Abstract

The Parliament in exercise of its power under Article 368 of the Indian Constitution can amend any part of the Constitution except Basic Structure of the Indian Constitution. Part XX of the Indian Constitution under Article 368 deals with the amendment of the Constitution. The Indian Constitution is founded on the bedrock of the balance between Parts III and IV. In Indira Gandhi case.”

The concept of basic structure as a brooding omnipresence in the sky apart from specific provisions of the constitution is too vague and indefinite to provide a yardstick for the validity an ordinary law”. After coming into force the Constitution of India, the problem of validity of the Constitutional amendments arose early essentially on the issue of ‘ right to property’.

The Bihar Land Reform Act, 1950 was declared unconstitutional by the Patna High Court. After the Shankari Prasad case, the Constitution (Fourth Amendment) Act, 1955 was passed amending some Articles in Fundamental Rights Part, but its validity was never challenged. The conflict between the Judiciary and the Legislature took totally a different shape after the decision in the Golakh Nath case.The Parliament cannot amend the basic structure.

He prayed that the provisions of the Kerala Land Reforms Act, 1963 as amended in 1969 and later in 1971 Twenty-fourth Amendment and Twenty-fifth Amendment be declared ultra vires to the Constitution. One of the reasons of tussle between the Judiciary and the two other organs together has always been the Ninth Schedule.

Introduction

“ A hundred years scarce serve  to from a state; an hour may lay it in the dust”

-Byron

The Constitution makers  gave the power to amend the Constitution in hands of the parliament by making it neither too rigid nor too flexible with a purpose that the parliament will amend it as to scope up with changing needs and demands of ‘We the people’. The Parliament in exercise of its power under Article 368 of the Indian Constitution can amend any part of the Constitution except Basic Structure of the Indian Constitution.  The Doctrine of Basic Structure is a judge- made doctrine. To put a limitation on the amending powers of the Parliament so that the basic structure of the basic law of the land‟ cannot be amended in exercise of its constituent power under the Constitution. India’s Constitution came not out of the vacuum. It is a continuous process of evolution, reformation, and recreation by eminent scholars, experts and judges, and so on, of the existing governance system. It must react to new developments and take into consideration unexpected and unprepared incidents that did not fall inside the scope of the Constitution’s contemplation. Ours is the living Constitution that needs a transition from time to time due to the developments in society. Parliament can modify, mould, change, vary or abolish any provisions of the Constitution under its legislative capacity.

Doctrine of Basic Structure – The Concept.

The Constitution is organic. What Edmund Burke has said about it that “a Constitution is an ever growing thing and is perpetually continuous as it embodies the spirit of the nation”.  It is enriched at present by the past influence and it makes the future richer than the present. Part XX of the Indian Constitution under Article 368[1] deals with the amendment of the Constitution. It provides for three kinds of amendment i.e., amendment by simple majority[2]; amendment by special majority[3]; and amendment by special majority and ratification by the States[4].The Constitution has to be amended at every interval of time. A Constitution which is a static constitution becomes a big hurdle in the path of the progress of the nation. As the time is not static; it goes on changing in the same way the political, economic and social conditions of the people also goes on changing so for that reason provision of amendment of the Constitution is made with a view to overcome the difficulties of  ” we the people” which may encounter in future in the working of the Constitution.

Chandrachud. C.J., in Minerva Mills case[5] observed thus, “the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and dire .The rule of law[6] and judicial review was held as basic structure in Waman Rao[7]. Sampath Kumar[8]and  Sambamurthy[9] cases. ctive principles is an essential feature of the basic structure of the Constitution.”

In a recent judgment I.R. Coelho v. State of Tamil Nadu[10] In this case Hon’ble  Supreme Court applied this doctrine and held that:-

“All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a Constitutional amendment, its provision would be open to attack on the ground that they destroy or damage the Basic Structure if the fundamental right or rights taken away or abrogated pertains or pertain to the Basic Structure.”

 In Indira Gandhi case[11].”The concept of basic structure as a brooding omnipresence in the sky apart from specific provisions of the constitution is too vague and indefinite to provide a yardstick for the validity an ordinary law”.

Evolution of doctrine of basic structure.

