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E-Notes

CLASS & SECTION : BBA/BALLB 3rd Semester

SUBJECT NAME : Constitutional Law - I
SUBJECT CODE : LLB 203

Unit-4

A. Emergency Provisions: Articles 352- 360

Introduction
Black law’s dictionary defines emergency “as a failure of the social system to deliver
reasonable conditions of life”. An emergency may be defined as “circumstances arising
suddenly that calls for immediate action by the public authorities under the powers
granted to them.”
In India, the emergency provisions are such that the constitution enables the federal
government to acquire the strength of unitary government whenever the situation
demands. All the pacific methods should be exhausted during such situation and
emergency should also be the last weapon to use as it affects India’s federal feature of
government.
There are three types of emergencies under the Indian Constitution namely-
•National Emergency
•State Emergency
•Financial Emergency

National Emergency
Article 352 of the Constitution provides for the provision of National Emergency which
can be applied if any extraordinary situation arises that may threaten the security, peace,
stability and governance of the country.
Whenever any of the following grounds occur, an emergency can be imposed:

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2. External aggression; or
3. Internal rebellion.

Article 352 provides that if the President is ‘satisfied’ on the grounds that the security of
India is threatened due to outside aggression or armed rebellion, he can issue a
proclamation to that effect regarding the whole of India or a part thereof.

However, sub-clause (3) states that when a piece of written advice is given by the Union
Cabinet then only the President can make such a proclamation. Such a proclamation must
be placed before each house of the parliament and must be approved within one month of
the declaration of the proclamation otherwise it will expire.

Furthermore, it is not necessary that for the proclamation of National emergency, external
aggression or armed rebellion should actually happen. Even if there is a possibility that
such a situation can arise, a national emergency can be proclaimed.

In Minerva Mills vs Union of India, it has been held that there can be no bar to judicial
review of determining the validity of the proclamation of emergency issued by the
President under Article 352(1). The court’s powers are limited only to examining whether
the limitations conferred by the Constitution have been observed or not. It can check if
the satisfaction of President is on valid grounds or not. If the President is satisfied that
grounds for national emergency exist but the same is based on absurd, malafide or
irrelevant grounds then it won’t be considered that the President is ‘satisfied’.

Procedure for revoking emergency

If the situation improves then the President can revoke the emergency through another
proclamation. The 44th Amendment of the Constitution provides that a requisition for the
meeting can be made by ten per cent or more members of the Lok Sabha and in that

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meeting; it can disapprove or revoke the emergency by a simple majority. The emergency
will immediately become inoperative in such a case.

Territorial Extent of Proclamation

The President may make a Proclamation of Emergency in respect of the whole India or
any part of India, as required.

Duration of Emergency
If approved by both houses of Parliament then National Emergency can continue for 6
months and it can be renewed by approval of Parliament after every 6 months. But if the
dissolution of Lok Sabha takes place in that 6 months and resolution for renewal of
National Emergency is under consideration then emergency exists till 30 days from the
first sitting of newly elected LS provided that it is approved by Rajya Sabha. Until 44th
amendment 1978, if Parliament approves proclamation of National Emergency then it
remains in operation on pleasure or desire of cabinet or executive.
Any of the above resolution related to proclamation or renewal of National Emergency
must be passed by both houses of Parliament by a special majority (i.e. the majority of
the total membership of that house or not less than 2/3rd of members present and voting).
This provision is added by 44th amendment 1978 and before that such resolution can be
passed by simple majority i.e. more than total members present and voting.

Effects of Proclamation of Emergency

The following are the effects of Proclamation of emergency:

Extension of Executive Powers of the Centre

According to Article 353, the Union can use its executive power to the extent of giving
directions to the State relating to the manner in which the executive powers shall be
exercised by the State.

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As per Article 353 (b), the Union Parliament can make laws relating to the matters in the
State List.
According to Article 354, the distribution of revenue between the Union and the State can
be altered by the Centre.
As per Article 83(2), the normal life of the Lok Sabha may be extended by the President
by a year each time up to a period not exceeding 6 months after the proclamation ceases
to operate.
As per Article 358, during a national emergency, the fundamental rights under Article 19
shall be suspended. However, in any case, the fundamental rights under Article 20 and
Article 21 will not be affected.

Effects of Proclamation of Emergency

There are serious consequences, once emergency is proclaimed. It results in adverse
effects on the enforcement of fundamental rights of people. Consequences of
proclamation of emergency are explained below:

1) Executive
While a Proclamation of Emergency is in operation, Union can use its executive power to
the extent of giving directions to the State relating to the manner in which the executive
powers shall be exercised by the State. The Constitution (42nd Amendment) Act 1976
made a consequential change in Article 353.
It states that the executive power of the Union to give directions and to make laws shall
extend to other States too apart from the state where an emergency has been proclaimed
and is in operation. The above-mentioned power shall be exercised if the security of India
or any part of its territory is threatened by the activities in the part of the territory of India
in which emergency has been proclaimed and is in operation.
In normal times, the power of the executive does not extend to giving such directions
subject to certain exceptions.

