled that the President could no longer declare an emergency unless the Union Cabinet communicated it to him in writing. 

Issue 6-  Doctrine of Stare Decisis

The court held it was the laws protected by the Article that would be examined by the doctrine of stare decisis and not the Article itself.

The three reasons it gave were:

  • Article 31(a) stands constitutionally valid on its own merits and rests on the foundation of the constitution.
  • There are numerous cases which uphold the validity of Article 31(a).
  • Stare Decisis is not only rigid, but it is limited as well. It would not be wise to apply it to the constitution as it would be deprived of its flexibility. 

S.P. Sampath Kumar Etc vs Union Of India & Ors, 1987

While it has been established that judicial review is a Basic Structure of the Constitution, what happens when judicial review needs to be sacrificed in order to secure goals essential to democracy, such as speedy justice? In this case, the court held that while tribunals were exempt from the jurisdiction of the High Court, it was necessary in order to secure speedy justice. 


The petitioners appealed to the courts against Section 6 & 28 of the Administrative Tribunals Act, 1985. This Act facilitated the appointment of a tribunal court to handle matters relating to servicemen and the appointment of members on the board. 

Sections of the Act in question

Article 323-A

Clause (1) of this section allowed Parliament to legislate laws for adjudication or trials by administrative councils regarding disputes and complaints about recruitment and conditions of individuals appointed to public service. 

Clause 2(d) stated that such matters will be out of the jurisdiction of all courts, except the Supreme Court under Article 136.  

Section 28 of the Administrative Tribunals Act, 1985

Enacted under the ambit of Article 323-A, the jurisdiction of the Supreme court for such matters has been codified under Article 32, with regards to original jurisdiction and Article 136, with regards to appeals.  

Section 6 of the Administrative Tribunals Act, 1985

This section deals with the qualifications needed to be on the tribunal court.

Subsection (1) of the Act lays down the qualification of the Chairman for such tribunals. The qualifications are:

  • Has been a Judge of a High Court;
  • Has held the office of Vice Chairman for at least 2 years;
  • Has held the office of Secretary of the Government for at least 2 years.

Subsection (2) of the Act states the Vice-Chairman should have at least been:

  • A judge of the high court.
  • Held office of Secretary of the Government for at least 2 years. 
  • For a period of not less than three years been a Judicial Member of an Administrative Tribunal.:

Subsection (3) states that the Judicial member should at least be: 

  • Qualified to be a Judge of a High Court;
  • For at least 3 years been a member of the Indian Legal services.

Subsection 3(A) states a person to be appointed as an Administrative Member should:

  • For at least two years have held the post of Additional Secretary to the Government of India.
  • Been the Joint Secretary to India for at least three years. 

Contentions of the Parties

They contended that the exclusion of the High Court in service matters under Article 226 and Article 227 was unconstitutional. They also questioned the validity of the prescribed mode of appointment. They believed it was outside the powers of parliament under Article 323-A, as they were appointing non-jurist men.


The constitutional validity of the Administrative Tribunals Act 1985.


The court held that such tribunals are necessary to ensure principles such as speedy justice, uniformity in the decision and predictability of the decisions. Even if it came at the cost of such tribunals remaining out of the jurisdiction of the High Court.

It was also important that along with jurists, esteemed members with specialized knowledge of the subject should also be appointed. They will be able to add points of view and inputs which the judiciary will not be able to provide. Thus, the indiscriminate appointment of such esteemed members will have little to no effect on the workings of the tribunals. 

L. Chandra Kumar vs Union Of India And Others, 1997

This case continues from the S.P. Sampat Kumar case


Before the administrative tribunal was even established, several writ petitions had been filed. The following case deals with the issues raised in the S.P. Sampath Kumar case

Articles in Question 

Article 323 B

The Act set up tribunals for other matters. The certain matters were:

  • Levy, assessment, collection and enforcement of any tax;
  • Foreign exchange, import, and export across customs frontiers;
  • Industrial and labor disputes;
  • Land reforms by way of acquisition by the state of any estate as defined in Article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of the ceiling on agricultural land or in any other way;
  • The ceiling on the urban property;
  • Elections to either House of Parliament or the House or either House of the Legislature of a state, but excluding the matters referred to in Article 329 and Article 329A;
  • Production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this Article and control of prices of such goods;
  • Offences against laws with respect to any of the matters specified in sub-clause (a) to (g) and fees in respect of any of those matters;
  • Any matter incidental to any of the matters specified in sub-clause (a) to (h)


