Limitations on Constitutional Amendment: "Basic

Structure" Principle Re-examined

S.P. SATHE.

I
The Supreme Court's decision in Kesavananda Bharati v, State ofKeraltr
has shown us the new horizons of judicial review. In Kcsavananda Bharatl
the majority judges held that Parliament did not have the power to tamper
with the basic structure of the Constitution. This decision circumscribed
the power of Parliament to amend the Constitution and since what the basic
structure is, has not been defined, the basic structure is that which the
court will define from time to time. In India, for quite some time, we
debated whether the court should have the power to review the constitu-
tional amendment. Theoretically, there cannot be any doubt that, Parliament
being the representative of the people, must be in a position to have the
Constitution changed to suit the needs of the community, Between the
court and Parliament the latter must be the final determiner of what
the Constitution must contain.! When, therefore, the Supreme Court held
in Go/ak Nath v. State of Punjab" that Parliament did not have the power to
take away or abridge the fundamental rights through constitutional amend-
ment, juristic opinion was almost unanimously against the decision:' It is
significant that ten out of thirteen judges, who heard Kesavanandi, also

• LL.M., S.J.D. (Northwestern), Principal, Indian Law Society's Law College,

Pune,
1. A.l.R. 1973 S.C. 1461.
2. This was the position of the present writer. Sec Sathe, Fundamental Rights and
Amendment 0/ the Indian Constitution (University of Bombay, 1958) and "Suprcme
Court, Parliament and Constitution," Economic and Political Weekly, Vol. VI, Nos.
34 and 35 (Aug. 21 and 28, 1971) at 1821-28 and 1972-79.
3. A.l.R. 1967 S.C. 1643.
4. See Seervai, Constitutional Law 0/ India 1088·1119: (Tripathi, Bxrnbay, 1st ed. 1968),
P.K. Tripathi, Some Insights into Fundamental Rights 1·45 (University of Bombay, 197:2):
M.P. Jain, Indian Consiitutional Law (Tripathi, Bombay, 2nd ed, 1970): P.B. Gnjcndr-
agadkar, Tire lndlan Parliament and Fundamental Rights (Eastern Law House, Calcutta,
(1972); Hari Chand, Amendins: Process under the Constitution (Metropolitan, Delhi. 1972).
According to Rajeev Dhavan, Golak Nath was "an unsound decision, using dubious
techniques". He says that "it was more of a political testament than a jurisprudential
verdict," See Rajeev Dhavan, The Supreme Court 0/ India: A Socio-legal Critique 0/
it s Juristic Techniques 4tO (Tripathi, Bombay, 1977); also see by the same author. The
Supreme Court oj India and !'JlrJiamelltary Sovere/gllfY 40 (Sterling, New Delhi, 1976).
 180 Indian Constitution: Trends and Issues

opined that Golak Nath had been wrongly decided." The fundamental
difference between Golak Nath and Kesavananda was that in the former,
only fundamental rights were excluded from the reach of constitutional
amendment, whereas in the latter, a more nebulous restriction in the nature
of unspecific "basic structure" was imposed on Parliament's power of
constitutional amendment. Kesavananda gave to the Court even wider
powers than it had claimed in Golak Nath, In terms of Parliament-Court
relationship, one cannot defend Kesavananda if one did not defend Golak
Nath, Both have to be criticised from the same stand-point," and yet one
finds that Kesavananda has been accepted by juristic opinion which had
rejected Golak Nath. The most notable example is Secrvai who in the first
edition of his monumental work "Constitutional Law of India" had severely
criticised Golak Nath and had observed:
For reasons already given, it is submitted that the majority judge-
ment is clearly wrong, is productive of the greatest public mischief
and should be overruled at the earliest opportunity."

