Indian polity Playlist
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1
Making of the Constitution
18 topics
2
Salient Features of the Indian Constitution
4 topics
3
Preamble
7 topics
4
Evolution of States & Union Territories
7 topics
5
Citizenship
9 topics
6
Fundamental Rights
34 topics
7
Directive Principles of State Policy (DPSP)
19 topics
8
Amendment and Basic Structure
12 topics
9
Parliamentary System of Government
48 topics
10
Union Executive
36 topics
11
State Executive
21 topics
12
State Legislature
11 topics
13
Centre-State Relations
24 topics
14
Inter-State Relations
14 topics
15
Emergency Provisions
13 topics
16
Supreme Court
26 topics
17
High Court
20 topics
18
Local Government
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19
UTs + Scheduled and Tribal Areas
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Chapter 8: Amendment and Basic Structure
Chapter Test12 topics•Estimated reading: 36 minutes
Amendment and Basic Structure (Article 368)
Key Point
The Indian Constitution balances rigidity and flexibility. While Parliament has wide powers to amend the Constitution under Article 368, the Supreme Court in Kesavananda Bharati (1973) ruled that the 'Basic Structure' cannot be altered. This ensures adaptability without compromising core constitutional principles.
The Indian Constitution balances rigidity and flexibility. While Parliament has wide powers to amend the Constitution under Article 368, the Supreme Court in Kesavananda Bharati (1973) ruled that the 'Basic Structure' cannot be altered. This ensures adaptability without compromising core constitutional principles.
Detailed Notes (11 points)
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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 .
Procedure of Constitutional Amendment
| Stage | Details |
|---|---|
| Introduction of Bill | Only Parliament has power; can be introduced by any MP; no prior Presidential approval needed. |
| Legislative Procedure | Must be passed by special majority (total majority + 2/3rd present and voting) in each House; no joint sitting allowed. |
| Ratification by States | Required for federal provisions; must be ratified by at least half of state legislatures by simple majority. |
| Presidential Assent | Mandatory assent after passage (24th Amendment makes it obligatory). Becomes law after assent. |
Mains Key Points
Amendment process ensures Constitution remains dynamic yet stable.
Balance of rigidity (special majority, state ratification) and flexibility (Parliamentary power).
Basic Structure Doctrine protects essential features like democracy, secularism, federalism, FRs, judicial review.
Key debate: scope of Parliament’s power vs role of judiciary in safeguarding Constitution.
Amendments reflect political, social, and economic evolution of India.
Prelims Strategy Tips
Article 368 governs the amendment procedure; only Parliament can initiate amendments.
Three types of provisions: (i) Simple majority, (ii) Special majority, (iii) Special majority + State ratification.
24th Amendment (1971): President must give assent; Parliament can amend any part including FRs.
Kesavananda Bharati (1973): Basic Structure Doctrine limits Parliament’s amending power.
No joint sitting provision for amendment bills.
Types of Amendments in the Indian Constitution
Key Point
The Indian Constitution provides three types of amendments: (i) by simple majority (like ordinary law, not under Article 368), (ii) by special majority of Parliament under Article 368, and (iii) by special majority of Parliament plus ratification by half of the state legislatures. This balance ensures flexibility as well as rigidity.
The Indian Constitution provides three types of amendments: (i) by simple majority (like ordinary law, not under Article 368), (ii) by special majority of Parliament under Article 368, and (iii) by special majority of Parliament plus ratification by half of the state legislatures. This balance ensures flexibility as well as rigidity.
Types of Constitutional Amendments
| Type | Article | Procedure | Scope |
|---|---|---|---|
| Amendment by Simple Majority | Not under Article 368 | Passed like ordinary law of Parliament; simple majority only. | Creation/abolition of state legislative councils, quorum, MPs’ salaries, rules of procedure, privileges, English language use in Parliament, SC judges’ number, SC jurisdiction, citizenship laws, elections, etc. |
| Amendment by Special Majority of Parliament | Article 368 | Special majority: majority of total membership + 2/3rd of members present & voting. | Fundamental Rights, DPSPs, and other provisions not requiring state ratification. |
| Amendment by Special Majority + State Ratification | Article 368 | Special majority in Parliament + ratification by at least half of state legislatures (simple majority). No time limit for ratification. | Provisions related to federal structure: President’s election, Union–State powers, distribution of legislative functions, SC/HC powers, 7th Schedule, state representation in Parliament, Article 368 itself, GST Council. |
Mains Key Points
Amendment process ensures adaptability while preserving constitutional balance.
