Amendment and Basic Structure — UPSC Polity Notes

Overview

The Indian Constitution is described as a living document — it evolves with time to meet changing social, economic, and political needs.

This flexibility allows India to balance continuity with change , ensuring democratic stability and adaptability.

Article 368 – Power of Parliament to Amend the Constitution

Article 368 (Part XX) empowers Parliament to amend the Constitution by way of addition, variation, or repeal of any provision.

The amendment procedure maintains a balance between rigidity and flexibility — it is neither as rigid as the US Constitution nor as flexible as the British one.

Amendments help in keeping the Constitution relevant to changing times while safeguarding its basic philosophy and integrity .

Judicial Safeguard – Basic Structure Doctrine

In Kesavananda Bharati v. State of Kerala (1973) , the Supreme Court held that Parliament’s amending power under Article 368 is not unlimited .

It cannot alter or destroy the Basic Structure of the Constitution — which includes principles like the supremacy of the Constitution, rule of law, separation of powers, and judicial review.

This landmark judgment ensures that while the Constitution can evolve, its core identity remains intact .

Criticism of Amendment Procedure

The amendment procedure under Article 368, though designed to ensure flexibility, has been criticized for several reasons:

1. Limited Role of States: States have a very restricted role in the amendment process. Only in certain cases — particularly those affecting the federal structure — is their consent required, and even then, approval from only half of the state legislatures is sufficient.

2. Excessive Powers to Parliament: Parliament holds predominant power in the amendment process, which tilts the balance in favor of the Union and undermines the federal spirit.

3. Dual Role of Parliament: Parliament functions both as a law-making body and as a constituent body while amending the Constitution. This dual role blurs the distinction between ordinary legislation and constitutional amendment.

4. No Provision for Joint Sitting: In case of disagreement between the Lok Sabha and the Rajya Sabha on an amendment bill, there is no provision for a joint sitting, unlike ordinary legislation under Article 108.

5. Too Similar to Ordinary Legislative Process: Except for the requirement of a special majority, the amendment procedure resembles the process of passing an ordinary law, which some argue makes it too easy to alter constitutional provisions.

1. The First Amendment Act, 1951

This amendment was crucial for socio-economic reforms after independence.

Introduced the Ninth Schedule (Article 31B) to protect land reform laws from judicial review (though later limited by the Basic Structure Doctrine).

Amended Article 15 to enable the State to make special provisions for the advancement of any socially and educationally backward classes (SC/ST).

Added reasonable restrictions to the Right to Freedom of Speech and Expression (Article 19).

2. The 24th Amendment Act, 1971

Passed after the Golaknath Case (1967) , where the Supreme Court held that Parliament could not amend Fundamental Rights.

The 24th Amendment formally clarified that Parliament has the power to amend any part of the Constitution, including the Fundamental Rights .

It mandated that the President must give assent to a Constitutional Amendment Bill .

3. The 42nd Amendment Act, 1976 (Mini Constitution)

Enacted during the Internal Emergency (1975-77), this is considered the most comprehensive amendment.

Added three new words to the Preamble : Socialist, Secular, and Integrity .

Added a new Part IV-A on Fundamental Duties (Article 51A).

Made the President bound by the advice of the Cabinet.

Curtailed the power of Judicial Review of the Supreme Court and High Courts (later restored).

4. The 44th Amendment Act, 1978

Enacted by the Janata Government to reverse the controversial changes made by the 42nd Amendment and safeguard fundamental freedoms, particularly during an Emergency.

Removed the Right to Property (Article 31) from the list of Fundamental Rights, making it a Legal Right under Article 300A .

Required the President to refer the Cabinet's advice for reconsideration (though bound to act on the reconsidered advice).

Substituted 'armed rebellion' for 'internal disturbance' as a ground for declaring National Emergency (Article 352).

5. The 61st Amendment Act, 1989

Reduced the voting age for elections to the Lok Sabha and the State Legislative Assemblies from 21 years to 18 years .

This greatly expanded political participation and democratised the electoral process.

6. The 93rd Amendment Act, 2005

Introduced Article 15(5) , enabling the State to reserve seats for the Socially and Educationally Backward Classes (SEBCs) in private unaided educational institutions , except minority institutions (Article 30).

A. Origin and Purpose (Article 31B)

Article 31B was introduced by the First Amendment Act, 1951 , immediately following the inclusion of Article 31A .

It serves as a legal safety net or protective shield for certain legislative acts and regulations.

Any law placed in the Ninth Schedule is immunized from challenge on the grounds that it violates any Fundamental Rights, thus giving it constitutional validity even if it breaches Article 13 .

The main purpose was to facilitate land reforms and abolish the Zamindari system by preventing landowners from challenging these laws in court on the basis of violation of the Right to Property (then a Fundamental Right).

