Article 368 -constitution of India

8/9/2019 Article 368 -constitution of India

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THE AMENDMENT OF

THE CONSTITUTION OF

INDIA

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TABLE OF CONTENTS

Sr. No TITLE/DESCRIPTION PAGE NO.

1 INTRODUCTION 2

2 ARTICLE 368 3

3 THE ANALYSIS OF ARTICLE 368 4

4 SCOPE OF THE AMENDING POWER OF THE PARLIAMENT

THE PRE!"ESA#ANANDA POSITION

6 THE POST!"ESA#ANANDA POSITION 8

$ BASIC FEATURES OF THE CONSTITUTION

"ESA#ANANDA #ERDICT

1%

8 BASIC FEATURES OF THE CONSTITUTION

THE ELECTION CASE #ERDICT

13

& SARDAR SWARAN SINGH COMMITTEE AND

THE FORTY!SECOND AMENDMENT

14

1% ARTICLE 368 AS IT STANDS TODAY 1$

11 DOCTRINE OF BASIC FEATURES AS IT STANDS TODAY 1&

12 #ARIOUS FEATURES HELD TO BE PART OF 'BASIC STRUCTURE( 2%

13 INFLUENCE 22

14 CONCLUSION 23

1 IMPORTANT TERMS 24

16 BIBLIOGRAPHY 26

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INTRODUCTION

The amendment of the Constitution at times becomes necessary to adapt to the changing

needs of national development and strength; to overcome the difficulties which may

encounter in future in working of the Constitution; and to realize any popular demand forchanging the political system e.g. State reorganization, provisions for SC/STs, lowering the

age for voting, etc.

undit !ehru observed that "there was no permanence in Constitution, as it would stop the

nation#s growth$. The amendment of Constitution should only be resorted to in cases of

serious repercussions or emergent circumstances or a special contingency.

%owever, the amendment of Constitution often been used to achieve political purposes or to

override &udicial verdicts. 'oreover, multiple and multifarious amendments undermines the

sanctity of Constitution as an organic instrument and creates confusion. (or e)ample, the

*+nd mendment -ct of evision#0 effected vital changes e.g. fundamental rights devalued

vis1a1vis directive principles. The *2rd and **th mendments wiped out many of the

provisions of *+nd mendment. The procedure for amendment, instead of being rigid has

rather proved too fle)ible. There is no separate constituent body for amendment and the

arliament, the ordinary legislative organ of 3nion, performs the function.

The Constitution can be amended under rt. 245 as well as by ordinary legislations of thearliament under rticles +, 2 and *. 6esides these formal procedures, the constitution gets

amended through constitutional practices, conventions and by &udicial interpretations.

F)*+r, 1- D,)0 M,0o o A5,5,0 o Co0)0+0)o o I)7

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Ior57 5,0o o A5,5,0- The letter of the law does not change. 6ut, it#s meaning

and its import changes.

6y changing a well1established convention;

mendment by change in the interpretation of the provisions of the Constitution.

For57 M,0o o 75,5,0- 7t is the te)t of law, i.e. the written provision of the

constitution is amended by way of addition, variation or repeal.

ARTICLE 368

POWER OF PARLIAMENT TO AMEND THE CONSTITUTION AND PROCEDURETHEREFORE-

91: !otwithstanding anything in this Constitution, arliament may in e)ercise of its

constituent power amend by way of addition, variation or repeal any provision of this

Constitution in accordance with the procedure laid down in this article.

92:n amendment of this Constitution may be initiated only by the introduction of a 6ill for

the purpose in either %ouse of arliament, and when the 6ill is passed in each %ouse by a

ma&ority of the total membership of that %ouse and by a ma&ority of not less than two1thirds

of the members of that

%ouse present and voting, it shall be presented to the resident who shall give his assent to

the 6ill and thereupon the Constitution shall stand amended in accordance with the terms of

the 6ill8

rovided that if such amendment seeks to make any change in8

-a0 article 9*, article 99, article :2, article 4+ or article +*, or -b0 Chapter 7< of art


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of section 99 of the Constitution -(orty1second mendment0 ct, B:4 shall be called in

>uestion in any court on any ground.