Simple Majority shows flexibility (ordinary matters like elections, citizenship).
Special Majority reflects rigidity for core provisions like FRs & DPSPs.
Federal provisions require state ratification → true cooperative federalism.
Debate: Balance of flexibility vs rigidity ensures Constitution survives political & social changes.
Prelims Strategy Tips
Three types of amendments: Simple Majority, Special Majority, Special Majority + State Ratification.
Simple Majority amendments are outside Article 368 (flexible provisions).
Special Majority (Art. 368) needed for FRs, DPSPs, and most provisions.
Federal provisions (like 7th Schedule, Article 368, SC/HC powers) need ratification by half the states.
Shows Constitution is both flexible and rigid.
Types of Majorities in Indian Constitution
Key Point
Different types of majorities are used in the Indian Parliament depending on the subject matter. These include Simple Majority, Absolute Majority, Effective Majority, and Special Majority. Each has different numerical requirements and applications.
Different types of majorities are used in the Indian Parliament depending on the subject matter. These include Simple Majority, Absolute Majority, Effective Majority, and Special Majority. Each has different numerical requirements and applications.
Types of Majorities
| Type | Definition | Example Calculation | Usage |
|---|---|---|---|
| Simple Majority | More than 50% of members present and voting. | Lok Sabha: Strength 545; Vacant 5; Present 500; Voting 450; Simple Majority = 226. | Most motions & bills (e.g., No-confidence motion, Money Bills). |
| Absolute Majority | More than 50% of the total strength of the House. | Lok Sabha: Strength 545; Absolute Majority = 273. | Formation of government (rarely used alone in Parliament). |
| Effective Majority | More than 50% of the effective strength (total strength minus vacancies). | Lok Sabha: Strength 545; Vacant 5 → Effective strength 540; Majority = 271. | Removal of Vice-President, Deputy Chairman of Rajya Sabha, Speaker & Deputy Speaker of Lok Sabha. |
| Special Majority | Any majority other than simple, absolute or effective; includes two-thirds present & voting, or combination with absolute majority. | Two-thirds present & voting OR Absolute Majority + 2/3rd present & voting depending on Article. | Impeachment of President (Art. 61), Removal of SC Judge/CAG, some Constitutional Amendments, legislation on State List (Art. 249). |
Prelims Strategy Tips
Simple Majority = present & voting > 50%. Used in most bills.
Absolute Majority = 50% of total strength of House. Needed for government formation.
Effective Majority = total strength - vacancies. Used in removals (Speaker, VP etc.).
Special Majority = multiple forms (2/3rd present & voting, etc.). Used in Constitutional Amendments, Impeachment.
Amendment Procedure – Criticism and Key Amendments
Key Point
The Indian Constitution provides flexibility and rigidity through Article 368. While it allows amendments to adapt to changing times, the procedure faces criticism for Parliament’s dominance, limited state role, and similarity to ordinary law-making. Key amendments have addressed retirement age, reservations, defections, Panchayati Raj, and women’s representation.
The Indian Constitution provides flexibility and rigidity through Article 368. While it allows amendments to adapt to changing times, the procedure faces criticism for Parliament’s dominance, limited state role, and similarity to ordinary law-making. Key amendments have addressed retirement age, reservations, defections, Panchayati Raj, and women’s representation.
Detailed Notes (7 points)
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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.
Content of Amendments Made So Far
| Category | Examples |
|---|---|
| Minor modifications | 15th Amendment Act, 1963 → Raised retirement age of High Court judges (60 → 62). 104th Amendment Act, 2020 → Extended SC/ST seat reservations in Lok Sabha and State Assemblies. |
| Due to judicial interpretations | Golaknath Case (1967) → Held constitutional amendment = 'law' under Article 13. 24th Amendment Act, 1971 → Clarified Article 13 doesn’t apply to amendments under Article 368. |
| Political consensus | 52nd Amendment Act, 1985 → Anti-defection law. 73rd Amendment Act, 1992 → Panchayati Raj Institutions. 106th Amendment Act, 2023 → 1/3rd reservation for women in Lok Sabha & State Assemblies (including SC/ST seats). |
Prelims Strategy Tips
15th Amendment (1963): Raised retirement age of HC judges (60→62).
