End-Term Summative Assessment

Name of the Student: Divya Mali

Name of the Faculty: Jitesh

Pandey

Semester: II

Course: USLM

Subject: Indian Constitution

Enrollment Number:

202305010026

UNITEDWORLD SCHOOL OF LIBERAL ARTS AND MASS COMMUNICATION

KARNAVATI UNIVERSITY
 GANDHINAGAR
April 2024

1.

According to the Indian Constitution, the Parliament and the State Legislatures can make laws
within their jurisdictions. The power to amend the Constitution is only with the Parliament and
not the state legislative assemblies. However, this power of the Parliament is not absolute. The
Supreme Court has the power to declare any law that it finds unconstitutional void. As per the
Basic Structure Doctrine of the Indian Constitution, any amendment that tries to change the basic
structure of the constitution is invalid.

Basic Structure Doctrine of Indian Constitution

There is no mention of the term “Basic Structure” anywhere in the Constitution of India. The
idea that the Parliament cannot introduce laws that would amend the basic structure of the
constitution evolved gradually over time and many cases. The idea is to preserve the nature of
Indian democracy and protect the rights and liberties of people. This Basic Structure doctrine of
the Indian Constitution helps to protect and preserve the spirit of the constitution document.

It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that
the “basic structure of the Indian Constitution could not be abrogated even by a constitutional
amendment”. The judgement listed some basic structures of the constitution as:

1. Supremacy of the Constitution

2. Unity and sovereignty of India

3. Democratic and republican form of government

4. Federal character of the Constitution

5. Secular character of the Constitution

 6. Separation of power

7. Individual freedom

Over time, many other features have also been added to this list of basic structural features.
Some of them are:

 Rule of law

 Judicial review

 Parliamentary system

 Rule of equality

 Harmony and balance between the Fundamental Rights and DPSP

 Free and fair elections

 Limited power of the parliament to amend the Constitution

 Power of the Supreme Court of India under Articles 32, 136, 142 and 147

 Power of the High Court under Articles 226 and 227

Any law or amendment that violates these principles can be struck down by the SC on the
grounds that they distort the basic structure of the Constitution.

Evolution of the Basic Structure Concept

The concept of the basic structure of the constitution evolved over time. In this section, we shall
discuss this evolution with the help of some landmark judgement related to this doctrine.

Shankari Prasad Case (1951)

 In this case, the SC contended that the Parliament’s power of amending the Constitution
under Article 368 included the power to amend the Fundamental Rights guaranteed in
Part III as well.

Sajjan Singh case (1965)

  In this case also, the SC held that the Parliament can amend any part of the Constitution
including the Fundamental Rights.

 It is noteworthy to point out that two dissenting judges, in this case, remarked whether
the fundamental rights of citizens could become a plaything of the majority party in
Parliament.

Golaknath case (1967)

 In this case, the court reversed its earlier stance that the Fundamental Rights can be
amended.

 It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated
in Article 13 and that to amend the Fundamental rights a new Constituent Assembly
would be required.

 Also stated that Article 368 gives the procedure to amend the Constitution but does not
confer on Parliament the power to amend the Constitution. This case conferred upon
Fundamental Rights a ‘transcendental position’.

 The majority judgement called upon the concept of implied limitations on the power of
the Parliament to amend the Constitution. As per this view, the Constitution gives a place
of permanence to the fundamental freedoms of the citizens.

 In giving to themselves the Constitution, the people had reserved these rights for
themselves.

Kesavananda Bharati case (1973)

 This was a landmark case in defining the concept of the basic structure doctrine.

 The SC held that although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the Constitution could
not be abrogated even by a constitutional amendment.”

 The judgement implied that the parliament can only amend the constitution and not
rewrite it. The power to amend is not a power to destroy.

 This is the basis in Indian law in which the judiciary can strike down any amendment
passed by Parliament that is in conflict with the basic structure of the Constitution.
Indira Nehru Gandhi v. Raj Narain case (1975)

 Here, the SC applied the theory of basic structure and struck down Clause(4) of Article
329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was
beyond the Parliament’s amending power as it destroyed the Constitution’s basic
features.

 The 39th Amendment Act was passed by the Parliament during the Emergency Period.
This Act placed the election of the President, the Vice President, the Prime Minister and
the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.

 This was done by the government in order to suppress Indira Gandhi’s prosecution by the
Allahabad High Court for corrupt electoral practices.

