Topic 93: Basic Structure Doctrine, Amendment Process, Major Amendments

Study Material

Paper Paper III

Unit 1

1. Basic Structure Doctrine — Kesavananda Bharati (1973) - Established in Kesavananda Bharati v. State of Kerala (1973) - 13-judge Supreme Court bench, razor-thin 7:6 majority - Parliament can amend any part under Article 368 - Cannot destroy or abrogate the Constitution's "Basic Structure"
2. Basic Structure — Elements Identified by the Supreme Court - Supremacy of Constitution; republican and democratic form of government - Secular character; separation of powers; federal character - Judicial review; rule of law; free and fair elections - Independence of judiciary; unity and integrity of India - Fundamental Rights including Article 32
3. Article 368 — Amendment Procedure - Bill must be passed by each House separately by special majority - Special majority = absolute majority of total membership + two-thirds of present and voting - Some amendments additionally need ratification by at least half the state legislatures
4. Three Types of Amendment Procedures - (i) Simple majority — ordinary legislation, e.g., creating new states, abolishing Upper Houses - (ii) Special majority — two-thirds + absolute majority; most constitutional amendments - (iii) Special majority + state ratification — federal provisions: judiciary, election of President, distribution of powers
5. 42nd Amendment Act, 1976 — the "Mini-Constitution" - Passed during Emergency; most comprehensive amendment ever - Added "Socialist" and "Secular" to the Preamble - Inserted Fundamental Duties under Article 51A - Shifted several subjects from State to Concurrent List; curtailed judicial review - Gave primacy to all DPSPs over Articles 14 and 19
6. 44th Amendment Act, 1978 — Reversing the Emergency Legacy - Reversed many changes made by the 42nd Amendment - Removed Right to Property from Fundamental Rights — converted to legal right under Article 300A - Restored judicial review for preventive detention - Restored pre-Emergency judicial powers
7. 73rd and 74th Amendments (1992) — Local Self-Government - 73rd Amendment constitutionalised Panchayati Raj; added 11th Schedule (29 functions to Panchayats) - 74th Amendment constitutionalised Urban Local Bodies; added 12th Schedule (18 functions) - Both created State Finance Commissions and State Election Commissions
8. 86th Amendment (2002) — Right to Education - Inserted Article 21A — Free and Compulsory Education for children aged 6–14 made a Fundamental Right - Implemented via the RTE Act 2009 - Also added the 11th Fundamental Duty: parents' duty to provide education to children
9. 101st Amendment (2016) — GST - Introduced Goods and Services Tax (GST) — replaced multiple indirect taxes - Constituted the GST Council under Article 279A - Article 246A allows both Parliament and State Legislatures to legislate on GST - Most significant fiscal federalism amendment since 1950
10. 103rd Amendment (2019) — EWS Reservation - Inserted Articles 15(6) and 16(6): 10% reservation for Economically Weaker Sections (EWS) - Covers educational institutions and government employment - Upheld by Supreme Court in *Janhit Abhiyan v. Union of India (2022)* — 3:2 majority
11. Article 370 Abrogation (2019) - Accomplished through Presidential Order and Parliamentary resolution under Article 356 - Removed J&K's special status; Parliament acted as J&K Constituent Assembly - Supreme Court upheld the abrogation in December 2023 (*In Re: Article 370*) - Court directed elections in J&K by September 2024
12. Doctrine of Prospective Overruling - Introduced in *Golak Nath (1967)*: SC decisions overruling earlier rulings apply prospectively only - Protected vested rights created under previous law - This doctrine itself was overruled in *Kesavananda Bharati (1973)*

Key facts

Basic Structure Doctrine — Kesavananda Bharati (1973) — Established in Kesavananda Bharati v. State of Kerala (1973)
Basic Structure — Elements Identified by the Supreme Court — Supremacy of Constitution; republican and democratic form of government
Article 368 — Amendment Procedure — Bill must be passed by each House separately by special majority
42nd Amendment Act, 1976 — the "Mini-Constitution" — Passed during Emergency; most comprehensive amendment ever
44th Amendment Act, 1978 — Reversing the Emergency Legacy — Reversed many changes made by the 42nd Amendment

