Amending the Constitution and the Basic Structure Doctrine

Parliament can change the Constitution. But it cannot destroy its basic structure — the core features the Supreme Court has ruled off-limits since 1973.

1How Parliament amends the Constitution

Must Know

Article 368’s two procedures

Article 368 lets Parliament add, change, or repeal parts of the Constitution. Most amendments need a special majority in each House. Changes to specific federal arrangements need that special majority, plus approval from at least half the state legislatures.

A special majority means two thresholds at once: a majority of each House’s total membership, and at least two-thirds of members present and voting.

Some changes to the constitutional text do not even go through Article 368. Articles 3 and 4 let Parliament form new states or change their boundaries using an ordinary law. Article 4 says this is not an Article 368 amendment at all.

Worked example: A simple-majority law creating a new state is not a “third procedure” hiding inside Article 368. It is a completely separate route, outside Article 368 altogether.

What each House must do

An amendment bill can start in either House. Each House must pass it separately, clearing both thresholds above.

Worked example: Say a House has 300 total members. A majority of total membership is 151. Now say 240 members are present and voting — two-thirds of that is exactly 160. The bill needs both numbers, so it needs at least 160 “yes” votes to pass in this House.

Some federal changes need one more step: approval from at least half the state legislatures. This list includes presidential elections, Union and state executive powers, the GST Council under Article 279A, and Article 368 itself. There is no deadline for that ratification.

Once both Houses pass the bill, and states ratify it where required, the President must give assent. The 24th Amendment, 1971, made that presidential assent mandatory, and placed Article 368 amendments outside the reach of Article 13’s usual bar on rights-violating laws. Basic-structure review still applies to them anyway.

2Why amendment power has a limit

Must Know

The basic structure doctrine stops an amendment from destroying essential features of India’s Constitution. Judges built this rule through interpretation — the Constitution itself contains no complete list of protected features.

Think of an amendment as a repair, not a demolition. Parliament can change important parts, including Fundamental Rights. It cannot remove the Constitution’s defining framework.

Courts have protected constitutional supremacy, democracy, secularism, federalism, judicial review, and judicial independence. Later judgments added free and fair elections and the rule of law to this list.

Worked example: Chief Justice S.M. Sikri named five example features in his own Kesavananda opinion. But the seven judges who supported the basic-structure limit never agreed on one single, closed list — new features can still be recognised later.

3How the Supreme Court reached the rule

Good to Know

Kesavananda Bharati, 1973

Kesavananda Bharati headed a religious institution in Kerala affected by land reform. His case raised a much bigger question: could Parliament change any part of the Constitution, without any limit at all?

A 13-judge bench — the largest ever for the Supreme Court — heard the case. On 24 April 1973, a 7–6 majority agreed there had to be a limit on amendment power. The judges disagreed on their reasoning, but together their ruling created the basic structure doctrine.

The Court rejected an earlier, more extreme rule from Golak Nath (below) that banned amending Fundamental Rights at all. It upheld the 24th Amendment, and most of the original Article 31C — striking down only the part of Article 31C that tried to block courts from reviewing it.

Worked example: Justice H.R. Khanna was one of the seven judges who supported the limit. He is more famous for a later, separate dissent in the ADM Jabalpur case. He was passed over for Chief Justice in 1977 because of that dissent — a different case entirely, easy to confuse with his Kesavananda vote.

From Shankari Prasad to Minerva Mills

• Shankari Prasad, 1951: zamindars challenged the First Amendment’s land-reform laws, freshly placed in the new Ninth Schedule, as a violation of their property rights. The Court upheld Parliament’s power to amend Fundamental Rights.
• Sajjan Singh, 1965: landowners challenged the 17th Amendment for adding more Rajasthan land-reform laws to the Ninth Schedule. The Court upheld the amendment, though two judges questioned its reasoning while still agreeing with the result.
• Golak Nath, 1967: a Punjab family capped at 30 acres each under a land-ceiling law took their case all the way up. The Court reversed course this time — Parliament could not amend Fundamental Rights at all.
• Kesavananda, 1973: the Court allowed such amendments again, but protected the basic structure.
• Minerva Mills, 1980: the government had nationalised a sick Bangalore textile mill; the mill’s own takeover challenge became the vehicle for striking down the 42nd Amendment’s overreach. The Court enforced this limited amendment power, and protected judicial review specifically.

