Whether Fundamental Rights can be amended?

The Constitution of India, adopted in 1950, represents a complex tapestry of governance principles, individual liberties, and socio-economic aspirations. At its heart lies a fundamental tension, one that has fueled decades of constitutional debate and judicial interpretation: the relationship between the power of Parliament to amend the Constitution, enshrined primarily in Article 368, and the sanctity of Fundamental Rights (FRs), guaranteed in Part III and protected by Article 13. Article 13(2) unequivocally states that “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”.¹ This provision acts as a bulwark, seemingly shielding the core freedoms of citizens from legislative encroachment.

The central jurisprudential question that emerged almost immediately after the Constitution’s commencement was whether this shield extended to constitutional amendments themselves. Could Parliament, in exercising its power under Article 368 to “amend by way of addition, variation or repeal any provision of this Constitution” ², alter or even abrogate the Fundamental Rights guaranteed in Part III? Or did the term “law” in Article 13(2) encompass constitutional amendments, thereby rendering any amendment that infringed upon FRs void? This question probed the very nature of parliamentary sovereignty versus constitutional supremacy, the balance between societal progress and individual liberty, and the ultimate authority to interpret and shape the nation’s foundational document.

The answer to this profound question was not static. It evolved dynamically through a series of landmark judicial pronouncements, significant constitutional amendments enacted by Parliament in response, and the gradual articulation of novel constitutional doctrines. This report traces this evolutionary journey, examining the shifting interpretations of the relationship between Article 13 and Article 368, the evolving meaning attributed to the word “law” within Article 13(2), and the ultimate emergence and consolidation of the doctrine of the “basic structure” of the Constitution. The narrative will proceed chronologically, analyzing the key judgments from Shankari Prasad Singh Deo v. Union of India (1951) through Sajjan Singh v. State of Rajasthan (1965), I.C. Golaknath v. State of Punjab (1967), the parliamentary response via the Constitution (24th Amendment) Act, 1971, the seminal case of Kesavananda Bharati v. State of Kerala (1973), and the subsequent refinements in Minerva Mills Ltd. v. Union of India (1980) and Waman Rao v. Union of India (1981). Through this analysis, the report aims to illuminate the complex interplay between judicial review and parliamentary power that has shaped the understanding of constitutional amendability in India.

Table 1: Landmark Cases on Amendability of Fundamental Rights

Case & Year	Key Issue(s)	Majority Ruling Summary	Interpretation of “Law” (Art 13(2)) vis-à-vis Art 368 Amendment	Status of FR Amendability	Key Doctrine/Outcome	Relevant Snippets
Shankari Prasad v. Union of India (1951)	Validity of 1st Amendment; Amendability of FRs; Meaning of “law” in Art 13(2).	Upheld 1st Amendment; Parliament can amend FRs.	“Law” in Art 13(2) refers to ordinary legislative law, not constitutional amendments (constituent power).	Amendable	Distinction between Legislative and Constituent Power.	3
Sajjan Singh v. State of Rajasthan (1965)	Validity of 17th Amendment; Reconsideration of Shankari Prasad.	Upheld 17th Amendment; Reaffirmed Shankari Prasad (3:2 majority).	Majority: Same as Shankari Prasad. Dissent (Hidayatullah & Mudholkar JJ): Questioned if “law” excludes amendments; hinted at unamendable “basic features”.	Majority: Amendable. Dissent: Questioned.	Seeds of doubt; Nascent “Basic Features” idea in dissent.	5
I.C. Golaknath v. State of Punjab (1967)	Reconsideration of Shankari Prasad & Sajjan Singh; Amendability of FRs.	Overruled Shankari Prasad & Sajjan Singh (6:5 majority); FRs cannot be amended by Parliament.	“Law” in Art 13(2) includes constitutional amendments. Art 368 only procedural; power in residuary entries.	Unamendable	FRs given “transcendental” position; Prospective Overruling applied.	4
Kesavananda Bharati v. State of Kerala (1973)	Validity of 24th, 25th, 29th Amendments; Scope of Parliament’s amending power.	Overruled Golaknath; Upheld 24th Amendment (7:6 majority); Parliament can amend FRs, but cannot alter the “basic structure” of the Constitution.	Amendment under Art 368 is not “law” under Art 13(2) (due to 24th Am.), but subject to Basic Structure test.	Amendable, but Basic Structure cannot be damaged/destroyed.	Basic Structure Doctrine established.	2
Minerva Mills v. Union of India (1980)	Validity of 42nd Amendment (Sec 4 & 55 amending Art 31C & Art 368).	Struck down Sec 4 & 55 of 42nd Amendment.	Reaffirmed Basic Structure test; Limited amending power & Judicial Review are basic features; Harmony between FRs & DPSPs is a basic feature.	Amendable, subject to Basic Structure (including limited power, judicial review, harmony).	Basic Structure Doctrine reinforced; Judicial Review as basic feature.	19
Waman Rao v. Union of India (1981)	Validity of Arts 31A, 31B, unamended 31C; Application of Basic Structure to Ninth Schedule laws.	Upheld Arts 31A, 31B. Basic Structure Doctrine applies prospectively to laws added to Ninth Schedule after 24 April 1973.	Basic Structure test applicable to post-Kesavananda Ninth Schedule additions.	Amendable, subject to Basic Structure; Pre-Kesavananda Ninth Schedule laws protected.	Prospective application of Basic Structure to Ninth Schedule.	21