The Shankari Prasad Case[12]

After coming into force the Constitution of India, the problem of validity of the Constitutional amendments arose early essentially on the issue of ’ right to property’[13].The originally enacted Constitution included such provisions relating to property under Article 19 (1) (f)[14]. The Constitution further provided for the protection of right to property under Article 31[15]The Bihar Land Reform Act, 1950 was declared unconstitutional by the Patna High Court. In Kameshwar Prasad Singh vs. State of Bihar[16].the unconstitutionality of the Bihar Land Reforms Act, 1950 was related to the law being the subject to Article 13(2)[17].” The decision of the Court was lamented by Nehru, that somehow, we have found that the magnificent Constitution that we have framed was kidnapped and purloined by the lawyers”. It was evident that there existed a conflict between Article 13 and Article 368 of the Indian constitution. On one hand Article 368 gave legislature the power to amend the constitution at the same time Article 13 (2) restricted the same. The Supreme Court in this case used the doctrine of harmonious construction in an attempt to resolve the conflicting provisions. It was concluded that the word ‘law’ in Article 13 (2) is for ordinary laws and not constitutional laws. Thereby limiting the extent of ‘law’ under Article 13 (2).This also meant that the parliament had exclusive power under Article 368 to amend the constitution including the fundamental rights under part III of the constitution. The apex court validated Article 31 A&B and also upheld the validity of the agrarian land reforms.

The Sajjan Singh Case.[18]

After the Shankari Prasad case, the Constitution (Fourth Amendment) Act, 1955 was passed amending some Articles in Fundamental Rights Part, but its validity was never challenged. The Constitution (Seventeenth Amendment) Act, 1964[19] introduced a major change and put a number of laws in the Ninth Schedule, so as to keep them away from the judicial review and was challenged before the Court. The majority of the judges in this (Sajjan Singh) case on the same logic as held in the Shankari Prasad case held that the law of amendment is superior law and is not subject to Article 13(2). It also held that the Shankari Prasad case was rightly decided and affirmed that the Parliament under Article 368 can amend any of the provision of the Constitution including the Fundamental Rights and make a suggestion to the Parliament that Fundamental rights should be included in the Proviso of the Article 368.In this case Hon’ble  Supreme Court held that Article 368 of the Indian Constitution empowers the Parliament to amend any article of the Constitution. Once again, it was said that Article 13 is just limited to the ordinary laws and not the constitutional amendment, whereas the scope of article 368 is limited to constitutional law. According to the majority decision, it was held that Parliament has the power to amend the fundamental rights of the people.

The I. C. Golakhnath Case.[20]

The strong reservations of the minority in Sajjan Singh[21] case prompted Chief Justice Subba Rao to constitute a larger Bench (eleven judges) to reconsider the Constitutional validity of First, Fourth and Seventeenth Constitutional Amendments in view of the doubts expressed by Hidayatullah and Mudholkar JJ. The Seventeenth Constitutional Amendment was challenged in the I. C. Golakhnath case[22].By a majority of 6:5 it was held that the „Parliament had no power to amend the fundamental rights‟. Subbarao C.J., delivered the leading majority judgement (For himself, Sikri, Shelat, Shah and Vaidyalingam JJ.) whereas Hidayatullah J. delivering a concurring judgement. The two judgements reached the same conclusion although they took the opposite views as to the source of the amending power. Subbarao, C.J. held that Article 368 contained only procedure for amendment, the power to amend being located in the residuary power of legislation. As legislative power was subject to the provisions of this Constitution, Article 13(2) constituted a bar to an amendment abridging or taking away fundamental rights. The majority judgement overruled Shankari Prasad Case, and held that there was no distinction between legislative and constituent power[23].Justice Hidayatullah held that the power of amendment was not located in the residuary power of legislation. Article 368 provided a procedure which, when complied with, resulted in an amendment of the Constitution. If it could be called a power at all, it was a legislative power, but it was sui generis. Since a Constitutional amendment was a law, Article 13(2) barred any amendment which abridged or took away fundamental rights. It is not surprising that the majority shrank from the practical consequences of the judgement. The judgment of the Court in this case probably gave more rise to the already going controversy between the Judiciary and Legislature. The judges in their majority overruled the Sajjan Singh case. As there were numerous attacks on the Fundamental Rights since 1950 and because of that the Court was worried if the Parliament would be given an absolute power then a time may come when there will be no fundamental rights and India may lead towards totalitarian regime. The court came forward with some propositions: (i) the substantive power to amend is not to be found in Article 368; (ii) Article 368 contains only the procedure to amend the Constitution; (iii) a law made under Article 368 would be subject to Article 13(2) like other laws; (iv) The word amend envisaged only minor modifications in the existing provisions but not any major alterations therein; (v) to amend the Fundamental Rights, a Constituent Assembly ought to be convened by the Parliament.