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When an emergency has been proclaimed, the Parliament shall have the power to
legislate as regards to State List (List II) as well. The emergency suspends the
distribution of legislative powers between the Union and State and not the state
legislature.

3) Financial
The centre is empowered to alter the distribution of revenue between the Union and the
State.
While a Proclamation of Emergency is in operation, the President may, by order define
the financial arrangement between the State and the Union as provided by Articles 268 to
279. Such order shall be laid before each House of Parliament and when the Proclamation
of Emergency ceases to operate, such order shall too come to an end.

4) Extension Life of Lok Sabha

The normal life of Lok Sabha can be extended while a proclamation of emergency is in
operation. Such an extension can be done by the Parliament for a period not exceeding
one year at a time and not beyond a period of six months in any case after the
Proclamation has ceased to operate.

5) Suspension of Fundamental Rights guaranteed by Article 19

Article 358 of the Indian Constitution provides for Suspension of fundamental freedoms
guaranteed to the citizens by Article 19 of the Indian Constitution.
It provides that when an emergency has been proclaimed and is in operation, the
provisions contained in article 19 shall not restrict the power of the State relating to the
making of any law or taking any executive action which abridges or takes away the rights
guaranteed by Article 19.
It means that the freedom guaranteed by Article 19 automatically stands suspended once
the Proclamation of Emergency is made. Once the proclamation of emergency ceases to

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operate, Article 19 which stood suspended during the emergency automatically comes to
life.

Suspension of the right of enforcement of fundamental rights (Art. 359)

A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207
This case is also known as the Habeas Corpus (to produce the body) case as whenever
someone is arrested, this is the writ filed in the Supreme Court by the arrested person.
Earlier, when the Proclamation of Emergency was made, this writ was not considered as
a fundamental right under Article 21 and remained suspended.
The facts of the case were that on 26th June 1975 emergency was proclaimed by the
President of India due to internal disturbances. The said proclamation was followed by
another proclamation on 27th June 1975 where the President enforced the powers
conferred by Article 359(1) of the Constitution. In exercise of these powers, the right of
any person including a foreigner to move to the court for the enforcement of Article 14,
21 and 22 of the Constitution and the proceedings pending in any court relating to the
enforcement of the above-mentioned articles will be curtailed.
The main issue involved in this case was “Whether the High Court can entertain a writ
of Habeas Corpus filed by a person where he challenges the ground for his detention, in
the case where such person has been detained in the execution of the Presidential Orders.
In this case, four judges – Chief Justice A.N. Ray, along with Y.V. Chandrachud, Justices
M.H. Beg and P.N. Bhagwati arrived at the conclusion, that is, while a proclamation of
emergency is in operation under Article 359 (1), the writ of habeas corpus is not
maintainable.
The four judges observed that no authority or powers lie with the courts to challenge the
detention made under Sec 16A(9)b of the Maintenance of Internal Security Act (which
provides that the person against whom a detention order is passed under Section 3 shall
not be entitled to the communication or disclosure of any such ground, information or
material as is referred to in clause (a) or the production to him of any document
containing such ground, information or material) as it is clearly stated under the Act that
the disclosure of grounds of detention need not be done.

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Hence the court cannot challenge the order and cannot question the state or the executive
body to validate the detention. Hence no locus stand exists, so the party cannot move to
any court for maintaining suit on fundamental rights.
Justice Khanna gave a dissenting opinion and observed that while the proclamation of
emergency is in operation, the person cannot move to the court for enforcement of
fundamental rights but that does not prevent him from exercising his legal remedy
through the statute.
Justice Khanna exclusively relied on the judgment delivered in the case of Makhan Singh
v. State of Punjab in which he specified: If a person while challenging the validity of his
detention order, pleads any right which is outside the scope of rights mentioned in the
order, his right to move to any court is not suspended, as it is outside the rights specified
in the order as well as the Presidential order itself. Let’s suppose a case where a person
has violated the mandatory provisions of this Act, and due to this violation, he has been
detained.
So, the detenu can contend that he has been illegally detained on the ground that the
mandatory provisions of the Act have not been contravened. Such a plea is outside
Article 359(1) and the right of the detenu to move for his release on such a ground cannot
be affected by the Presidential order”. Curtailment of Article 21 leads to deprivation of
the right to life and personal liberty which is against the fundamental right ensured to
every citizen of India since birth, along with the rights guaranteed by the Universal
Declaration of Human Rights.

Duty of the Union to protect the States

It is the duty of the Union to ensure that the State remains protected from disturbance and
external aggression, while the Proclamation of Emergency is in operation. The Union
shall ensure that the State Government works according to the provisions of the
Constitution.

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State Emergency
As per Article 356, if the President after receiving a report from the Governor of a State
or otherwise is satisfied that such a situation exists where the Government of a State
cannot be carried in accordance with the provisions of the Constitution, he may issue a
Proclamation.

