📌 Topics Covered
- ⚖️ Chronological Development of Law on Article 12 in Supreme Court
- 🔍 Scope of the term “State” in Article 12 as expanded by the Supreme Court
- 📚 Supreme Court judgments expanding the scope of State in Article 12
📘 Amendments to Constitution
- The amending power and the Amending Procedure
- Limitations on the amending power
- Supreme Court in Kesavananda Bharati v. State of Kerala [1973 SC]
- The theory of the basic structure
- The rationale: one cannot legally use the Constitution to destroy itself.
- The opposite view: Each generation should have the power to determine the structure of the Constitution under which they live.
- Some features of the basic structure as per the Supreme Court
Delhi Law Academy Jaipur presents below for aspirants of RJS, DJS, PCS(J) and other Judicial Services throughout India a comprehensive Note on the amending power of the Parliament and the Basic Structure of the Constitution as propounded by Supreme Court in 1973, thereby limiting the power of amendment.
🏛️ Amending Body
- In most cases, Parliament has the sole authority to amend the Constitution.
- However, in some special cases, an amendment passed by Parliament has to be ratified by at least half State Legislative Assemblies.
📜 Source of the Amending Power
Article 368(1)
- In exercise of its constituent power Parliament may amend any provision of this Constitution
- by addition, variation or repeal
- in accordance with procedure laid down in this article
⚖️ Amending Procedure
Article 368(2)
- Initiation of amendment:
- by introduction of a Bill in either House of Parliament
- Passing of the Bill:
- by each House by a majority of total membership of that House
- by a majority of not less than 2/3rd members present and voting
- Assent of President:
- The Bill then shall be presented to the President, who shall give his assent
🗳️ Ratification by State Legislatures
- An amendment requires to be ratified by not less than one-half of State Legislatures before it is presented to President for assent, if it seeks to make any change in…
- Articles 54, 55, 73, 162 and 241
- Provisions on Judiciary and distribution of legislative powers
- Any of the three Lists in the Seventh Schedule
- Representation of States in Parliament
- Provisions of Article 368
🚫 Limitations on the Amending Power
- Article 368 of the Constitution does not in any way put any limitations on the constituent powers of Parliament, other than prescribing a special procedure of State Assembly ratification in some specified cases.
- However, the Supreme Court of India came up with a novel limitation in 1973 while propounding the Basic Structure Doctrine in Kesavanand Bharti v. State of Kerala.
The single most important judgment in India’s Constitutional Law history is undoubtedly the 13-Judge Bench Majority Judgment in Kesavananda Bharati case delivered on 24th April 1973. No study of Constitutional Law can be complete without understanding this judgment. But it is easier said than done. Reason is simple. It is an exceptionally lengthy judgment, running in 502 printed pages.
We present below the gist of the operating part of the judgment:
⚖️ Kesavananda Bharati v. State of Kerala [1973 SC]
Principle
- The Supreme Court laid down the Theory of Basic Structure in this case. It was held that some of the provisions of the Constitution of India form its basic structure, which are not amendable by Parliament by exercise of its constituent power under Article 368.
Gist of the Operating Part
- L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (which had held that fundamental rights were beyond the amending powers of Parliament) was overruled
- The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid
- Article 368, as amended, was valid but it did not confer power on the Parliament to alter the basic structure or framework of the Constitution
- The amendment of Article 368(4) excluding judicial review of a constitutional amendment was unconstitutional
✨ Rationale behind the concept of BASIC STRUCTURE
K.S. Hegde & Mukherjea, JJ.
Our Constitution is based on a social philosophy and every social philosophy like every religion has two main features, namely basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change.
Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself.
If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged.
⚖️ THE OPPOSITE VIEW
K.K. Mathew, J.
Every well-drawn Constitution will provide for its own amendment in such a way as to forestall as is humanly possible all revolutionary upheavals. No existing Constitution has reached its final form and shape and become, as it were, a fixed thing incapable of further growth.
A Constitution is an experiment as all life is an experiment. If the experiment fails, there must be provision for making another.
A Constitution is not an end in itself, rather a means for ordering the life of a nation. The generation of yesterday might not know the needs of today, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation to take care of itself.
Each generation is a distinct nation with a right, by the will of the majority to bind themselves but none ‘to bind the succeeding generations more than the inhabitants of another country”, and its corollary which follows as ‘the night the day’ that each generation should have the power to determine the structure of the Constitution under which they live.
If there is any implied limitation upon any power, that limitation is that the amending body should not limit the power of amendment of the future generation by exercising its power to amend the amending power.
❓ Question
What comprises the Basic Structure?
✅ Answer
The basic structure may be said to consist of the following features:
- Supremacy of the Constitution;
- Republican and Democratic forms of Government;
- Secular character of the Constitution;
- Separation of powers between the legislature, the executive and the judiciary;
- Federal character of the Constitution.
The above structure is built on the basic foundation, i.e. the dignity and freedom of the individual. This is of supreme importance. This cannot by an
📚 Further Reading for Law Aspirants
Explore more useful resources from Delhi Law Academy to strengthen your preparation:
❓ FAQs on the Basic Structure Doctrine
The Basic Structure Doctrine means that while Parliament has wide powers to amend the Constitution under Article 368, it cannot alter or destroy the essential features of the Constitution. This was laid down in the landmark case of Kesavananda Bharati v. State of Kerala (1973).
The doctrine was propounded in the Kesavananda Bharati v. State of Kerala (1973) case by a 13-judge bench of the Supreme Court. It held that Parliament’s amending power cannot be used to destroy the “basic structure” of the Constitution.
Some recognized features are: Supremacy of the Constitution, Republican and Democratic form of government, Secularism, Separation of powers, Federalism, and the dignity and freedom of the individual.
Yes, Fundamental Rights can be amended, but not in a way that damages the Basic Structure of the Constitution. For example, while reasonable restrictions are permissible, abrogating the core of fundamental rights like equality or liberty would be unconstitutional.
The rationale is that the Constitution cannot be used to destroy itself. Features essential to its identity—like democracy, secularism, and judicial review—must remain intact, even as other provisions evolve through amendments.
The judgment is a cornerstone of Indian Constitutional Law and is frequently asked in Judicial Services exams like RJS, DJS, and PCS(J). It reflects the balance between Parliamentary sovereignty and
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