Constitutional Amendments and Basic Structure

🟢 Lite — Quick Review (1h–1d)

Rapid summary for last-minute revision before your exam.

Constitutional Amendments — Key Facts for BPSC

• Article 368: Power to amend the Constitution
• 2 types of amendments: Simple majority (most), Special majority (2/3 of voting members present)
• 101 amendments as of 2024 (latest: 101st Amendment — GST, 2016)
• Basic Structure Doctrine: Kesavananda Bharati (1973) — Parliament cannot destroy basic structure
• 5 types of amendments based on content and procedure
• 42nd Amendment (1976): “Mini Constitution” — added Socialist, Secular, Fundamental Duties
• Presidential assent: President must give (cannot withhold) — Article 368(2)

⚡ Exam tip: BPSC asks about amendment procedure under Article 368, basic structure components, 42nd Amendment significance, and landmark cases (Kesavananda, Minerva Mills, Golak Nath). Know the difference between simple majority, special majority, andratifying states.

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🟡 Standard — Regular Study (2d–2mo)

Standard content for students with a few days to months.

Article 368: The Amendment Power

Text and Context

Article 368(1):

“Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of this Constitution…”

Key words:

• “Parliament” — only Parliament, not state legislatures (except for some provisions)
• “Constituent power” — different from ordinary legislative power
• “Addition, variation or repeal” — any change permitted

Amendment Procedure (Article 368(2))

Step 1: Bill introduced in either House (Lok Sabha or Rajya Sabha) Step 2: Must be passed by 2/3 majority of present and voting Step 3: If Rajya Sabha passes different version → Joint Sitting (not required — but bill must be same) Step 4: President’s assent — President shall give (not “may give”)

• Cannot withhold — must sign within 3 months
• If not signed → becomes law automatically (deemed assent after 3 months)

Limitations on Amendment Power

Kesavananda Bharati (1973):

“The power under Article 368 does not extend to altering the basic structure of the Constitution”

What is Basic Structure? The Court identified these as potentially basic (not exhaustive):

1. Supremacy of Constitution
2. Republican and democratic form of government
3. Secularism and freedom of conscience
4. Federal structure
5. Separation of powers
6. Individual freedom and dignity

Post-1973 additions (by later cases):

• Free and fair elections (SC, 2019)
• Right to privacy (2017)
• Independent judicial appointments (collegium system, 2015)
• Chartered accountancy independence (2019)

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Classification of Amendments

Type 1: Simple Majority Amendments

Procedure: Passed by simple majority of Parliament present and voting Examples:

• New states (Article 2 — e.g., Andhra Pradesh)
• Creation of new Union Territories (Article 3)
• Name changes of states (Article 3)

Article 3 (Important for BPSC):

• Parliament can create new states and alter boundaries by simple majority
• No state consent required — but must have President’s recommendation
• Governor consultation required for new states

Type 2: Special Majority + President’s Assent

Procedure: Passed by 2/3 of members present and voting in each House No state ratification required Examples (most amendments):

• Most provisions including FR (Part III)
• DPSP (Part IV)
• Directive Principles
• Federal structure

42nd Amendment (1976): Added Socialist, Secular, Fundamental Duties — special majority in both Houses

Type 3: Special Majority + State Ratification

Procedure: Passed by 2/3 in Parliament + Ratified by 50% states (assemblies) Examples:

• Article 54 (President’s election — changes to electoral college)
• Article 55 (President’s election — value of votes)
• Article 73 (Executive power of Union)
• Article 162 (Executive power of states)
• Third Schedule (Oath of office)
• Fifth Schedule (Tribal areas)
• Sixth Schedule (NE regions, tribal self-governance)
• Eleventh Schedule (Panchayati Raj subjects)
• Article 368 itself (cannot be amended to remove basic structure doctrine)

Important: State ratification is required for changes affecting federal structure.