B. Judicial Evolution (Challenge to Immunity)

The Ninth Schedule's immunity was challenged numerous times, leading to a crucial evolution in judicial thought:

1. Kesavananda Bharati v. State of Kerala (1973): The court established the Basic Structure Doctrine but did not explicitly rule on the retrospective application of judicial review to the Ninth Schedule.

2. Waman Rao v. Union of India (1981): The court upheld the validity of the Ninth Schedule and reiterated that laws placed in it before the date of the Kesavananda Bharati judgment (April 24, 1973) would remain immune from challenge.

3. I.R. Coelho v. State of Tamil Nadu (2007): This landmark decision significantly restricted the scope of the Ninth Schedule. The Supreme Court unanimously ruled that any law placed in the Ninth Schedule after April 24, 1973, is open to judicial scrutiny and can be struck down if it is violative of the Basic Structure of the Constitution.

C. Current Status

The Ninth Schedule does not provide absolute immunity from judicial review. Laws added after April 24, 1973 , can be challenged on the grounds of violating the Basic Structure Doctrine (Articles 14, 19, 21, etc.).

This decision maintains the supremacy of the Constitution and reinforces the judiciary's role as the guardian of the Fundamental Rights and the Basic Structure.

A. Preamble as Part of the Constitution

The relationship between the Preamble and the Constitution has been defined through two key Supreme Court cases:

1. Berubari Union Case (1960): The SC initially held that the Preamble is not a part of the Constitution and thus not a source of substantive power to the Legislature or the Executive. However, it acknowledged that the Preamble is key to interpreting provisions where the language is ambiguous.

2. Kesavananda Bharati v. State of Kerala (1973): This landmark case overruled the Berubari opinion . The SC held that the Preamble is an integral part of the Constitution and is of extreme importance. It provides the Basic Structure framework and the foundation for the entire constitutional edifice.

The Preamble is non-justiciable , meaning its provisions cannot be enforced in a court of law, but it guides the interpretation of the Constitution.

B. Amendability of the Preamble

Since the Preamble is part of the Constitution, it can be amended under Article 368 . However, being the embodiment of the basic philosophy, its Basic Structure cannot be destroyed or altered .

Only one amendment has been made to the Preamble so far: the 42nd Amendment Act, 1976 , added three new words: Socialist, Secular, and Integrity .

C. Preamble Values as Basic Structure Elements

The fundamental values and objectives stated in the Preamble are considered part of the Basic Structure itself:

1. Sovereign, Democratic, and Republic Nature (Kesavananda Bharati, 1973).

2. Secularism (S.R. Bommai, 1994).

3. Justice (Social, Economic, and Political) and Liberty (Kesavananda Bharati, 1973).

4. Equality and Fraternity (The entire philosophy).

The Preamble serves as the philosophical key to the Constitution. It is the repository of the founders' intentions and core democratic principles that Parliament is bound to uphold, even while exercising its power to amend.

A. Territory and Reorganization (Simple Majority Amendments)

Amendments dealing with the territory of India are often passed by a Simple Majority of Parliament (outside Article 368), reflecting the Union's power over the territorial integrity of the states.

1. Article 2, 3, & 4: These Articles, concerning the admission or establishment of new states, and the alteration of areas, boundaries, or names of existing states, are deemed as ordinary laws and are not Constitutional Amendments under Article 368 .

2. Example: The Andhra Pradesh Reorganization Act, 2014, which created Telangana, was passed by a simple majority.

3. Ninth Amendment Act, 1960: Gave the territory of Berubari Union to Pakistan (under an agreement with Pakistan), but this required a constitutional amendment as confirmed by the Berubari Union Case (1960) .

4. 100th Amendment Act, 2015: Gave effect to the Land Boundary Agreement (LBA) with Bangladesh, exchanging certain enclaves. This required a special majority and ratification by states, as it involved transfer of Indian territory to a foreign country.

B. Federal Provisions Requiring State Ratification

Any amendment affecting the federal balance must be ratified by at least half of the state legislatures by a simple majority , in addition to being passed by a Special Majority of Parliament (Article 368).

Key areas requiring state ratification:

1. Election of the President (Articles 54, 55).

2. Extent of the Executive Power of the Union and States (Articles 73, 162).

3. The Supreme Court and High Courts (e.g., powers, composition).

4. Distribution of Legislative Powers (Lists in the Seventh Schedule).

5. Representation of States in Parliament (Fourth Schedule).

6. Article 368 itself (amendment of the amending process).

7. 101st Amendment Act, 2016 (GST): The introduction of the Goods and Services Tax (GST), which affected the fiscal powers of both the Centre and the States (Seventh Schedule), required ratification by more than half of the state assemblies.

C. Significance

The requirement of state ratification for federal provisions ensures that the Union government cannot unilaterally alter the federal structure or diminish the powers of the states. This process reinforces cooperative federalism and maintains the constitutional balance of power.