Worked example: India has a written, supreme Constitution, so courts can strike down laws — and even amendments — that breach it. Britain has no single written constitution, and under its tradition of parliamentary sovereignty, courts generally cannot strike down an Act of Parliament at all. That contrast is exactly why India’s basic structure doctrine is considered unusual and important.

4The 42nd, the 44th, and Minerva Mills

Great to Know

The Emergency began on 25 June 1975. The 42nd Amendment, 1976, followed during that period. It added “socialist” and “secular” to the Preamble, added “integrity” to the unity phrase, and introduced Fundamental Duties as Article 51A.

It also inserted Article 368(4) and (5) — clauses that tried to block courts from ever reviewing a constitutional amendment, and to remove limits on Parliament’s amendment power altogether.

The 44th Amendment, 1978, removed the right to property from Part III of the Constitution — deleting Articles 19(1)(f) and 31. It placed property protection in a new Article 300A instead, as an ordinary constitutional right rather than a Fundamental Right. But it left Article 368(4) and (5) untouched.

Worked example: Minerva Mills, 1980, is what actually struck down Article 368(4) and (5) — not the 44th Amendment. The Court also struck down the 42nd Amendment’s attempt to widen Article 31C’s protection. Minerva Mills protected limited amendment power, judicial review, and the balance between Fundamental Rights and Directive Principles.

5The pattern examiners keep testing

Questions on this topic almost always swap two close names, or test one specific date.

• Golak Nath vs Kesavananda: Golak Nath banned amending Fundamental Rights entirely. Kesavananda allowed it again, within the basic-structure limit — the two are easy to reverse in exam options.
• The dividing date: Maharashtra landowners challenged a land-ceiling law placed in the Ninth Schedule; Waman Rao, 1981, set 24 April 1973 — the date of the Kesavananda ruling — as the line for reviewing such insertions. A Tamil Nadu land dispute over the old Gudalur Janmam estates then produced I.R. Coelho, 2007, which confirmed that any insertion after that date can face basic-structure review.
• Ninth Schedule ≠ immunity: a law does not become permanently untouchable just by being placed in the Ninth Schedule.

6In the news

The Tribunals Reforms Act ruling, 2025

A tribunal is a specialist body that decides disputes in a particular field. Its members must be able to act independently of the government.

On 19 November 2025, the Supreme Court struck down provisions of the Tribunals Reforms Act, 2021. The problem was defects in how tribunal members were appointed, how long they served, and their service conditions. The Court linked independent tribunals directly to judicial independence and the separation of powers. It directed the Union government to set up a National Tribunals Commission within four months.

This case concerned an ordinary Act of Parliament, not a constitutional amendment — so it is not, strictly, a “basic structure” case. But the Court applied the same constitutional standards and binding precedents that basic structure protects, showing how far the doctrine’s influence now reaches. (Source: Supreme Court Observer, case summary)

Quick Q&A

• Why did a land reform case end up deciding the limits of every future amendment? Kesavananda’s own dispute was about Kerala land reform. But the case forced the Court to finally decide how far Parliament’s amendment power could go — for every future amendment, not just his.
• Did Justices Hidayatullah and Mudholkar dissent in Sajjan Singh (1965)? No. Both agreed with the result. Their separate opinions only raised doubts about the majority’s reasoning.
• Who actually struck down the 42nd Amendment’s Article 368(4) and (5)? The Supreme Court, in Minerva Mills (1980) — not the 44th Amendment, which left those clauses standing.
• Does the Ninth Schedule make every listed law immune from challenge? No. A law inserted into the Ninth Schedule after 24 April 1973 can still face basic-structure review, under the rule set in Waman Rao and confirmed in I.R. Coelho.

Reference texts: Constitution of India, Article 368 · Kesavananda Bharati judgment · Minerva Mills judgment · Tribunals Reforms Act ruling, 2025