9:;(or the removal of doubts, it is hereby declared that there shall be no limitation whatever

on the constituent power of arliament to amend by way of addition, variation or repeal theprovisions of this Constitution under this article.

NOTE- C7+, 94: 7 9: 0, Co0)0+0)o 9For0>!

,o A5,5,0: A0? 1&$6 @), ,0)o . T) ,0)o 7 ), =,, ,7r,

)@7) => 0, S+r,5, Co+r0 ) M),r@7 M) L0. 7 o0,r @. U)o o I)7 7

o0,r 91&8%: 2 S.C.C. &1.

THE ANALYSIS OF ARTICLE 368

T,r, 7r, 3 70,*or), o 75,5,0-

91: A5,5,0 => )5, 57or)0>-

mendments contemplated in rticles 9, 4B, and +2B1, can be made by simple ma&ority.

These rticles are specifically e)cluded from the purview of the procedure prescribed in

rticle 245.

92: A5,5,0 => ,)7 57or)0>-

rticles which can be amended by special ma&ority are laid down in rticle 245. ll

constitutional amendments, other than those referred to as above, come within this category

and must be effected by a ma&ority of the total membership of each %ouse of the arliament,

as well as by a ma&ority of not less than two1thirds of the members of that %ouse present and

voting.

93: B> ,)7 57or)0> 7 R70))70)o => S070,-

rticles which re>uire in addition to the special ma&ority and ratification by not less than one1

half of the State ?egislatures come under this category. These are fundamental matters

where States have important power under the Constitution and any unilateral amendment by

arliament may vitally affect the fundamental basis of the system built up by the

Constitution. This class of articles consists of amendments which seek to make any change

in the provisions mentioned in rticle 245. The following provisions re>uire such ratification

by States8

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i. Dlection of residentErticles 9* and 99.ii. D)tent of D)ecutive power of the 3nion and StatesErticles :2 and 4+.iii. rticles dealing with FudiciaryESupreme Court and the %igh Court#sErticles +* to

*: and +* to +2, and +*.iv. Gistribution of legislative powers between the Centre and the States.

v. ny of the ?ists of


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i. S77r) Pr77 @.U)o o I)7 9AIR 1&1 SC4:8The Supreme Court held that

the power to amend the Constitution including the fundamental rights is contained in

the article 245 and that the word ?aw#,in rt. 2 includes only an ordinary law and

does not include constitutional amendment which is made in e)ercise of constituent

power. The Court thus distinguished between the ordinary legislative power and

constituent power.7n Sa&&an Singh v.State of a&asthan -7 B49 SC5*90, it held that the words

amendment of Constitution means amendment of all the provisions of the constitution.

ii. Golak Nath v. State of Punjab( Air 1967 SC 1643)8 7n B4: an eleven1&udge bench

of the Supreme Court reversed its position. Gelivering its 489 ma&ority &udgement in the

Lolak !ath v. State of un&ab case, C), +0), S+==7 R7oput forth the curious

position that Ar0), 368, that contained provisions related to the amendment of theConstitution, merely laid down the amending procedure. Ar0), 368did not confer

upon arliament the power to amend the Constitution. The amending power

-constituent power0 of arliament arose from other provisions contained in the

Constitution -Ar0), 24? 246? 2480 which gave it the power to make laws -plenary

legislative power0. Thus, the ape) court held that the amending power and legislative

powers of arliament were essentially the same. Therefore, any amendment of the

Constitution must be deemed law as understood in Ar0), 13 92:.

The ma&ority &udgement invoked the concept of implied limitations on arliamentHs

power to amend the Constitution. This view held that the Constitution gives a place of

permanence to the fundamental freedoms of the citizen. 7n giving the Constitution to

themselves, the people had reserved the fundamental rights for themselves. rticle 2,

according to the ma&ority view, e)pressed this limitation on the powers of arliament.

arliament could not modify, restrict or impair fundamental freedoms due to this very

scheme of the Constitution and the nature of the freedoms granted under it. The

&udges stated that the fundamental rights were so sacrosanct and transcendental in

importance that they could not be restricted even if such a move were to receive

unanimous approval of both houses of arliament. They observed that a Constituent

ssembly might be summoned by arliament for the purpose of amending the

fundamental rights if necessary.