Seervai does not react in the same way to Kesavananda. Actually his
writings immediately after Kesavananda were consistent with his previous
stand." He himself had argued in Kesavananda that Parliament's power to
amend the Constitution extended to every provision of the Constitution and
short of total abrogation or repeal, was unlimited." In the second edition
of "Constitutional Law" he observed that the decision of the Supreme
Court in Indira Gandhi v. Raj Narain'" (hereinafter referred to as the
Election Case) had thrown new light on Kesavananda. He says that "a
critical discussion of Kesavananda's case, taken by itself, would be inaccurate

5. The judges who held that Golak Nath was wrong were Justice Hcgde (who
wrote the judgment on behalf of Justice Mukherjea and himself); Justices Reddi, Khanna,
Ray (as he then was) Mathew, Beg, (as he then was), Justices Dwivedi I'alekar and
Chandrachud (as he then was) See Sathe," Judicial Review in India: Limits and
Policy," 35 Ohio State Law Journal 870 at 885 (1974).
6. Lately, however, it has been felt that amendability does not mean absolute and
unlimited power of amendment. See Rajecv Dhavan, Tire Supreme Court and Parlla-
mel/tory Sovereignty, supra note 4 at 99.
7. Seervai, supra note 4 at 1117. The same passage has been quoted in the second
edition, see Vol. II at 1311(1976).
8. See Seervai, "The Fundamental Rights Case at the Cross Roads," 75 Bon.bay Law
Reporter (Jollr.) 47-88 The author had observed that, "any decision that the fundamental
features of the Constitution could not be amended, suffers from the weakness of deciding
hypothetical questions." Id. at 62.
9. This view has been put forward by Secrvai in the above article also. See supra
note 8. For criticism of the view that the power of amendment included every change
short of total repeal or abrogation of the entire Constitution, See P.K. Tripathi, "Kesava-
nunda Bharati v, State of Kerala, who wins?" (1974) I S.c.c. Jour. 1-6.
10, A I,R. 1975 S.C. 2299.
 Limitations on Constitutional Amendment 181

and misleading without a discussion of the deeper analysis of the amending

power in the Election Case."!' He further warns that "no one can now
write on the amending power, without taking into account the effect of the
Election Case. "12 He observes that when in the past iGolak Nath),
Parliament's unlimited power of constitutional amendment was questioned,
it was done on the fear that such power might be abused. Even in
Kesavananda, this was the basis of the attack. But in the Election Case, the
abuse of power was no longer a hypothetical possibility. It was no longer
possible to speak of the air of unreality, "for Article 329(4) supplied the
reaIity."13 Seervai, therefore, rightly focussed our attention on the main
problem. Golak Nath tended to make one part of the Constitution absolu-
tely unamendable. In countering the argument of the majority, it had to
be contended that Parliament had the power to amend each and every
provision of the Constitution. It is true that a constitution should not be
unamendable, but the opposite of unamendability is not total and absolute
amendability. Seervai has given many examples of various constitutional
limitations on the power of constitutional amendment." This has been
done to show that a constitution does not become static and lifeless if some
of its provisions are entrenched. The Kesavananda decision entrenches the'
basic structure of the Constitution. But the main objection against the
Kesavananda is that the text of the Constitution, nowhere mentions any such
limitation. In the absence of a specific limitation in the Constitution, can
the Court find it? And if the Court could find it in Kesavananda what was
wrong if it found a similar limitation in Go/ak Nathl It will be pointed out
in this paper that it is wrong to say that the Constitution does not mention '
any limitation regarding basic structure in the Constitution. The consti-
tutional interpretation adopted in Kesavananda does not suffer from the
infirmities which were inherent in Chief Justice Subba Rao's interpretation
regarding articles 13 (2) and 368 in Golak Nath, Further, and more--
importantly, it is submitted that the Kesavananda decision acquired legitimacy
because of the subsequent developments.

Inspite of various cogent and sound arguments put forward by Seervai

in support of the basic structure doctrine, it is submitted that he and many
of us came to favour that doctrine mainly because of the experience,
during the Emergency. At least this writer is not shy of saying so, because
he firmly believes that "the life of the law has not been logic, it has been
experience.I"! The way the Constitution was changed during this period
11. Secrvai, vot. II, Constitutional Law 1511 (:!nd ed, 1976).
n. Id. at 15:!2.
13. Id. at 1535.
14. Id. at 1536.
IS. See Holmes. Tire Commoll Law I cited from Cardozo, Tire Nature of tire Judicial
Process 33 (Yale University Press New Haven. 19:!1).
 182 Indian Constltution : Trends and ISsues

