Amendment and the Basic Structure
NCERT Class 11 - Indian Constitution at Work, Chapter 9
Amendment and the Basic Structure
Article 368 provides for amendment of the Constitution. The framers chose a middle path - neither so rigid that change becomes impossible, nor so flexible that the Constitution can be rewritten by an ordinary majority.
The three methods
| Method | Majority required | Examples of provisions |
|---|---|---|
| Simple majority | Majority of members present and voting, outside Article 368 | Creation of new states, changing state names and boundaries, citizenship, salaries |
| Special majority | Majority of the total membership of each House and two-thirds of members present and voting | Fundamental Rights, Directive Principles, most of the Constitution |
| Special majority plus state ratification | Special majority plus approval by legislatures of half the states | Election of the President, distribution of powers, representation of states, Article 368 itself |
- An amendment Bill can be introduced in either House, by a minister or a private member, and needs no prior permission of the President.
- It must be passed separately by each House - there is no provision for a joint sitting to resolve a deadlock on an amendment Bill.
- The President must give assent to an amendment Bill; after the 24th Amendment there is no discretion to withhold it.
- State legislatures cannot initiate an amendment, except in the case of abolishing or creating a legislative council in the state.
Important amendments
- 1st Amendment, 1951 - added the Ninth Schedule to protect land reform laws from judicial review.
- 7th Amendment, 1956 - reorganised states on linguistic lines following the States Reorganisation Act.
- 42nd Amendment, 1976 - called the mini-Constitution; added Socialist, Secular and Integrity to the Preamble, added Fundamental Duties, and curtailed judicial review.
- 44th Amendment, 1978 - reversed several changes of the 42nd, made the right to property a legal right under Article 300A, and replaced internal disturbance with armed rebellion as a ground for national emergency.
- 52nd Amendment, 1985 - the anti-defection law, adding the Tenth Schedule.
- 61st Amendment, 1989 - reduced the voting age from 21 to 18.
- 73rd and 74th Amendments, 1992 - constitutional status for panchayats and municipalities.
- 86th Amendment, 2002 - made elementary education a fundamental right under Article 21A.
- 101st Amendment, 2016 - introduced the Goods and Services Tax.
The basic structure doctrine
- In Shankari Prasad, 1951 and Sajjan Singh, 1965 the Supreme Court held Parliament could amend any part, including Fundamental Rights.
- In Golaknath, 1967 the Court reversed itself and held Fundamental Rights could not be amended.
- In Kesavananda Bharati v. State of Kerala, 1973, the Court settled the question - Parliament can amend any part of the Constitution, but cannot destroy or damage its basic structure.
- The Court has never given an exhaustive list. Elements recognised as basic include the supremacy of the Constitution, rule of law, separation of powers, judicial review, federalism, secularism, free and fair elections, and the sovereign democratic republican character of the polity.
- The doctrine was applied in Indira Nehru Gandhi v. Raj Narain, 1975 and in Minerva Mills, 1980, which struck down parts of the 42nd Amendment.
हिंदी संकेत: संशोधन विधेयक पर संयुक्त बैठक का प्रावधान नहीं है - दोनों सदनों को अलग-अलग विशेष बहुमत से पारित करना होता है। यह बिंदु बहुत पूछा जाता है।
Exam me kaise aata hai
Factual questions ask what a particular amendment did and which case laid down the basic structure doctrine. Match-the-following links amendment number with subject. Statement-based questions test whether a joint sitting is possible for an amendment Bill - it is not.
UPSC / State PSC ke liye
For descriptive answers, present the basic structure doctrine as the resolution of a genuine constitutional problem - how to allow a democratically elected Parliament to change the Constitution while preventing it from destroying the very framework that makes it democratic. Note the criticism that the doctrine has no textual basis and gives the judiciary the final word.
Yahan confuse hote hain
✗ The basic structure doctrine came from the Golaknath case | ✓ Golaknath barred amendment of Fundamental Rights; the doctrine came in Kesavananda Bharati 1973
✗ Every amendment needs ratification by the states | ✓ Only amendments affecting federal provisions need state ratification
✗ The President can refuse assent to an amendment Bill | ✓ The President must give assent to an amendment Bill
Ek nazar me
- Article 368 provides three methods - simple majority, special majority, and special majority with state ratification.
- An amendment Bill can start in either House; there is no joint sitting and the President must assent.
- 42nd Amendment 1976 is the mini-Constitution; 44th Amendment 1978 reversed much of it.
- 52nd added anti-defection, 61st lowered voting age to 18, 73rd and 74th created local government.
- Kesavananda Bharati 1973 laid down that Parliament cannot destroy the basic structure.
- Minerva Mills 1980 applied the doctrine to strike down parts of the 42nd Amendment.
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