The Keshavananda Bharati Sripadagalvaru Case.[24]

The conflict between the Judiciary and the Legislature took totally a different shape after the decision in the Golakh Nath case. The Constitution (Twenty-fourth Amendment) Act was passed to nullify the Golakh Nath decision[25].Four clauses were added in the Article to blanket the Parliament with an omnibus constituent power. The Constitution (Twenty-fifth Amendment) introduced a new provision Article 31C in the Constitution under which law giving effect to the Directive Principles of the State Policy enumerated under Part IV of the Constitution were deemed automatically be valid despite any inconsistency with the fundamental rights granted under Articles 14[26], 19[27] and 31[28].In this case, his Holiness Kesavananda Bharati Sripadagalavaru of Kerala filed a petition under Article 32 of the Constitution for the enforcement of his Fundamental Rights under Articles 14, 19(1)(f), 25, 26, 31(1) and 31(2) of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 as amended in 1969 and later in 1971 Twenty-fourth Amendment and Twenty-fifth Amendment be declared ultra vires to the Constitution. The matter was heard by the largest ever constituted Bench consisting of 13[29] judges to review the decision of the Court in the Golakh Nath.

The Court also laid down the test in this regard- “the ultimate purpose of the Constitution is the conservation of utility and integrity of the nation as also the dignity of the individual”. This can be assured only by promoting fraternity. Any principle of law which if taken away from the Constitution would result into a loss of fraternity and unity and integrity of the nation and the dignity of the individual would be considered to be an essential feature of the Basic Structure. On the point that the Constituent Assembly would hide the power to amend the Constitution in its residuary power was refused by Hedge and Mukherjea, JJ. The view expressed on this point in the Golakh Nath was overruled. The Court found a distinction between the term ‘Constitutional Law‘ and’ law‘ used under Article 13 of the Constitution and held that the term Constitutional law‘ does fall in the purview of law‘ in Article 13. And also held that the amending power of the legislature shall be subject to a doctrine called the doctrine of ‘basic structure‘ and therefore the parliament cannot use its constituent power under Article 368 so as to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the Constitution[30].This decision is a turning point in Constitutional history. Nani Palkhivala who was leading the arguments on behalf of the petitioners developed an alternative argument changing the emphasis from the’ concept of law‘  in Article 13 to the concept of amendment‘ in Article 368. Even if you could amend the Constitution, it would surely mean that you could only change‘ but not destroy‘ it. This was a shift from the technical meaning of the word law ‘ to a political theory attached to the concept of amendment‘.  Palkhivala raised a point before the Court in support of his argument that a Constitution given by a people to themselves reserving to themselves certain fundamental rights cannot possibly be radically altered by a Parliament created under that very Constitution. He also argued that even if the Article 368 were construed broadly, the preamble was not amendable and Article 368 could not be read as expressing the death wish of the Constitution or as a provision for its legal suicide[31].

On behalf of the respondent, H. M. Seervai argued that the amending power of the Parliament was unlimited and has been so recognized until Golakh Nath. In his view, the fundamental rights guaranteed by Part III were not human rights ‘ but social rights‘ conferred on citizens by civilized society at a given time and were, therefore, susceptible to change from time to time.

The most important proposition stated in view of the majority (though it was a razor thin majority of 7:6) on the 24th of April, 1973 that the Parliament cannot amend the basic structure. The common answer of the judges in this case on what constitutes the basic structure was the ‘judicial review‘. There were dissenting observations of the minority, that there is no such limitation on the amending powers of the Parliament.