Minerva Mills case (1980)

 This case again strengthens the Basic Structure doctrine. The judgement struck down 2
changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to
be violative of the basic structure.

 The judgement makes it clear that the Constitution, and not the Parliament is supreme.

 In this case, the Court added two features to the list of basic structure features. They
were: judicial review and balance between Fundamental Rights and DPSP.

 The judges ruled that a limited amending power itself is a basic feature of the
Constitution.

Waman Rao Case (1981)

 The SC again reiterated the Basic Structure doctrine.

 It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda
Bharati judgement, and held that it should not be applied retrospectively to reopen the
validity of any amendment to the Constitution which took place prior to that date.

 In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th
Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its
amending Act into the 9th Schedule of the Constitution.
  The 9th Schedule was added to the Constitution by the First Amendment in 1951
along with Article 31-B to provide a “protective umbrella” to land reforms laws.

 This was done in order to prevent them from being challenged in court.

 Article 13(2) says that the state shall not make any law inconsistent with
fundamental rights and any law made in contravention of fundamental rights shall
be void.

 Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it
and placed in the 9th Schedule are immune to challenge in a court, even if they go
against fundamental rights.

 The Waman Rao case held that amendments made to the 9th Schedule until the
Kesavananda judgement are valid, and those passed after that date can be subject to
scrutiny.

Indra Sawhney and Union of India (1992)

 SC examined the scope and extent of Article 16(4), which provides for the reservation of
jobs in favour of backward classes. It upheld the constitutional validity of 27%
reservation for the OBCs with certain conditions (like creamy layer exclusion, no
reservation in promotion, total reserved quota should not exceed 50%, etc.)

 Here, ‘Rule of Law’ was added to the list of basic features of the constitution.

S.R. Bommai case (1994)

 In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the
imposition of President’s Rule on states).

 In this case, there was no question of constitutional amendment but even so, the concept
of basic doctrine was applied.

 The Supreme Court held that policies of a state government directed against an element
of the basic structure of the Constitution would be a valid ground for the exercise of the
central power under Article 356.
The Purpose and Significance of a Constitution

Preserving Fundamental Rights and Liberties

One of the primary reasons we need a constitution is to protect the fundamental rights and
liberties of individuals. A constitution enshrines the rights of citizens, such as freedom of speech,
religion, and assembly, ensuring that these rights are safeguarded against encroachment by the
government or any other entity. It acts as a shield against potential abuses of power, providing a
legal framework to seek redress in case of violations.

Ensuring Separation of Powers

Another crucial aspect of a constitution is its role in ensuring the separation of powers. It
establishes distinct branches of government, such as the executive, legislative, and judicial
branches, with defined roles and responsibilities. This separation prevents the concentration of
power in a single entity, reducing the likelihood of tyranny or authoritarianism.

Establishing a System of Checks and Balances

Closely related to the separation of powers, a constitution establishes a system of checks and
balances. This system allows each branch of government to exercise oversight over the others,
ensuring accountability and preventing any single branch from becoming too powerful. By
maintaining this delicate balance, a constitution promotes stability and prevents the abuse of
power.

Providing Stability and Predictability

A constitution provides stability and predictability in governance. It sets out the fundamental
principles and rules that govern a nation, providing a clear framework for decision-making and
policy implementation. This stability fosters confidence among citizens, investors, and
international partners, promoting economic development and social progress.

Facilitating Social Cohesion and National Identity

A constitution plays a crucial role in fostering social cohesion and promoting a sense of national
identity. It often includes provisions that recognize and protect the rights of various ethnic,
cultural, and religious groups within a nation. By acknowledging and respecting the diversity of
its citizens, a constitution contributes to a harmonious and inclusive society.

Enhancing Democracy and Popular Participation

Democracy lies at the heart of many modern constitutions. A constitution establishes the
framework for democratic governance, including procedures for elections, representation, and
citizen participation. It ensures that power resides with the people and facilitates their active
involvement in decision-making processes.

Constitution as a Tool for Governance

A constitution provides a set of rules and principles that guide the functioning of government
institutions. It outlines the structure of government, defines the powers and limitations of various
branches, and establishes mechanisms for policy formulation and implementation. By providing
a clear roadmap for governance, a constitution helps maintain order and efficiency in public
administration.

Constitution as a Protector of Minority Rights

Minority rights are often vulnerable to infringement in societies where the majority holds
significant power. A constitution acts as a safeguard for minority rights, ensuring their protection
and preventing discrimination. It establishes a framework that upholds equality, inclusivity, and
respect for all individuals, regardless of their background or beliefs.