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Key Amendments: Analysis

The 1st Amendment (1951)

Content:

• Added Ninth Schedule (protected land reform laws from judicial review)
• Added Article 31A (immunity for laws implementing DPSP)
• Article 19(2) expanded (restrictions on speech)

Significance: First challenge to basic structure concept Case: Shankari Prasad v. Union of India (1951) — Court upheld this amendment

The 4th Amendment (1955)

• Further extended Article 31A protection
• Allowed monetary compensation for property acquisition (changing “only” to “compensation”)
• Land acquisition laws protected from judicial challenge

The 7th Amendment (1956)

• Reorganisation of states on linguistic basis
• Zonal councils established (Article 263)
• States Reorganisation Act (1956) — created 14 states (reduced from 17)

The 10th Amendment (1961)

• Dadra and Nagar Havelli incorporated as Union Territory
• First UTs after Goa acquisition

The 17th Amendment (1964)

• Added more land reform laws to Ninth Schedule
• Expanded 9th Schedule scope (again challenged in Golak Nath)

The 24th Amendment (1971)

Content:

• Art. 13: Defined “law” to include constitutional amendments (therefore amendments are “laws”)
• Art. 368: Parliament can amend any provision (including Part III)
• Parliament could now amend fundamental rights

Significance: Attempt to overturn Golak Nath (1967) decision

The 25th Amendment (1971)

• Article 31C added: “Laws implementing DPSP under Article 39(b) and (c) cannot be challenged on grounds of violating Article 14, 19, or 21”
• Created hierarchy: DPSP > other laws (but FR remained supreme)
• Challenge: Does this create a “law above Constitution”? — Court later examined in Minerva Mills

The 42nd Amendment (1976) — “Mini Constitution”

Content:

• Added “Socialist” and “Secular” to Preamble
• Added “Fraternity” (ensuring dignity)
• Added Article 51A (Fundamental Duties — 10 duties)
• Added Article 55A (national song, national anthem)
• Article 368(4): “There is no limitation on Parliament’s constituent power”
• Added 55th Amendment ( Article 31C expanded)

Key impact:

• Constitutional supremacy replaced by Parliamentary sovereignty (attempted)
• Most controversial amendment — passed during Emergency (1975-77)
• Later challenged in Kesavananda Bharati and partly struck down in Minerva Mills

The 44th Amendment (1978)

Content (Post-Emergency):

• Restored civil liberties after Emergency
• Right to property removed from FR (now legal right, not fundamental)
• Article 20 — new limitations on preventive detention
• Article 74 — Council of Ministers made mandatory (no discretion to President)
• Article 352 — replaced “internal disturbance” with “armed rebellion”
• Article 356 — added safeguards against misuse of President’s Rule

Importan: 44th Amendment limited the damage of 42nd Amendment — restored balance of power

The 73rd Amendment (1992)

Panchayati Raj — Article 243 to 243-O:

• Mandatory elections every 5 years
• Reservation for SC/ST (seat-wise and chairperson-wise)
• 1/3 reservation for women
• State Election Commission for conducting elections
• Financial powers: Panchayats get share of taxes

The 74th Amendment (1992)

Municipalities — Article 243P to 243ZG:

• Urban local bodies with direct elections
• Reservation for SC/ST and women
• Ward committees for large cities

The 101st Amendment (2016) — GST

Content:

• Added Article 279A — GST Council
• Goods and Services Tax introduced
• Concurrent status for indirect taxes
• Residuary now includes only direct taxes

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🔴 Extended — Deep Study (3mo+)

Comprehensive coverage for students on a longer study timeline.

Landmark Cases on Amendment Power

Shankari Prasad v. Union of India (1951)

Issue: Can Parliament amend Fundamental Rights under Article 368?

7-judge bench held:

• Parliament has absolute power to amend any provision including Part III
• “Amendment” is not “law” under Article 13
• Upheld 1st Amendment (land reforms in 9th Schedule)

First view supporting unlimited amendment power.

Sajjan Singh v. State of Rajasthan (1965)

5-judge bench upheld Shankari Prasad:

• Article 368 gives unlimited power to amend any provision
• Criticism: Too short reasoning — just followed precedent without analysis

Golak Nath v. State of Punjab (1967)

11-judge bench — Overruled earlier decisions:

Held:

• Article 368 does not allow amendment of Fundamental Rights
• “Transcendental immunity” — FR are above parliamentary power
• Parliament cannot touch Part III (Fundamental Rights)

Reasoning: FR are part of “basic structure” — can’t be amended (anticipating Kesavananda)

Impact:

• 42nd Amendment (1976) attempted to overturn this — but this came after Kesavananda
• Unable to implement land ceiling reforms (challenged by states)
• Created judicial logjam — courts struck down many laws