Chief Justice Sikri observed-

The expression “amendment of this Constitution” does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.[32]

He also relied on the Supremacy of the Constitution, republican and democratic structure, Secular character, Separation of power between the Legislature, Executive and Judiciary, Federal character of the Constitution, Preamble and the basic inalienable rights guaranteed under Part III of the Constitution.[33]

Mukherjea and Hedge JJ. observed if the ‘basic features‘ are taken away to that extent the Constitution is abrogated or repealed, the amending power is subject to the implied limitations and Parliament has no power to emasculate or abrogate the basic elements‘ of the Constitution[34].They considered Sovereignty of India, Democratic character of the polity, unity of the country, essential freedoms of the individual freedoms secured to the citizens and mandate to build a welfare state as the basic structure. Grover and Shelat JJ. Held that there were implied limitations on the amending power of the Parliament and there were also certain ‘basic elements‘[35]  of the Constitution.[36]

The term ‘basic structure‘ was used only by Justice Khanna, which was lifted by Chief Justice Sikri and adopted in his ”view of the majority”[37]. “T. R. Andhyarujina in his book wrote that ”the ‘view of the majority‘ cannot be the ratio of the “Keshavananda Case”[38] It was held in this case that the amendments that violate the basic structure of the Constitution are unconstitutional despite the fact that the formal conditions for amendment of the Constitution (laid down in article 368 of the Constitution) had in fact been fulfilled[39].

Amending Power of the Parliament and the Ninth Schedule of the Constitution.

One of the reasons of tussle between the Judiciary and the two other organs together has always been the Ninth Schedule.[40] The question is whether a law declared as unconstitutional by the Court can be made Constitutional just by putting that Law or Act in the Ninth Schedule of the Constitution so as to keep that Act away from the judicial scrutiny. The substantial question before the Honourable Court in I. R. Coelho case[41]was, whether on and after the date of Keshavananda judgement, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, are the courts having any power to review these legislations?

The judgment was delivered by a bench of nine judges. The then Chief Justice of India, Y. K. Sabharwal observed-

 “When entire Part III (dealing with Fundamental Rights) is sought to be taken by a Constitutional amendment by the exercise of constituent power under Article 368 by adding the legislations in the Ninth Schedule, the question arises as to the judicial scrutiny available to determine whether it alters the fundamentals of the Constitution.” “If constituent power under Article 368, the other name of amending power cannot be made unlimited, it follows that Article 31B cannot be used so as to confer unlimited power. Article 31B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. “This power of amendment has to be compatible with limits on the power of the amendment. The limit came with the Kesavananda Bharati case. Therefore, Article 31B after April 24, 1973, despite its wide language, cannot confer unregulated or unlimited immunity.”

The Test of “Basic Structure”.

The Doctrine of Basic Structure is vague in the sense that there is no clear cut list given by the Judiciary that such provisions of the Constitution forms the basic structure rather it has been left open before the judiciary to decide the same on the case to case basis.

Though the first attempt was made to laid down the test of Basic structure in the Minerva Mills case.[42] The Court referred to the judgment in Keshavanada[43].case which clarified that not an amendment of a particular article but an amendment that adversely affects or destroys the wider principles of the Constitution such as democracy, secularism, equality or republicanism or one that changes the identity of the Constitution is impermissible.[44]

In I. R. Coelho case[45]held in respect of the amendments of the fundamental rights not a change in the particular article but the change in the essence of the right must be the test for the change in the identity. It was further held by the Court that if the triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the “essence of right test” but also the rights test has to apply. The Court also observed that rights test‘ and the essence of right‘ test both forms part of the application of the doctrine of basic structure.

Conclusion

It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court- a scenario that is unlikely to change in the near future. Nevertheless the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of the essential features of the Constitution that have appeared time and again in the apex court’s pronouncements. Basic structure doctrine is the reply to the dubious steps adopted to misuse the Ninth Schedule and the judgment as a whole is laudable.[46] Mr. K. R. Narayanan (the former President of India) once said, “we have destroyed the Constitution, and Constitution has not destroyed us” appears true as the Parliament has on many occasions proved this in order to show their power. Nani A. Palkhivala while delivering his speech on Twenty-Fourth Constitutional Amendment concluded with the words “…let the Constitution of India be sovereign”.[47] The basic structure doctrine is a mean to give a momentum to the living principles of the ‘Rule of Law‘ and connotes that none is above the Constitution and the Constitution is supreme.