showed us the dangers of vesting unlimited power of constitutional amend-

ment in Parliament. If Parliament had not enacted the measures such as
the Thirty-ninth and Forty-second amendments, one wonders whether the
Kesavananda decision would have received such support. We pointed out
earlier that Kesavananda premise is almost identical with that of Golak Nath,
Both decisions sought to restrain Parliament from amending the Consti-
tution, whereas Go/ak Niltll entrenched only the fundamental rights,
Kesavananda entrenched the "basic structure." In Go/ak Nath Chief Justice
Subba Rao had promised that inspite of their unamendability, the
fundamental rights would expand or contract according to the needs of
society and that this would be achieved through judicial interpretation."
Chief Justice Subba Rao did not say that fundamental rights could not be
amended. He only said that they could not be "taken away" or "abridged".
Parliament's amendment would be subject to the court's scrutiny, and
would stand cancelled only if in the opinion of the court it took away or
abridged the fundamental rights. Go/ak Nath came under attack mainly
because (i) it was interpreted as an attempt to save the right to property
from further contraction through constitutional amendment; and (ii)
nobody seriously entertained the argument of fear that if Parliament posse-
ssed such power, it would abuse it. This writer had argued that Nath Pai's
Bill, which sought to undo GALIk Nath be stayed until all the implications
of that decision became obvious." Is was hoped that if the court really
.fulfilled its promise, perhaps unamendability of fundamental rights canvassed
'by Golak Natl: might not come in the way of distributive justice. But the
later experience belied this hope and the decisions in R.C. Cooper v. Union
ofIn.Jia18 (the RInk Nation.tlisation Case) and Madhavrao Scindla v. Union
of IndialO (the Privy Purse Case) manifested that Go/ak Nath could really be
dangerous. One mayor may not agree with those measures which were
involved in the above two cases but democracy demands that Parliament
must have the freedom to make a choice between alternatives which are
available. The range of such alternatives should be widest and any judicial
decision which tends to restrict it ultimately does harm not only to the
political but also to the judicial process.

It is against such judicial adventurism that former Prime Minister,

Indira Gandhi sought mandate of the people in the general election held in

16. Sec A.I.R. 1976 S.C. 1643 at 1670. See the comments of this writer in Fundamental
Rights and Amendment of the Indian Constitution, supra note 2 at 56.
J7. S.P. Sathe, "Amendability of Fundamental Rights, Golak Nath and the Proposed
Constitutional Amendment," Supreme Court Journal 33-42 (969). The late Nath
Pai was II Socialist Party Member of Parliament. He had introduced a BiU to amend the
Constitution with a view to wiping out the Golak Natt: decision.
18. A.I.R. 1970 S.C. 564.
19. A.I.R. 1971 s.c. 530.
 Limitations on Constitutional Amendment 183