Duration
When a Proclamation is issued under Article 356, it shall be first laid before each House
of the Parliament. Such Proclamation shall remain in operation for 2 months unless
before the expiry of the said period it has been approved by both Houses of the
Parliament according to Article 356(3). Suppose in a case where the Lok Sabha has been
dissolved during the issuance of a proclamation of emergency or its dissolution takes
place within the above said period of two months and the Rajya Sabha has approved the
Proclamation but the Lok Sabha has not approved it.
In such a case, the said proclamation shall not operate unless before the expiry of 30 days
it has also been passed by the Lok Sabha after its reconstruction. The Proclamation will
remain in operation for 6 months after it has been approved by the Parliament. The
duration of an emergency can be extended for 6 months at a time but it cannot remain in
operation for more than 3 years.

Revocation
By a subsequent Proclamation, a proclamation of State Emergency can be revoked.

Effects
State Emergency shall have the following effects:
•The President shall have all the powers that are exercisable by the Governor in the State.
•The President shall declare that the State shall exercise its Legislative powers by or
under the authority of the Parliament.
•If the President deems fit that necessary provisions shall be made to serve the purpose of
the Proclamation, then he may make such
Pageprovisions.
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Difference between Articles 352 and 356

Under Article 352, the State Legislature and Executive continue to function but the
Centre gets the concurrent powers of the legislation and administration in the matters of
the State. Under Article 356, the executive, as well as legislative power, is vested in the
Centre and the State Legislature is dissolved.
Under Article 352, the relationship between the Centre and all the States changes but in
the case of Article 356 the relationship between the Centre and the State in which
President’s Rule is applied undergo a change.

Financial Emergency
As per Article 360, a Proclamation of Financial Emergency may be issued, if the
President is of the opinion that such a situation exists where the financial stability of
India or any part of the territory is threatened.

Duration
The Proclamation of Financial Emergency shall cease to operate after 2 months unless it
has been approved by both the Houses of Parliament. In a case where during the issuance
of Proclamation the Lok Sabha has been dissolved or its dissolution takes place within
the said period of 2 months and the Rajya Sabha has approved the proclamation but the
Lok Sabha has not approved it. Then, such a proclamation shall not operate unless before
the expiry of 30 days Lok Sabha has passed a resolution approving proclamation.

Revocation
By a subsequent Proclamation, Proclamation of Financial Emergency can be revoked.
Effects
Financial Emergency has the following effects:
•The executive authority of the Union shall give directions to the State regarding the
maintenance of financial stability.

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•It may include provisions for reduction Delhi)
of salaries and allowances of all or any class of
persons serving in the State. This includes Judges of the High Court and the Supreme
Court.
•The Money Bills shall be reserved for the approval of the President.

Conclusion
Having dealt with all emergency provisions, it is easy to understand the purpose behind
the enforcement of such provisions. But it is important to note that even when these
provisions are provided for the nation’s security and protection of the people, the
provisions in themselves give drastic discretionary powers in the hands of the Executive.
This affects the federal structure of the nation and essentially turns it into a unitary one.
Therefore, the courts should be given the power to expand the powers of the Centre, as
the same will act as a built-in mechanism to check if the discretionary powers are being
used arbitrarily by the Parliament and the Executive.

A. Amendment of Constitution & Doctrine of Basic Structure

Introduction
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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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.

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Thus, while Parliament has unrestrictedDelhi)
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.

CASE LAWS
Kesavananda Bharati v. State of Kerala, 1973
Facts
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.

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25th Amendment Delhi)

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.
Issue
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.
Held
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

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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’.
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1. By validating the first part of the Delhi)
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.

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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.
Facts
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:

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•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.
Issues
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?

Held
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.

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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.
Importance
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.
Facts

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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.

Issue
Could fundamental rights be amended?

Held
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.

Importance
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.

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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.

Facts
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.
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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.

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

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Held
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.

Facts
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

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(Development and Regulation) Act, 1951Delhi)
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.

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

Held
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.

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Section 4 of the Amendment Act of 1976 Delhi)

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.
Dissent
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.
Facts
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

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was questioned in the Bombay High Court Delhi)
but the appeals were dismissed. In Dattatraya
Govind Mahajan & Ors. vs State Of Maharashtra & Anr, the same issues were
presentedin 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.
It 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.

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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.
Issue
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?
Held
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

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amendment Act of the Constitution andDelhi)
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.

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Issue 6- Doctrine of Stare Decisis Delhi)

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.
Facts
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.

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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.
Issue
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Held
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 ca me 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.
Facts
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;

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• 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)
Issues
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?
Held
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 cannot 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.

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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.

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M. Nagaraj & Others vs Union Of India Delhi)
& Others, 2007
Facts
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.
Issue
The issue was the constitutionality of the Constitution (Eighty-fifth Amendment) Act,
2001.
Held
The amendments to Article 16 were considered to be valid and did not alter the structure
of Article 16.

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 Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors, 2007
Facts
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
31A. 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.
Issues
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?
Held
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.

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
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.

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