The doubts, arguments, and contentions regarding the Administrative Tribunal were grouped under three large issues:

  1. Whether the power upon the Parliament under Article 323-A and upon the State by Article 323-B to exclude the jurisdiction of all courts other than the Supreme Court opposes the power of judicial review of the High Court?
  2. Can these tribunals competently test the constitutional validity of a statute or a rule?
  3. Can the tribunals be said to be effective substitutes of the High Court for judicial review? What changes should be made to the tribunals in order to make them suitable substitutes?


Issue 1- Article 323 (A) and 323 (B)

In the final hearing of the Sampath Kumar case, the jurisdiction of the Supreme Court was amended to be saved not under Article 136, (Special leave to appeal) but Article 32 (under this article, one can move to the Supreme Court when one’s rights have been unduly undermined). 

In this case, the court did not address the issue of whether Article 323A (2) needed a similar amendment. But they did mention that the main intention of the Act was to provide for a body for speedy justice, and made clear that the tribunals performed a substitution role, not a supplementary one. 

They took into view the suggestions of the learned counsel who stated that Article 323A (2) (d) and Article 323B (3) (d) should be declared unconstitutional as they shield themselves from the scrutiny of the learned court. Another counsel stated that the power of judicial review can not be entrusted to newly formed quasi-judicial courts that are vulnerable to executive influences. 

They also came to the conclusion that judicial review is a basic feature of the constitution and that Article 25 (corresponding to Article 32) was the very soul of the Constitution. 

Issue 2- Constitutional Competence of Tribunals

The court ruled that tribunals have the constitutional competence to rule a statute or rule as constitutional or unconstitutional.

With regard to the power of judicial review, the court took help from American precedents as they stated that judicial review in America and India are very similar. In America, all courts regardless of their rank had judicial review. No court, other than the US Supreme Court has the power to prevent granting of judicial review. 

If the power given to the Supreme Court through Article 32 can be conferred to other courts, there is no reason that the same can not be done with the powers given to the High Court through Article 226. However, it is important to note that the original jurisdiction of the Supreme Court and the High Court remain and the tribunals Act as supplementary bodies. 

They said that tribunals should have the power of judicial review for the following reasons:

  • It is important to clear the backlog cases. 
  • Even though the tribunals have underperformed, it is wrong to blame their founding principles on their performance. The reasons why such tribunals were established are still at large and the existence of tribunals can help rectify those wrongs. 

 But such tribunals would be subject to review of the High Court under Article 266/ Article 277.

Issue 3- Tribunals as Complementaries to the High Court

The court stated that tribunals are not substitutes but complementaries to the High court. They suggested the following changes:

  • Decisions of the tribunals will be subject to review before division bench of the High Court.
  • The appointment of a mix of jurists and experts in the field is beneficial to the tribunals.
  • Tribunals shall be made subject to the supervisory jurisdiction of the High Court.
  • In order to keep tabs on the tribunals, the Ministry may be able to appoint supervisory bodies. 

M. Nagaraj & Others vs Union Of India & Others, 2007


Several write petitions against The Constitution (Eighty-fifth Amendment) Act, 2001 was filed. 

Arguments of the Petitioners

  1. The petitioner’s aggrieved by The Constitution (Eighty-fifth Amendment) Act, 2001, pleaded to the court to quash the amendment Act with regards to Article 16(4A) (that provides for reservation in promotion with consequential seniority).  They say that such an Act is violative of the basic structure and is unconstitutional. 
  2. They also contend that the Article reverses the decisions of various previous cases. By reversing the decisions of such judgments, the petitioners contended that they have acted like a judiciary body. The use of such powers is violative of the Basic Structure of the Constitution.
  3. The amendment also sought to alter the fundamental right of equality. By attaching “consequential senior” to “accelerated promotion” under Article 16(1), it violates Article 14 (equality before law).
  4. They argued that adding the clause “consequential senior” impairs efficiency.
  5. The petitioners’ questioned The Constitution (Seventy-Seventh Amendment) Act, 1995. They contended that if accelerated seniority is given to roster point promotees, they would have an unprecedented advantage. For example- A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56.