II. The Foundational View: Parliament’s Unfettered Power (Shankari Prasad Singh Deo v. Union of India, 1951)

The ink on the newly adopted Constitution had barely dried when the first significant challenge to Parliament’s power to amend Fundamental Rights arose. The impetus was the Constitution (First Amendment) Act, 1951, enacted primarily to facilitate agrarian reforms, a key socio-economic objective of the nascent republic. This amendment introduced Articles 31A and 31B, the latter creating the Ninth Schedule, designed to shield specified land reform legislations from judicial scrutiny based on potential conflicts with Fundamental Rights, particularly the right to property (then under Article 19(1)(f) and Article 31).²² The petitioners, led by Shankari Prasad Singh Deo, challenged the amendment’s validity, arguing that it abridged rights guaranteed under Part III and was therefore void under Article 13(2).³

The core legal issue presented to the Supreme Court, presided over by Chief Justice Hiralal Kania and with the judgment delivered by Justice Patanjali Sastri, was the interpretation of the word “law” in Article 13(2). Did this term, which prohibited the State from making any “law” infringing Fundamental Rights, encompass constitutional amendments enacted through the procedure laid down in Article 368? The Court, in a unanimous decision, answered this question in the negative, thereby upholding the First Amendment and establishing the initial position on the amendability of Fundamental Rights.³

The Court’s reasoning hinged on a crucial distinction drawn between ordinary legislative power and the constituent power exercised during constitutional amendment.³ Justice Sastri opined that “law” in Article 13(2) must be interpreted in the context of that Article, which refers to rules and regulations made in the exercise of ordinary legislative power. Constitutional amendments, however, were framed as an exercise of constituent power, a power distinct and superior to ordinary law-making. The Court reasoned that while “law” ordinarily includes constitutional law, the specific context of Article 13 necessitated a narrower interpretation. Consequently, an amendment made under Article 368, being an exercise of constituent power, was not subject to the limitations imposed by Article 13(2).³

Furthermore, the Court interpreted Article 368 itself as conferring not merely the procedure for amendment but also the substantive power to amend the Constitution.³ It dismissed the argument that the amending body, consisting of the two Houses of Parliament and the President, was distinct from Parliament itself. The Court viewed the process under Article 368 as Parliament functioning in its constituent capacity.

This foundational judgment established a clear precedent: Parliament possessed the plenary power to amend any provision of the Constitution, including those enshrined in Part III, without being constrained by Article 13(2). This initial deference to parliamentary authority in the realm of constitutional amendment can be understood in the context of the time. The judiciary, functioning shortly after the Constitution’s framing by the Constituent Assembly, may have been inclined to trust the wisdom of the elected representatives to carry forward the Constitution’s socio-economic goals, such as land reform, which necessitated adjustments to property rights. By distinguishing constituent power from legislative power, the Court effectively placed constitutional amendments on a higher pedestal, seemingly immune from the fundamental rights check, thereby prioritizing Parliament’s role in shaping the nation’s foundational law in those early years. However, this very distinction, while providing clarity initially, contained the seeds of future conflict. The line between amending the Constitution (constituent power) and fundamentally altering its identity or core rights remained undefined, setting the stage for later jurisprudential battles over the inherent limits, if any, of this constituent power.³

III. Echoes of Dissent: Cracks in the Consensus (Sajjan Singh v. State of Rajasthan, 1965)

Fourteen years after Shankari Prasad, the question of Parliament’s power to amend Fundamental Rights resurfaced before the Supreme Court in Sajjan Singh v. State of Rajasthan. The challenge this time was directed against the Constitution (Seventeenth Amendment) Act, 1964. This amendment further modified provisions related to property rights (Article 31A) and significantly expanded the Ninth Schedule by adding 44 more state enactments, shielding them from judicial review on the grounds of violating Fundamental Rights.⁵ The petitioners argued that the amendment infringed upon Part III rights and urged the Court to reconsider the Shankari Prasad ruling.

A Constitution Bench, by a narrow majority of 3:2, reaffirmed the view taken in Shankari Prasad.⁶ Chief Justice Gajendragadkar, speaking for the majority (including himself, Wanchoo, and Raghubar Dayal JJ.), reiterated the distinction between ordinary law under Article 13(2) and constitutional amendments under Article 368.⁵ The majority held that the power conferred by Article 368 included the power to take away Fundamental Rights, arguing that the Constitution-makers could not have intended these rights to be “eternal, inviolate and beyond the reach of Art. 368”.⁵ They emphasized the need for constitutional flexibility to address evolving socio-economic challenges, suggesting that even if the power to amend FRs wasn’t explicitly in Article 368, Parliament could amend Article 368 itself to acquire such power.⁵ The effect of the amendment on the High Courts’ powers under Article 226 was deemed incidental and insignificant, thus not attracting the proviso to Article 368 requiring state ratification.⁵