References

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[1] Article 368 of the Indian Constitution reads as: Power of the Parliament to amend the Constitution and procedure therefor.

2.Amendment by simple majority of each house of Parliament- it is like an ordinary bill. Formation of new States, creation or abolition of Legislative Councils (Arts. 4, 169 and 239-A) is made by such procedure. Thus, amendment at the instance of the States, or amendment by State Legislatures, is included in such category. Amendments under this category are expressly excluded from the purview of Article 368.[2]

[3] Means majority of „total members of each House ‟ and by a majority of at least two-third „present and voting‟. All amendments, other than those referred in amendment by simple majority, come within this category, e.g., powers of Election Commission.

[4] The States are given an important voice in the amendment of these matters which are required to be ratified by the legislature of not less than one-half of the States.

[5] (1980) 3 SCC 625.

[6] Rule of law was also held impliedly asbasic structure in the Golakh Nath Case by Justice Mudholkar.

[7] Waman Rao v. Union of India, (1981) 2 SCC 362.

[8] S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124.

[9] P. Sambamurthy v. State of Andhra Pradesh (1987) SCC 362.

[10] AIR 2007 SC 861.

[11] AIR .1975 SC 2299.

[12]A.I.R. 1951 S.C. 2193

[13] Where several State legislatures carried out certain agrarian reforms in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zamindari Abolition Acts

[14] Right to acquire, hold and dispose of property which was deleted by the Constitution Forty-Fourth Amendment Act in 1978 and a reasonable restriction was imposed in the interest of the general public

[15] No person shall be deprived of his property save by the authority of law

[16] Kameshwar Singh vs. State AIR 1951 Pat. 91

[17] Article 13 (2) reads as : The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

[18] Sajjan Singh v. State of Rajasthan[1965] 1 SCR 933.

[19] The amendment inserted 44 Acts in the Schedule. It was noted that Articles 31A and 31B were added to the Constitution realizing the State Legislative measures adopted by certain States giving effect to the policy of agrarian reforms have to face serious challenge in the in the Courts of law on the ground that they contravene the Fundamental Rights guaranteed under the Constitution.

[20] I. C. Golakh Nath and Ors. V. State of Punjab[1967] 2 SCR 762.

[21] See supra n. 63.

[22] [1967] 2 SCR 762.

[23] See Seervai, H. M.- Constitutional Law of India (Vol. 3); Fourth edition 1996, Reprint 2014; p. 3111.

[24] Keshavananda Bharati Sripadagalvaru v. State of Kerala [A.I.R. 1973 S.C. 1461; (1973) 4 SCC 225.]

[25] The marginal note of the Article 368 was amended to read: „Power of Parliament to amend the Constitution and Procedure Therefor‟. The procedure for amendment contained in the original Article 368 was incorporated as Article 368(2). Article 368(3) provides- Nothing in article 13 shall apply to any amendment made under thisarticleFor that very purpose, as a matter of caution similar provision was added in Article 13 (4) which provideNothing in this article shall apply to any amendment of this Constitution made under article 368.

[26] Article 14 reads as: Equality before law.

[27] Article 19 reads as: Protection of certain rights regarding freedom of speech.

[28] Compulsory acquisition of property.Rep. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 6 (w.e.f. 20- 6-1979

[29] The Bench was consisted of following judges- Sikri, C.J., Shelat, Grover, Hegde, Mukherjea, Jagannathan Reddy,JJ. (they formed the majority opinion with Justice Khanna); while A.N. Ray, Palekar, Mathew, Dwivedi, Beg, and Chandrachud, JJ. were of the minority view. The term basic structure‟ was used only by Justice Khanna, which was lifted by Chief Justice Sikri and adopted in his ―”view of the majority”; See T. R. Andhyarujina, The Keshavananda Baharti Case: The Untold Story of Struggle For Supremacy By Supreme Court And Parliament, Edition 2011, P.47.