1971 to make "basic changes in the Constitulion"." The excessive judicial

interference had made her case strong. She could convince the people
that the Supreme Court and the decisions like Golak Nath were holding up
the country's progress. It was no wonder that she won a landslide victory.
The Twenty-fourth Constitution Amendment, which was enacted immedi-
ately after the election by the fifth Lok Sabha, sought to restore to
Parliament the unlimited power of constitutional amendment." The
validity of the Twenty-fourth Amendment was examined by the Supreme
Court in Kesavananda and although it upheld the amendment, it held that
the basic structure of the Constitution could not be destroyed. rn 1973,
the decision appeared to be a sophisticated version of Golak Nath, From
policy standpoint, it was as questionable as Golak Nath. It meant that
the court would sit in judgment over the wisdom of Parliament and decide
whether a constitutional amendment was valid.
Kesavananda did not enjoy legitimacy in 1973. Firstly, because it was
seen as an extension of Golak Nath. The very reasons which bad impelled
juristic opinion to oppose Go/ak Nath also implelled it to oppose Kesava-
nanda. u It was rightly felt that Parliament must have the' last word
regarding the content of the Constitution." It was the Election Case'" that
earned legitimacy for Kesavananda. This case dealt with Indira Gandhi's
appeal against the decision of the Allahabad High Court in which her
election to Parliament had been set aside on the ground that she had used
corrupt means. While her appeal was pending, Parlisment passed the
20. Sec S.K. Tarnberi, The Wonder Election 1971: Indira versus the Right 94 (1971).
21. S.P. Sathe, "Supreme Court, Parliament and Constitution," supra note 2.
22. See Seervai, supra note 8 and Tripathi, supra note 9. Also see Rajeev Dhavan,
supra note 4 at 411-4:!1. For contrary view. see Upendra Baxi, "The Constitutional
Quicksands of Kcsavananda Bharati and the Twenty-Firth Amendment,' (1974) 1 S.C.C.
(Jour.) 45. Baxi holds the view lhat the Supreme Court "is also endowed with constituent
power like the Parliament." Id. at 4!(. II is submitted that the court docs not share
Ihe constituent power. The constituent power was possessed only by the Constituent
Assembly. It gave amending power to Parliament. The amending power which this
article gives is possessed only by Parliament, as according to Kesavananda, such power is
subject only' 10 one limitation, i.e., it cannot destory the basic structure of the Constitution.
23. This vicw W.1S put forward by Justice Chandrachud (as he then was) again in the
Election Case. The learned judge said, "The reason why I see no substance in Shri
Shanti Bh ushan's contention is that what the Constitution ought 10 contain is not for the
Courts to decide. The subject matter of constitutional amendments is a question of high
policy and courts are concerned with the interpretation of laws, not with the wisdom of
the policy underlying them," A.l.R. 1975 S,C. 2:!99 at 2464. It is respectfully submitted
that while the first part of the above observation is unexceptionable, the second cannot be
accepted because determination of basic structure is doubtless a question of high policy
which the courl has now undrtaken. Did Justice Chandrachud (as he then was) not
question the wisdom of the Parliament when he held clause (4) of article 329-A (as
amended by the 39th Amendment) unconstitutional?
24, Supra note 10.
184 Indian Constitution: Trends and Issues

Thirty-ninth Amendment, the purpose of which was to withdraw the

election disputes involving the Prime Minister, the President, the Vice-
president and the Speaker from the purview of the courts and to provide
separate machinery for their adjudication. The Attorney-General argued
that the court could not entertain the appeal in view of the Thirty-ninth
Amendment. The Thirty-ninth Amendment had declared that in respect
of all pending disputes the election of the Prime Minister shall continue to
be valid and any decision of any court to the contrary shall be void. 2 fj The
Attorney-General, therefore, argued that since the Allahabad judgment had
been quashed, there was nothing to appeal against and, therefore, the
Supreme Court could not proceed with the hearing of the appeal. Sbanti
Bhushan, counsel for Raj Narain, argued that the Thirty-ninth Amendment
was void, as it destroyed the basic structure.

The Attorney-General had the following options: (i) he could have

argued that the court should reconsider Kesavananda, (ii) he could have
argued that ill fact the ratio of Kesavananda was not that the basic structure
could not be altered. He could have argued that there was no ratio
regarding Parliaments power of constitutional amendment in that case;
or (iii) he could have accepted Kesavananda as binding lind argued that
the impugned amendment did not hit at the basic structure. The Attorney-
General adopted the third option. This was the first opportunity since
Kesavananda to raJse objection against that decision. Why did the Attorney-
General not raise it? Why did he accept the decision as binding? We
surmise that had the issue been of an impersonal nature like right to
property, the Attorney-General would have seized this opportunity to get
Kesavananda overruled but the impugned amendment being morally inde-
fensible, the Attorney-General found it strategically useful not to re-open
the question of amendabllitytv and confined his argument to the validity
of the Thirty-ninth Amendment. Without overruling Kesavananda also the
court could uphold the amendment. The Attorney-General decided to
take a chance but it is respectfully submitted that this amounted to acquie-
scence in the validity of Kesavattanda.

The Supreme Court decision in the Election Case achieved two things;
(i) it gave legitimacy to Mrs. Gandhi's continuance as Prime Minister; and
(ii) it gave legitimacy to the Kesavananda decision. True, since the decillions

