The Amending Power

The proviso adds a second stage. An amendment seeking to change any of the following must also be ratified by the legislatures of not less than one half of the States before it goes to the President:

• article 54, article 55, article 73, "article 162, article 241 or article 279A";
• Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI;
• "any of the Lists in the Seventh Schedule";
• "the representation of States in Parliament";
• "the provisions of this article".

Clause (3), also from the Twenty-fourth Amendment: "Nothing in article 13 shall apply to any amendment made under this article."

Clauses (4) and (5) came from section 55 of the Forty-second Amendment 1976. They are still printed, and their footnote records that section 55 "has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others AIR 1980 SC 1789". They belong to [The Basic Structure].

Broken down

There are two procedures, not one. The ordinary one needs two majorities at once in each House: a majority of the total membership, and two thirds of those present and voting. The special one adds ratification by half the State legislatures, and reaches only the proviso's list, which touches the President's election, the executive power, the courts, the Lists and article 368 itself.

Assent is not a discretion. The President "shall give his assent", and thereupon the Constitution "shall stand amended". And amendment includes repeal: a provision may be removed, not merely altered.

The first answer

Facts. Sri Sankari Prasad Singh Deo v. Union of India, 1951 AIR 458, 1952 SCR 89, decided 5 October 1951 by a Bench of five. The Constitution (First Amendment) Act 1951 had inserted articles 31A and 31B and the Ninth Schedule to save the Zamindari Abolition Acts of Bihar, Uttar Pradesh and Madhya Pradesh. Zamindars petitioned under article 32, saying an amendment abridging fundamental rights was itself a "law" and void under article 13(2).

Held. The First Amendment was valid. Although "law" must ordinarily include constitutional law, there is a clear demarcation between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power, so that in article 13 "law" must be taken to mean "rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368". Articles 31A and 31B needed no ratification: they did not curtail article 226 but only excluded certain classes of cases from the purview of Part III.

Why it matters. It is the source of the constituent power reading, which survived Golak Nath and is the law today. Note how narrow the reasoning is. Not that rights matter less than land reform, but that article 13(2) and article 368 conflict, so one must be read as qualified by the other.

The second answer

Facts. Sajjan Singh v. State of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933, decided 30 October 1964 by a Bench of five. The Constitution (Seventeenth Amendment) Act 1964 again amended article 31A and added forty-four Acts to the Ninth Schedule. Those affected argued that because it was likely to affect article 226 it needed ratification under the proviso, and that Sankari Prasad should be reconsidered.

Held. By Gajendragadkar C.J., Wanchoo and Raghubar Dayal JJ., the proviso did not apply. The test is the pith and substance of the amendment, what it is really about; and the Seventeenth Amendment amends the fundamental rights "solely with the object of removing obstacles in the fulfilment of a socio-economic policy", its effect on article 226 being "incidental and insignificant". Sankari Prasad was followed. "The power conferred by Art. 368, includes the power to take away the fundamental rights guaranteed by Part III."

Why it matters. For the doubts, not the result. Hidayatullah J. said the Constitution gives so many assurances in Part III "that it would be difficult to think that they were the play things of a special majority". Mudholkar J. put the question that became the doctrine: whether "making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Art. 368". The phrase "basic feature" enters Indian constitutional law here, in 1964, as a question in a concurring judgment.

The third answer

Facts. I.C. Golaknath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762, decided 27 February 1967. The report records a Special Bench of eleven judges. The petitioners, the son, daughter and granddaughters of Henry Golak Nath, had 418 standard acres and a fraction declared surplus in their hands under the Punjab Security of Land Tenures Act 1953. They moved under article 32 for a declaration that the First, Fourth and Seventeenth Amendments were unconstitutional so far as they affected fundamental rights.

Held. By six to five, that "Fundamental Rights cannot be abridged or taken away by the amending procedure in Art. 368", because "An amendment to the Constitution is 'law' within the meaning of Art. 13(2) and is therefore subject to Part III". The amending power, said the majority, is not in article 368 at all, which "only deals with procedure", but in the ordinary legislative articles. Fundamental rights are given "a transcendental position under our Constitution and are kept beyond the reach of Parliament". Then the sting was drawn. Applying prospective overruling, which means declaring a new rule that governs only future cases, the Court held the earlier amendments valid and declared "that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein".