Kesavananda Bharati v. State of Kerala (1973) — Most Important

Background: 13-judge bench (largest in Indian history)

Facts: State of Kerala imposed ceiling on property — challenged under Article 31C (DPSP laws)

Held (per Justice Sikri, majority):

“The power of amendment under Article 368 is limited — Parliament cannot alter the basic structure of the Constitution”

What is Basic Structure? The majority identified:

1. Supremacy of Constitution
2. Republican and democratic form of government
3. Secularism
4. Federalism
5. Separation of powers
6. Individual freedom

Key reasoning:

• Constitution is supreme — not Parliament
• Amendment power is a constituent power — but it’s not unlimited
• If unlimited, Parliament could destroy FR and democracy — would be self-contradictory
• Basic structure is like an “immovable essence” — cannot be altered

Justice Shelat (concurring): “Fundamental Rights and DPSP together form the core of the Constitution”

Dissent: Justice Khanna — said amendment power is limited but basic structure is a vague concept

Result:

• Overruled Golak Nath on unlimited power
• Upheld Shankari Prasad that some amendments are valid
• 42nd Amendment later partly struck down in Minerva Mills

Minerva Mills v. Union of India (1980)

Issue: 42nd Amendment tried to give Parliament unlimited amendment power

Article 368(4) added by 42nd Amendment:

“There shall be no limitation on the constituent power of Parliament”

55th Amendment (1974):

• Added Article 31C (as per 25th Amendment)
• Extended protection to any law implementing DPSP (not just Article 39(b)/(c))

Held (per Justice Bhagwati):

“Limited amending power is itself a basic feature — cannot be removed”

Key holdings:

1. Article 368(4) is unconstitutional — because unlimited power destroys basic structure
2. Extended Article 31C is also invalid — because it makes DPSP superior to FR
3. Concurrence with Kesavananda: Basic Structure Doctrine is correct

Result:

• 42nd Amendment partially struck down
• 55th Amendment partially struck down
• 42nd Amendment other provisions (Socialist, Secular) upheld — considered valid basic features

Waman Rao v. Union of India (1981)

Issue: Are amendments made after Kesavananda (post-1973) valid?

Held:

• All amendments passed before 24 April 1973 (date of Kesavananda judgment) are valid (including 1st to 17th Amendments)
• All amendments passed after 24 April 1973 are subject to basic structure review

Importance: 24th Amendment onward — need to check basic structure compliance

Indira Gandhi v. Raj Narain (1975)

42nd Amendment challenged:

• National Emergency declared (1975-77)
• 42nd Amendment passed during Emergency

Held: 42nd Amendment is valid — cannot challenge an amendment on basis of it being passed during Emergency

• Court refused to examine the legislative process — said proper procedure followed

Supreme Court Advocates-on-Record v. Union of India (2015) — NJAC Case

Issue: 99th Amendment (2014) created NJAC to replace Collegium system

Held: NJAC is unconstitutional — because:

• Collegium system is part of basic structure (judicial independence)
• Political involvement in judicial appointments violates separation of powers
• 99th Amendment Act is invalid

Note: 99th Amendment Act would have removed power from judiciary — basic structure violation

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Important Articles for BPSC

Article	Content
Art. 368	Amendment power
Art. 13	Laws inconsistent with Constitution
Art. 245	Extent of laws
Art. 246	Three Lists
Art. 248	Residuary powers
Art. 279A	GST Council

Practice Questions (BPSC Pattern)

1. The power to amend the Constitution is given by:

   • (a) Article 365
   • (b) Article 368
   • (c) Article 370
   • (d) Article 356

2. Which amendment added “Socialist” and “Secular” to the Preamble?

   • (a) 44th Amendment
   • (b) 42nd Amendment
   • (c) 73rd Amendment
   • (d) 101st Amendment

3. The Basic Structure Doctrine was established in:

   • (a) Golak Nath case
   • (b) Kesavananda Bharati case
   • (c) Minerva Mills case
   • (d) Maneka Gandhi case

4. Which case held that the 42nd Amendment provision giving unlimited power to Parliament is unconstitutional?

   • (a) Kesavananda Bharati
   • (b) Minerva Mills
   • (c) Waman Rao
   • (d) Indira Gandhi

Answers: 1(b), 2(b), 3(b), 4(b)

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