The Long BenchDoctrine 3 of 8Articles 13 and 368

The amending power and the basic structure

Can Parliament amend the fundamental rights? Shankari Prasad (1951) and Sajjan Singh (1964) said yes; Golaknath (1967) said no. Kesavananda Bharati (1973), decided by thirteen judges, held that Parliament may amend any part of the Constitution but not its basic structure. Later benches used the doctrine to strike down amendments (Indira Gandhi v. Raj Narain, Minerva Mills) and to test tribunals and the Ninth Schedule (L. Chandra Kumar, I.R. Coelho).

8 judgments · 1951 to 2007 · 11 links to earlier cases

In date order. The line above each judgment says what it did to an earlier case; Later says what became of it. Follow this case lights up the judgments it is linked to in this chapter.

1951
Answered Champakam Dorairajan (1951) · Equality, reservation and education
The First Amendment case
Sankari Prasad Singh Deo v. Union of India
Decided 5 October 1951 · 5 judges · 1952 SCR 89
Overruled by I.C. Golaknath (1967)
Held. The Court upheld the Constitution (First Amendment) Act, 1951. It held that a constitutional amendment made under Article 368 is not “law” within Article 13, so Parliament could amend the fundamental rights.
Why it matters. This was the first round of the long argument over the amending power, which ran on through Golaknath to Kesavananda.
Later Applied in Sajjan Singh (1964) · Overruled by I.C. Golaknath (1967)
Read the judgment ↗ (indiankanoon.org)
1964
Applied Sankari Prasad Singh Deo (1951)
The Seventeenth Amendment case
Sajjan Singh v. State of Rajasthan
Decided 30 October 1964 · 5 judges · [1965] 1 SCR 933
Overruled by I.C. Golaknath (1967)
Held. By a majority the Court followed Sankari Prasad and upheld the Seventeenth Amendment, which added land reform laws to the Ninth Schedule. Justices Hidayatullah and Mudholkar doubted whether fundamental rights could be freely amended, and Mudholkar asked whether the Constitution had “basic features” beyond Parliament’s reach.
Why it matters. The separate opinions planted the idea that Golaknath and then Kesavananda would take up.
Later Overruled by I.C. Golaknath (1967)
Read the judgment ↗ (indiankanoon.org)
1967
Overruled Sankari Prasad Singh Deo (1951)Overruled Sajjan Singh (1964)
The Golaknath case
I.C. Golaknath v. State of Punjab
Decided 27 February 1967 · 11 judges · [1967] 2 SCR 762
Overruled by Kesavananda Bharati (1973)
Held. By six to five, the Court held that Parliament cannot amend the Constitution so as to take away or abridge fundamental rights: an amendment is “law” under Article 13. Applying prospective overruling, it left earlier amendments in force.
Why it matters. Parliament replied with the Twenty-fourth Amendment (1971), which said that Article 13 does not apply to amendments, and the conflict went to the thirteen-judge bench in Kesavananda.
Later Overruled by Kesavananda Bharati (1973)
Read the judgment ↗ (indiankanoon.org)
1973
Overruled I.C. Golaknath (1967)Answered Berubari reference (1960) · Federalism, religion and family
The basic structure case
Kesavananda Bharati v. State of Kerala
Decided 24 April 1973 · 13 judges · (1973) 4 SCC 225
Held. Thirteen judges, the largest bench the Court has ever sat, held by seven to six that Parliament may amend any part of the Constitution, including the fundamental rights, but cannot alter its basic structure or framework. It overruled Golaknath and upheld the Twenty-fourth Amendment.
Why it matters. The basic structure doctrine is the single most important idea in Indian constitutional law, and the most examined.
Later Applied in Indira Gandhi v. Raj Narain (1975) · Applied in Minerva Mills (1980) · Applied in S.R. Bommai (1994) · Federalism, religion and family · Applied in L. Chandra Kumar (1997) · Applied in I.R. Coelho (2007) · Applied in NJAC case (2015) · Judges, public interest litigation and accountability
Read the judgment ↗ (indiankanoon.org)
1975
Applied Kesavananda Bharati (1973)
The election case
Indira Nehru Gandhi v. Raj Narain
Decided 7 November 1975 · 5 judges · [1976] 2 SCR 347
Held. The Allahabad High Court had set aside the Prime Minister’s election. During the Emergency, the Thirty-ninth Amendment put her election beyond the reach of the courts. The Supreme Court struck down that clause (Article 329A(4)) for destroying free and fair elections and judicial review, both part of the basic structure, while upholding her election on the amended election law.
Why it matters. It was the first time the basic structure doctrine was used to strike down a constitutional amendment.
Read the judgment ↗ (indiankanoon.org)
1980
Applied Kesavananda Bharati (1973)
The Minerva Mills case
Minerva Mills v. Union of India
Decided 31 July 1980 · 5 judges · [1981] 1 SCR 206
Held. The Court struck down the parts of the Forty-second Amendment that made constitutional amendments immune from judicial review (clauses (4) and (5) of Article 368) and gave all Directive Principles priority over Articles 14 and 19. Limited amending power, judicial review and the balance between Parts III and IV were held to be part of the basic structure.
Why it matters. Minerva Mills is the case most often cited for the harmony between fundamental rights and Directive Principles.
Later Applied in L. Chandra Kumar (1997)
Read the judgment ↗ (indiankanoon.org)
1997
Applied Kesavananda Bharati (1973)Applied Minerva Mills (1980)
The tribunals case
L. Chandra Kumar v. Union of India
Decided 18 March 1997 · 7 judges · (1997) 3 SCC 261
Held. The Court held that the power of judicial review of the High Courts under Articles 226 and 227, and of the Supreme Court under Article 32, is part of the basic structure. Decisions of tribunals such as the Central Administrative Tribunal must therefore be open to challenge before a High Court.
Why it matters. It struck down the clauses of Articles 323A and 323B that had excluded the High Courts.
Read the judgment ↗ (indiankanoon.org)
2007
Applied Kesavananda Bharati (1973)
The Ninth Schedule case
I.R. Coelho v. State of Tamil Nadu
Decided 11 January 2007 · 9 judges
Held. A nine-judge bench held that laws placed in the Ninth Schedule after 24 April 1973 (the date of Kesavananda) can be tested against the basic structure, including the essence of the rights in Articles 14, 19 and 21. Inclusion in the Schedule does not give them blanket immunity.
Why it matters. It ties the Ninth Schedule to the basic structure doctrine.
Read the judgment ↗ (indiankanoon.org)