Creation of a Basic Structure: Fundamental Rights may be amended by the Parliament. But not all of them

Bench: Sikri, CJ, Shelat, Hegde, A.N. Grover, Jaganmohan Reddy, Palekar, H.R. Khanna, A.K. Mukherjee, YV Chandrachud, A.N. Ray, Mathew, M.H. Beg, Dwivedi) - Largest Bench ever constituted by the Supreme Court of India.

Facts:

After the Golak Nath case, several amendments were brought about to bypass the ratio laid down in that case. The amendments were:

• 25th Amendment- Article 13 was amended. Clause (4) was inserted and it was laid down that amendments were not laws for the purposes of Article 13.It also added Article 31C to the Constitution which gave power to the Parliament to make law to implement certain DPSP even in abrogation of Article 14, 19 and 31.It amended Article 31(2) by replacing the word ‘compensation’ with the word ‘amount’.
• 26th Amendment- deleted Article 362 abolishing Princely states and privileges of princes.
• 29th Amendment- expanded the 9th Schedule

All these amendments were questioned in Keshavananda Bharati’s case. The Supreme Court had either to accept or reject the Golak Nath ratio. A 13-judge bench sat for the first time and gave the bulkiest judgment in the world. (7:6 ratio)

Issue:

To what extent could the Constitution be amended after the passage of the 24th Amendment? Whether the ‘power’ (no longer merely the procedure) to amend the Constitution was subject to any restrictions, implied or express, after the 24th amendment.

Judgement:

The decision was split 7:6, with Justice Khanna’s opinion being the decisive one. However, Khanna, J. seemed to side with both sides, to some extent.

Majority I

Amending power extends to amending all provisions of the Constitution including Part III. Fundamental Rights are not beyond amending power.

Majority II

Even though amending power extends to all provisions, it is limited. The Parliament has no power to amend in such a way as to destroy the basic structure/framework of the Constitution. However, the basic structure was not defined.

Justice Khanna

He said that Fundamental Rights may be amended. His idea of ‘basic structure’ was one of institutional design. He did not join either majority in full force. He joined Majority I to the extent that the amending power of the Parliament covered all provisions.He joined Majority II to the extent that the amending power was limited by basic structure.Therefore, the Golak Nath ratio was overruled in all respects.

The majority judges in their separate opinion mentioned the following features as constituting the basic features of the constitution:

1. Supremacy of the Constitution
2. Republican and democratic form of government
3. Separation of powers
4. Secular character
5. Dignity of the individual
6. Mandate of welfare state
7. Unity and integrity of nation
8. Preamble , fundamental rights and directive principles