However, the significance of Sajjan Singh lies not in its majority opinion, which largely echoed the past, but in the powerful dissenting judgments delivered by Justices Hidayatullah and Mudholkar. These dissents marked the first time that judges of the Supreme Court formally expressed reservations about the correctness of the Shankari Prasad decision, sowing seeds of doubt that would germinate fully two years later.⁵

Justice Hidayatullah questioned the very premise that Article 368 contained the power to amend Fundamental Rights. He pondered whether Article 368 merely outlined the procedure, while the power itself might reside elsewhere or be implicitly limited. He expressed unease about treating Fundamental Rights, which he considered core to the constitutional scheme, as amendable in the same manner as other provisions, querying whether it was competent for Parliament to make any amendment to Part III at all.⁵

Justice Mudholkar’s dissent was even more explicit and, in retrospect, prophetic. He directly questioned the majority’s interpretation, asking whether the word “law” in Article 13(2) truly excluded constitutional amendments.⁵ More significantly, he introduced, albeit in nascent form, the idea that there might be inherent limitations on the amending power derived from the Constitution’s essential nature. He speculated whether Parliament’s power under Article 368 extended to altering the “basic features” of the Constitution. Could Parliament, he wondered, take away the core of Fundamental Rights or fundamentally change the governance structure, such as removing the jurisdiction of High Courts under Article 226 or the Supreme Court under Article 136?.⁵ This invocation of “basic features” foreshadowed the doctrine that would later revolutionize Indian constitutional law.

The dissents in Sajjan Singh were pivotal. They fractured the judicial consensus established in Shankari Prasad and signaled a growing unease within the judiciary about the potential implications of unchecked parliamentary power to amend the Constitution’s most cherished provisions. Justice Mudholkar’s reference to “basic features” introduced a novel concept – the possibility of implicit, substantive limitations on the amending power, rooted not in the text of Article 13(2) but in the fundamental identity and structure of the Constitution itself. This suggested that the power to “amend” might not be synonymous with the power to destroy the Constitution’s core framework, laying the intellectual groundwork for the seismic shift that was to follow.⁵

IV. The Pendulum Swings: Fundamental Rights as Unamendable (I.C. Golaknath v. State of Punjab, 1967)

The doubts expressed in the Sajjan Singh dissents culminated in a dramatic reversal of judicial precedent just two years later in the landmark case of I.C. Golaknath v. State of Punjab. The petitioners in Golaknath challenged the validity of the First and Seventeenth Amendments (and by implication, the Fourth Amendment) concerning property rights, explicitly asking the Supreme Court, now sitting in a larger bench of 11 judges, to reconsider and overrule its decisions in Shankari Prasad and Sajjan Singh.⁶

By a slender 6:5 majority, the Court executed a significant jurisprudential shift, fundamentally altering the understanding of Parliament’s amending power vis-à-vis Fundamental Rights.⁴ Chief Justice Subba Rao, delivering the leading majority judgment (for himself, Shah, Sikri, Shelat, and Vaidialingam JJ., with Justice Hidayatullah concurring in a separate opinion but agreeing on the core conclusions), declared that Fundamental Rights occupied a “transcendental and immutable” position within the constitutional scheme and were beyond the reach of Parliament’s amending power.⁶

The key holdings of the Golaknath majority were revolutionary:

1. Shankari Prasad and Sajjan Singh Overruled: The Court explicitly held that its previous decisions in Shankari Prasad and the majority view in Sajjan Singh were erroneous and were therefore overruled.⁴
2. “Law” in Article 13(2) Includes Amendments: Departing sharply from the earlier interpretation, the majority ruled that a constitutional amendment passed under Article 368 is indeed “law” within the meaning of Article 13(2).⁴
3. Fundamental Rights Unamendable: As a direct consequence of the above finding, the Court held that Parliament simply did not possess the power to make any amendment under Article 368 that “takes away or abridges” the Fundamental Rights conferred by Part III.⁴ Any such amendment would be void ab initio.
4. Article 368 as Merely Procedural: To bolster its conclusion, the majority controversially interpreted Article 368 as containing only the procedure for amendment, not the substantive power itself. It located the power to amend the Constitution in Parliament’s residuary legislative powers under Article 248 read with Entry 97 of the Union List in the Seventh Schedule.⁶ This interpretation sought to firmly place constitutional amendments within the category of “law” subject to Article 13(2).