Constitution as a Mechanism for Change

A constitution is not a static document but a living one that can adapt to changing times. It
provides mechanisms for amendment and revision, allowing societies to address emerging
challenges and embrace social progress. This flexibility ensures that a constitution remains
relevant and responsive to the evolving needs and aspirations of its citizens.
2.
India is unreasonably poor. The 2015 International Monetary Fund ranking of countries places
India at the 140th position with an annual per capita gross domestic product of only $1,600. For
China the figures are 73rd and $8,000. India had the potential to be at least a middle-income
country with negligible poverty by the turn of the century. Why has India failed to realize that
potential despite the fact that Indians are as capable of creating wealth as any other people.
A country would have reason to be poor if it suffered adverse conditions such as periodic
devastating natural disasters, protracted civil strife and foreign wars, or insufficient human and
natural resource endowment—none of which is true for India. Assuming that the gods are not
maliciously inclined towards India, we can rule out divine decree as the cause of India’s poverty.
That leaves us with economic policy as a proximate cause. Centuries of economic history teaches
us that bad policies fail to produce economic growth. The claim here is that India’s lack of
progress is due to the Constitution since that determines the nature of the government, which in
turn dictates those policies.
India’s Constitution has the dubious distinction of being the largest in the world and
consequently unreadable, and largely unread. It gives the government enormous powers to
intervene in the economy, to enact laws that discriminate among citizens based on attributes such
as religion and caste, restricts freedom of speech, and limits the right to property. In short, it
allows deliberate political and economic exploitation.
Undue government interference in the economy politicizes the economy, which in turn leads to
the corruption of politics. By contrast, the US Constitution is short, guarantees the freedom of
speech, protects property rights, prohibits discrimination among citizens, and limits the power of
the government.
The most salient distinction between the US and Indian Constitutions lies in the relationship
between the people and the government the Constitutions define. The US Constitution places the
people as the principal and the government as its agent. This is evidenced in the limits that the
Constitution imposes on the government. The Indian Constitution places the government as the
master and people as its servants—as can be expected of an essentially colonial government.
Like the British government before it, post-1947 Indian governments took on the role of the
master and imposed limits on the economic and civic freedoms of Indians.
India is a functioning democracy with routine peaceful transfer of power following elections.
Each election raises the hope that with different political leaders, governance would improve.
Sadly, regardless of which party or leaders are in power, the policies hardly change.
Nobel laureate economist James Buchanan wrote, “It is folly to think that ‘better men’ elected to
office will help us much, that ‘better policy’ will turn things around here. We need, and must
have, basic constitutional reform, which must, of course, be preceded by basic constitutional
discourse and discussion."
Constitutions provide the structure of rules and constraints within which political decisions are
made. Very large constitutions encoding a vast set of rules point to a “low trust" society. India is
not inherently a low trust society but it became so because of the adversarial relationship
between the government and the people, established by the British and continued post
independence.
The British government was not popularly chosen but was imposed by force on an unwilling
population. The laws, rules, regulations were all designed to have comprehensive, oppressive
control over the people. There cannot be a relationship of trust between oppressor and oppressed.
The seeds of mistrust sowed by the colonial British Raj have led to a paternalistic government
which treats citizens as irresponsible, immature children.
The Constitution’s colonial origins give the government near omnipotent powers that are not
consistent with a free society. It allows the government to interfere and restrict economic and
civic freedoms. India needs a new Constitution that constrains governmental power and restricts
it to the proper role of the government in a free society, namely to protect life, liberty and
property of the citizens. The new Constitution must prohibit discrimination and must guarantee
that all laws follow a generality norm that apply equally to all regardless of sex, religion, group
affiliation or origin.
The legitimacy of the government of a free society depends on the consent of the governed.
Consent by the people even in principle is meaningless if the Constitution is a mysterious
document revered by all but understood by few. The new Constitution must be readable and be
read by all. Therefore it must be in plain language and not in legalese.
For India’s trajectory to change towards prosperity that has been denied to it for so long, India
needs a new Constitution that rolls back the power of the state and vests power in its people
where it rightfully belongs in a constitutional republic.
Atanu Dey is an economist based in the US.
Published as part of a series on the book Liberalism in India: Past, Present and Future published
recently by Centre for Civil Society. The book is a collection of essays written in honour of the
late S.V. Raju.

3.

