This is transcript of video lectures from the series of [[15 Video Lectures on Indian Constitution]] **Navigate to other lectures in this series:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] # Chapter 15 - Lecture 15 By Prof. (Dr.) Faizan Mustafa Namaskar, welcome to online course on Indian Constitution offered by Nal sir University of Law and sponsored by Ministry of Law and Justice, Government of India. We are now in our last lecture, this is the 15th lecture where we are going to discuss the constitutional amendments, who has the power to amend the constitution? Can fundamental rights be amended? What is the basic structure? How basic structure doctrine has been used? So, first of all, why power to amend the constitution is necessary? No constitution can anticipate all the future problems and the challenges which will come in future and provide solutions for them. Change is the only permanent thing and socio-economic and political conditions of every country do change over time. No one generation can claim the monopoly of wisdom. Every generation is entitled to take some decisions on its own. A constitution to be a living organism must be dynamic. And therefore, a dynamic constitution must provide for the amendments. How constitutions are changed or amended? There are two methods, formal and informal. In the formal method, you have constitutional amendments. A rigid constitution cannot be easily amended. Its amending process would be extremely difficult and cumbersome. United States Constitution is the classic example of a rigid constitution and therefore, it has seen very few amendments. It has been amended only 27 times in over 200 years. New Zealand's constitution is the most flexible constitution of the world and in New Zealand, constitutional amendments are passed just like ordinary laws. In last 120 years, Australian constitution 2 was amended just 8 times. In Switzerland, no amendment can be made to the constitution without a referendum. When you come to India, we have amended our constitution 105 times in last 71 years. Now come to the informal method of constitutional change. Constitutions are also amended through constitutional conventions and judicial interpretations. The practice of inviting the leader of the single largest party in case of hung parliament or legislative assembly amounts to the amendment of the constitution as we have discussed that the constitution does not specify whom the governor or the president would invite to form the government. Supreme Court's decision-restricting parliaments power to amend the constitution through basic structure was nothing but an informal amendment of the constitution. Collegium's right to recommend names for the judicial appointments is another instance of informal constitutional amendment. What types of amendments Indian constitution provide for? There are three types of amendments. There are amendments which are not called amendments such as creation of new states or change of names and boundaries of states under articles 3 and 4, a abolition of legislative councils in states article 169. These amendments are passed by simple majority and they as I said are not called an amendment even though they amend the constitution. The second type are the amendments that are passed by the parliament by the majority of the haws and two thirds of present and voting most of the constitutional amendments are made through this process. The third type of amendments are the amendments where in addition to the amendment being passed by the parliament we require ratification by half of the states. In Kihutu Hulaun, Supreme Court has held that this anti-defection law which aus the jurisdiction of the courts is unconstitutional because the ratification process was not done. Does the Indian constitution give power to amend the constitution to the parliament? If you look at the original article 368, its marginal note titled it as procedure for amendment of the constitution. The 24th amendment of 1971 changed this marginal note of article 368 and it now provides power of parliament to amend the constitution and procedure thereafter. 24th amendment also said notwithstanding anything in this constitution parliament may in exercise of its constitute power amend by way of addition variation or repeal any provision of this constitution in accordance with the procedure laid down in this article. The crucial word is constituent power. The article 368 clause 5 says it is hereby 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 the constitution. Can fundamental rights be amended? You may recall we had discussed in our lecture on the relationship between fundamental rights and directive principles that fundamental rights are basically negative restrictions on the power of the state. Every state therefore would like to delete or restrict the guarantee of fundamental rights. Parliament's power to amend the fundamental rights therefore has seen the most fascinating struggle for supremacy between Supreme Court and Parliament. The question before the Supreme Court as early as 1951 was raised in Shankariprasad versus Union of India when the validity of first constitutional amendment of 1951 was challenged in the context of insertion of article 31A and 31B. It was argued that since article 13 clause 2 prohibits an enactment of any law that contravenes fundamental rights even a constitutional amendment cannot violate fundamental rights. The court rejected this argument and held that an amendment is not law as the same is passed in woking constituent power rather than ordinary legislative power. Then the 17th constitutional amendment that added number of laws to the 9th schedule was challenged in surging Singh. If a law is added to the 9th schedule then courts do not have the power of judicial review. Three of the five judges, Chief Justice of India, Gajendra Guttkar, Justice Vantu, Justice Deyal, without any reservation re-treated the law laid down in Shankariprasad. But two judges that is Justice Hiddaya Tullar and Justice Mudolkar in their separate conquering opinions expressed doubts on the Parliament's absolute power to amend the fundamental rights. A conflict between Parliament and Supreme Court dominated the constitutional debates in 1960s and 70s and therefore we saw the Supreme Court restricted Parliament's power to amend the Constitution. In Shankariprasad and Sajjan Singh, Supreme Court accepted the supremacy of the Parliament and trusted the Parliament to amend any provision of the Constitution because Parliament consisted of great freedom fighters, great leaders who led our national freedom struggle. But by 1967 this faith in Parliament is to eroded and the conflict reached its climax in Golakhnath versus the state of Punjab in which Supreme Court tried to apply the breaks on the Parliament's absolute power to amend the Constitution. In a sharply divided verdict, Supreme Court by a majority of six to five