The ma&ority were, however, faced with the problem that, if the 7st, *th and :th

mendments were at a late stage to be invalidated, the impact on social and economic

affairs would be chaotic. Mn the other hand, the court considered that it had a duty tocorrect errors in the law. 7t, therefore, adopted a doctrine of ro,0)@, o@,rr+)*

7
http://www.legalservicesindia.com/forum/topic92-i-c-golaknath-vs-state-of-punjab-amendment-is-a-law-article-132-of-constitution-and-if-it-violates-any-fundamental-rights-is-void.htmlhttp://www.legalservicesindia.com/forum/topic92-i-c-golaknath-vs-state-of-punjab-amendment-is-a-law-article-132-of-constitution-and-if-it-violates-any-fundamental-rights-is-void.html


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under which the three constitutional amendments concerned would continue to be

valid, and the decision to the effect that arliament had no power to amend the

provisions of art 777 would operate for the future only.

-iii0 240 A5,5,0? 1&$18ln order to remove difficulties created by the decision in

Lolak !aths case, arliament enacted this ct. 7t not only restored the amending

power of arliament but also e)tended its scope by adding the words in rt. 245, "to

amend by way of the addition or variation or repeal any provision of this Constitution in

accordance with the procedure laid down in this rticle.$ new clause added to rt. 2

which provides that "nothing in this rticle shall apply to any amendment of this

Constitution made under rt. 245.$

Through a spate of amendments made between Fuly B: and Fune B:+ arliament

sought to regain lost ground. 7t restored for itself the absolute power to amend any part

of the Constitution including P7r0 III, dealing with fundamental rights. Dven the

resident was made duty bound to give his assent to any amendment bill passed by

both houses of arliament. Several curbs on the r)*0ro,r0> were passed into law.

Ther)*0 0o ,+7)0> =,or, 0, 7< 7 ,+7 ro0,0)o o 0, 7. rivy purses of

erstwhile princes were abolished and an entire category of legislation dealing with land

reforms was placed in the N)0 S,+,beyond the scope of &udicial review.

THE POST !"ESA#ANANDA POSITION

The validity of a Constitution mendment ct shall not be open to >uestion on the

ground that it takes away or affects a fundamental right. The +*th mendment has

been held to be valid in Jeshavanand case -though sub&ect to some >ualifications0.

-iv0 H) Ho), ",7@777 B7r70) Sr)77*77@7r+ @ S070, o ",r77 7

Ao0,r 9AIR 1&$3 SCI461:-lso known as (undamental ights case#, 7nevitably,

the constitutional validity of these amendments was challenged before a full bench of

the Supreme Court -thirteen &udges0. Their verdict can be found in eleven separate

&udgements. !ine &udges signed a summary statement which records the most

important conclusions reached by them in this case. Lranville ustin notes that there

are several discrepancies between the points contained in the summary signed by

the &udges and the opinions e)pressed by them in their separate &udgements.

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!evertheless, the seminal concept of =7) 0r+0+r,of the Constitution gained

recognition in the ma&ority verdict.

ll &udges upheld the validity of 240amendment saying that arliament had the

power to amend any or all provisions of the Constitution. ll signatories to the

summary held that the Lolaknath case had been decided wrongly and that Ar0),

368contained both the power and the procedure for amending the Constitution.

%owever they were clear that an amendment to the Constitution was not the same

as a law as understood by Ar0), 13 92:.

7t is necessary to point out the subtle difference that e)ists between two kinds of

functions performed by the 7ndian arliament8

a0 it can make laws for the country by e)ercising its legislative power and

b0 it can amend the Constitution by e)ercising its constituent power.

Co0)0+,0 o ,*)70)@, ouire a special ma&ority

vote in arliament.

nother illustration is useful to demonstrate the difference between arliamentHs

constituent power and law making powers. ccording to Ar0), 21 of theConstitution, o ,ro ) 0, o+0r> 57>=, ,r)@, o ) ), or ,ro7

)=,r0> ,J,0 7or)* 0o ro,+r, ,07=), => 7


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%owever, if there is a demand to convert Ar0), 21into the fundamental right to life

by abolishing death penalty, the Constitution may have to be suitably amended by

arliament using its constituent power.