The dissenting judges (Wanchoo, Bachawat, Ramaswami, Bhargava, and Mitter JJ.) strongly disagreed, adhering to the Shankari Prasad reasoning that Article 368 contained both power and procedure, that amendments were exercises of constituent power distinct from ordinary law, and that Parliament could amend any part of the Constitution, including Fundamental Rights.⁶

Recognizing the potential chaos that would ensue if all past amendments affecting Fundamental Rights (particularly the crucial land reform amendments) were declared void retrospectively, the majority invoked the doctrine of “prospective overruling”.⁶ This doctrine, applied for the first time in India in this context, meant that the Golaknath ruling – that Parliament could not amend Fundamental Rights – would apply only to amendments enacted after the date of the judgment (February 27, 1967). The First, Fourth, and Seventeenth Amendments, though technically invalid under the new interpretation, were allowed to stand based on the principle of prospective overruling, thus preserving the actions taken under them.⁶

The Golaknath judgment represented the zenith of judicial assertion in the protection of Fundamental Rights against parliamentary amendment. It dramatically shifted the balance of power, prioritizing the perceived inviolability of Part III rights over Parliament’s constituent power. The decision reflected a deep concern that unchecked amending power could lead to the erosion of basic liberties. However, the specific reasoning employed by the majority, particularly the attempt to locate the amending power in residuary legislative entries ⁶, proved problematic. This interpretation blurred the constituent/legislative power distinction that had been central to earlier jurisprudence and was widely seen as jurisprudentially less sound. It weakened the judgment’s foundation and provided a clear target for Parliament, which viewed the decision as an unacceptable encroachment on its sovereign power to shape the Constitution. The pragmatic use of prospective overruling ⁶, while avoiding immediate disruption, was itself a significant judicial innovation, highlighting the Court’s willingness to devise novel legal tools to manage the complex consequences of its constitutional interpretations.

V. Parliament Strikes Back: The Constitution (24th Amendment) Act, 1971

The Golaknath judgment provoked a swift and decisive reaction from Parliament. Viewing the decision as a direct challenge to its sovereignty and its ability to implement socio-economic reforms that might necessitate modifications to Fundamental Rights, Parliament moved to legislatively overturn the ruling and restore the position that existed under Shankari Prasad and Sajjan Singh.⁴ The result was the Constitution (24th Amendment) Act, 1971.

The explicit objective of the 24th Amendment was twofold: first, to unequivocally establish Parliament’s power to amend any part of the Constitution, including Part III (Fundamental Rights), and second, to make it clear beyond doubt that constitutional amendments passed under Article 368 would not be considered “law” for the purposes of Article 13(2).⁴

To achieve these objectives, the Amendment introduced significant textual changes to both Article 13 and Article 368:

• Changes to Article 13: A new clause, Clause (4), was inserted into Article 13. It read: “Nothing in this article shall apply to any amendment of this Constitution made under article 368.”.¹ This clause directly targeted the core finding of the Golaknath majority that amendments were “law” subject to Article 13(2).
• Changes to Article 368: Several crucial modifications were made to Article 368:

• The marginal heading of the Article was changed from “Procedure for amendment of the Constitution” to “Power of Parliament to amend the Constitution and procedure therefor”.² This was intended to counter the Golaknath interpretation that Article 368 dealt only with procedure and not substantive power.
• A new Clause (1) was inserted before the existing text (which became Clause (2)). This new Clause (1) stated: “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.”.² This clause explicitly affirmed that the power being exercised was “constituent power,” that it extended to any provision of the Constitution, and included amendment by way of “addition, variation or repeal.”
• A new Clause (3) was added after the procedural requirements (now in Clause (2)). This Clause (3) mirrored the addition to Article 13, stating: “Nothing in article 13 shall apply to any amendment made under this article.”.²

The 24th Amendment was thus a comprehensive legislative effort to nullify the Golaknath judgment and reassert parliamentary supremacy in the domain of constitutional amendment. It represented a direct constitutional dialogue between the judiciary and the legislature, where Parliament used its amending power to effectively “correct” what it perceived as an erroneous judicial interpretation.⁸ By explicitly stating that Article 13 did not apply to amendments and affirming the exercise of “constituent power” to amend “any provision,” Parliament sought to remove any ambiguity and close the door on the specific legal reasoning employed by the Golaknath majority.¹

However, in its very attempt to assert unlimited power, the 24th Amendment inadvertently set the stage for the next, and perhaps most significant, phase of this constitutional debate. By claiming the power to amend “any provision” without the constraint of Article 13, Parliament raised a new, more fundamental question: Was this constituent power truly absolute? Could Parliament use this power to alter or destroy the most fundamental aspects of the Constitution – its democratic character, its secular nature, the independence of its judiciary, or the very essence of individual freedoms? This question, born from the emphatic assertion of power in the 24th Amendment, would soon be confronted head-on by the Supreme Court.¹³

VI. Kesavananda Bharati v. State of Kerala and the Birth of the Basic Structure Doctrine (1973)

The constitutional validity of the 24th Amendment, along with the subsequent 25th Amendment (which modified property rights and Article 31C concerning the relationship between Fundamental Rights and Directive Principles) and the 29th Amendment (which placed certain Kerala land reform laws in the Ninth Schedule), came under challenge in the monumental case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala.⁸ The petitioner, the head of the Edneer Mutt, a religious institution in Kerala, challenged the Kerala Land Reforms Act, 1963, as amended, which sought to impose restrictions on the management of property owned by the Mutt.⁹ The challenge inevitably extended to the constitutional amendments that fortified the state’s land reform measures and purported to grant Parliament unlimited amending power.¹⁸

