Amendments and the Basic Structure

Why this matters for CAPF

Amendments and the basic structure are a reliable two-part scorer for CAPF. One part is pure static recall (which amendment did what, and the three amendment procedures), and the other is the doctrinal line of cases that runs from Shankari Prasad (1951) through Golak Nath (1967) to Kesavananda Bharati (1973) and Minerva Mills (1980). The examiner asks which case laid down the basic structure, which Article governs amendments, what the 42nd and 44th Amendments did, and which amendment created which institution. The 44th Amendment is also the central human-rights amendment, which links this topic to the security limb of the syllabus. This note gives the three-method procedure table, the full case line, and the landmark-amendments table that the objective test rewards. The standard reference is NCERT Class XI "Indian Constitution at Work" and Laxmikanth's chapters on amendment of the Constitution and the basic structure doctrine.

The basic structure doctrine (the case line)

Kesavananda Bharati v State of Kerala (1973) was decided by a 13-judge bench, the largest in the Court's history, by a 7 to 6 majority. The basic structure doctrine has never been reversed.

Elements held to be part of the basic structure (illustrative)

The list is illustrative, not exhaustive; the Court has added to it case by case. Elements recognised so far include: the supremacy of the Constitution; the rule of law; the principle of separation of powers; judicial review; federalism; secularism; the sovereign, democratic and republican character of the polity; free and fair elections; the independence of the judiciary; the powers of the Supreme Court under Art 32 and the High Courts under Art 226; the harmony and balance between Fundamental Rights and Directive Principles; and the limited nature of the amending power itself. Provisions such as Art 31C (which protected laws giving effect to certain DPSP) and the 99th Amendment creating the National Judicial Appointments Commission (struck down in 2015) show the doctrine operating in practice: the NJAC was held to violate the independence of the judiciary, a basic feature.

Nature and limits of the amending power

The amending power under Art 368 is a constituent power, distinct from ordinary legislative power, which is why an amendment is passed by a special procedure and not as an ordinary bill. Several points recur in objective questions.

• An amendment bill does not require the prior recommendation of the President to be introduced (unlike a money bill).
• There is no joint sitting of the two Houses to resolve a disagreement over an amendment bill; each House must pass it separately by the required majority.
• The required majority must be satisfied at every stage, including the third reading.
• After the 24th Amendment, 1971, the President has no discretion and must assent.
• The 42nd Amendment had tried to make the amending power unlimited and to bar judicial review of amendments; Minerva Mills (1980) struck this down, holding that a limited amending power is itself part of the basic structure.
• Many provisions of the Constitution can be changed by Parliament by an ordinary law (a simple majority) without invoking Art 368 at all, for example admitting or creating new States (Art 2 and 3), changing State names and boundaries, and altering the citizenship law.

The 42nd versus the 44th Amendment (the central contrast)

CAPF returns again and again to these two amendments because the 44th was largely a reaction to the 42nd. Hold the contrast as a paired table.

Landmark amendments (high-yield)

Security and human-rights angle

• The 44th Amendment, 1978 is the central human-rights amendment. It ensured that Art 20 and Art 21 cannot be suspended even during a National Emergency, narrowed the ground for a National Emergency from "internal disturbance" to "armed rebellion" (Art 352), required written Cabinet advice for the proclamation, and removed the immunity of the emergency proclamation from judicial review. These were a direct response to the 1975 to 1977 Emergency and the ADM Jabalpur ruling (1976). See citizenship and emergency provisions and fundamental rights.
• The basic structure doctrine itself protects free and fair elections, the rule of law, secularism and judicial review, the structural guarantees against an authoritarian misuse of State power.
• The 103rd Amendment (EWS reservation) and the reservation-extension amendments connect to the social-justice limb of the syllabus, and the 106th Amendment (women's reservation) connects to the representation-and-rights dimension.

How CAPF asks it

• Single-correct: which case laid down the basic structure (Kesavananda Bharati, 1973); which Article governs amendments (Art 368).
• Matching: amendment to its effect (42nd Preamble words and duties, 44th right to property, 61st voting age, 73rd panchayats, 101st GST).
• How-many-statements-correct: a cluster on the amendment procedure (either House, no joint sitting, President bound to assent).
• Assertion-reason: a constitutional amendment can be struck down because the basic structure cannot be destroyed.