Why it matters. It is the high water mark of the rights argument and the reason the argument had to be abandoned. A rule that Part III can never be touched freezes the property clause as it stood and leaves Parliament no lawful route to social reform. Golak Nath won the principle and lost the case: prospective overruling saved the very amendments under attack.

The fourth answer

Facts. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, decided 24 April 1973. The petitioner, head of a mutt, moved under article 32 to enforce his rights under articles 25, 26, 14, 19(1)(f) and 31 against the Kerala Land Reforms Act 1963 as amended. While the petition was pending the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments came into force, and he was allowed to challenge them too. The report in I.R. Coelho records a Bench of thirteen judges and that Golak Nath was overruled by seven to six.

Held. The Twenty-fourth Amendment is valid, and Golak Nath's view that an amendment is "law" within article 13(2) is not correct: the power reaches every article, Part III included. But it is not unlimited. Khanna J.: "The power of amendment under Article 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary." Sikri C.J. said every provision may be amended "provided in the result the basic foundation and structure of the Constitution remains the same". The second part of article 31C, which made the legislature's own declaration conclusive, was struck down.

Why it matters. It is the settlement, and a compromise rather than a victory for either side. Parliament got back the power Golak Nath had denied it; the citizen got a limit no majority can vote away. What that limit contains is the subject of [The Basic Structure].

Reading the four together

What it does NOT mean

It does not mean the doctrine was invented in 1973. Mudholkar J. asked the question in 1964 and Hidayatullah J. doubted alongside him. What 1973 added was a majority.

It does not mean Golak Nath was wrongly reasoned, only that it was overruled. The Court moved not because rights matter less, but because total immunity for Part III cannot be operated by any legislature.

It does not mean article 13(2) is irrelevant to amendments. It means an amendment is not tested against Part III as an ordinary law is. It is tested against the basic structure, a narrower enquiry article 13 does not mention. And clause (3), which excludes article 13, was itself upheld: it is clauses (4) and (5) that did not survive.

A worked example

Parliament passes a Bill inserting a new article providing that no court shall entertain any challenge to a law relating to the acquisition of agricultural land. It passes both Houses, the President assents, and Meena, whose land is acquired, challenges the amendment.

Step one, was the procedure followed? Count both majorities separately in each House, as clause (2) requires: a majority of the total membership, and two thirds of those present and voting.

Step two, does the proviso apply? The new article excludes the courts' jurisdiction. If it changes Chapter IV of Part V or Chapter V of Part VI, on the Union judiciary and the High Courts, ratification by half the States was required and its absence is fatal.

Step three, may Meena rely on article 13(2)? No. "Law" there does not include an amendment, and clause (3) now says so expressly.

Step four, then what is left? The basic structure. Meena says ousting judicial review destroys an essential feature; the State answers that on Sajjan Singh the effect on the courts is incidental to a socio-economic object. Whether "incidental" survives when the purpose is to exclude the courts is what the case turns on. See [The Basic Structure] and [Judicial Review].

Quick revision

• Article 368: constituent power to amend "by way of addition, variation or repeal", by special majority; the proviso adds ratification by half the States for the listed matters.
• Clause (1), the heading and clause (3) came from the Twenty-fourth Amendment 1971. Clauses (4) and (5) came from the Forty-second Amendment 1976 and are printed but invalid.
• Sankari Prasad (1951), five judges: "law" in article 13(2) means ordinary law, not an amendment.
• Sajjan Singh (1964), five judges: followed. Hidayatullah and Mudholkar JJ. doubt, and "basic feature" is spoken here first.
• Golak Nath (1967), eleven judges, six to five: an amendment IS "law"; prospective overruling saves the earlier amendments.
• Kesavananda (1973), thirteen judges, seven to six: Golak Nath overruled; the power reaches Part III but cannot damage or destroy the basic structure.
• May Part III be amended? Yes, yes, no, yes with a limit.

Test yourself

1. Set out the two procedures in article 368 and say exactly which matters attract the second.

2. What did Sankari Prasad decide about the word "law" in article 13(2), and on what reasoning?

3. Sajjan Singh followed Sankari Prasad. Why is it the more important case for the doctrine?

4. State the six results in Golak Nath, and explain what prospective overruling did to the petitioners' own claim.

5. Kesavananda is called a compromise. What did each side gain?

6. Which clauses of article 368 are printed but not in force, and what put them there?