24th Amendment (1971): Parliament can amend FRs; Article 13 doesn’t apply.
52nd Amendment (1985): Anti-defection law.
73rd Amendment (1992): Panchayati Raj.
106th Amendment (2023): 1/3rd reservation for women in legislatures.
Types of Constitutional Amendments
Key Point
The Indian Constitution provides three modes of amendment – (1) By Simple Majority (outside Article 368), (2) By Special Majority of Parliament, and (3) By Special Majority of Parliament + Ratification by half of state legislatures. This reflects its flexible-rigid blend.
The Indian Constitution provides three modes of amendment – (1) By Simple Majority (outside Article 368), (2) By Special Majority of Parliament, and (3) By Special Majority of Parliament + Ratification by half of state legislatures. This reflects its flexible-rigid blend.
Types of Amendments under Indian Constitution
| Type | Scope / Examples |
|---|---|
| By Simple Majority of Parliament (Outside Article 368) | 1. Admission or establishment of new states. 2. Formation of new states or alteration of areas, boundaries, or names of existing states. 3. Abolition/creation of legislative councils in states. 4. Second Schedule – emoluments, allowances, privileges of President, Governors, Speakers, Judges. 5. Quorum in Parliament. 6. Salaries/allowances of MPs. 7. Rules of procedure in Parliament. 8. Privileges of Parliament, its members and committees. 9. Use of English in Parliament. 10. Number of puisne judges in SC. 11. Conferment of more jurisdiction on SC. 12. Use of official language. 13. Citizenship – acquisition/termination. 14. Elections to Parliament & State legislatures. 15. Delimitation of constituencies. 16. Union Territories. 17. Fifth Schedule – Scheduled Areas & Tribes. 18. Sixth Schedule – Tribal Areas. |
| By Special Majority of Parliament (Article 368) | 1. Fundamental Rights. 2. Directive Principles of State Policy. 3. Any provision not covered under the other two categories. |
| By Special Majority + Ratification by Half of States (Article 368) | 1. Election of the President and manner of election. 2. Extent of executive powers of Union and States. 3. Supreme Court and High Courts. 4. Distribution of legislative powers between Union and States. 5. Any of the lists in 7th Schedule. 6. Representation of States in Parliament. 7. Parliament's power to amend the Constitution & its procedure (Article 368 itself). |
Prelims Strategy Tips
Simple Majority = Outside Article 368 (e.g., formation of new states, salaries, official language).
Special Majority (368) = Used for FRs, DPSPs, and most provisions.
Special Majority + State Ratification = Needed for federal provisions like President’s election, distribution of powers, 7th Schedule lists, SC/HC.
Doctrine of Basic Structure
Key Point
The Basic Structure Doctrine, evolved in Kesavananda Bharati (1973), holds that while Parliament has wide powers to amend the Constitution under Article 368, it cannot alter or destroy its ‘basic structure’. This ensures continuity of core constitutional values.
The Basic Structure Doctrine, evolved in Kesavananda Bharati (1973), holds that while Parliament has wide powers to amend the Constitution under Article 368, it cannot alter or destroy its ‘basic structure’. This ensures continuity of core constitutional values.
Evolution of Basic Structure Doctrine
| Case | Year | Judgment & Significance |
|---|---|---|
| Shankari Prasad v Union of India | 1951 | Parliament has absolute power to amend the Constitution, including FRs. Article 13 applies only to ordinary laws, not amendments. |
| Sajjan Singh v State of Rajasthan | 1964 | No limitation on Parliament’s amending power. CA Acts not covered under Article 13. |
| Golaknath v State of Punjab | 1967 | CA Acts are ‘law’ under Article 13. Parliament cannot amend FRs. FRs sacrosanct. |
| Kesavananda Bharati v State of Kerala | 1973 | CA Acts not ‘law’ under Article 13. Parliament can amend any part of the Constitution, including FRs, but cannot alter the Basic Structure. |
Mains Key Points
The doctrine ensures constitutional continuity and prevents authoritarian amendments.
Acts as a safeguard for democracy, rule of law, and federalism.
Shows judicial creativity in preserving the spirit of the Constitution.
Balances Parliament’s flexibility to amend with constitutional rigidity.