India is celebrating 76 years of its independence — a feat that came after years of battle with the
British and uncountable sacrifices. After 15th August 1947, a constituent assembly was formed
to write the Constitution for independent India. Over the course of the next two years, 11 months
and 18 days, members of the assembly discussed, debated and finalised the guiding book of the
largest democracy in the world. However, it was understood that with time, changes would be
required in the Constitution and the power rested with Parliament. In the last 76 years,
Parliament has made 105 amendments to the Constitution. While some of these brought big
changes, some also saw huge controversies. Here we look at some of the important amendments
to the Constitution:

1st Constitutional Amendment, 1951: The first constitutional amendment was made in 1951. It
provided for the saving of laws providing for the acquisition of estates. The amendment added
three more grounds to restrict freedom of speech and expression — public order, friendly
relations with foreign states, and incitement. Also, it made the restrictions ‘reasonable’ and thus,
justiciable. The change also added the Ninth Schedule to protect the land reforms and other laws
included in it from judicial review. It means it is ultimately up to the state to decide on the land
matters that need to be public and is out of judicial review.
24th Constitutional Amendment, 1971: The 24th constitutional amendment was made in 1971
and it made changes to Article 13, which gives courts power to hold any law void through
judicial review and Article 368. The amendment gave Parliament the power to amend any part of
the Constitution, including fundamental rights, reversing the Supreme Court’s judgment in the
I.C. Golak Nath v. State of Punjab. The amendment also made it compulsory for the president to
give his assent to a Constitutional Amendment Bill.
42nd Constitutional Amendment, 1976: The most controversial amendment to date is the 42nd
amendment act which was introduced in 1976 during the Emergency. Then PM Indira Gandhi
made changes beyond judicial scrutiny that led to the naming of this amendment as the Mini
Constitution. It saw addition of three words — "secular", "socialist", and "integrity" — to the
Preamble.
The term of Lok Sabha was increased from five years to six. Directive Principles were given
priority over fundamental rights. It said that laws enacted to implement Directive Principles
cannot be deemed invalid by the courts. It also allowed the extension of the one-time duration of
the President’s rule in a state from 6 months to one year among several other changes.
44th Constitutional Amendment, 1978: After the end of the Emergency, Indira Gandhi’s
regime came to a halt and the new government introduced the 44th constitutional amendment to
reverse the changes brought in by the 42nd amendment. It replaced the term “internal
disturbance” with “armed rebellion” in respect of national emergency. It added that President can
declare a national emergency only on the written recommendation of the cabinet. Also, the
amendment provided that the fundamental rights guaranteed by Articles 20 and 21 cannot be
suspended during a national emergency.
61st Constitutional Amendment, 1989: Parliament reduced the voting age from 21 years to 18
years for the Lok Sabha and Assembly elections, through 61st constitutional amendments.
69th Constitutional Amendment, 1991: It made Delhi as ‘National Capital Territory of Delhi’
along with the provision of a 70-member assembly and a 7-member Council of Ministers for
Delhi in 1991.
73rd and 74th Amendment, 1992: This provided provisions for a three-tier model of
Panchayati Raj, reservation of seats for SCs and STs in proportion to their population, and one-
third reservation of seats for women. 74th Amendment Act granted Constitutional status and
protection to the urban local bodies.
86th Constitutional Amendment, 2002: One of the very important amendments, the 86th
amendment act made elementary education a fundamental right. The newly-added Article 21-A
declares that “the State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may determine.”
99th Constitutional Amendment, 2014: The National Judicial Appointments Commission
(NJAC) was introduced to replace the collegium system of appointing judges to the Supreme
Court and High Courts. However, in 2015, the Supreme Court declared this amendment Act
unconstitutional and void.
103rd Constitutional Amendment, 2019: It empowered the state to make any special provision
for the advancement of any economically weaker sections of citizens and introduced 10%
reservation for EWS in admission to educational institutions, including private educational
institutions, with the exception of minority educational institutions.

Constitutions are an integral part of every country as they encompass every law and their
prescribed implementation manner. They are formulated to meet and resolve every possible
challenge of the country. However, some problems evolve, and the existing laws are rendered
useless. This phenomenon requires a procedure to edit changes by adding or deleting the law or
provisions of the Constitution. This editing is called the Constitutional Amendments. They are
made to cope with present challenges and meet existing requirements. There have been 105
Indian Constitutional Amendments since independence in 1947 in total. The procedure of
Constitutional Amendments in India is taken from South Africa.

