Majority judgement

S M Sikri, Chief Justice

S M Sikri, Chief Justice held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Shelat and Grover, JJ

Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which prevented the Parliament from abolishing or changing the identity of the Constitution or any of its basic features.

Hegde and Mukherjea, JJ

Held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abolish or emasculate those basic elements of fundamental features. The building of a welfare State is the ultimate goal of every Government but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its un-amended form.

Jaganmohan Reddy, J
Held that the word 'amendment' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power

itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.

H R Khanna
H R Khanna broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges (constituted for the first time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. This question had previously been considered in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan. In both cases, the power to amend the rights had been upheld on the basis of Article 368. Chief Justice Subba Rao writing for the majority (five judges dissenting) held that: * A law to amend the constitution is a law for the purposes of Article 13. * Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions. * Article 368 does not contain a power to amend the constitution but only a procedure. * The power to amend comes from the normal legislative power of Parliament. * Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.

The Kesavananda case (1973) Six years later in 1973, thirteen judges of the Supreme Court, including then Chief Justice Sikri, heard

arguments in Kesavananda Bharati v. The State of Kerala and thus considered the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the decision in the Golak Nath case. This time, the court held, by the thinnest of margins of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment". However nine judges (including two dissentients) signed a summary stating that "the view of the majority" in the case was 1. Golak Nath's case is overruled. 2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

The Emergency (1975) In 1975, shortly after the imposition of the Emergency, a bench of thirteen judges was hastily assembled to hear the case of Indira Gandhi v. Raj Narain. Presided over by Chief Justice A.N. Ray, the court had to determine the degree to which amendments were restricted by the basic structure theory. On November 10 and 11, the team of civil libertarian barristersagain led by Palkhivala continuously argued against the Union government's application for reconsideration of the Kesavananda decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one. On the morning of November 12 Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose. The doctrine could thus famously be applied in Indira Gandhi vs. Raj Narain to the 39th Amendment of 1975, which attempted, among other provisions, to pass legislative judgment over the election of Indira Gandhi in 1971. [edit] Extending the doctrine (1981) The doctrine was expanded in the Minerva Mills case of 1981. In Minerva Mills Ltd. v. Union of India, Palkhivala successfully moved the Supreme Court to declare that Clauses (4) and (5) of Article 368 of the Constitution are invalid. These clauses had been inserted as a response by the Gandhi government to the decision in the Kesavananda case by the Constitution (Forty-Second Amendment) Act, s. 55. The clauses read: (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground. (5) For the removal of doubts, 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 this Constitution under this article.

The Court held that since, as had been previously held in the Kesavananda case, the power of Parliament to amend the constitution was limited, it could not by amending the constitution convert the power into an unlimited power (as it had purported to do by this amendment). The court went on to invalidate the amendment of Article 31-C by the Forty-second Amendment. This view of Article 31-C, but not the basic structure doctrine, was questioned but not overruled in Sanjeev Coke Mfg. Co v Bharat Cooking Coal Ltd.