Forms part of the Basic Structure itself – beyond Parliament’s reach.
Prelims Strategy Tips
Basic Structure Doctrine not mentioned in Constitution; evolved through case law.
Kesavananda Bharati (1973) – landmark case; upheld Parliament’s power to amend but restricted it from damaging basic structure.
Shankari Prasad & Sajjan Singh: unrestricted power of Parliament.
Golaknath (1967): FRs sacrosanct; no amendment allowed.
Kesavananda (1973): balance struck – amendment allowed, but Basic Structure protected.
Elements of the Basic Structure of the Constitution
Key Point
The Supreme Court has not given an exhaustive list of what constitutes the Basic Structure, but through various cases it has identified certain principles such as supremacy of the Constitution, rule of law, judicial review, democracy, secularism, federalism, and protection of Fundamental Rights.
The Supreme Court has not given an exhaustive list of what constitutes the Basic Structure, but through various cases it has identified certain principles such as supremacy of the Constitution, rule of law, judicial review, democracy, secularism, federalism, and protection of Fundamental Rights.
Key Elements of Basic Structure (Indicative List)
| Element | Source Case / Recognition |
|---|---|
| Supremacy of the Constitution | Kesavananda Bharati (1973) |
| Rule of Law | Indira Nehru Gandhi v Raj Narain (1975) |
| Judicial Review | Kesavananda Bharati (1973), Minerva Mills (1980) |
| Democracy (Parliamentary System) | Indira Gandhi v Raj Narain (1975) |
| Secularism | S.R. Bommai v Union of India (1994) |
| Federalism | SR Bommai (1994), Kesavananda Bharati (1973) |
| Separation of Powers | Indira Gandhi v Raj Narain (1975) |
| Independence of Judiciary | S.P. Gupta v Union of India (1981) |
| Free and Fair Elections | Indira Gandhi v Raj Narain (1975) |
| Balance between FRs & DPSPs | Minerva Mills v Union of India (1980) |
| Unity and Integrity of India | Kesavananda Bharati (1973) |
| Preamble Values (equality, liberty, justice) | Kesavananda Bharati (1973) |
Mains Key Points
Basic Structure ensures that Parliament’s amendment powers do not destroy core constitutional principles.
It balances constitutional flexibility with rigidity, protecting democracy from authoritarianism.
Judiciary plays a central role in identifying and safeguarding these features.
Doctrine provides continuity and stability amidst political changes.
Evolving list shows adaptability to new challenges (e.g., free and fair elections, judicial independence).
Prelims Strategy Tips
Basic Structure not mentioned in Constitution; evolved through case law.
Kesavananda Bharati (1973) first identified the concept.
Indira Gandhi v Raj Narain (1975) linked democracy, rule of law, judicial review as core features.
Minerva Mills (1980) emphasized FRs–DPSPs balance as part of Basic Structure.
S.R. Bommai (1994) recognized secularism and federalism as essential.
Provisions Included in the Basic Structure
Key Point
The Basic Structure doctrine, first evolved in Kesavananda Bharati (1973), ensures that Parliament’s amending power under Article 368 does not alter the Constitution’s essential features. The list of provisions is not exhaustive and continues to evolve through Supreme Court judgments.
The Basic Structure doctrine, first evolved in Kesavananda Bharati (1973), ensures that Parliament’s amending power under Article 368 does not alter the Constitution’s essential features. The list of provisions is not exhaustive and continues to evolve through Supreme Court judgments.
Core Provisions Recognized as Part of Basic Structure
| Provision | Significance |
|---|---|
| Supremacy of the Constitution | Ensures Constitution is the highest law of the land. |
| Rule of Law | Guarantees equality before law and accountability of power. |
| Separation of Powers | Legislature, Executive, and Judiciary maintain balance. |
| Republic and Democratic Form of Government | People’s sovereignty through elections. |
| Secular Character of the Constitution | Equal respect for all religions. |
| Federal Character of the Constitution | Division of power between Union and States. |
| Sovereignty and Unity of India | Safeguards independence and territorial integrity. |
| Freedom and Dignity of the Individual | Protects liberty and human rights. |
| Mandate to Build a Welfare State | Guides state policies towards social justice. |
| Parliamentary System | Ensures collective responsibility and accountability. |
| Independence of Judiciary | Free from political interference. |
| Judicial Review | Courts can review laws to check constitutionality. |
| Limited Power of Parliament to Amend | Parliament cannot destroy core constitutional values. |
Mains Key Points
Basic Structure doctrine prevents authoritarian misuse of amendment powers.