25. Clause (4) of article 3:!9-A, The Constitution of India.

25u. Before the judgment in the Electioncuse was delivered, the Union of India applied to
the court requesting it to reconsider the Kesavananda decision. A bench of thirteen judges
was constituted for this purpose but it wound up its proceedings in two days. This rein-
forces the above surmise. The Bench started its hearing on 10-11-75 and it was dissolved
on 12-11-75. See Seervai, Vol. 11 at 1532.
 Limitations on Constitutional Amendment 185
of the four judges (Chief Justice Ray, Justices Khanna, Mathew and
Chandrachud.) were based on the retroactive amendment of the Election
law, it may be argued that the decision did not make Mrs. Gandhi's conti-
nuance legitimate. This is debatable, because if we accept the assumption
that the Allahabad judgment deprived her of legitimacy, then we have to
agree that the Supreme Court decision restored her legitimacy. Firstly,
because ordinary people do not understand the intricacies of the law. They
only know that w)tereas the Allahabad High Court held against her, the
Supreme Court decided in her favour. Further, it may be argued that as
one judge of the Allahabad High Court held her election void, one judge of
the Supreme Court, Justice Beg, (as he then was) upheld her election even
independently of the retroactive amendments.

A judicial decision needs legitimacy. Precedent, rules of interpretation

and logic give it formal rationality, but the substantive rationality is provi-
ded only by sound social policy." Indian legal scholarship has almost
neglected this aspect. There is a heavy emphasis on logic to justify or
criticise a decision. We get evidence of this in Tripathi's article on
Kesavananda, He observes that had Chief Justice Subba Rao got the
benefit of the researches done after Golak Nath, his decision might have
been different. 27 If that were so, why did seven judges in Kesavananda hold
that Parliament's power to amend the Constitution did not extend to the
destruction of the basic structure? We cannot pay less attention to the
social background and social philosophy of the Judges. A judge may be
unknowingly influenced by contemporary social events and thinking.·
Otherwise how do we account for the fact that two out of three judges, who
struck down clause (4) of article 329·A inserted by the Thirty-ninth Amend-
ment, had held earlier that Parliament's power to amend the Constitution
was unlimited?" Was it mere compliance with the precedent? It does not
seem to be so, because it would have been possible to uphold the impugned

26. See Max Rheinstain (Ed.) Max Weber on Ll/W in Economy and Society (translated
by EdwardShils and Max Rheinstainj at XLIII.
27. See Tripathi, supra note 9 at 5. He says. "the benefit of subsequent researches
available when the present case came up in t973 was not available to the learned judges
who decided Golak Nath in 1967." Tripathi further says. "It is highly probable. indeed.
that the outcome of the Golak Nuth case would have been different if this articulation of
the distinction between Constitution and ordinary law could have then been presented to
the Court." ld. at 6.
28. In Indira Gam/hi v. Raj Nuraln, supra note 10, the Bench consisted of live judges.
namely. Chief Justice Ray. Justices Khanna. Mathew, Beg (as he then was) and Chandra-
chud (as he then W.l5) Barring Justice Khanna. all others had held in Kesavananda,
that Parliament's power of constitutional amendment was unlimited. Out of these.
Justices Mathew and Chandrachud (as he then was) held that clause (4) of the Thirty-ninth
Amendment WJS invalid (with the inclusion of Justice Khanna this became the majority
decision). Chief Justice Ray and Justice Beg (as he then was) ignored the above amendment.
 186 Indian Constitution : Trends and Issues

amendment without questioning the validity of the precedent. After all,

the judges were not bound by any definition of the basic structure. Could
they not have held that the impugned amendment did not go against the
basic structure? Chief Justice Ray had observed that "the theory of basic
structure or basic features is an exercise in imponderables.v'" Justice
Mathew frankly confessed that he had not shared "the view of the rnajori-
ty,"ao (Kesavananda) and yet he held that resolution of an election dispute
by the amending body was not law. Justice Chandrachud (as he then was)
observed that Parliament should not, instead of legislating, decide disputes
between the parties and that too without following the judicial procedure."
The invalidation of the impugned amendment in the Election case was
guided more by the moral sense of the judges than by logic.

