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Judicial Review of Constitutional Amendments

UPSC Civil Services• POLITY• Judiciary• Judicial Review of Constitutional Amendments
Explains Judicial Review of constitutional amendments under Article 368 and the evolution of the Basic Structure Doctrine through Shankari Prasad, Sajjan Singh, Golaknath, Kesavananda Bharati, Indira Gandhi v. Raj Narain, Minerva Mills, Waman Rao and I.R. Coelho. Covers Parliament's amending power, Basic Structure features, Ninth Schedule review, important constitutional amendments, UPSC Prelims facts and traps, quick revision and a Mains answer framework.

Judicial Review of Constitutional Amendments

Introduction

Article 368 gives Parliament the power to amend the Constitution. However, this power is not unlimited.

The Supreme Court has held that Parliament can amend the Constitution, including Fundamental Rights, but cannot alter or destroy the Basic Structure of the Constitution.

This principle is known as the Basic Structure Doctrine.


1. Constitutional Basis

The constitutional amendment procedure is primarily provided under:

Article 368

Parliament exercises constituent power while amending the Constitution.

However, constitutional amendments are subject to judicial scrutiny on the ground that they cannot destroy the Basic Structure.

Therefore:

Article 368
↓
Parliament's Amending Power
↓
Subject to Basic Structure
↓
Judicial Review


2. Meaning of Judicial Review

Judicial Review is the power of courts to examine whether a law or governmental action conforms to the Constitution.

In the context of constitutional amendments, it means that courts can examine whether an amendment:

  • Follows the constitutional procedure
  • Violates constitutional limitations
  • Damages or destroys the Basic Structure

The Supreme Court is the final constitutional authority on this question.


3. Is Parliament's Amending Power Unlimited?

No.

Parliament has wide power to amend the Constitution, but it cannot use Article 368 to destroy its Basic Structure.

The distinction is:

Power to amend ≠ Power to destroy


4. Evolution of Judicial Review of Amendments

The doctrine evolved through several landmark judgments:

  1. Shankari Prasad v. Union of India — 1951
  2. Sajjan Singh v. State of Rajasthan — 1965
  3. I.C. Golaknath v. State of Punjab — 1967
  4. Kesavananda Bharati v. State of Kerala — 1973
  5. Indira Gandhi v. Raj Narain — 1975
  6. Minerva Mills v. Union of India — 1980
  7. Waman Rao v. Union of India — 1981
  8. I.R. Coelho v. State of Tamil Nadu — 2007

5. Shankari Prasad Case — 1951

In Shankari Prasad v. Union of India, the Supreme Court upheld Parliament's power to amend Fundamental Rights.

The Court held that a constitutional amendment was not "law" within the meaning of Article 13.

Therefore, Article 13 did not restrict Parliament's constitutional amendment power.


6. Sajjan Singh Case — 1965

In Sajjan Singh v. State of Rajasthan, the Supreme Court again upheld Parliament's power to amend Fundamental Rights.

However, some judges expressed concerns about the possibility of unlimited constitutional amendment power.

These observations contributed to the later development of the Basic Structure Doctrine.


7. Golaknath Case — 1967

In I.C. Golaknath v. State of Punjab, the Supreme Court changed its earlier position.

By a narrow majority, the Court held that Parliament could not amend Fundamental Rights.

The Court treated constitutional amendments as "law" for the purposes of Article 13.

Therefore:

Golaknath — 1967
↓
Parliament could not amend Fundamental Rights


8. 24th Constitutional Amendment — 1971

Parliament responded to the Golaknath judgment through the:

24th Constitutional Amendment Act, 1971

It strengthened Parliament's constituent power under Article 368.

It expressly recognised Parliament's power to amend the Constitution and stated that Article 13 would not apply to constitutional amendments.

This led to the constitutional dispute examined in the Kesavananda Bharati case.


9. Kesavananda Bharati Case — 1973

The landmark case was:

Kesavananda Bharati v. State of Kerala

The Supreme Court delivered its judgment in 1973 by a majority of:

7:6

The Court held that:

Parliament can amend any part of the Constitution, including Fundamental Rights, but cannot alter or destroy the Basic Structure of the Constitution.

This established the:

Basic Structure Doctrine


10. Basic Structure Doctrine

The Basic Structure Doctrine means that certain fundamental features of the Constitution cannot be destroyed through the amendment process.