Given the profound constitutional questions involved, the case was heard by the largest bench ever assembled in the history of the Supreme Court of India – thirteen judges.⁸ After an unprecedented 68 days of hearing ¹³, the Court delivered its verdict on April 24, 1973. The outcome was complex, marked by eleven separate opinions and decided by a narrow 7:6 majority on the crucial question of the limits of amending power.⁹

The judgment yielded several key holdings that reshaped Indian constitutional law:

1. Golaknath Overruled: The Court, by majority, overruled its previous decision in Golaknath. It rejected the Golaknath findings that Fundamental Rights were unamendable and that constitutional amendments constituted “law” under Article 13(2).¹²
2. Validity of the 24th Amendment Upheld: Consequently, the Court upheld the constitutional validity of the Constitution (24th Amendment) Act, 1971.⁴ This meant that Parliament does possess the power under Article 368 (as amended by the 24th Amendment) to amend any provision of the Constitution, including those contained in Part III (Fundamental Rights). The specific textual changes introduced by the 24th Amendment, clarifying the nature of constituent power and excluding the application of Article 13, were deemed valid.
3. Emergence of the Basic Structure Doctrine: This was the most profound and enduring contribution of the Kesavananda judgment. While affirming Parliament’s broad power to amend, the 7-judge majority simultaneously held that this power was not unlimited. The Court propounded the doctrine of the “basic structure” or “fundamental features” of the Constitution. It ruled that Parliament’s power to “amend” under Article 368 did not extend to the power to “damage,” “emasculate,” “destroy,” “abrogate,” “change,” or “alter” the basic structure or framework of the Constitution.² The power to amend was interpreted as a power to make changes within the existing constitutional framework, not to dismantle the framework itself.

Justice H.R. Khanna played a pivotal role in forming the narrow majority. While he agreed with the minority judges that Parliament had the power to amend Fundamental Rights (thus disagreeing with Golaknath), he crucially sided with the majority on the existence of limitations. He reasoned that the word “amendment” in Article 368 inherently implied that the fundamental identity or basic structure of the Constitution must be preserved.¹⁰ He clarified that while Fundamental Rights could be amended or even abrogated, this was permissible only as long as the basic structure of the Constitution remained intact. If a Fundamental Right constituted a part of the basic structure, it could not be abrogated.¹⁴

The Court did not provide an exhaustive, closed list of what constitutes the “basic structure,” leaving it to be determined on a case-by-case basis in future litigation. However, various judges in the majority provided illustrative examples of these fundamental features ⁸, including:

• Supremacy of the Constitution ⁸
• Republican and Democratic form of Government ⁸
• Secular character of the Constitution ⁸
• Separation of powers between the legislature, the executive, and the judiciary ⁸
• Federal character of the Constitution ⁸
• The dignity and freedom of the individual, underpinning the Fundamental Rights ⁸
• The Rule of Law ⁸
• Judicial Review, ensuring the observance of constitutional limitations ⁸
• Parliamentary System of Government
• The principle of free and fair elections
• Harmony and balance between Fundamental Rights and Directive Principles (later emphasized)

The Kesavananda Bharati judgment represents a masterful act of judicial balancing. It sought to reconcile the apparent conflict between Parliament’s power to adapt the Constitution to changing needs (as asserted by the 24th Amendment) and the need to preserve the Constitution’s core identity and values (as championed in Golaknath). The Basic Structure Doctrine emerged as the compromise: Parliament could amend, but not destroy. This doctrine, however, was not without its complexities. Its inherent lack of precise definition inevitably vested considerable power in the judiciary, making it the ultimate arbiter of what constitutes the Constitution’s unamendable core.¹⁰ This has led to ongoing discussions about the appropriate scope of judicial review in the context of constitutional amendments. Furthermore, the razor-thin 7:6 majority ⁹ highlights the profound disagreement even within the highest court on this fundamental issue, underscoring the delicate foundation upon which this crucial doctrine was initially built, heavily reliant on Justice Khanna’s nuanced position.¹⁰ Despite these factors, the Basic Structure Doctrine has become a cornerstone of Indian constitutional law, representing a unique judicial contribution to the theory and practice of constitutionalism.

VII. Cementing the Doctrine: Judicial Review and Prospective Application

The Basic Structure Doctrine, articulated in Kesavananda Bharati, soon faced a direct challenge from Parliament, particularly during the period of Internal Emergency (1975-1977). Seeking to reassert parliamentary supremacy and effectively neutralize the limitations imposed by the judiciary, Parliament enacted the Constitution (42nd Amendment) Act, 1976. This extensive amendment introduced several changes, but two were specifically aimed at dismantling the Basic Structure Doctrine and the power of judicial review over amendments. Section 55 of the Act amended Article 368 by inserting two new clauses: Clause (4), which stated that no constitutional amendment (made before or after the 42nd Amendment) could be questioned in any court on any ground, and Clause (5), which explicitly declared that “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article”.²⁰ Additionally, Section 4 of the 42nd Amendment broadened the scope of Article 31C, attempting to give precedence to all Directive Principles of State Policy (Part IV) over the Fundamental Rights guaranteed under Articles 14 (equality before law), 19 (fundamental freedoms), and 31 (then, right to property), not just those under Articles 39(b) and (c) as originally envisaged.¹⁹