The decision of the Supreme Court in Indira Gandhi v. Raj Narain was
indeed very statesmanly. Because while upholding Mrs. Gandhi's election
and thereby avoiding confrontation and also the undesirable political
consequences, the court reasserted judicle review of the constitutional
amendments. The decision in many respects is comparable to the decision
of the Supreme Court of the United States in Marbury v. Madisont" where
the court in a similar way asserted judicial review while choosing not to
interfere with the government's action. 32a

This writer has submitted that while changes in the system have to be
within the four corners of the system, change of system cannot be subject
.to any legal limitation." Change of the system is ail extra-legal phenomenon.
An amendment of the Constitution is a change within the system because
even article 368 contemplates that "the Constitution shall stand amended."
The power of Parliament to amend the Constitution extends to every provi-
sion but not to such amendment as will alter the basic structure. While the
laws are obeyed, the Constitution is accepted. Its sanction lies in the
acceptance of the people. The Indian Constitution speaks in the name of
the people of India. 3 ' Whatever might have been the legal source of the
Constitution, it became sui generis by virtue of the fact that the Constituent

29. Supra note 10 at 2332.

30. ld. at 2372.
31. Jd.at2471.
32. I Cranch 137( 1803).
320 . Secrvai has said that, "the Supreme Court reached its finest hour." in this case. See
Scervai, The Emergency, Future Safe-guards and the Habeas Corpus Case 4 (Tripathi,
Hurnbay, 1978).
33. See S.P. Sathe," Forty-Fourth Constitutional Amendment," Economic and Political
Weekly, Vol. XI, No. 43, 23-10-1976. Also reprinted by Citizens for Democracy in
Democracyand Constitution (44th Amendment) Bill (1976).
34. See Preamble.
 Limitationson Constitutional Amendment 187

Assembly declared itself sovereign and undissolvable except by its own act,a;;
and repealed the Indian Independence Act, 1947, which was supposed .to
be its legal source." The fact that the British Parliament accepted such
repeal proves that the Constituent Assembly succeeded in asserting its
sovereignty. Hart explains the difference between a constitution and the
laws in the following words:

We only need the word 'validity', and commonly use it, to answer
questions which arise within a system of rules where the status of a
rule as a member of the system depends on its sati fying certain
criteria provided by the rule of recognition. No such question can
arise as to the validity of the very rule of recognition which provides
the criteria; it can neither be valid nor invalid but is simply accepted
as appropriate for use in this wayY (Emphasis added).

The Constitution is the rule of recognition wit h reference to which the

validity of all laws including the constitutional amendments will have to be
examined. It is respectfully submitted that Tripathi was wrong in consi-
dering that constitutional law was sui generis. It is the Constitution which
is sui generis. Constitutional law consists of constitutional amendments,
judicial interpretation and the original Constitution. Constitutional amend-
ments and judicial interpretation owe their origin to the Constitution. They
do not generate their own validity, their validity is dependent on the
Constitution. An amendment of the Constitution is not a grundnorm,
because it has to be according to the method provided in the Constitution.
While we can say that the power of amendment must be broad and in this
respect we still dispute the Golak Nath decision, we cannot say that it
should be broad enough to include the abrogation of the Constitution itself.
Total abrogation of the Constitution, which is what we mean by destruction
of its basic structure, cannot be comprehended by the Constitution. If it
comes, it has to come from outside the Constitution. In the hierarchy of
norms, while the Constitution is at the apex, the laws amending the
Constitution are lower than the Constitution and higher than the ordinary
laws. Ordinary laws will have to be valid even according to the amend-
ment, but the amendment will have to be valid according to the Constitu-
tion. The Constitut.ion is sui generis only so long as it is accepted by the
people. So long as it is accepted, it must control all legislation including
amending legislation. What the people have accepted is the Constitution

35. Constituent Assembly. Rules of Procedure and Standing orders, rule 7. chapter
HI provided that, "The Assembly shall not be dissolved except by a resolution assented to
by at least two-thirds of the whole number of members of the Assembly." Sec Graville
Austin, The Indian Constitutlon-r-Corner stone of a Nation 7 (Oxford. reprint, 197:!).
36. Article 395, The Constitution oflndia,
37. H.L.A. Hart, The Concept of Law 105-106 (Oxford, 1961).
188 Indian Constitution: Trends and Issues