'ost importantly seven of the thirteen &udges in the Jesavananda 6harati case,

including C), +0), S)r) who signed the summary statement, declared 070

P7r)75,0 o0)0+,0 o


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mandate to build a welfare state

7*75o7 R,>? . stated that elements of the basic features were to be found

in thePr,75=, of the Constitution and the provisions into which they translated

such as8

sovereign democratic republic

parliamentary democracy

three organs of the State

H, 7) 070 0, Co0)0+0)o @), @),-whose appointment to the position

of Chief Fustice over and above the heads of three senior &udges, soon after the

pronunciation of the Jesavananda verdict, was widely considered to be politically

motivated0, +0), M.H. B,*, +0), ".". M70, )0 =7)0r+0+r,. 6ut there was no unanimity of opinion about

what appoints to that basic structure. Though the Supreme Court very nearly

returned to the position of Sankari rasad -B9+0 by restoring the supremacy of

arliamentHs amending power, in effect )0 0r,*0,, 0, o


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-v0 I)r7 G7) @ R7 N7r7) 9AIR 1&$ SC 22&&- opularly known as Dlection

Case0

B7) S0r+0+r, o,0 r,7)r5,! 0, I)r7 G7) E,0)o 7,

7n B:9, The Supreme Court again had the opportunity to pronounce on the basic

structure of the Constitution. challenge to rime 'inister 7ndira LandhiHs election

victory was upheld by the llahabad %igh Court on grounds of electoral malpractice

in B:9. ending appeal, the vacation &udge1 Fustice Jrishna 7yer, granted a stay that

allowed Smt. 7ndira Landhi to function as rime 'inister on the condition that she

should not draw a salary and speak or vote in arliament until the case was decided.

'eanwhile, arliament passed the 3&0 75,5,0 to the Constitution which

removed the authority of the Supreme Court to ad&udicate petitions regarding

elections of the resident, !)0 75,5,0was passed. The bill was

introduced on ugust :, B:9 and passed by the ?ok Sabha the same day. The

a&ya Sabha -3pper %ouse or %ouse of Dlders0 passed it the ne)t day and the

resident gave his assent two days later. The amendment was ratified by the state

legislatures in special Saturday sessions. 7t was gazetted on ugust K. Ihen the

Supreme Court opened the case for hearing the ne)t day, the ttorney Leneralasked the Court to throw out the case in the light of the new amendment. Counsel for

a& !arain who was the political opponent challenging 'rs. LandhiHs election argued

that the amendment was against the basic structure of the Constitution as it affected

the conduct of free and fair elections and the power of &udicial review. Counsel also

argued that arliament was not competent to use its constituent power for validating

an election that was declared void by the %igh Court.

The 2Bth mendment attempted, among other provisions, to legitimize the election of

7ndira Landhi in B:. rticle 2+B put the elections of the rime 'inister and ?ok

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Sabha Speaker outside the purview of the &udiciary and provided for determination of

disputes concerning their elections by an authority to be set up by a arliamentary

law. The Supreme Court struck down clauses -*0 and -90 of the article 2+B, which

made the e)isting election law inapplicable to the rime 'inisterHs and SpeakerHs

election, and declared the pending proceedings in respect of such elections null and

void. (our out of five &udges on the bench upheld the T)r0>!)0 75,5,0, but

only after striking down that part which sought to curb the power of the &udiciary to

ad&udicate in the current election dispute. Mne &udge, B,*, . upheld the amendment

in its entirety.

BASIC FEATURES OF THE CONSTITUTION

THE ELECTION CASE #ERDICT

gain, each &udge e)pressed views about what amounts to the basic structure of the

Constitution8

ccording to +0), H.R. "77? ,5or7> ) 7 =7) ,70+r, o 0,

Co0)0+0)o 7)+, r,, 7 7)r ,,0)o.

+0), ".". To57 held that theouality of status and opportunity of an individual

secularism and freedom of conscience and religion

Hgovernment of laws and not of menH i.e. the rule of law

ccording to C), +0), A.N. R7>, the constituent power of arliament was above

the Constitution itself and therefore not bound by the principle of separation of

powers. arliament could therefore e)clude laws relating election disputes from

&udicial review. %e opined, strangely, that ,5or7>? C.. held that ordinary legislation was notwithin the

scope of basic features.

