Theory of basic structure: a limitation on amending power

The validity of constitution (24th amendment) Act 1971, was challenged in keshvananda bharti vs. state of kerala (AIR 1973 SC 1461). This 13 judge bench decided that 24th amendment is valid and the power to amend the constitution is found in Art. 368 itself. Further the court recognized that there is a distinction between ordinary law and constitutional law. This could impliedly mean that Art.368 confers power to even abridge a fundamental right and to this extent, Golaknath case was overruled. But 7 of judges held that power of amendment under article 368 is subject to certain implied and inherent limitations and that in the exercise of amending the basic structure or frame-work of the constitution. So the majority was of the opinion that the amending power under article 368 is subject to the qualification that this amending power cannot be exercised to alter the basic structure of the framework of the constitution. Such as (1) Supremacy of the constitution. (2) Republican and democratic form of govt. (3) Secular character of constitution. (4) Separation of power. (5) Federal character of constitution

24th Amendment Act 1971

 In order to remove difficulties created by the decision of Supreme Court in GOLAKNATH'S case parliament enacted the 24th amendment Act. The amendment has made the following amendments:

1. It has added a new clause (4) to article 13 which provides that 'nothing in this article shall apply to any amendment of this constitution made under article 368.
2. It substituted a new marginal heading to article 368 in place of the old heading "procedure for amendment of the constitution". The new heading is "power of parliament to amend the constitution and procedure thereof."
3. It inserted a sub clause (1) in article 368 which provi

AMENDMENT OF INDIAN CONSTITUTION

Necessity of amending provision in the Constitution

It is made with a view to overcome the difficulties which may be encountered in the future in the working of the constitution.

The nature of amending "amending process" envisaged by the framers of our constitution can best be understood by referring the following observation of the late prime minister pt. Nehru, "while we want this constitution be as solid and permanent as we can make it, there is no permanence in the constitution. There should be certain flexibility. If you make anything rigid and permanent you stop the nation's growth, of a living vital, organic people…………. In any event, we could not make this constitution so rigid that it cannot be adopted to changing conditions. When the world is in a period of transition what we may do today may not be wholly applicable tomorrow" practically every constitution has some formal provisions for amendment of the constitution. In a rigid constitution amendment is more elaborate and difficult then enactment of ordinary legislation. In a flexible constitution, amendment can be effected rather easily, as easily as enacting an ordinary law.

The former procedure to amend some foreign federal constitutions as follows:

1. U.S.A.: In U.S.A., amendment of the constitution may be proposed only by congress, with the approval of 2/3 of majority of both houses (congress and senate), or a convention summoned on an application from 2/3 of the members of both houses. The proposed amendments must be ratified by at least ¾ of the total number of the state legislatures or by conventions in ¾ of the total numbers of the states.