of India and that Constitution is identified by its basic structure. 'It is,
therefore, the "basic structure" which has been accepted by the people.
Unlike in Go/ak Nath, in Kesavananda the Supreme Court did not take
recourse to strained interpretation of the Constitution. Article 13 (2)
could not include a constitutional amendment, not because a constitutional
amendment was sui generis as Tripathi suggested, but because firstly, there
was overwhelming historical evidence to prove that the Constituent Assern-
hly did Dot intend to exclude fundamental rights from the power of
constitutional amendment conferred by article 36838 and secondly, the word
'law' in that article was used in the same sense in which that word has been
used in other articles such as article 372 which saved the existing laws and,
therefore, could not include a constitutional amendment. The difference
between a law and a constitutional amendment was well noted by the
Supreme Court in Sankari Prasad'" and Sajjan Singh'" cases. In Kesavananda,
the principle that the basic structure cannot be altered is supported by the
express words in article 368 that "the Constitution shall stand amended."
That principle is further supported by the fact that the power of constitutio-
nal amendment being a derivative of the Constitution cannot destroy its
parent source.
II
The main problem before us is how to provide for judicial review with-
out letting the court become a super legislature. The main criticism against
Kesavananda is that since what is basic structure has not been defined, we
would have to depend upon the vagaries ofjudicial process. Parliament
ought to know the limits within which it has to act. Therefore, it has been
suggested that Parliament itself should declare what the basic structure is. n
As things stand, such a declaration will only partially reduce the uncertainty;
because the court is not bound by such a declaration. Further, if it is left
to the sweet will of Parliament to define the basic structure, the limitation
becomes meaningless, because Parliament may revoke its declaration and
issue a fresh one specifying something else as basic structure. Moreover,
Parliamentary declaration of basic structure will make the basic structure
rigid and inelastic. It is difficult to say that something is basic structure
because "basic structure" is essentially a value judgment and not susceptible
of precise description. We might say that freedom of speech is part of the
basic structure. But that does not necessarily mean that it should be
unamendable. The Constitution (First Amendment) Act, 1951, permitted
3l!. Sec Sathe. -Suprerne Court. Parliament and Constitution," supra note 2.
39, A.I.R. 1951 S.C. 458.
40, A I.R. 1965 S.c. 845.
41. S V. Kog,ek:1r. Revision of lire Constitution, R.K. Kale Memorial Lecture 10
(1976, Gok hale Institute of Politics and Economics),
 Limitations on Constitutional Amendment 189

the State to impose restrictions on freedom of speech and expression in the

interests of public order and maintenance of friendly relations with foreign
states. Similarly, the Sixteenth Amendment permitted the State to impose
restrictions on freedom of speech and expression in the interests of the
sovereignty and integrity of India. We would not have had such flexibility
if freedom of speech had been mentioned as basic structure. At the same
time, freedom of speech cannot be omitted from any description of basic
structure. Whether any amendment affects the basic structure will have
to be judged by considering its effect on the total structure of the Constitu-
tion, and if it is found that it destroys some essential features of that
structure, then only it will have to be struck down. Justice Chandrachud
(as he then was) has given us the most satisfactory test for determining
what constitutes the basic structure. The learned judge said in the Election
case:
For determining whether a particular feature of the Constitut ion is a
part of its basic structure, one has perforce to examine in each
individual case the place of the particular feature in the scheme of
our Constitution, its object and purpose, and the consequences of
its denial on the intergrity of the Constitution as a fundamental
instrument of the country's governance."
The Forty-second Amendment added a new clause to article 368, the
purpose of which was to make constitutional amendments totally immune
from judicial review." The clause reads a') follows:
No amendment of this Constitution (including the provisions of
Part I II) made or purporting to have been made under this article
whether before or after the commencement of section 55 of the Con-
stitution (Forty-second Amendment) Act, 1976) shall be called in
question in any court on any ground.
In the Statement of Objects and Reasons it was said:
Even though article 368 of the Constitution is clear and categoric
with regard to the all inclusive nature of the amending power, it is
considered necessary to put the matter beyond doubt. 4•
This writer had observed in 1976 as follows:
[E]ven the above provision may not be able to exclude judicial
review. Because in Kesavananda Bharati, the majority had held
42. Supra note to at 2465.
43. Clause (4) of article 368. This was inserted by section 55 of th: Constitution
(Forty-second Amendment) Act, 1976.
44. The Gazette of Indiu, Part II, Section II, 1-9-1976, 1377 at 1937.
190 Indian Constitution: Trends and Issues

that the limitation of the basic structure was implied in the word
"amendment" itself. Since, according to the Court, an amendment
is one which does not destory the basic structure, the use of the word
"amendment" in the above provision would merely mean that if
something is an amendment its validity would be challenged only
on procedural ground. But the Court would first examine whether
it is an amendment."