The issue was the constitutionality of the Constitution (Eighty-fifth Amendment) Act, 2001.


The amendments to Article 16 were considered to be valid and did not alter the structure of Article 16.

I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors, 2007


The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari), Act, 1969, was struck down by the court as it was not a form of agrarian reform protected by Article 31-A. Similarly  Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was also struck down as being not only arbitrary but also unconstitutional. 

Consequently, by The Constitution (Thirty-Fourth 34th Amendment) Act, and The Constitution (Sixty-Sixth 66th Amendment) Act, the Janman Act, and the West Bengal Land Holding Revenue, Act. 1979 were inserted into the ninth schedule.

Contentions of the Petitioners 

The contention was:

  • To insert a provision in the ninth schedule that has been ruled to be unconstitutional is against a judicial review that is a basic feature of the constitution
  • To insert an Act which has been stated to violate the fundamental rights of an individual is against the Basic Structure of the Constitution.  


  1. Can the 9th Schedule be immune to judicial review of the Supreme Court? 
  2. Whether judicial review of Ninth Schedule laws would include the basic structure test on the touchstone of fundamental rights?


Issue 1- Judicial Review

The 9th Schedule can not be immune to judicial review of the constitution and every Act inserted in the Ninth Schedule has to pass the test of fundamental rights. If review that such Acts do not comply with fundamental rights, then such an Act will be considered invalid.

In the Kesavananda Bharati case, it was observed that the Parliament did not have the power to make any law that transgressed the fundamental rights. If the Parliament did have such powers, that would go against the Basic Structure of the Constitution. 

Ninth Schedule is a part of the Indian constitution and no additions can be made to it that is against the basic structure. Article 368 cannot be amended to allow that. 

Issue 2- Judicial Review as a Basic Structure

It was held by the court that the Basic Structure of the Constitution would include judicial review of the Ninth Schedule, read with the fundamental rights.

Using the Kesavananda Bharati case, they stated that all sections of the constitution are open to amendment other than the contours of the basic structure, and judicial review is one of them. Including an Act in the Ninth Schedule does not exclude it from the scrutiny of the court. 

If the Act passes the test of The basic structure then it shall be stated as valid, but if it does not pass the test, it shall be stated as void to avoid Parliamentary Totalitarianism.

Such a test would check the impact and effect of the law i.e the pith and substance, not the law itself.  

They also stated the principles of fundamental rights should not be violated by such laws’ While Article 13 ensures this, Parliament still goes unchecked in establishing laws contrary to the fundamental rights. These rights have always enjoyed a special place in the constitution, thus it is necessary that laws in the Ninth Schedule abide by them. 

Constitutional Amendments in 2019

Name of Amendment Amendment


103rd Added Clause (6) to Article 15 Added Clause (6) to Article 16 Clause (6) states that individuals from economically weaker sections of society can seek reservation from educational institutions, including private institutions. This is notwithstanding minority institutions Clause (6) of Article 16 established reservation of individuals from economically weaker sections in government posts.   
104th Amended Article 334
  • The abolishment of Legislative councils in mentioned States.
  • Dual Citizenship for Indian origin outside the country.
  • Quota to educationally backward classes
  • Quota for religious minorities in government service. 


Through this article, we explored the amendment of the constitution. We found that there is something called the Basic Structure of the Constitution and it is against the basic principles of justice to breach it. The judiciary was at first of the opinion that the preamble was what constituted the basic structure of the constitution but later on, it was ruled that other aspects of the constitution such as judicial review could also be the aspects of the Basic Structure of the Constitution.

The government in many landmark cases tried to amend the constitution in order to make it easier to ensure the best for the public interest. The judiciary was absolutely against the whole idea, in later judgments we see the judges opening up to the idea of the executive being able to override certain aspects of the basic structure in order to ensure the best for the public interest. But in later on judgments, unless the judiciary was absolutely convinced that such Acts would be beneficial in ensuring greater public welfare, they were strict about amendments that violated the basic structure.

What we must realize is that the constitution is the backbone of this democracy. While it was revolutionary of the fathers of our constitution to provide provisions to amend the constitution, it is essential that such provisions are not misused. Misuse could result in excessive power of the legislative or the executive which could tear the fabric of our democracy.

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