Amendment of the Constitution & Basic Structure Doctrine

Article 368 and the evolution of constitutional amendment law — from Shankari Prasad's unfettered Parliament to Kesavananda Bharati's basic structure doctrine. The boundary between legitimate constitutional change and unconstitutional constitutional destruction.

GS Paper II Prelims + Mains ~20 min read Art. 368 Kesavananda 1973 Basic Structure

1. Procedure of Constitutional Amendment (Article 368)

Article 368 — The Amendment Procedure

Article 368 in Part XX of the Constitution confers on Parliament the power to amend the Constitution. It lays down a specific procedure that is more rigid than ordinary legislation but more flexible than a full referendum system — placing India between extremely rigid (USA) and extremely flexible (UK) constitutions.

Step 1: Bill introduced in either House of Parliament (not in State Legislatures; private member bills permitted)
Step 2: Must be passed by each House separately by Special Majority — no joint sitting is possible for constitutional amendment bills (unlike ordinary legislation under Article 108)
Step 3: Special Majority = majority of the total membership of the House AND two-thirds majority of members present and voting (both conditions must be satisfied simultaneously)
Step 4: For certain amendments: ratification by at least half of the State Legislatures by simple majority
Step 5: Presidential assent — the President has NO veto power over constitutional amendment bills; must give assent (24th Amendment 1971 made this explicit by removing the word "may" from the original Article 368)
Step 6: Amendment comes into force on the date of President's assent or such later date as specified in the Amendment itself

Key Distinction — Special Majority: For ordinary legislation, simple majority (majority of members present and voting) suffices. For constitutional amendments (Type 2), both a majority of total membership (absolute majority) AND two-thirds of those present and voting are required. In a 543-member Lok Sabha, even if only 300 members are present, you still need: (i) at least 272 votes (majority of 543) AND (ii) at least 200 votes (2/3 of 300 present). Whichever is higher governs.

No time limit for state ratification: The Constitution does not prescribe a time limit within which State Legislatures must ratify amendments requiring their concurrence. This is sometimes cited as a procedural gap.

2. Three Types of Constitutional Amendment

2.1 Type 1 — Simple Majority (Outside Article 368)

These amendments are NOT constitutional amendments under Article 368 — they are made by ordinary legislation passed by a simple majority of Parliament. They do not require the special procedure of Article 368.

Provision	Subject Matter
Article 3	Formation of new states; alteration of boundaries, names of existing states
Article 169	Abolition or creation of Legislative Councils in states
Second Schedule	Emoluments of constitutional functionaries
Fifth Schedule	Administration of Scheduled Areas and Scheduled Tribes
Sixth Schedule	Administration of Tribal Areas in north-eastern states
Article 100(3)	Quorum in Parliament
Articles 327, 328	Provisions relating to elections

2.2 Type 2 — Special Majority Only (Article 368)

All constitutional provisions NOT falling in Type 1 or Type 3 require Special Majority in both Houses. This covers the bulk of the Constitution including Fundamental Rights, Directive Principles, most articles on the structure of government, and the Preamble (subject to basic structure limitations).

2.3 Type 3 — Special Majority + Ratification by at Least Half the States

Provisions touching the federal structure require both Special Majority in Parliament AND ratification by at least half of the State Legislatures by a simple majority:

Constitutional Provision	Subject
Articles 54, 55	Election of the President
Articles 73, 162	Extent of executive power of Union and States
Articles 124–147	Supreme Court — composition, jurisdiction, powers
Articles 214–231	High Courts — composition, jurisdiction
Article 241	High Courts for Union Territories
Articles 245–255	Distribution of legislative powers between Union and States
Seventh Schedule	Three Lists (Union, State, Concurrent)
Representation of States in Parliament	Composition of Parliament
Article 368 itself	Amendment procedure

Key exam point: State legislatures ratify by simple majority (not special majority). The special majority requirement applies only to Parliament. Ratification by states can happen in any order; there is no time limit. Once half the states ratify (whichever 14+ out of 28 states act first), the condition is satisfied.

Fig 9.1 — Three Types of Constitutional Amendment Procedure under Art. 368

3. Criticism of India's Amendment Procedure

Criticism	Detail
No referendum provision	Unlike Ireland, Australia, Switzerland, and Denmark — India has no provision for a constitutional referendum; citizens have no direct say in fundamental constitutional changes
States cannot initiate	Only Parliament can introduce amendment bills; states can only ratify (Type 3); no provision for states to demand an amendment or initiate the process independently
No time limit for state ratification	Some amendments requiring state ratification remained pending for years; no constitutional deadline
Ambiguity between Type 1 and Type 2	The line between "ordinary law" and "constitutional amendment" is not always clear — the boundary of Article 368 has itself been contested in courts
Basic structure — judicial imposition without text	Critics argue basic structure doctrine is a judicially invented limitation with no explicit constitutional text; unelected judges curtailing elected Parliament's constituent power is undemocratic (H.M. Seervai's criticism)
Ease of amendment	India has had 106 amendments in ~75 years (average: more than one per year); compared to USA (27 amendments in 235 years) — suggests Indian Constitution may be too easy to amend, diluting constitutional stability