Now that Parliament is engaged in repealing the undesirable elements

of the Forty-second Amendment, it is interesting that no mention is being
made of this clause. The Congress Party has observed that since the above
amendment has been challenged in the Supreme Court "it is better and
prudent to await the decision of the Supreme Court without taking any
definite stand at this stage.'?" The fact that neither the Congress nor the
Janata have taken any position on this question means that this question
will have to be resolved by the Supreme Court itself. The trend of judicial
decisions in all democratic countries is towards repelling the onslaughts
on their jurisdiction. In England, the courts have frustrated the ouster
clauses (clauses which exclude the jurisdiction of the courts) and provisions
conferring absolute discretion on the executive." Looking to the way
in which our courts have interpreted various provisions of the Forty-second
Amendment," we have no doubt that our courts are no exception to the
above rule. The attitudes of the major political parties towards the ques-
tion of amendability show that they are relying more on judicial process
45. See supra note 33 at 1704; see Democracy anti Constitution (42nd Amendment)
Billat 15.
46. Notes on the 42nd Amendment by V.A. Seyid Mohammed.
47. See Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. 147;
Secretary ofState for Education and Science v, Tameside Metropolitan Borough Council
(1976) 3 W.L.R. 641; Padfield v. Miflister of Agriculture, Fisheries and Food (1968) A.C.
997; see for an incisive comment on the Tameside decision, 93 L.Q.R. 4 (I 977}.
48. See S.D. Ghatge v. State, A.l.R. 1977 Born. 383 where Justice Tulzapurkar, Acting
Chief Justice (as he then was) held on behalf of a Bench consisting of Justices Chandurkar,
Shah and himself that even after deletion of the word "tribunal" from article 227, the
High Court will have power of superintendence over bodies which satisfy the qualities of a
court. i.e., they perform judicial function of rendering definitive judgments having finality
and authoritativeness to bind the parties litigating their rights before them in exercise of
sovereign judicial power transferred to them by the State, provided that they are subject
to the appellate or revisional jurisdiction of the court. Also see Chaganlal v, Navalkumar,
A.I.R. 1977 Gu], 180 on the same point. Also see for article 226 Govt, of India v,
National Tobacco Co., A.I.R. 1977A.P. 250. See comments of this writer in the article
"Forty-Fourth Constitutional Amendment Bill," supra note 33 at 23. The Supreme Court
refused to consider the validity of the Forty-second Amendment in the Ld.C, Bonus Case
(Madan Mohan Pathak v. Union of India, (1978)2 S.C.c. 50) on the basis of agreement
reached between the parties. See Statesman, 8-10-1977. The editors also feel that the
courts have not completely ignored Parliamentary intentions in interpreting "ouster"
clauses (Ed.),
 Limitations on Constitutional Amendment 191

than on political process. The court on the other hand, desires that major
constitutional changes should come from Parliament. This is evident from
Justice Chandrachud's (as he then was), appeal to Parliament to rescind
the provision which requires seven judges to sit on a bench for deciding
constitutional questions." The learned judge teUingly pointed out the
inconvenience that the above provision was going to cause to the public as
well as to the court. This appeal comes out of the realisation, which it is
submitted is right, and which springs from right judicial attitude towards
parliamentary process, that the court may at the most negative some
extreme measure as being inconsistent with the basic structure, but it cannot
and should not act as a censor of constitutional change and, therefore,
ultimately dedsions regarding the Constitution must lie with Parliament.
Although various provisions of the Forty-second Amendment have been
challenged before the Supreme Court, it is good that the cancellation of
that amendment is coming through parliamentary process. It will be indeed
a very good day when parliamentary process can take full responsibility for
initiating change as well as for protecting the basic structure of the Consti-
tution. The Supreme Court will have to tread its path very carefully. In
reviewing the constitutional amendments, the court must adopt stronger
presumption of constitutionality than it does in regarJ to ordinary laws. We
hope that occasions for invalidation of constitutional amendments would
not come in the future. This will require restraint on the part of both, the
Parliament and the Supreme Court.

49, See M./S, Misrilal Jain v. State of Orissa (1977) 3 S.c.c. 212 at 2:8. The case
did not involve the question of validity of the Forty-second Amendment,