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+0), ".". M70,< agreed withR7>? C.. that ordinary laws did not fall within the

purview of basicstructure. 6ut he held that ,5or7> 0,

+))7r>.

+0), M.H. B,* disagreed with R7>? C.. on the grounds that it would be

unnecessary to have aConstitution if arliamentHs constituent power were said to be

above it. Fudicial powers were vested in the Supreme Court and the %igh Courts and

arliament could not perform them. %e contended that +r,57> o 0,

Co0)0+0)o 7 ,7r70)o o o ) 7> 7r0

o 0, o+0r> 7 0, r)*0 0o +r+, 7> 0r7, or ro,)o0 andAr0),

21 -r)*0 0o ), 7 ,ro7 )=,r0>0.Ar0), 31C was amended to prohibit

any challenge to laws made under any of the D)r,0)@, Pr)), o S070,

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Po)>;

b0 laid down that amendments to the Constitution made in the past or those

likely to be made in future could not be >uestioned in any court on any ground;

c0 removed all amendments to fundamental rights from the scope of &udicial

review and

d0 removed all limits on arliamentHs power to amend the Constitution under

Ar0), 368.

-vi0 M),r@7 M) L0 @ U)o o I)7 9AIR 1&8% SC 1$8&: 8 B7) 0r+0+r,

o0r), r,7)r5,! 0, M),r@7 M) 7 W757 R7o 7,

Iithin less than two years of the restoration of arliamentHs amending powers to

near absolute terms, the For0>!,o 75,5,0 was challenged before the

Supreme Court by the owners of 'inerva 'ills -6angalore0 a sick industrial firm

which was nationalised by the government in B:*.

Mr. N.A. P7)@77, renowned constitutional lawyer and counsel for the petitioners,

chose not to challenge the governmentHs action merely in terms of an infringement of

the fundamental right to property. 7nstead, he framed the challenge in terms of

arliamentHs power to amend the Constitution.

Mr. P7)@77 argued that Section 99 of the amendment had placed unlimited

amending power in the hands of arliament. The attempt to immunise constitutional

amendments against &udicial review violated the doctrine of basic structure which had

been recognised by the Supreme Court in the Jesavananda 6harati and 7ndira

Landhi Dlection Cases. %e further contended that the amended Ar0), 31C was

constitutionally bad as it violated the reamble of the Constitution and the

fundamental rights of citizens. 7t also took away the power of &udicial review.

C), +0), Y.#. C7r7+, delivering the ma&ority &udgement -*80, upheld

both contentions. The ma&ority view upheld the power of &udicial review of

constitutional amendments. They maintained that clauses -*0 and -90 of Ar0), 368

conferred unlimited power on arliament to amend the Constitution. They said that

this deprived courts of the ability to >uestion the amendment even if it damaged or

destroyed the ConstitutionHs basic structure.

T, +*,?


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75,)* o


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Constitution can be amended under rt. 245, the only limitations being the procedural

limitations -as in rt. 245 itself0 and the substantive limitations -basic features#0.

9): Pro,+r7 L)5)070)o 1 The power conferred by rt. 245 is sub&ect to the

procedure laid down in the rticle Art 245-0. The court would be competent tostrike down an mendment ct which did not comply with the procedural

re>uirements of rt. 245.

ln ")o07 Hooo @ K7)+ 9AIR 1&&3 SC 412:, ara : of the Tenth Schedule to

the Constitution inserted by the Constitution -9+nd mendment0 ct, B59, e)cluding

the &urisdiction of all courts on the >uestion of dis>ualification on the ground of

defection, was struck down as unconstitutional since it was not enacted complying

re>uirement of roviso to rt. 245 -+0, which re>uired ratification of the amendment

by at least half of the State ?egislatures.

lt may be noted that while e)ercising the power under rt. 245, parliament would not

be sub&ect to the limitations which curb its legislative power to make laws under rts

+*91+*4, because the amending power conferred by rt. 245 is constituent power# .