4. Landmark Cases — Evolution of Amendment Law

The Central Question

Can Parliament, using its constituent power under Article 368, amend any part of the Constitution including Fundamental Rights? If yes, are there any implied limitations? The answer evolved through five decades of constitutional jurisprudence into one of the world's most sophisticated doctrines of judicial review of constitutional amendments.

Case / Event	Year	Bench	Key Ruling	Impact
Shankari Prasad v. Union of India	1951	5-judge	Parliament can amend ANY provision of Constitution including Part III (Fundamental Rights); "law" in Article 13(2) does not include a constitutional amendment — so FRs can be amended under Art.368	Unlimited amendment power affirmed; 1st Amendment (Art.15(4), Art.31A/B added to override Champakam) upheld
Sajjan Singh v. State of Rajasthan	1965	5-judge	Reaffirmed Shankari Prasad; Parliament's constituent power is unlimited; FRs can be amended by Article 368 procedure	Continued unlimited amendment power; 17th Amendment (9th Schedule expansion) upheld
Golakhnath v. State of Punjab	1967	11-judge (6:5)	FRs are transcendental, eternal, immutable; Parliament cannot amend Part III even by Article 368; "law" in Article 13 includes constitutional amendments; Shankari Prasad overruled. Applied doctrine of prospective overruling — ruling applied only to future amendments	FRs effectively unamendable; government responded with 24th, 25th Amendments
24th Constitutional Amendment	1971	—	Added explicit phrase "to amend by way of addition, variation or repeal any provision of this Constitution" to Art.368; added Art.13(4) — amendments not subject to Art.13; made presidential assent to amendment bills mandatory	Parliamentary response to Golakhnath; overrides the "law" holding in Art.13
25th Constitutional Amendment	1971	—	Added Article 31C — laws giving effect to Articles 39(b) and (c) cannot be struck down for violating Articles 14, 19, or 31; also barred courts from examining whether a law truly gave effect to those DPSPs	Protected nationalisation laws; Article 31C's bar on judicial examination subsequently struck down
Kesavananda Bharati v. State of Kerala	1973	13-judge (7:6)	Landmark: Parliament can amend ANY part of Constitution including FRs (overruling Golakhnath); BUT cannot destroy, damage, or emasculate the "basic structure" or essential features of the Constitution. 24th Amendment fully valid. 25th Amendment partially valid (bar on courts examining "true purpose" struck down). Constituent power is limited power.	Basic structure doctrine born; the most significant constitutional case in India's history
42nd Constitutional Amendment	1976	—	Extended Art.31C to ALL DPSPs (not just 39b/c); added Articles 368(4) and (5) barring courts from questioning constitutional amendments on ANY ground	Emergency-era attempt to tilt balance — overruled by Minerva Mills
Minerva Mills v. Union of India	1980	5-judge	Extended Art.31C (to all DPSPs) STRUCK DOWN — would destroy balance between FRs and DPSPs which is basic structure. Arts.368(4) and (5) barring judicial review STRUCK DOWN — judicial review is basic structure. Parliament's constituent power is NOT unlimited — it cannot be enlarged to infinity by Parliament itself.	Basic structure confirmed as binding limitation; judicial review of amendments preserved
Waman Rao v. Union of India	1981	5-judge	Laws placed in 9th Schedule before 24 April 1973 (Kesavananda date) cannot be challenged. Laws placed in 9th Schedule after that date can be challenged for violating basic structure.	Cut-off date for 9th Schedule immunity; confirmed in I.R. Coelho 2007
S.R. Bommai v. Union of India	1994	9-judge	Federalism, secularism, and democracy are basic structure. Article 356 (President's Rule) subject to judicial review. Secularism (added by 42nd Amendment to Preamble) is basic structure even if challenged as not "original."	Expanded basic structure components; curbed misuse of Art.356
I.R. Coelho v. State of Tamil Nadu	2007	9-judge	Laws placed in 9th Schedule after 24 April 1973 (Kesavananda) can be challenged for violating basic structure even if they purport to receive 9th Schedule "immunity." No blanket immunity after that date. Rights test under Article 21 is part of basic structure.	9th Schedule not an impenetrable shield; basic structure doctrine fully applied to 9th Schedule
Supreme Court Advocates-on-Record v. Union of India (NJAC)	2015	5-judge (4:1)	99th Constitutional Amendment (creating National Judicial Appointments Commission) and NJAC Act struck down. Independence of judiciary and separation of powers are basic structure; collegium system upheld as best available mechanism for protecting judicial independence.	Most recent major application of basic structure; NJAC struck down; collegium restored