overruled earlier decisions of Shankariprasad and Sajjan Singh and took fundamental rights outside the Parvi of the amending powers of the Parliament. How the Supreme Court denied Parliament power to amend the Constitution? The Court held in Golakhnath that fundamental rights are basically the implied limitations on the Parliament's power to amend the Constitution. The power to amend fundamental rights the Court said has not been specifically given to Parliament. The apex court held that article 368 does not confer on Parliament the power to amend the Constitution. It merely provides the procedure of the amendment. The power to amend the Constitution, Supreme Court said is found in the plenary legislative power of Parliament as is clear from articles 245 to 46 and 248 and entry 97th of list which gives the residue power to the Parliament and the Court said this Resudary Power includes the power to amend the Constitution. The Court held the term law in article 13 includes an amendment and therefore fundamental rights are beyond the power of the amendment. If fundamental rights are to amend it, Golakhnath said a constant assembly is to be convened. The only good news for the government from Golakhnath was that the 11 judge bench made this historic decision prospective through the doctrine of prospective overruling and therefore earlier amendments were not invalidated. Now let us see how Parliament responded to Golakhnath judgment. To nullify this judgment, Parliament passed the 24th amendment in 1971 and made some vital and crucial changes in article 368. 24th amendment added clause 4 to article 368 which now provides that nothing in article 13 shall apply to a constitutional amendment. So if constitutional amendment is not law, it cannot be challenged on the ground of contravening fundamental rights. The marginal note of article 368 was substituted with power of Parliament to amend the Constitution and procedure you would recall in Golakhnath, just as Subharao has said that article 368 is talking of procedure, not the power of the amendment. Therefore now they changed it to power of Parliament to amend the Constitution. The opening paragraph of article 368 was now numbered as clause 1 and it provided that Parliament may in exercise of its constituent power, amend by way of addition, variation or repeal any provision of this Constitution. Thus constituent power and legislative power were distinguished. Even President of India was denied power to refuse ascent to a constitutional amendment. Parliament may in exercise of its constituent power, amend by way of addition, variation or repeal any provision of this Constitution. This was also clarified as removal of doubts. How did Supreme Court respond to Parliament's 24th amendment? You had two extremes. One was Shankri Pasaat and Sajjan Singh, where Supreme Court said Parliament can amend any provision of the Constitution including fundamental rights. This was one extreme. The other extreme was Golakhnath, which said Parliament cannot amend fundamental rights. If you want to amend fundamental rights, you need a constituent assembly. The 24th, 25th, 29th amendments also tried to abrage or take away fundamental rights and therefore Supreme Court was again confronted with the question of Parliament's power to amend the Constitution in Keshavan and the Bharati versus the State of Kerala. 1973 judgment. 13 judges bench, which was constituted to decide Keshavan and the Bharati is the largest bench of our judicial history. Marathon hearing was held. The court upheld the validity of the 24th amendment and accepted the position that Parliament can amend any provision of the Constitution including fundamental rights. What is the basic structure doctrine? But seven out of 13 judges held that this power of the Parliament to amend the Constitution is not absolute and Parliament does not have the power to alter what they call the basic structure of the Constitution. Six judges excluding justice HR Khanna held fundamental rights are part of basic structure and therefore cannot be amended. The court did not give any definition of basic structure but chief justice C. Cree by way of illustration said following are included within basic structure. Supremacy of Constitution, Republican and Democratic form of government, secular character of the Constitution, separation of powers, federal character of the Constitution. Then in Indra Nehru Gandhi versus Raj Narayan in 1975 judicial review was held as part of the basic structure. How basic structure doctrine has been used? In IR Kohello versus the State of Tamil Nadu 2007 Suprem court held all amendments made after Keshavan and the Bharati that is April 24, 1973 even though included in 9th schedule are subject to judicial review. You may recall any amendment which is or any law which is included in 9th schedule is set to be outside the power of judicial review. Then in SR Bombay doctrine of basic structure was strangely extended to executive acts and the dismissal of few state governments was upheld under Article 356. In M Nagraj versus Union of India 2006 judgment Suprem court now tried to give a general definition of basic structure by mentioning two tests which will help us in determining what is basic structure. These two tests were the width test and the identity test. The court said that any amendment that changes the wider principles such as democracy, secularism, equality and that with changes the identity of the constitution shall not be permissible. So you have to see whether the wider principles are compromised or whether the identity of the constitution is altered. If this is so then it is a violation of basic structure doctrine. What did we learn today? We learned that times are not static and therefore constitutional amendments are necessary. Parliament must have the power to amend the constitution. Indian constitution has three types of amendments. Parliament can amend any provision of the constitution including fundamental rights but Parliament cannot destroy the basic structure of the constitution. With this we come to an end of this course. We hope that each one of you would uphold constitutional values and fulfill our fundamental duties. There will be some opportunity for us to come back to you again in some other lecture series. Thank you very much. Jai Hind Namashka. ---  *Disclaimer: I am not asserting any claim over this content. The content is entirely from the Ministry of Law & Justice and NALSAR University of Law's joint online course on the Indian Constitution. My effort has been to make the transcript available for people like myself who prefer to read or quote it rather than to listen. This is part of my public self-archiving project. For more details, see [notes.daktre.com](https://notes.daktre.com) or [daktre.com](https://daktre.com).* **Navigate to other lectures:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] Last updated: 2026-02-21 22:51