The Constitution can evolve through amendments, but its essential identity must remain intact.

Therefore:

Parliament
↓
Can amend Constitution
↓
Cannot destroy Basic Structure


11. Elements of Basic Structure

The Supreme Court has recognised several features as part of the Basic Structure.

Important examples include:

  • Supremacy of the Constitution
  • Republican and democratic form of government
  • Secularism
  • Federalism
  • Rule of Law
  • Separation of Powers
  • Judicial Review
  • Independence of Judiciary
  • Parliamentary system
  • Free and fair elections
  • Dignity and freedom of the individual
  • Unity and integrity of India

The list is not exhaustive.


12. Judicial Review as Basic Structure

Judicial Review itself is part of the Basic Structure.

Therefore, Parliament cannot completely eliminate the power of courts to examine constitutional validity.

This ensures that constitutional limitations remain enforceable.


13. Independence of Judiciary

The:

Independence of Judiciary

is also part of the Basic Structure.

An amendment cannot destroy the essential independence of the Judiciary.

This is important because the Judiciary must remain capable of exercising Judicial Review.


14. Separation of Powers

The:

Separation of Powers

is another important constitutional principle.

The amendment power cannot be used to destroy the essential distinction between:

  • Legislature
  • Executive
  • Judiciary

15. Federalism

Federalism is recognised as a Basic Structure feature.

Parliament cannot use Article 368 to completely destroy the federal character of the Constitution.


16. Secularism

The Supreme Court has recognised:

Secularism

as a Basic Structure feature.

An amendment cannot fundamentally destroy the secular character of the Constitution.


17. Democracy and Free Elections

The democratic character of the Constitution and the principle of:

Free and fair elections

have been recognised as part of the Basic Structure.

These principles were particularly important in the:

Indira Gandhi v. Raj Narain

case.


18. Indira Gandhi v. Raj Narain — 1975

The Supreme Court examined provisions of the:

39th Constitutional Amendment

in Indira Nehru Gandhi v. Raj Narain.

The Court applied the Basic Structure Doctrine.

The judgment reinforced principles including:

  • Democracy
  • Rule of Law
  • Free and fair elections
  • Judicial Review

19. 42nd Constitutional Amendment — 1976

The 42nd Constitutional Amendment Act, 1976 attempted to expand Parliament's amending power.

It inserted provisions into Article 368 intended to prevent constitutional amendments from being challenged in courts.

The amendment attempted to make Parliament's amending power effectively unlimited.


20. Minerva Mills Case — 1980

In Minerva Mills v. Union of India, the Supreme Court struck down important provisions of the 42nd Amendment relating to Article 368.

The Court held that:

Limited amending power is itself part of the Basic Structure.

Parliament cannot convert its limited power to amend the Constitution into an unlimited power.

Therefore:

Limited Amending Power
↓
Basic Structure


21. Waman Rao Case — 1981

In Waman Rao v. Union of India, the Supreme Court examined constitutional amendments relating to the Ninth Schedule.

The Court treated:

24 April 1973

as an important cut-off date.

Constitutional amendments made after this date could be examined under the Basic Structure Doctrine.


22. Ninth Schedule

The Ninth Schedule was originally intended to protect certain laws from Judicial Review.

However, Parliament cannot use the Ninth Schedule as an absolute shield against the Basic Structure Doctrine.

This principle was clarified further in:

I.R. Coelho


23. I.R. Coelho Case — 2007

In I.R. Coelho v. State of Tamil Nadu, the Supreme Court held that laws inserted into the Ninth Schedule after:

24 April 1973

can be examined to determine whether they violate the Basic Structure.

Therefore:

Ninth Schedule
↓
Not absolute immunity
↓
Basic Structure Review


24. Present Position

The present position can be summarised as:

Parliament
↓
Article 368
↓
Can Amend Constitution
↓
Can Amend Fundamental Rights
↓
Cannot Destroy Basic Structure
↓
Subject to Judicial Review


25. Can Fundamental Rights Be Amended?

Yes.

The present position after Kesavananda Bharati is that Parliament can amend Fundamental Rights.

However, the amendment cannot destroy the Basic Structure.