"The Constitution is not a mere lawyers' document; it is a vehicle of life, and its spirit is always the spirit of age." — B.R. Ambedkar, Constituent Assembly Debates

Fig 9.2 — Basic Structure Doctrine: Evolution through landmark cases (1951–2015)

5. The 42nd Amendment — "Mini-Constitution" (1976)

Why Called "Mini-Constitution"

The 42nd Constitutional Amendment Act 1976, enacted during the Emergency by the Indira Gandhi government, amended 59 Articles of the Constitution and made far-reaching changes to the constitutional structure — earning it the name "Mini-Constitution." Many of its provisions were subsequently struck down or reversed.

5.1 Major Changes Made by the 42nd Amendment

Change	Article Affected	Current Status
Added "Socialist" and "Secular" and "Integrity" to the Preamble	Preamble	Valid; upheld as part of basic structure (S.R. Bommai 1994)
Added Fundamental Duties (Part IVA, Article 51A)	51A	Valid; 10 original FDs retained
Extended Article 31C immunity to ALL DPSPs	31C	Struck down by Minerva Mills 1980
Added Articles 368(4) and (5) barring judicial review of amendments	368	Struck down by Minerva Mills 1980
Transferred 5 subjects from State List to Concurrent List	7th Schedule	Valid — Education, Forests, Weights & Measures, Protection of Wild Animals, Administration of Justice
Made President bound by Cabinet advice (added Art.74(1) "shall act in accordance with")	74	Partially retained; 44th Amendment (1978) further clarified President can send advice back once for reconsideration
Extended term of Lok Sabha and State Assemblies from 5 to 6 years	83, 172	Reversed by 44th Amendment 1978 — back to 5 years
Added Article 39A — free legal aid as DPSP	39A	Valid; led to Legal Services Authorities Act 1987
Added Articles 43A and 48A as new DPSPs	43A, 48A	Valid
Parliament given power to curtail SC/HC jurisdiction	Various	Partially struck down; judicial review as basic structure limits this

44th Amendment (1978) — Partial Reversal: The Janata Party government reversed several 42nd Amendment changes: restored 5-year term for Parliament and Assemblies; reversed changes to Art.352 (Proclamation of Emergency) — now requires written advice of Cabinet, not just PM; added Art.20 and Art.21 to list of rights that cannot be suspended even during Emergency.

6. Components of the Basic Structure Doctrine

The Supreme Court has NOT provided an exhaustive, closed list of basic structure elements. The doctrine is open-ended and evolves with constitutional adjudication. The following elements have been identified across various judgments:

Basic Structure Element	Case Where Identified / Reinforced
Supremacy of the Constitution	Kesavananda Bharati (1973)
Sovereign, democratic, republican form of government	Kesavananda; S.R. Bommai (1994)
Secular character of the Constitution	S.R. Bommai (1994); Kesavananda
Separation of powers	Kesavananda; Indira Gandhi v. Raj Narain (1975)
Federal character of the Constitution	Kesavananda; S.R. Bommai
Unity and integrity of the nation	Kesavananda
Judicial review	Kesavananda; Minerva Mills (1980)
Parliamentary system of government	Kesavananda
Rule of law	Kesavananda; ADM Jabalpur (1976) — minority view by Justice Khanna; confirmed post-Emergency
Free and fair elections	Indira Gandhi v. Raj Narain (1975); Electoral Bonds SC (2024)
Independence of judiciary	Kesavananda; Minerva Mills; NJAC (2015)
Harmony between FRs and DPSPs	Kesavananda; Minerva Mills
Equality (Article 14 — not just formal, but substantive)	Kesavananda; Indira Gandhi v. Raj Narain
Limited government	Minerva Mills; Kesavananda
Welfare state / socio-economic justice	Kesavananda (via harmony with DPSPs)

What is NOT basic structure: The Court has held that certain features are NOT essential — e.g., the particular manner of presidential election (can be changed); specific number of judges on the SC; right to property (removed as FR by 44th Amendment — held valid since property is not basic structure per Kesavananda majority). The doctrine applies to the essential framework, not every detail.