The constitutional validity of these provisions of the 42nd Amendment came under scrutiny in Minerva Mills Ltd. v. Union of India (1980). The Supreme Court, in a significant decision, struck down both Section 55 (which added clauses (4) and (5) to Article 368) and Section 4 (which amended Article 31C).²⁰

The Court’s reasoning was firmly rooted in the Basic Structure Doctrine established in Kesavananda:

• Clause (5) of Article 368 (Unlimited Power): The Court held that Clause (5) was unconstitutional because the concept of a limited amending power is itself a basic feature of the Indian Constitution. Parliament possesses only a limited constituent power conferred by the Constitution, and it cannot, in the exercise of that limited power, enlarge that very power into an absolute or unlimited one. To confer upon Parliament the power to destroy the Constitution’s identity under the guise of amendment was deemed a transgression of the fundamental limitations inherent in the amending power itself. The Court famously observed, “The power to destroy is not a power to amend”.²⁰
• Clause (4) of Article 368 (Exclusion of Judicial Review): The Court struck down Clause (4) on the ground that it sought to eliminate judicial review of constitutional amendments. Judicial review was explicitly identified as a basic feature of the Constitution. The Court reasoned that depriving the courts of the power to pronounce upon the validity of laws and constitutional amendments would render Fundamental Rights meaningless – “a mere adornment” or “as writ in water” – as rights without remedies are illusory. Excluding judicial review would effectively turn India’s controlled Constitution into an uncontrolled one, thereby destroying a fundamental pillar of the constitutional scheme.²⁰
• Amended Article 31C (Supremacy of All DPSPs): The Court invalidated the expansion of Article 31C because it destroyed the “harmony and balance” between Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV). This harmony and balance was recognized as an essential feature of the basic structure of the Constitution. While Directive Principles are fundamental in the governance of the country, giving them absolute supremacy over Fundamental Rights enshrined in Articles 14 and 19 was seen as subverting the constitutional structure.¹⁹ The Court effectively restored Article 31C to its pre-42nd Amendment state, protecting only laws giving effect to Articles 39(b) and (c), although the precise status and revival of the original provision generated further discussion.¹⁹

Minerva Mills thus decisively reaffirmed and strengthened the Basic Structure Doctrine. It established unequivocally that Parliament’s amending power is limited, that judicial review is an integral and unamendable part of this basic structure, and that the harmony between fundamental rights and directive principles must be maintained. It cemented the judiciary’s role as the ultimate guardian against amendments that might seek to undermine the Constitution’s core principles.²⁰

Shortly thereafter, in Waman Rao v. Union of India (1981), the Court addressed another critical issue: the applicability of the Basic Structure Doctrine to laws placed in the Ninth Schedule under Article 31B.²² Article 31B, introduced by the First Amendment, provided blanket immunity to laws listed in the Ninth Schedule from challenge on the ground that they violated any Fundamental Right.²² The question was whether this immunity persisted even if a law placed in the Ninth Schedule damaged or destroyed the basic structure of the Constitution.

The Court, while upholding the validity of Articles 31A and 31B in principle ²¹, delivered a crucial ruling regarding the temporal application of the Basic Structure test to the Ninth Schedule. It held that all constitutional amendments made after the date of the Kesavananda Bharati judgment (April 24, 1973) which added new laws to the Ninth Schedule would be open to challenge on the ground that they, or the laws they included, violated the basic structure of the Constitution.²² However, amendments and laws included in the Ninth Schedule before that date would continue to enjoy the full immunity conferred by Article 31B, even if they potentially violated Fundamental Rights.²²

This decision to apply the Basic Structure Doctrine prospectively to the Ninth Schedule was a pragmatic one. It respected the historical context and purpose of Article 31B, particularly in relation to agrarian reforms implemented over decades, thus avoiding the chaos of reopening settled matters.²¹ At the same time, it ensured that the Ninth Schedule could not be used as a loophole post-Kesavananda to shield laws that fundamentally altered the Constitution’s core framework. Waman Rao thus operationalized the Basic Structure Doctrine in the context of the Ninth Schedule, creating a clear dividing line and ensuring that future additions would be subject to the ultimate constitutional check established in Kesavananda Bharati.²²

VIII. The Evolved Meaning of “Law” in Article 13

The protracted constitutional dialogue spanning three decades significantly reshaped the understanding of the term “law” in Article 13(2), particularly concerning its applicability to constitutional amendments under Article 368. The journey reflects a pendulum swing in judicial interpretation, followed by legislative intervention and culminating in a nuanced synthesis.