Key Points at a Glance

1
Basic Structure Doctrine — Kesavananda Bharati (1973)
- Established in Kesavananda Bharati v. State of Kerala (1973)
- 13-judge Supreme Court bench, razor-thin 7:6 majority
- Parliament can amend any part under Article 368
- Cannot destroy or abrogate the Constitution's "Basic Structure"
2
Basic Structure — Elements Identified by the Supreme Court
- Supremacy of Constitution; republican and democratic form of government
- Secular character; separation of powers; federal character
- Judicial review; rule of law; free and fair elections
- Independence of judiciary; unity and integrity of India
- Fundamental Rights including Article 32
3
Article 368 — Amendment Procedure
- Bill must be passed by each House separately by special majority
- Special majority = absolute majority of total membership + two-thirds of present and voting
- Some amendments additionally need ratification by at least half the state legislatures
4
Three Types of Amendment Procedures
- (i) Simple majority — ordinary legislation, e.g., creating new states, abolishing Upper Houses
- (ii) Special majority — two-thirds + absolute majority; most constitutional amendments
- (iii) Special majority + state ratification — federal provisions: judiciary, election of President, distribution of powers
5
42nd Amendment Act, 1976 — the "Mini-Constitution"
- Passed during Emergency; most comprehensive amendment ever
- Added "Socialist" and "Secular" to the Preamble
- Inserted Fundamental Duties under Article 51A
- Shifted several subjects from State to Concurrent List; curtailed judicial review
- Gave primacy to all DPSPs over Articles 14 and 19
6
44th Amendment Act, 1978 — Reversing the Emergency Legacy
- Reversed many changes made by the 42nd Amendment
- Removed Right to Property from Fundamental Rights — converted to legal right under Article 300A
- Restored judicial review for preventive detention
- Restored pre-Emergency judicial powers
7
73rd and 74th Amendments (1992) — Local Self-Government
- 73rd Amendment constitutionalised Panchayati Raj; added 11th Schedule (29 functions to Panchayats)
- 74th Amendment constitutionalised Urban Local Bodies; added 12th Schedule (18 functions)
- Both created State Finance Commissions and State Election Commissions
8
86th Amendment (2002) — Right to Education
- Inserted Article 21A — Free and Compulsory Education for children aged 6–14 made a Fundamental Right
- Implemented via the RTE Act 2009
- Also added the 11th Fundamental Duty: parents' duty to provide education to children
9
101st Amendment (2016) — GST
- Introduced Goods and Services Tax (GST) — replaced multiple indirect taxes
- Constituted the GST Council under Article 279A
- Article 246A allows both Parliament and State Legislatures to legislate on GST
- Most significant fiscal federalism amendment since 1950
10
103rd Amendment (2019) — EWS Reservation
- Inserted Articles 15(6) and 16(6): 10% reservation for Economically Weaker Sections (EWS)
- Covers educational institutions and government employment
- Upheld by Supreme Court in Janhit Abhiyan v. Union of India (2022) — 3:2 majority
11
Article 370 Abrogation (2019)
- Accomplished through Presidential Order and Parliamentary resolution under Article 356
- Removed J&K's special status; Parliament acted as J&K Constituent Assembly
- Supreme Court upheld the abrogation in December 2023 (In Re: Article 370)
- Court directed elections in J&K by September 2024
12
Doctrine of Prospective Overruling
- Introduced in Golak Nath (1967): SC decisions overruling earlier rulings apply prospectively only
- Protected vested rights created under previous law
- This doctrine itself was overruled in Kesavananda Bharati (1973)

Introduction and Context

The amendment power matters because it decides how India can update its Constitution without letting a temporary parliamentary majority destroy the Constitution's identity.

Why the Amendment Power Matters

The power to amend the Constitution and the limits on that power represent one of the most contested domains in Indian constitutional law. The Basic Structure Doctrine, born out of a nine-year judicial contest between the Supreme Court and Parliament, is India's distinctive contribution to comparative constitutional theory. Few democracies have developed such a strong doctrinal check on the amending power through judge-made law.

A rigid constitution that cannot be amended becomes obsolete. A flexible constitution that can be easily changed may be distorted for partisan purposes. Article 368 tries to balance these concerns by requiring a special majority - preventing hasty or partisan amendments while allowing necessary change.

According to the RPSC RAS syllabus, the Mains scheme has four papers of 200 marks each, which makes Constitution topics important for both direct polity questions and cross-paper analytical answers.

Examination Angles for RPSC 2026

For the RPSC 2026 exam, this topic carries two distinct angles:

Doctrinal: Basic Structure, amendment procedure, key cases
Factual: Specific amendments - their numbers, years, contents

Both can yield 5-mark questions. 10-mark questions typically ask for a critical analysis. A strong answer should therefore combine the doctrine's logic with specific constitutional amendments such as the 24th, 25th, 39th, 42nd, 44th, 73rd, 74th, 86th, 99th, 101st and 103rd Amendments.

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PREDICTED Predicted RAS Questions

Based on PYQ trends and 2026 syllabus analysis

1 5M What is the Basic Structure Doctrine? Name any four elements. 5 marks · 50 words

Model Answer

The Basic Structure Doctrine, established in Kesavananda Bharati v. State of Kerala (1973) by a 7:6 majority, holds that Parliament can amend any constitutional provision under Article 368 but cannot destroy the Constitution's essential features. Four Basic Structure elements: (1) judicial review, (2) independence of judiciary, (3) secular character, (4) free and fair elections. The doctrine limits unlimited parliamentary sovereignty.

(55 words)

~50 words • 5 marks