7. Significance of the Basic Structure Doctrine

7.1 Why the Doctrine Matters

Protects constitutional democracy from majoritarian abuse: A government with brute majority cannot dismantle judicial independence, secularism, federal character, or free elections through constitutional amendment
Distinguishes amendment from destruction: Parliament's constituent power is legitimate when it changes the Constitution; it becomes unconstitutional when it destroys the Constitution's fundamental identity
Courts as constitutional guardians: Basic structure gives the judiciary its most powerful tool to review the highest exercise of parliamentary power — amending the Constitution itself
Practical applications: NJAC struck down (2015) — independence of judiciary; S.R. Bommai (1994) — curbed Art.356 misuse (secularism, federalism); Electoral Bonds SC 2024 — free and fair elections

7.2 Criticisms of the Doctrine

Criticism	Counter-Argument
Undemocratic — unelected judges override elected Parliament (H.M. Seervai, Fali Nariman's early position)	Democracy itself is basic structure; majority cannot vote away minority rights or judicial independence; Constituent Assembly's sovereign will is superior to any temporary parliamentary majority
"Basic structure" is undefined, vague, and judge-made — no constitutional text	Constitutional essential features are implicit in the Constitution's overall scheme; American and German courts similarly imply unamendable features; judicially developing doctrine is not unique to India
Creates excessive judicial activism; courts enter policy space	The doctrine applies only to constitutional amendments, not ordinary legislation; courts are not directing policy but protecting constitutional architecture
Freezes constitutional development; prevents adaptation to changing needs	The doctrine is not rigid — "basic structure" is identified contextually; amendment is permitted so long as essential features survive; the Constitution has been amended 106 times despite the doctrine

Comparative context: Germany's Basic Law (Article 79(3)) has explicit "eternity clauses" — certain articles (human dignity, federal structure, democratic character) cannot be amended even by unanimous vote. India's basic structure doctrine achieves the same result through judicial interpretation rather than constitutional text. The Indian approach is arguably more flexible because the list is not fixed by text.

8. Current Affairs 2024–26

8.1 Electoral Bonds SC Judgment (2024) — Basic Structure Applied

In Association for Democratic Reforms v. Union of India (2024), a 5-judge Constitution Bench unanimously struck down the Electoral Bond Scheme. The Court applied the basic structure element of free and fair elections and the constitutional right to information (Article 19(1)(a)). The Court held that anonymous political funding creates quid pro quo corruption, undermining the voter's ability to make an informed electoral choice — a direct assault on the free and fair elections component of basic structure. This is the most recent application of the doctrine to invalidate a government policy with constitutional dimensions.

8.2 NJAC and Collegium — Ongoing Tension

The 2015 NJAC judgment (99th Constitutional Amendment struck down, 4:1) established that independence of the judiciary as a basic structure element prevents Parliament from creating an appointments commission that includes the Law Minister and two eminent persons nominated by a committee that includes the PM and Speaker. The collegium system (three senior-most SC judges + CJI) was restored. The tension between executive accountability in appointments and judicial independence continues to be a live constitutional debate in 2024–26, with calls for a reformed (but still court-led) appointments process.

8.3 Constitution at 75 — Amendment Count

As of 2024, India has enacted 106 Constitutional Amendments. The 105th Amendment (2021) restored states' power to identify OBC lists. The 106th Amendment (2023) extended reservation for women (one-third seats) in Lok Sabha and State Assemblies for 15 years (Article 330A, 332A added). The 106th Amendment itself raised basic structure questions — is reservation for women consistent with equality as basic structure? The consensus answer is yes — Article 15(3) explicitly permits special provisions for women; this is an enabling, not discriminatory, amendment.

8.4 Codification of Basic Structure — Debate

The Law Commission and constitutional scholars have periodically debated whether basic structure elements should be codified in Article 368 (similar to Germany's Article 79(3) eternity clauses). Arguments FOR: reduces uncertainty, democratic legitimacy; Arguments AGAINST: rigidity, loss of judicial flexibility to identify new basic structure elements as constitutional values evolve. As of 2026, no codification proposal has been formally introduced in Parliament.

9. Prelims PYQs

UPSC Prelims 2014

Which of the following constitutional amendments requires ratification by at least half of the State Legislatures?
(a) Amendment of the Preamble
(b) Amendment relating to election of the President
(c) Amendment adding a new Fundamental Right
(d) Amendment creating a new state under Article 3

Answer: (b) — Election of the President under Articles 54–55 requires Special Majority in Parliament + ratification by at least half the State Legislatures (Type 3). Amendment of the Preamble and Fundamental Rights requires only Special Majority (Type 2). Creation of a new state under Article 3 is done by ordinary simple majority legislation (Type 1).

UPSC Prelims 2015

The "basic structure" doctrine of the Indian Constitution was propounded by the Supreme Court in which of the following cases?
(a) Shankari Prasad v. Union of India, 1951
(b) Golakhnath v. State of Punjab, 1967
(c) Kesavananda Bharati v. State of Kerala, 1973
(d) Minerva Mills v. Union of India, 1980

Answer: (c) — The basic structure doctrine was first articulated by the 13-judge bench in Kesavananda Bharati (1973). Shankari Prasad (1951) affirmed unlimited amendment power; Golakhnath (1967) said FRs are unamendable; Minerva Mills (1980) confirmed and extended the doctrine but did not originate it.