Steps to Indian Constitutional Amendments:

The Indian Constitution is rigid but can be amended in a prescribed manner. These changes
require consent from the state and cannot be changed without taking consent from them. As
mentioned above, South Africa is the source from which India’s Constitutional Amendments are
adopted and enshrined in our constitution. The steps to conducting amendments in India are
explained below:

1. Simple Majority:

This method is similar to passing an ordinary law in Parliament. This method requires more than
50℅ representatives agree to the amendment from both the houses of the Parliament.
Amendments in citizenship, formation or removal of any legislative council, rules of the
 Parliament, changing names of States or borders can be passed through a Simple Majority in the
Parliament.

2. Special Majority:

This method is quite difficult to pass in Parliament. This method requires two processes. First, it
should be ratified by more than ⅔ rd members of Parliament. Secondly, this number should be
more than half of the present members of the Parliament. The changes in Fundamental Rights
and Directive Principles of State Policy (DPSP) can be done through a Special Majority in
Parliament.

3. Special Majority and Ratification of the states:

This method adds one more condition to the current criteria of the special majority. This process
requires a special majority from Parliament and ratification from more than half of the
Legislative Assembly of the states to enact the amendment. The changes in executive powers
between state and the center, the election of President, amend the Constitution itself can be
attained by passing a special majority and ratifying the states in the Parliament.

Landmark Judgements for Indian Constitutional Amendments:

History witnessed several confusions between powers to amend the constitution. Even if the
Constitution enables the law to amend certain provisions, the extent of these amendments is not
written in the Constitution, resulting in a wide range of debates. Some of the important
judgments regarding Constitutional Amendments in India are mentioned below:

1. Golaknath V. State of Punjab- The power to amend fundamental rights was challenged in this
case. The Supreme Court mentioned that the Constitution could not amend the Fundamental
rights of citizens. This judgment overruled previous judgments of the Shankari Prasad Case and
the Sajjan Singh Case.
2. Kesavananda Bharati V. State of Kerala- In this case, land amendments in Kerala were
challenged. In this judgment, the Supreme Court ruled that the Parliament has the power to
amend every provision of the constitution, including fundamental rights if necessary. Still, it can
 not amend the basic structure or doctrine of the Constitution. It also mentioned which provisions
constitute a basic structure, for example, the judicial review.
3. Indira Gandhi V. Raj Narain- An amendment was passed during the term of Indira Gandhi that
stated that the judicial review could not be part of elections. This amendment was challenged in
this case. Again, the Supreme Court held that democracy and free and fair elections constitute
the basic doctrine of the Constitution and thus cannot be upheld in any case.

Latest Constitutional Amendments:

There have been 105 Constitutional Amendments in the Indian Constitution. The latest
amendments in the Indian Constitution are listed below:

 100th Constitutional Amendment: This was passed in 2015 and led to an exchange of 162
enclave territories between India and Bangladesh. This amendment was in the context of the
Land Agreement signed in 1974 after the Partition of Bangladesh from India.

 101st Constitutional Amendment: This was passed in 2016 that introduced the Goods and
Services Act in India. It was brought to encompass various taxes under one umbrella. It led to the
addition of Article 279A in the Indian Constitution and the formation of the GST Council.

 102nd Constitutional Amendment: This was passed in 2016, through which a constitutional
status was granted to National Commission for backward classes (NCBC).

 103rd Constitutional Amendment: This was passed in 2018, which provided 10% reservation for
Economically Weaker Sections (EWS) of the society. The center identified such groups that need
reservation provisions, and hence Articles 15 and 16 were amended.

 104th Constitutional Amendment:

It was passed in 2020 and extended reservation for Scheduled Tribes (STs) and Scheduled Castes
(SCs). It also removed the reservation of Anglo Indians from the Parliament.

 105th Constitutional Amendment:

It was passed in 2021 and provided that States can maintain and change their OBC lists. They
have the power to declare whether a community requires reservation due to backwardness.

Conclusion:

For each country, the provisions for Constitutional Amendments are eminent. They provide a
room to edit the current laws and provisions and modify them according to the needs of present
times and generations. A proper mechanism is also needed to conduct constitutional amendments
properly and ensure that justice reaches everyone. The landmark judgments in the history of
Indian Constitutional Amendments prove that amendments are crucially needed for better
administration and maintaining peace and order in the country. They act as a mechanism for
correcting our mistakes or misjudgments in the past and allow us to make them better for the
present, as seen in the latest Constitutional amendments.