93. Basic Structure Doctrine, Amendment Process, Major Changes

CORE Key Points at a Glance

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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)