UPSC Prelims 2017

Consider the following statements about the 42nd Constitutional Amendment (1976):
1. It added the words "Socialist," "Secular," and "Integrity" to the Preamble.
2. It added Fundamental Duties as Part IVA of the Constitution.
3. Its provision barring judicial review of constitutional amendments was upheld by the Supreme Court.
Which of the statements given above is/are correct?
(a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3

Answer: (a) — Statements 1 and 2 are correct. Statement 3 is incorrect: Articles 368(4) and (5) — which barred judicial review of amendments — were struck down by the Supreme Court in Minerva Mills v. Union of India (1980) as violating the basic structure.

UPSC Prelims 2019

With reference to the Ninth Schedule of the Indian Constitution, which of the following statements is correct?
(a) All laws placed in the Ninth Schedule enjoy absolute immunity from judicial review.
(b) Laws placed in the Ninth Schedule before 24 April 1973 can be challenged for violating basic structure.
(c) Laws placed in the Ninth Schedule after 24 April 1973 can be examined for violating the basic structure.
(d) The Ninth Schedule was added by the 42nd Constitutional Amendment.

Answer: (c) — Per Waman Rao (1981) and I.R. Coelho (2007), laws placed in the 9th Schedule after 24 April 1973 (the date of the Kesavananda Bharati judgment) can be challenged for violating the basic structure. Laws placed before that date enjoy immunity. The 9th Schedule was added by the 1st Constitutional Amendment (1951), not the 42nd.

UPSC Prelims 2022

Which of the following is NOT considered an element of the "basic structure" of the Indian Constitution as identified by the Supreme Court?
(a) Judicial review
(b) Free and fair elections
(c) Right to property
(d) Federalism

Answer: (c) — The right to property was a Fundamental Right (Article 31) until the 44th Amendment (1978) deleted it. The Supreme Court has held that the right to property is NOT part of the basic structure (Kesavananda Bharati majority). Judicial review (Minerva Mills 1980), free and fair elections (Indira Gandhi v. Raj Narain 1975), and federalism (S.R. Bommai 1994) are all recognised elements of basic structure.

10. Mains PYQs

UPSC GS II 2013 — Mains · 12 Marks · 200 words

Examine the origin and significance of the Basic Structure Doctrine in Indian constitutional law.

Model Answer Structure:

Background — the central question: Can Parliament amend Fundamental Rights? Pre-1967 answer (Shankari Prasad, Sajjan Singh): YES, unlimited. Post-Golakhnath 1967: NO, FRs transcendental. The tension resolved in Kesavananda Bharati (1973)
Kesavananda Bharati (1973) — origin of basic structure: 13-judge bench (7:6 — largest bench ever); overruled Golakhnath; Parliament CAN amend FRs; BUT constituent power is LIMITED — cannot destroy "basic structure or essential features"; 24th Amendment valid; 25th Amendment partially valid
What is "basic structure"? Not exhaustively defined in the judgment; identified elements include: supremacy of Constitution, democratic republic, secularism, separation of powers, judicial review, federal character, free elections, independence of judiciary, rule of law, equality
Application and evolution: Minerva Mills (1980) — judicial review and harmony of Parts III/IV are basic structure; S.R. Bommai (1994) — secularism, federalism; NJAC (2015) — independence of judiciary; Electoral Bonds SC (2024) — free and fair elections
Significance: Protects constitutional identity from majoritarian erosion; distinguishes between amendment (legitimate) and destruction (unconstitutional); makes India's Constitution self-protecting; Courts as guardians of Constituent Assembly's sovereign vision
Criticism and defence: Seervai's criticism — undemocratic, judicially imposed; defence — democracy is itself a basic structure value; Constituent Assembly's intent is superior to any parliamentary majority; 106 amendments prove Parliament still has wide amendment power

UPSC GS II 2015 — Mains · 10 Marks · 150 words

Distinguish between the three types of constitutional amendments in India. How does India's amendment procedure compare with that of the United Kingdom?