Authored practice

1. The basic structure doctrine was laid down in which case. (a) Golak Nath (b) Kesavananda Bharati (c) Minerva Mills (d) Shankari Prasad. Answer (b). Kesavananda Bharati v State of Kerala (1973) held that Parliament can amend any part but cannot destroy the basic structure.

2. Consider the following about the amendment procedure under Art 368. (1) An amendment bill can be introduced in either House. (2) There is a provision for a joint sitting if the two Houses disagree. (3) Federal provisions need ratification by half the States. How many are correct. (a) one (b) two (c) three (d) none. Answer (b). Statements 1 and 3 are correct; there is no joint sitting for an amendment bill.

3. Match the amendment with its effect. (1) 44th (2) 61st (3) 73rd (4) 101st, with effects: voting age 18, GST, right to property to Art 300A, Panchayati Raj. Answer 1-right to property to Art 300A, 2-voting age 18, 3-Panchayati Raj, 4-GST.

4. Which amendment is called the "Mini-Constitution". (a) 1st (b) 42nd (c) 44th (d) 24th. Answer (b). The 42nd Amendment, 1976 made sweeping changes, including the Preamble words and the Fundamental Duties.

5. Which case opened even Ninth Schedule laws to review against the basic structure. (a) Indira Gandhi v Raj Narain (b) Minerva Mills (c) I R Coelho (d) Golak Nath. Answer (c). I R Coelho (2007) confirmed that Ninth Schedule laws added after 1973-04-24 can be tested against the basic structure.

Common confusion

Memory hook

• Case line: "Shankari, Sajjan, Golak, Kesava, Minerva, Coelho," the spine of the doctrine in order.
• 42nd vs 44th: "42 added, 44 amended back." The 42nd was the maximalist amendment; the 44th was the restoration.
• Federal-provision ratification: "half the States must say yes."
• Local government amendments: "73 for villages, 74 for cities," both in 1992.

Night before

• Art 368 (Part XX); three methods: simple majority, special majority, and special majority plus ratification by half the States.
• An amendment bill starts in either House, passes each separately, with no joint sitting; the President must assent (24th Amendment, 1971).
• Kesavananda Bharati (1973): Parliament can amend any part but cannot destroy the basic structure (13 judges, 7 to 6).
• Golak Nath (1967) barred amending Fundamental Rights; the 24th Amendment (1971) reversed it.
• 42nd Amendment (1976), the "Mini-Constitution": Preamble words, Fundamental Duties, DPSP primacy (later read down).
• 44th Amendment (1978): right to property to Art 300A; Art 20 and Art 21 protected in an emergency; "armed rebellion" in Art 352.
• Minerva Mills (1980) struck down parts of the 42nd Amendment; I R Coelho (2007) opened the Ninth Schedule to review.

Glossary

• Art 368: the provision in Part XX governing amendment of the Constitution.
• Simple majority: a majority of members present and voting.
• Special majority: a majority of the total membership plus two-thirds of those present and voting.
• State ratification: approval by at least half the State legislatures, needed for federal provisions.
• Basic structure: the core features of the Constitution that an amendment cannot destroy.
• Judicial review: the power of courts to test the validity of laws and amendments.
• Mini-Constitution: the popular name for the wide-ranging 42nd Amendment, 1976.
• Ninth Schedule: the list of laws given protection from judicial review.
• Privy purse: the payment to former rulers of princely States, abolished by the 26th Amendment.
• Anti-defection law: the rule disqualifying legislators for defection, in the Tenth Schedule.
• EWS: the Economically Weaker Sections, given 10 per cent reservation by the 103rd Amendment.
• GST Council: the body created by the 101st Amendment under Art 279A.

Related notes

• preamble and features of the constitution
• fundamental rights
• directive principles and fundamental duties
• citizenship and emergency provisions
• making of the constitution
• human rights and internal security
• syllabus index