This differs from the position in:

Golaknath — 1967


26. Golaknath vs Kesavananda Bharati

Golaknath — 1967

Parliament:

Could not amend Fundamental Rights

Kesavananda Bharati — 1973

Parliament:

Can amend Fundamental Rights

but:

Cannot destroy Basic Structure

This distinction is important for UPSC.


27. Constitutional Supremacy

India follows:

Constitutional Supremacy

rather than absolute Parliamentary Sovereignty.

Parliament derives its constitutional authority from the Constitution.

Therefore, Parliament cannot use its amendment power to destroy the Constitution's fundamental identity.


28. Parliament vs Judiciary

The Basic Structure Doctrine creates a balance between:

Parliament

  • Democratic mandate
  • Constitutional amendment power
  • Ability to adapt the Constitution

Judiciary

  • Constitutional interpretation
  • Judicial Review
  • Protection of Basic Structure

The doctrine prevents constitutional amendment power from becoming unlimited.


29. Basic Structure Is Not the Same as the Entire Constitution

The Basic Structure does not mean that every provision of the Constitution is unamendable.

Parliament can amend numerous constitutional provisions.

The restriction applies when an amendment:

Destroys or damages the essential features of the Constitution.


30. Basic Structure Test

The Supreme Court examines the:

Substance and effect

of an amendment.

The important question is:

Does the amendment damage or destroy a Basic Structure feature?

If the answer is yes, the amendment can be declared unconstitutional to that extent.


31. Judicial Review of Amendment Procedure

The validity of a constitutional amendment can also involve examination of the prescribed procedure.

Depending on the amendment, the Constitution may require:

  • Special majority in Parliament
  • Ratification by at least half of the State Legislatures

The prescribed constitutional procedure must be followed.


32. Amendments Requiring State Ratification

Certain amendments affecting federal provisions require:

Special Majority of Parliament

plus:

Ratification by at least half of the State Legislatures

This reflects the federal nature of the Constitution.


33. Important Cases — Timeline

1951
↓
Shankari Prasad
Broad Parliamentary Amending Power

1965
↓
Sajjan Singh
Broad Power Reaffirmed

1967
↓
Golaknath
Fundamental Rights Cannot Be Amended

1973
↓
Kesavananda Bharati
Basic Structure Doctrine

1975
↓
Indira Gandhi v. Raj Narain
Basic Structure Applied

1980
↓
Minerva Mills
Limited Amending Power

1981
↓
Waman Rao
24 April 1973 Cut-off

2007
↓
I.R. Coelho
Ninth Schedule Subject to Basic Structure Review


34. Important Constitutional Amendments

24th Amendment — 1971

Strengthened Parliament's constitutional amendment power following Golaknath.

39th Amendment — 1975

Its provisions concerning election disputes were examined in Indira Gandhi v. Raj Narain.

42nd Amendment — 1976

Attempted to expand Parliament's amending power.

Important provisions were struck down in Minerva Mills.


35. Why Judicial Review of Amendments Is Important

It protects:

  • Constitutional supremacy
  • Basic Structure
  • Judicial independence
  • Democracy
  • Rule of Law
  • Federalism
  • Separation of Powers

It prevents a temporary parliamentary majority from fundamentally altering the constitutional system.


36. Criticism of Basic Structure Doctrine

The doctrine has also been criticised because:

  • It gives significant power to unelected judges
  • Basic Structure is not exhaustively defined
  • Its application can involve judicial interpretation
  • It may create tension between Parliament and Judiciary

Despite these criticisms, the doctrine remains an established principle of Indian constitutional law.


37. UPSC Prelims Facts

Article 368

→ Constitutional amendment procedure

Shankari Prasad — 1951

→ Parliament's amendment power broadly upheld

Sajjan Singh — 1965

→ Broad amendment power reaffirmed

Golaknath — 1967

→ Parliament could not amend Fundamental Rights according to the judgment

24th Amendment — 1971

→ Strengthened Parliament's amending power

Kesavananda Bharati — 1973

→ Basic Structure Doctrine

Kesavananda majority

→ 7:6

39th Amendment — 1975

→ Examined in Indira Gandhi v. Raj Narain

42nd Amendment — 1976

→ Attempted to expand amending power

Minerva Mills — 1980

→ Limited amending power is Basic Structure

Waman Rao — 1981

→ 24 April 1973 cut-off

I.R. Coelho — 2007

→ Post-24 April 1973 Ninth Schedule laws subject to Basic Structure review


38. UPSC Prelims Traps

Trap 1

"Parliament cannot amend Fundamental Rights."