Three types of amendment in India: Type 1 — Simple majority, outside Article 368 (creation of new states, abolition of state councils); Type 2 — Special majority under Article 368 (majority of total membership + 2/3 present and voting); Type 3 — Special majority + ratification by ≥ ½ State Legislatures (federal provisions: Presidential election, SC/HC, 7th Schedule, Art.368 itself)
Special majority explained: Both conditions (absolute majority of membership AND 2/3 of those present and voting) must be satisfied simultaneously in each House separately — NO joint sitting for constitutional amendments
UK comparison: UK = no written codified constitution; Parliament is supremely sovereign; constitutional conventions changed by ordinary majority legislation; no judicial review of parliamentary acts; constitution = Acts of Parliament + conventions + common law
India vs UK contrast: India = written, rigid constitution with special procedures; judicial review of legislation AND constitutional amendments (basic structure); UK = unwritten, flexible, parliamentary sovereignty absolute
India vs USA: USA requires 2/3 of both Houses + ratification by ¾ of states (38 of 50); much more rigid than India; no basic structure doctrine but First Amendment treated as near-absolute
Conclusion: India's amendment procedure is deliberately semi-rigid — flexible enough to allow adaptation, rigid enough to protect fundamental features; the basic structure doctrine adds a judicially enforced third layer of protection not found in explicit constitutional text

UPSC GS II 2017 — Mains · 10 Marks · 150 words

The 42nd Constitutional Amendment has been described as a "mini-constitution." Critically evaluate the major changes introduced by this amendment and their subsequent fate.

Context: Emergency period (1975–77); Indira Gandhi government; 42nd Amendment amended 59 articles; fundamentally altered constitutional architecture — hence "Mini-Constitution"
Preamble changes — "Socialist, Secular, Integrity" added: Valid; upheld in S.R. Bommai (1994) as reflecting basic structure; "Socialist" debated but accepted
Fundamental Duties added: Part IVA, Article 51A — 10 duties; valid; Swaran Singh Committee's recommendation implemented
Article 31C extension and judicial review bar — STRUCK DOWN: Extending immunity to all DPSPs and barring courts from reviewing amendments — struck down in Minerva Mills 1980 as destroying basic structure (harmony of Parts III/IV and judicial review)
5 subjects shifted to Concurrent List: Education, forests, weights & measures, protection of wild animals, administration of justice — valid; Parliament can legislate on these now
Cabinet clause and term extension — reversed: 5→6 year term for Parliament/Assemblies reversed by 44th Amendment 1978; Cabinet clause refined; President's emergency power made stricter
Conclusion: 42nd Amendment represents Emergency-era constitutional overreach; the constitutional system's resilience is demonstrated by the judiciary (Minerva Mills) and subsequent Parliament (44th Amendment) together reversing its most problematic provisions while retaining genuinely progressive ones (FDs, Preamble, education on Concurrent List)

UPSC GS II 2019 — Mains · 10 Marks · 150 words

Kesavananda Bharati v. State of Kerala (1973) is widely regarded as the most important constitutional judgment in Indian history. Justify this assessment.

Facts and context: Challenge to Kerala Land Reform Act; 13-judge bench — largest in SC history; 7:6 majority; heard for 68 working days; judgment of 700+ pages; 11 separate opinions
Overruled Golakhnath: Parliament CAN amend Part III (FRs); constitutional amendments are NOT "law" within the meaning of Article 13 — removing the Golakhnath bar on FR amendments
Created basic structure doctrine: Constituent power is LIMITED — cannot destroy essential features/basic structure; this is implied from the very concept of constitutionalism — a constitution cannot be used to destroy itself
24th Amendment upheld, 25th partially struck: Validated Parliament's response to Golakhnath; struck down the bar on courts examining "true purpose" of DPSP-implementing laws
Why most important: Established the framework within which ALL subsequent constitutional disputes are decided; every major case since 1973 (Minerva Mills, S.R. Bommai, NJAC, Electoral Bonds) builds on Kesavananda; protected India's constitutional democracy against future authoritarianism; called "the rock on which the Constitution rests" by Justice Khanna
Significance for Indian democracy: Emergency 1975–77 and its reversal through 44th Amendment validated Kesavananda's wisdom; without basic structure, the 42nd Amendment's judicial-review-bar would have been valid, allowing unlimited constitutional destruction

UPSC GS II 2021 — Mains · 10 Marks · 150 words

The basic structure doctrine limits Parliament's constituent power. Do you agree? Justify your answer with reference to relevant Supreme Court judgments.

Agree — basic structure DOES limit constituent power: Kesavananda (1973): Parliament cannot destroy basic structure even via Art.368; Minerva Mills (1980): Parliament cannot expand its own constituent power to infinity; NJAC (2015): even a unanimous constitutional amendment (99th) can be struck down
What remains unlimited: Parliament can amend ANY article; it can restrict FRs, restructure institutions, alter the 7th Schedule, change the amendment procedure — as long as basic structure survives; 106 amendments demonstrate the very wide scope still available
Why the limitation is legitimate: Constituent power derives from the Constitution, not above it; cannot be unlimited because that would allow self-destruction; principle of constitutionalism implies implied limitations; Constituent Assembly's sovereign vision embedded in basic structure supersedes any future parliamentary majority
Counter-argument addressed: Critics say basic structure is judge-made; response: implied limitations on amendment power exist in German Basic Law (Art.79(3)), South African Constitution, and are inherent in the concept of constitutional supremacy
Practical significance: Doctrine has prevented: (i) abolition of judicial review (Minerva Mills); (ii) Executive takeover of judicial appointments (NJAC); (iii) Indefinite President's Rule (S.R. Bommai); (iv) Electoral corruption through anonymous funding (Electoral Bonds 2024)
Conclusion: The limitation is real but not oppressive; it is the constitutional system's self-preservation mechanism, not a judicial veto on Parliament — it preserves the space within which Parliament continues to amend freely while protecting the constitutional identity that makes India's democracy recognisable