-)):S+=070)@, L)5)070)o 1 7n Jeshavanand#s case, the Supreme Court, for the first

time, e)ercised the power of &udicial review on the following substantive grounds8

a0 6asic structure# or fundamental features# of the Constitution.b) The power to amend is vested by rt. 245 in arliament -e)cept where

ratification by State ?egislatures is re>uired0. %ence, arliament cannot,

directly or indirectly, abdicate or delegate that power to some other body; if it

does, the court would strike down that Constitution mendment ct as invalid.

7n a landmark &udgement in I.R. Co,o 9D,7: => LR @ S070, o T75) N7+ 9AIR 2%%$

SC 861:, a B1Fudge Constitution 6ench headed by C), +0), Y " S7=7ruence thereof would be determinative factor. (urther, the power of&udicial review which forms integral part of basic structure cannot be abrogated by any ct.

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decision in Jeshvananda on +*1*1B:2, it is only mendment cts passed subse>uent to

that date which would be liable to attack on the basis of this doctrine. The Constitution

6ench in W757 @ UOI 9AIR 1&81 SC 2$1: refused to give retrospective effect to the

doctrine of basic features.

ln a&narain#s case, it has been observed that the claim of any particular feature of the

Constitution to be a basic feature# would be determined by the court in each case that

comes before it. Sometimes, an amendment may indirectly affect a basic feature of the

Constitution while promoting or protecting another basic feature of the Constitution. The

following such amendments have been held not to destroy or damage the basic structure of

the Constitution8

-i0 The insertion of rt. 2 by the Constitution -7st mendment0 ct, B9 -relating to

agrarian reforms0.

-ii0 Dven though arliamentary democracy is a basic feature of the Constitution, the rights

and immunities provided to the members of arliament under rt. K9 -+0 cannot be

elevated into the status of fundamental rights or basic features so as to invalidate a

Constitutional mendment -by inserting the =th Sch.0 for the purpose of condemning

defection -Jihota v Nachilhu0.

-iii0 The insertion of rt. 2+2 -by the *+nd mendment ct, B:40 which takes away the&urisdiction of the %igh Courts and the Civil Courts to decide service matters#, because that

&urisdiction of the Courts is replaced by that of an dministrative Tribunal -Sampat v 3M70

7t may be noted that every integral part of the Constitution is not necessarily an essential

feature of the Constitution. 6oth are totally distinct and >ualitatively different concepts.

Therefore, destroying an integral part of the Constitution did not amount to destroying the

basic structure or framework of the Constitution -'adhav ao Scindia v 3M7 7 B: SC

92K; aghunathrao Lanpathrao case0.

#ARIOUS FEATURES HELD TO BE PART OF 'BASIC STRUCTURE(

91: S+r,57> o 0, Co0)0+0)o 9". B7r70) 7,:.gain, in 6.. Japoor v State of

T! -7 +KK SC 2*290, the "Supremacy of the Constitution$ has been reiterated to

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be a basic feature. The court ruled that the mandate of the people could not overrule

the provisions of the Constitution.92: R,+=)7? 7 D,5or70) or5 o *o@,r5,0 9r,, 7 7)r ,,0)o: 9".

B7r70) 7,? I)r7 G7) @ R7 N7r7):. lso, arliamentary system of

Lovernment.

7n P,o,( U)o or C)@) L)=,r0), @ UOI 9AIR 2%%3 SC 2363:, the "epublican and

democratic form of Lovernment$ has been reiterated to be a basic feature. Similarly, held in

T.N. S,7 @ UOI 91&&: 4 SCC 611. The court ruled that the right of a voter to know the

bio1data and antecedents of a candidate is the foundation of democracy, a facet of the right

to freedom of speech and e)pression guaranteed under rt. B-0-g0. 7t would be the basis

for free and fair election# which was a basic structure of the Constitution.

7n S,)7 R,,r,, No. 1 o 2%%2 9AIR 2%%3 SC 8$:, the ape) court held that

"democrarcy$ is a part of the basic structure of the Constitution and periodical, free and fair

election is the substratum of democracy.