False under the present position.

Parliament can amend Fundamental Rights subject to the Basic Structure Doctrine.


Trap 2

"Basic Structure Doctrine is expressly mentioned in Article 368."

False

It is:

Judicially evolved

by the Supreme Court.


Trap 3

"Kesavananda Bharati completely prohibited amendments to Fundamental Rights."

False

It permitted amendments but imposed the Basic Structure limitation.


Trap 4

"The 42nd Amendment successfully made Parliament's amending power unlimited."

False

Important provisions were struck down in:

Minerva Mills


Trap 5

"Limited amending power is part of the Basic Structure."

True

This was clearly established in:

Minerva Mills


Trap 6

"Ninth Schedule laws can never be reviewed."

False

After I.R. Coelho, Ninth Schedule laws inserted after 24 April 1973 can be tested against the Basic Structure.


Trap 7

"Every constitutional amendment requires ratification by half of the States."

False

Only amendments concerning specified federal provisions require such ratification.


Trap 8

"Basic Structure is an exhaustive list."

False

The Supreme Court has not provided a single exhaustive list.


Trap 9

"India follows absolute Parliamentary Sovereignty."

False

India follows:

Constitutional Supremacy


39. Quick Revision

ARTICLE 368
↓
PARLIAMENT'S AMENDING POWER
↓
NOT UNLIMITED
↓
BASIC STRUCTURE
GOLAKNATH — 1967
↓
FRs Cannot Be Amended
KESAVANANDA BHARATI — 1973
↓
FRs Can Be Amended
↓
BUT
↓
Basic Structure Cannot Be Destroyed
MINERVA MILLS — 1980
↓
LIMITED AMENDING POWER
↓
BASIC STRUCTURE
I.R. COELHO — 2007
↓
NINTH SCHEDULE
↓
POST-24 APRIL 1973
↓
BASIC STRUCTURE REVIEW
40. One-Page Revision
JUDICIAL REVIEW OF
CONSTITUTIONAL AMENDMENTS
│
├── Article 368
│   └── Constitutional Amendment
│
├── Evolution
│   ├── Shankari Prasad — 1951
│   ├── Sajjan Singh — 1965
│   ├── Golaknath — 1967
│   ├── Kesavananda Bharati — 1973
│   ├── Indira Gandhi — 1975
│   ├── Minerva Mills — 1980
│   ├── Waman Rao — 1981
│   └── I.R. Coelho — 2007
│
├── Basic Structure
│   ├── Constitutional Supremacy
│   ├── Democracy
│   ├── Secularism
│   ├── Federalism
│   ├── Rule of Law
│   ├── Separation of Powers
│   ├── Judicial Review
│   └── Judicial Independence
│
└── Core Principle
    └── Parliament Can Amend
        BUT
        Cannot Destroy Basic Structure
41. Mains Answer Framework
Introduction

Article 368 grants Parliament the power to amend the Constitution, but the Supreme Court has evolved the Basic Structure Doctrine to ensure that this power cannot be used to destroy the Constitution's essential identity.

Evolution
Shankari Prasad — 1951
Sajjan Singh — 1965
Golaknath — 1967
Kesavananda Bharati — 1973
Indira Gandhi v. Raj Narain — 1975
Minerva Mills — 1980
Waman Rao — 1981
I.R. Coelho — 2007
Present Position

Parliament can amend:

Fundamental Rights
Other constitutional provisions

But cannot:

Destroy Basic Structure
Eliminate Judicial Review
Destroy judicial independence
Convert limited amending power into unlimited power
Significance
Protects constitutional supremacy
Prevents majoritarian excess
Protects democratic institutions
Preserves judicial independence
Maintains constitutional continuity
Criticism
Gives unelected judges significant constitutional power
Basic Structure is not exhaustively defined
May create tension between Parliament and Judiciary
Conclusion

The Basic Structure Doctrine balances Parliament's power to adapt the Constitution with the Judiciary's responsibility to preserve its fundamental identity. It ensures that constitutional amendment remains a power to reform the Constitution rather than a power to destroy it.