UPSC GS II 2023 — Mains · 10 Marks · 150 words

Examine the significance of the I.R. Coelho v. State of Tamil Nadu (2007) judgment in limiting the immunity of the Ninth Schedule.

9th Schedule background: Added by 1st Amendment 1951; laws listed in 9th Schedule cannot be challenged in courts (Art.31B); designed to protect land reform laws from FR challenges; expanded to include 284 laws covering banks, industries, reservations
Waman Rao (1981) cut-off date: 9th Schedule laws placed before 24 April 1973 (Kesavananda date) cannot be challenged; those placed after can be challenged for basic structure violation — but this was not comprehensively followed
I.R. Coelho (2007) — 9-judge bench ruling: Definitively held: no blanket immunity for post-Kesavananda 9th Schedule laws; any law placed in 9th Schedule after 24 April 1973 can be challenged for violating basic structure; Art.21's rights test is itself basic structure
Significance: Closed the "9th Schedule loophole" — governments cannot escape constitutional scrutiny by simply inserting laws into 9th Schedule; basic structure doctrine applied even to constitutional amendments with explicit immunity
Impact: Reservation laws challenged on grounds of exceeding 50% cap (Mandal) can still be examined; property laws, banking laws added post-1973 now subject to basic structure review; Art.31B no longer an absolute immunity provision
Conclusion: I.R. Coelho completed the basic structure framework; together with Kesavananda and Minerva Mills it establishes that constitutional democracy has no unconstitutional sanctuaries — the basic structure pervades the entire Constitution including its own immunities

UPSC GS II 2025 — Mains · 15 Marks · 250 words

The Supreme Court's 2024 judgment striking down the Electoral Bond Scheme has been described as a landmark application of the basic structure doctrine to electoral democracy. Critically examine the constitutional reasoning and implications of this judgment.

Electoral Bond Scheme background: Introduced through Finance Act 2017 (amending RPA 1951, Companies Act 2013, IT Act 1961, FEMA); allowed anonymous purchase of bonds redeemable only at specified SBI branches by registered political parties; ₹12,000+ crore bonds purchased 2018–24; 52% from companies under regulatory/investigation scrutiny
SC 2024 constitutional reasoning — 5-judge bench (unanimous): (i) Article 19(1)(a) — right to information includes voter's right to know funding of political parties; (ii) Electoral transparency is part of free and fair elections which is basic structure (Indira Gandhi v. Raj Narain 1975); (iii) Quid pro quo corruption undermines democratic legitimacy — policy favours for donors distort electoral competition
Basic structure application: Unlike NJAC (struck down a constitutional amendment), Electoral Bonds struck down ordinary legislation; but the Court used basic structure values (free and fair elections) as the constitutional benchmark — even without a formal amendment, legislation that structurally corrupts electoral democracy violates these values via Arts.14, 19(1)(a) read with constitutional principles
Implications for democracy: Transparency in political funding now constitutionally mandated; anonymous mega-donations to ruling parties held incompatible with constitutional democracy; disclosure of ₹12,000 crore bonds and their recipients published — significant accountability exercise
Implications for basic structure doctrine: Extended the doctrine's reach to ordinary legislation (not just constitutional amendments) when the legislation structurally affects democratic essentials; expanded "free and fair elections" from procedural (election conduct) to substantive (electoral finance transparency)
Way forward — reform framework: State funding of elections (Indrajit Gupta Committee 1998 model); comprehensive donation disclosure above a low threshold; CAG audit of party accounts; political parties under RTI (implementing CIC 2013 order); electoral finance as constitutional category requiring heightened scrutiny

Expected UPSC 2026 — Predicted · 10 Marks · 150 words

Should the basic structure doctrine be codified in Article 368 of the Constitution? Critically examine the arguments for and against such codification.