Initially, in Shankari Prasad (1951), the Supreme Court established a clear dichotomy: “law” in Article 13(2) referred exclusively to ordinary laws enacted under Parliament’s legislative powers, while constitutional amendments were exercises of a distinct and superior “constituent power”.³ Consequently, amendments were deemed outside the purview of Article 13(2) and could validly abridge Fundamental Rights. This view was largely reaffirmed by the majority in Sajjan Singh (1965), although dissenting voices began to question this neat separation.⁵

The interpretation underwent a complete reversal in Golaknath (1967). The majority held that the distinction between legislative and constituent power was untenable in this context and declared that a constitutional amendment was “law” within the meaning of Article 13(2).⁴ This interpretation rendered Fundamental Rights effectively unamendable by Parliament, as any amendment infringing them would be void under Article 13(2).

Parliament responded directly to Golaknath with the Constitution (24th Amendment) Act, 1971. By inserting Clause (4) into Article 13 and Clause (3) into Article 368, the amendment explicitly stated that “Nothing in article 13 shall apply to any amendment made under article 368”.¹ This legislative intervention aimed to nullify the Golaknath interpretation and legislatively restore the Shankari Prasad position, making it textually clear that amendments were not to be tested against the prohibitions of Article 13(2).

The final stage in this evolution came with Kesavananda Bharati (1973). The Court upheld the validity of the 24th Amendment.¹¹ This meant that, from a purely textual standpoint following the amendment, a constitutional amendment under Article 368 is not considered “law” for the purposes of Article 13(2).⁴ Therefore, an amendment cannot be struck down simply because it is inconsistent with a Fundamental Right by invoking Article 13(2) directly. However, this acceptance of the 24th Amendment’s clarification did not signify an acceptance of unlimited parliamentary power. Instead, Kesavananda introduced the independent and overriding test of the Basic Structure Doctrine.⁹

Thus, the current position represents a complex synthesis. While an amendment is technically shielded from Article 13(2) by virtue of Article 13(4) and Article 368(3) (as validated in Kesavananda), this shield is not absolute. Any constitutional amendment, irrespective of its status under Article 13(2), must still pass the muster of the Basic Structure Doctrine.⁴ If an amendment, even one affecting Fundamental Rights, is found by the judiciary to damage or destroy the basic structure or fundamental features of the Constitution (which inherently include the essence of many Fundamental Rights, the rule of law, and judicial review itself), it can be declared unconstitutional and void.²⁰

Ultimately, the intense semantic debate over the precise meaning of “law” in Article 13(2) was superseded by the substantive limitations imposed by the Basic Structure Doctrine. The focus shifted from the formal classification of an amendment as “law” to the substantive impact of the amendment on the Constitution’s fundamental identity. Parliament won the battle over the definition of “law” in Article 13 through the 24th Amendment, but the judiciary established a higher, more fundamental ground for reviewing and potentially invalidating amendments, ensuring that the constituent power, while distinct from ordinary legislative power, remains constitutionally limited.

IX. Conclusion: A Constitutionally Limited Amending Power

The journey exploring the amendability of Fundamental Rights under the Indian Constitution reveals a dynamic and often contentious interplay between parliamentary will and judicial interpretation. It began with the Supreme Court, in Shankari Prasad, affirming Parliament’s seemingly unfettered power to amend any part of the Constitution, including Fundamental Rights, by distinguishing constituent power from ordinary legislative power and thus excluding amendments from the scope of “law” under Article 13(2).³ This position, though reaffirmed by a narrow majority in Sajjan Singh, faced growing judicial skepticism, reflected in the prescient dissents in that case which questioned the exclusion of amendments from Article 13(2) and hinted at unamendable “basic features”.⁵

The pendulum swung dramatically in Golaknath, where the Court, prioritizing the sanctity of Fundamental Rights, declared them immutable by parliamentary amendment, holding that amendments were indeed “law” under Article 13(2).⁴ This assertion of judicial supremacy provoked a strong parliamentary reaction in the form of the 24th Amendment, which explicitly sought to overturn Golaknath and establish Parliament’s plenary constituent power to amend any provision, free from the constraints of Article 13.¹

The constitutional tension reached its zenith in Kesavananda Bharati. In a landmark decision, the Supreme Court crafted a nuanced synthesis. It overruled Golaknath and upheld the 24th Amendment, thereby confirming Parliament’s power to amend Fundamental Rights and accepting that amendments were not “law” under Article 13(2).⁹ However, it simultaneously curtailed this power by propounding the Basic Structure Doctrine, holding that the power to “amend” does not include the power to alter the fundamental framework or essential features of the Constitution.⁹ Subsequent cases like Minerva Mills and Waman Rao further solidified this doctrine, establishing judicial review and the harmony between Fundamental Rights and Directive Principles as basic features, striking down attempts to grant unlimited amending power or exclude judicial scrutiny, and applying the doctrine prospectively to laws shielded by the Ninth Schedule.¹⁹

The final position, therefore, is one of constrained parliamentary sovereignty in the realm of constitutional amendment. Fundamental Rights are amendable under Article 368. However, this power is not absolute; it is subject to the significant limitation that the amendment must not damage, destroy, or abrogate the “basic structure” of the Constitution. The judiciary, through its power of judicial review – itself a basic feature – remains the ultimate arbiter in determining whether an amendment transgresses this fundamental limitation.