[30] According to the court in this case the word ―amend‖ enjoys a very restrictive connation and the court can look into the validity if it threatens to nullify or destroy any fundamental feature of the Constitution. Kesavananda also answered an important question which was left open by Golak Nath, as to whether Parliament has the power to rewrite the entire Constitution and bring in a new Constitution. The court answered this by saying that Parliament can only do that which does not modify the basic features of the Constitution.

[31]Palkhivala‘s propositions submitted to the Court are reproduced in the 91973) 4 SCC 1.

[32] (1973) 4 SCC 225, 405.

[33] See (1973) 4 SCC 225, 346-349.

[34] (1973) 4 SCC 225, 462, Para 608.

[35] (1973) 4 SCC 225, 512, Para 744(3).

[36] though the power to amend cannot be narrowly construed and extends to all the Articles it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features; even if the amending power includes the power to amend Article 13(2), a question not decided in Golak Nath case, the power is not so wide so as to include the power to abrogate or take away the fundamental freedoms; See (1973) 4 SCC 225, 462, Para 608 (b) and (c).

[37] See supra n. 80

[38] T. R. Andhyarujina, The Keshavananda Baharti Case: The Untold Story of Struggle For Supremacy By Supreme Court And Parliament, Edition 2011, P.56. He wrote, ―If a ratio had to be extracted from the eleven judgments in the Kesavananda case it could not have been done in the manner of asking judges to merely subscribe to ―The “View of Majority” paper on the day of pronouncement of the judgments in Court. Deriving a ratio from the 11 judgments could have been done only after a full hearing by a later Constitution Bench to which the Petitions were remanded for disposal according to the unanimous Order of the Court. No later Constitution Bench to dispose of the petitions was convened to dispose off the petitions. Alternatively, the ratio could have been extracted by any later bench from the differing judgments as had been done in other cases.He further remarks, ―Look whatever way, there was no majority view, no decision and no ratio in Kesavananda case that Parliament could not amend the basic structure or framework of the Constitution. This was only the conclusion of Justice Khanna. By a strategic roping in of his view in with six other judges ―The View of the Majority‖ a majority of 7 Judges to 6 was created and approved by nine judges.

[39] Barak, Aharon.- Unconstitutional Constitutional Amendments, Israel Law Review, [Vol. 44: 321], P. 326.

[40] (1973) 4 SCC 225 (767) para 1426, see also p. 776, para 1445.

[41] The case arose out of an order of reference made by a five judge constitution bench in 1999. The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, that vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by the Supreme Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu[(1972)2 SCC 133.) as it was found to be outside the scope of protection provided to agrarian reforms under article 31-A of the Constitution. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act was inserted in the ninth schedule, which was challenged. In its referral order, the constitution bench noted that, according to Waman Rao & Ors. v. Union of India & Ors. [(1981) 2 SCC 362], amendments to the Constitution made on or after 24.4.1973 (the date of the Kesavananda Bharati judgment) inserting various laws in the ninth schedule were open to challenge on the ground that such amendments are beyond the constituent power of Parliament since they damage the basic structure of the Constitution. The referral order further stated that the judgment in Waman Rao needs to be reconsidered by a larger bench so that it is made clear ―whether an Act or regulation which, or a part of which, is or has been found by the courts to be violative of one or more of the fundamental rights conferred by articles 14, 19 or 31 can be included in the ninth schedule or whether it is only a constitutional amendment amending the ninth schedule which damages or destroys the basic structure of the Constitution that can be struck down.

[42] Minerva Mills Ltd. and Ors.vs. Union of India and Ors., AIR 1980 SC 1789.

[43] AIR 1973 SC1461

[44] ibid. para 102.

[45] A.I.R. 2007 S.C. 861.

[46] M. Sundra  Rami Reddy & V. N. Maya.- Judicial review of Supreme Court Judgment on IX Schedule of the Constitution; http://www.legalserviceindia.com/articles/jud_sc.htm,last retrieved on 02.12.2014.

[47] “…let the Constitution remain sovereign, and let the people retain their sovereignty by giving these rights into themselves. If that will happen, then alone you will find that the freedom will survive.”