Current position: Basic structure is judge-made; no textual basis in Art.368; identified through a series of judgments from Kesavananda (1973) onwards; list is non-exhaustive and judicially evolving
Arguments FOR codification: Democratic legitimacy — constitutional text has higher democratic authority than judicial interpretation; certainty and predictability — parties, Parliament, and citizens know exactly what is protected; Germany's Art.79(3) model shows codification works; reduces judicial activism — courts less likely to expand the list beyond codified elements; international credibility
Arguments AGAINST codification: Rigidity — frozen list cannot accommodate new constitutional values (e.g., "free and fair elections" as basic structure was identified only in 1975; right to privacy in 2017 — could become basic structure in future); codification requires agreement on the list — contentious political negotiation; amendment of the codified list would require near-impossible consensus; India's constitutional flexibility is itself valuable
The flexibility paradox: Basic structure's judicial, open-ended nature means it can evolve with constitutional morality — NJAC (judicial independence), Electoral Bonds (free elections) identified as basic structure decades after Kesavananda; codification would prevent this evolution
Comparative analysis: Germany (codified, works well); India (judicial, also works well); South Africa (hybrid — some codified, some judicial); USA (no basic structure, no codification — but 1st Amendment treated as near-absolute culturally)
Conclusion: Codification is appealing in theory but counterproductive in practice — India's constitutional dynamism is better served by an evolving, judicially identified basic structure than a frozen textual list; the democratic legitimacy concern can be addressed by the Court following a more transparent, deliberative process in identifying new basic structure elements

11. Quick Revision — Amendment & Basic Structure

Fig 9.3 — Major Constitutional Amendments: Key milestones from 1951 to 2019

Must-Remember Points

Article 368: Part XX; two types — special majority only (Type 2), special majority + ½ state ratification (Type 3); simple majority amendments are outside Art.368 (Type 1); NO joint sitting; NO presidential veto
Special majority = majority of total membership of House AND 2/3 of members present and voting — both conditions simultaneously in EACH house
Type 3 provisions (state ratification): Presidential election (Art.54,55), Union-State executive powers (Art.73,162), SC and HCs, 7th Schedule, representation of states in Parliament, Art.368 itself
Case law evolution: Shankari Prasad (1951) unlimited → Golakhnath (1967) FRs immutable → Kesavananda (1973) basic structure born → Minerva Mills (1980) harmony is basic structure → NJAC (2015) judicial independence
42nd Amendment 1976 ("Mini-Constitution"): Amended 59 articles; added Preamble words, FDs, Art.39A/43A/48A; extended Art.31C (struck down Minerva Mills); added Art.368(4)+(5) (struck down Minerva Mills); moved 5 subjects to Concurrent List; term extended to 6 years (reversed by 44th Amdt)
44th Amendment 1978: Reversed 42nd Amdt emergency overreach; 5-year term restored; Art.352 stricter (written Cabinet advice required); Art.20/21 cannot be suspended in Emergency
Basic structure elements: Supremacy of Constitution, democracy, secularism, separation of powers, federalism, judicial review, free elections, independence of judiciary, rule of law, equality, limited government
9th Schedule: Laws before 24 April 1973 — cannot be challenged; laws after — can be challenged for basic structure (Waman Rao 1981; I.R. Coelho 2007)
NJAC 2015: 99th Amendment struck down (4:1); independence of judiciary = basic structure; collegium upheld
Electoral Bonds SC 2024: Free and fair elections = basic structure; anonymous political funding unconstitutional; Art.19(1)(a) right to know = voter's right to know party funding

Case	Year	Key Word
Shankari Prasad	1951	Unlimited power
Golakhnath	1967	FRs immutable
Kesavananda	1973	Basic structure
Minerva Mills	1980	Harmony/JR
S.R. Bommai	1994	Secularism/Fed
I.R. Coelho	2007	9th Schedule
NJAC	2015	Judiciary indep.
Elect. Bonds	2024	Free elections

Amendment of the Constitution & Basic Structure Doctrine

On This Page

1. Procedure of Constitutional Amendment (Article 368)

Article 368 — The Amendment Procedure

2. Three Types of Constitutional Amendment

2.1 Type 1 — Simple Majority (Outside Article 368)

2.2 Type 2 — Special Majority Only (Article 368)

2.3 Type 3 — Special Majority + Ratification by at Least Half the States

3. Criticism of India's Amendment Procedure

4. Landmark Cases — Evolution of Amendment Law

The Central Question

5. The 42nd Amendment — "Mini-Constitution" (1976)

Why Called "Mini-Constitution"

5.1 Major Changes Made by the 42nd Amendment

6. Components of the Basic Structure Doctrine

7. Significance of the Basic Structure Doctrine

7.1 Why the Doctrine Matters

7.2 Criticisms of the Doctrine

8. Current Affairs 2024–26

8.1 Electoral Bonds SC Judgment (2024) — Basic Structure Applied

8.2 NJAC and Collegium — Ongoing Tension

8.3 Constitution at 75 — Amendment Count

8.4 Codification of Basic Structure — Debate

9. Prelims PYQs

10. Mains PYQs

11. Quick Revision — Amendment & Basic Structure

Must-Remember Points