93: So@,r,)*0> 9+)0> 7 )0,*r)0>: o o+0r> 9". B7r70) 7,? R.C. Po+>7 @

UOI:.94: F,,r7)5 7 S,+7r)5 9SR. Bo557) 7,:.9: S,7r70)o o Po


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Jumar v 3M70; owers of the Supreme Court under rts. 2+, 24, *, *+ -Gelhi

F.S.. v State of Lu&arat 7 BB SC +:40.98: +r))0)o o S+r,5, Co+r0 +,r Ar0. 32 -7ndira Landhis case0.9&: H7r5o> 7 =77, =,0uality

-7ndira Landhi v a& !arain0; !ot every feature of e>uality, but the >uintessence of

e>ual &ustice -aghunathraaiv case0.

7n Ir7 S7 @ UOI 9AIR 2%%% SC 4&8:, "rinciple of e>uality$ was reiterated to be a

basic structure of the Constitution. 7t was held that arliament and State ?egislatures cannot

transgress the feature of the Constitution, namely, the principle of e>uality enshrined in rt.

* of which rt. -40 is a facet. Ihether creamy layer is not e)cluded or whether forward

castes get included in the list of backward classes, the position will be the same, namely,

that there will be a breach not only of rt. * but of the basic structure of the Constitution.

911: The concept of So)7 7 Eoo5) +0),1 to built a welfare State, art 7< in

toto -6him v 3M7 7 B5 SC +2*0.912: L)5)0, o o '=7) 0r+0+r,( -'inerva 'ill#s case, .C. oudyal#s case0.914: O=,0)@,mentioned in the Pr,75=,to the Constitution - 7ndira Landhi#s case0.91: Fr,,o5 7 )*)0> o 0, ))@)+7 - Jeshavananda#s case, 6ommai case0.

916: E,0)@, 7, 0o +0),-Central Coal (ields v Faiswal Coal Co. 7 B5K SC

++90.

7t may be noted that ight to roperty# under rt. 2KK1 is not a basic feature of the

Constitution AFilubhai !anbhai v State of Lu&arat -BB90 Supp. -0 SCC 9B4.

The doctrine of basic structure is criticized on various grounds, for instance that it lays down

a vague and uncertain test. The >uestions may arise, like, whether a basic feature such as

the arliamentary system of Lovernment may be replaced by the residential systemQ

(urther, what would happen if two or more basic features come in conflictQ ecently in

Turkey, secularism# and democracy# came in conflict. The conflict was resolved by banning

a fundamentalist party even though that en&oyed the support of more than 2/*th of the

population.

ln Jeshvananda case, the court observed that there are many concepts of law which cannot

be defined precisely, for e)ample, natural &ustice and negligence. The Chief Fustice Sikri said

that "the argument that because something cannot be cut and dried or nicely weighed or

measured and therefore does not e)ist is fallacious. The doctrine of basic structure will act

as a safety1valve against the arbitrary use of amending power.$

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INFLUENCE

The influence e)tends to Commonwealth Countries sharing the &udicial system with 7ndia.

The basic structure doctrine was adopted by the S+r,5, Co+r0 o B7*7,in B5B,

by e)pressly relying on the reasoning in the Jesavananda case, in its ruling on A)7, the basic features doctrine was also found to be inapplicable by the F,,r7

Co+r0 in P7* C) Ho @. P+=) Pro,+0or.The Court remarked that the 7ndian

Constitution was not drafted by Rmere mortalsR, while the same could not be said for the

'alaysian Constitution.The 7ndian Constitution was drafted by a constituent assembly

representative of the 7ndian people in territorial, racial and community terms, while both the

'alaysian and Singapore Constitutions were enacted by ordinary legislatures. eliance on

the drawing of distinctions between the 7ndian Constitution on the one hand and the

'alaysian and Singapore Constitutions on the other on the basis of the history of their

framing has been criticized as weak and inade>uate.