Ensures supremacy of Constitution and sustains democracy.
Acts as a safeguard for secularism, federalism, and fundamental rights.
Criticism: Judicial supremacy, vague scope, limits on elected legislature.
Despite criticisms, it preserves constitutional morality and democratic stability.
Prelims Strategy Tips
Basic Structure not defined in the Constitution; evolved via SC judgments.
Kesavananda Bharati (1973) → Doctrine originated.
Minerva Mills (1980) → Balance between FRs & DPSPs part of Basic Structure.
S.R. Bommai (1994) → Federalism & Secularism recognized.
NJAC Case (2015) → Judicial independence reaffirmed.
Landmark Amendments – 1st, 24th, 42nd, 44th, 61st, and 93rd
Key Point
Major Constitutional Amendments reflect periods of significant political shifts and judicial interactions. Amendments like the 42nd (Mini Constitution) and 44th (Emergency aftermath) addressed the fundamental structure and rights, while the 61st Amendment reduced the voting age, enhancing democratic participation.
Major Constitutional Amendments reflect periods of significant political shifts and judicial interactions. Amendments like the 42nd (Mini Constitution) and 44th (Emergency aftermath) addressed the fundamental structure and rights, while the 61st Amendment reduced the voting age, enhancing democratic participation.
Detailed Notes (25 points)
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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).
Major Constitutional Amendments
| Amendment | Year | Key Provision |
|---|---|---|
| 1st | 1951 | Added Ninth Schedule (Land Reforms), amended Art. 15, 19. |
| 24th | 1971 | Parliament can amend FRs (Mandatory Presidential Assent). |
| 42nd | 1976 | Added 'Socialist, Secular, Integrity' to Preamble; added FRs; made President bound by advice. |
| 44th | 1978 | Removed Right to Property from FRs; inserted 'armed rebellion' for Emergency. |
| 61st | 1989 | Reduced voting age from 21 to 18 years. |
| 93rd | 2005 | Reservation for OBCs/SEBCs in private unaided educational institutions (Art. 15(5)). |
Mains Key Points
Major amendments reflect the constant tension between Parliament’s sovereignty and the judiciary’s role as the Constitution's guardian.
The 42nd and 44th Amendments collectively redefine the relationship between the executive and constitutional structure.
The removal of the Right to Property and reduction of voting age were crucial for achieving socio-economic and political democracy.
Amendments related to reservation (15(5), 93rd) highlight the constitutional commitment to social justice and affirmative action.
The evolution of Article 368 through the 24th Amendment shows Parliament's attempt to assert its constituent power.
Prelims Strategy Tips
42nd Amendment (1976) is called the 'Mini Constitution'.
44th Amendment (1978) restored the check on executive power and removed Right to Property.
61st Amendment (1989) reduced voting age (Art. 326).
93rd Amendment (2005) introduced Art. 15(5) for reservations in private unaided educational institutions.
9th Schedule (Art. 31B) added by 1st Amendment.
Ninth Schedule and Judicial Review
Key Point
The Ninth Schedule (Article 31B) was added by the 1st Amendment (1951) to provide constitutional immunity to certain laws, particularly land reform acts, from judicial review. However, the Supreme Court, in I.R. Coelho (2007), ruled that laws placed in the Ninth Schedule after April 24, 1973 (Kesavananda Bharati judgment date) are subject to judicial review if they violate the Basic Structure.
The Ninth Schedule (Article 31B) was added by the 1st Amendment (1951) to provide constitutional immunity to certain laws, particularly land reform acts, from judicial review. However, the Supreme Court, in I.R. Coelho (2007), ruled that laws placed in the Ninth Schedule after April 24, 1973 (Kesavananda Bharati judgment date) are subject to judicial review if they violate the Basic Structure.
Detailed Notes (13 points)
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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.