The Basic Structure Doctrine stands as a unique and vital contribution of the Indian judiciary to global constitutional jurisprudence. It provides a mechanism for balancing the need for constitutional adaptability with the imperative of preserving the core values, identity, and democratic foundations of the Republic. It ensures that while the Constitution can evolve to meet the challenges of changing times, its fundamental soul remains intact, safeguarded against potential legislative or executive overreach that could undermine its essential character. This delicate balance, forged through decades of constitutional dialogue, continues to define the relationship between Parliament and the judiciary and shapes the ongoing evolution of India’s living Constitution.

Works cited

1. Constitution of India, accessed on April 16, 2025, https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
2. Article 368: Power of Parliament to amend the Constitution and procedure therefor, accessed on April 16, 2025, https://www.constitutionofindia.net/articles/article-368-power-of-parliament-to-amend-the-constitution-and-procedure-therefor/
3. Sri Sankari Prasad Singh Deo vs Union Of India And State Of Bihar(And … on 5 October, 1951, accessed on April 16, 2025, https://indiankanoon.org/doc/1706770/
4. Article 13 in Constitution of India – Indian Kanoon, accessed on April 16, 2025, https://indiankanoon.org/doc/134715/
5. Sajjan Singh vs State Of Rajasthan(With Connected … on 30 October, 1964 – Indian Kanoon, accessed on April 16, 2025, https://indiankanoon.org/doc/1308308/
6. I. C. Golaknath & Ors vs State Of Punjab & Anrs.(With Connected …, accessed on April 16, 2025, https://indiankanoon.org/doc/120358/
7. Civil Writ Jurisdiction Case No. 5053 of 2021 – IN THE HIGH COURT OF JUDICATURE AT PATNA, accessed on April 16, 2025, https://hindi.livelaw.in/pdf_upload/lalan-kumar-yadav-v-state-of-biharwatermark-1567307-1-508836-508901.pdf
8. “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL/APPELLATE JURISDICTION TRANSFERRED CASE (C) NO. 150 OF 2006 Madras, accessed on April 16, 2025, https://prsindia.org/files/bills_acts/bills_parliament/2014/National_Tax_Tribunal_Judgement_2014.pdf
9. 50 years of Kesavananda Bharati: Why the Basic Structure matters – Bar and Bench, accessed on April 16, 2025, https://www.barandbench.com/columns/50-years-of-kesavananda-bharati-why-basic-structure-matters
10. Kesavananda Bharati judgment: The Major Minority – Bar & Bench, accessed on April 16, 2025, https://www.barandbench.com/columns/kesavananda-bharati-basic-structure
11. The Basic Structure Judgment – Kesavananda Bharati Judgment – Home, accessed on April 16, 2025, https://judgments.ecourts.gov.in/KBJ/?p=home/intro
12. Know About Kesavananda Bharati Case – Unacademy, accessed on April 16, 2025, https://unacademy.com/content/upsc/study-material/polity/kesavananda-bharati-case/
13. Constitution Case Commentary Series – KESAVANANDA BHARATI Vs. STATE OF KERALA, accessed on April 16, 2025, https://iledu.in/constitution-case-commentary-series-kesavananda-bharati-vs-state-of-kerala/
14. Kesavananda Bharati v. State of Kerala – Wikipedia, accessed on April 16, 2025, https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala
15. Kesavananda Bharati v. State of Kerala – The Legal Quorum, accessed on April 16, 2025, https://thelegalquorum.com/kesavananda-bharati-v-state-of-kerala/
16. Basic structure doctrine – Wikipedia, accessed on April 16, 2025, https://en.wikipedia.org/wiki/Basic_structure_doctrine
17. Case Law – Kesavananda Bharati Sripadagalvaru & Ors v. State of Kerala and Anr, accessed on April 16, 2025, https://legalbots.in/blog/case-law-kesavanand-judgement
18. Kesavananda Bharati Sripadagalvaru … vs State Of Kerala And Anr on 24 April, 1973 – Indian Kanoon, accessed on April 16, 2025, https://indiankanoon.org/doc/257876/
19. The effect of striking down a substitution: The Article 31C story – Constitution of India, accessed on April 16, 2025, https://www.constitutionofindia.net/blog/the-effect-of-striking-down-a-substitution-the-article-31c-story/
20. Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980 – Indian Kanoon, accessed on April 16, 2025, https://indiankanoon.org/doc/1939993/
21. Waman Rao & Ors. Etc. Etc vs Union Of India And Ors on 9 May, 1980 – Indian Kanoon, accessed on April 16, 2025, https://indiankanoon.org/doc/799151/
22. Waman Rao And Ors vs Union Of India (Uoi) And Ors. on 13 November, 1980 – Indian Kanoon, accessed on April 16, 2025, https://indiankanoon.org/doc/1124708/
23. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL JURISDICTION CIVIL APPEAL NO. 7095 OF 2022 (ARISING OUT OF SLP, accessed on April 16, 2025, https://hindi.livelaw.in/pdf_upload/judgement13-oct-2022-439214.pdf