CONCLUSION

7t may be said that the final word on the issue of the =7) 0r+0+r,of the Constitution,

there is no hard and fast rule for basic feature of the Constitution. Gifferent &udge keep

different views regarding to theory of basis structure. 6ut at one point they have similar view

that parliament has no power to destroy, alter, or emasculate the basic structure# or

framework of the constitution. !evertheless 0, o@,r,)*? ,5or70) 7 ,+7r

7r70,r o 0, o)0>? r+, o7


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emerged out of this tussle between arliament and the&udiciary is that all laws and

constitutional amendments are now sub&ect to &udicial review and laws that transgress the

basic structure are likely to be struck down by the Supreme Court. 7n essence arliamentHs

power to amend the Constitution is not absolute and the Supreme Court is the final arbiter

over and interpreter of all constitutional amendments.7n I.R.Co,o 9D,7: B> Lr @ S070,

O T75) N7+ Or delivered on Fanuary , +KK:, by nine &udges of the Court on the

!inth Schedule to the Constitution, the basic structure limitation has been stated to be Ran

a)iom of our constitutional law.R n a)iom means a self1evident truth. So be it. Ihatever its

origins, the basic structure theory plays a useful part in our constitutional &urisprudence.

arliament does not and should not have an unlimited power to amend the Constitution.

%owever, in the glorification of the basic structure theory, it is important to bear in mind its

infirm roots and how predilections and pre&udices of &udges, chance, and accidental

circumstances have played a greater part rather than any logic or conscious formulation of it.

IMPORTANT TERMS

AJ)o5-

n 7J)o5or postulate is a premise or starting point of reasoning. s classically

conceived, an 7J)o5 is a premise so evident as to be accepted as true without

controversy. The word comes from the Lreek a)ma - UVWXY0 Hthat which is thought

worthy or fitH or Hthat which commends itself as evident.# Pro,0)@, O@,r r+)*-The basic ob&ective of prospective overruling is to overrule

a precedent without having a retrospective effect.

ccording toC7roo .if this doctrine is not given effect it will wash away the wholedynamic nature of law, it will be against the concept of &udicial activism. C7roo .

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was of the view that the law should keep up with the changes occurring in the

society, the law has to be dynamic and not static. 7f in a new and changed society,

the citizens are bound by an old law it will lead to grave in&ustice. The citizens whose

lives are bound by the law of land should be given laws according to changed needs.

Therefore the doctrine of rospective Mverruling is an important tool in the hand of

&udiciary to give fair and timely &ustice to its citizens.Mverruling is an authoritative declaration that the decision overruled is not a good

law. 7n general, the decision overruled would be regarded as not good law for all

purposes so that all arrangements already made on the basis of the decision would

fall to the ground. To avoid this hardship, higher courts restrict the operation of the

overruled decision to future cases only and not to previous decided cases

-retrospective0. This is called Do0r), o Pro,0)@, O@,rr+)*.

e!ent Ca"e" # Ca"e $a%&J 'adhava eddy and Mthers v Lovernment of ndhraradesh and Mthers, Civil ppeal Furisdiction, Civil ppeal !o *B*:1*B9 M(

+K*, Supreme Court of 7ndia &udgement dated pril +B, +K* .

Co0)0+,0 Po


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U0 R, M7*) #7,70 +75 P,r,70-

7t is better for a thing to have effect than to be made void.

S7+ Po+) E0 S+r,57 L,J-

The welfare of an individual yields to that of the community.

BIBLIOGRAPHY

Boo-

). Fain, '.. , 7ndian Constitutional ?aw


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ii. http://www.ebc-india.com/lawyer/articles/73v4a.htm

iii. http://www.h!manrightsinitiative.org/p!blications/const/the"basic"str!ct!re"o#

"the"indian"constit!tion.pd#

iv. http://www.lawteacher.net/administrative-law/essays/$!rispr!dence-

prospective-overr!ling-in-re#erence-administrative-law-essay.php
http://www.ebc-india.com/lawyer/articles/73v4a1.htmhttp://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdfhttp://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdfhttp://www.lawteacher.net/administrative-law/essays/jurisprudence-prospective-overruling-in-reference-administrative-law-essay.phphttp://www.lawteacher.net/administrative-law/essays/jurisprudence-prospective-overruling-in-reference-administrative-law-essay.phphttp://www.ebc-india.com/lawyer/articles/73v4a1.htmhttp://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdfhttp://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdfhttp://www.lawteacher.net/administrative-law/essays/jurisprudence-prospective-overruling-in-reference-administrative-law-essay.phphttp://www.lawteacher.net/administrative-law/essays/jurisprudence-prospective-overruling-in-reference-administrative-law-essay.php

Article 368 -constitution of India

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