Ninth Schedule and Judicial Review Timeline
| Year/Case | Principle Established |
|---|---|
| 1951 (1st Amendment) | Ninth Schedule introduced (Art. 31B); immunity from FRs challenges. |
| 1973 (Kesavananda Bharati) | Basic Structure Doctrine established. |
| 1981 (Waman Rao) | Laws before 24/04/1973 remain immune (The 'Waman Rao Rule'). |
| 2007 (I.R. Coelho) | Laws added after 24/04/1973 are subject to judicial review if they violate Basic Structure. |
Mains Key Points
The Ninth Schedule reflects the political struggle between Parliament's desire for socio-economic reform and the judiciary's role as the guardian of fundamental rights.
The I.R. Coelho judgment is a testament to the supremacy of the Basic Structure Doctrine, limiting the executive's power to bypass judicial review.
It balances the need for social legislation (land reforms) with constitutional morality and rule of law.
The doctrine ensures that the power to amend does not become the power to destroy the Constitution's essential character.
Prelims Strategy Tips
Article 31B (Ninth Schedule) added by the 1st Amendment (1951).
Ninth Schedule laws are protected from Articles 14, 19, 31 (now 300A).
I.R. Coelho (2007) made the Basic Structure Doctrine applicable to Ninth Schedule laws added post-1973.
The cutoff date for immunity is April 24, 1973 (Kesavananda Bharati judgment date).
The Preamble and Basic Structure
Key Point
The Preamble embodies the fundamental values and philosophy of the Constitution. The Supreme Court has affirmed that the Preamble is an integral part of the Constitution and its core values—Sovereignty, Socialism, Secularism, Democracy, and Republic—form part of the Basic Structure and are thus unamendable.
The Preamble embodies the fundamental values and philosophy of the Constitution. The Supreme Court has affirmed that the Preamble is an integral part of the Constitution and its core values—Sovereignty, Socialism, Secularism, Democracy, and Republic—form part of the Basic Structure and are thus unamendable.
Detailed Notes (15 points)
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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.
Preamble Amendability Status
| Case/Act | Status of Preamble | Significance |
|---|---|---|
| Berubari Union Case (1960) | Not part of the Constitution. | Initial restrictive view. |
| Kesavananda Bharati (1973) | Is a part of the Constitution; can be amended. | Established amendability but introduced Basic Structure limit. |
| 42nd Amendment (1976) | Amended Preamble once. | Added Socialist, Secular, Integrity. |
Mains Key Points
The Preamble is the key to understanding the constitutional philosophy, setting the tone for governance.
The SC's decision to include the Preamble in the Basic Structure prevents any erosion of fundamental democratic, secular, and socialist ideals.
The Preamble's values inform judicial review, acting as a yardstick against arbitrary state actions and amendments.
The amendment of the Preamble (42nd Amendment) solidified the socialist and secular nature of the Indian state.
Prelims Strategy Tips
Preamble is part of the Constitution (Kesavananda Bharati, 1973).
Preamble is non-justiciable but helps in interpretation.
Amended only once by 42nd Amendment (1976) (Socialist, Secular, Integrity).
The core values of the Preamble are part of the Basic Structure and thus unamendable.
Berubari Case (1960) initially denied the Preamble was part of the Constitution.
Constitutional Amendments Related to Territory and Federalism
Key Point
The Indian Constitution has been amended multiple times to redefine territorial boundaries and strengthen the federal structure. Amendments related to the Seventh Schedule, creation of new states, and the Goods and Services Tax (GST) Council require ratification by half of the state legislatures, underscoring the federal commitment.
The Indian Constitution has been amended multiple times to redefine territorial boundaries and strengthen the federal structure. Amendments related to the Seventh Schedule, creation of new states, and the Goods and Services Tax (GST) Council require ratification by half of the state legislatures, underscoring the federal commitment.
Detailed Notes (18 points)
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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.
Mains Key Points
The territorial amendment process highlights the non-destructible nature of the Union while the states are destructible entities (Art. 1, 2, 3).
The requirement of State Ratification for federal changes reinforces the principle of cooperative federalism.
Amendments like the 101st (GST) show the modern evolution of India's federal-fiscal relationship.
The 100th Amendment (LBA) established the constitutional principle that ceding territory requires a special constitutional amendment.
Prelims Strategy Tips
Articles 2, 3, & 4 amendments are outside Article 368 (Simple Majority).
Transfer of Indian territory to a foreign state requires Art. 368 amendment + State Ratification (100th Amendment).
State Ratification needed for federal provisions (SC/HC, 7th Schedule, President’s election, Art. 368).
GST (101st Amendment) required state ratification.
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