2.Constant Turbulence Between Article 13 and Article 368
3.The Parliament’s Comeback
4.The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment
5.The Contextual Constitution

The Preamble, which is incorporated into the basic structure of the Constitution, demonstrates the relevance of Article 368[1] even to the present day. Recent amendments to the Constitution concerning fundamental rights are made by Parliament. The Constitution, including its fundamental rights, was initially drafted in response to the socio-political requirements deemed necessary at the time. These requirements may not be sufficient or appropriate for the rapidly expanding socio-economic, technological, and legal climate of today. As a result, it is always necessary to amend the Constitution. 

For instance, the 86th Amendment to the Constitution in 2002 made the right to education a fundamental right. In a similar vein, Articles 19(f) and 31 of the Constitution were struck down by the 44th Amendment in 1978, rendering the right to property non-essential. The extent of Article 368’s authority to modify fundamental rights has been interpreted by higher  Indian courts. 

In Sajjan Singh v. State of Rajasthan[2], for instance, the dissenting opinion stated that Article  368 did not grant the Parliament absolute powers and could not be used indiscriminately to usurp citizens’ fundamental rights. Even though there is a lot of literature on how to look at  Article 368 from the point of view of changing the basic structure as a whole, very few recent cases have focused on specifically changing fundamental rights from a legal point of view.  Therefore, I as an author want to fill that knowledge gap. 

From Shankari Prasad v. Union of India[3] in the First Constitutional Amendment Act of 1951 to Waman Rao v. Union of India[4], I will aim to trace the path. I will sincerely put efforts into determining the reasoning behind the bench’s various decisions challenging or upholding certain Parliamentary amendments to fundamental rights, as well as include their own opinion on the subject in the analysis section. I will be using doctrinal methods for in-depth research, also I will address the principles of the law and the constitution, as well as provide a sociopolitical context for the decisions made. 


The basic structure of the Indian Constitution includes the fundamental or essential elements that run throughout the document or serve as its foundation. It joins significant arrangements of our Constitution, without the ground standards is outlandish. 

Because of its goal of achieving equity, for instance, the 2019 Constitution (One Hundred and  Third Amendment) Act, which makes reservations for economically disadvantaged groups,  has implications for Article 14 of the Constitution, which is the first fundamental right.

Additionally, on February 4, 2022, the Rajya Sabha debated K.J. Alphons, a BJP Kerala MP,’s proposal to amend the Preamble of the Constitution with a private member’s bill. This was gone against by the RJD MP Manoj Jha and MDMK MP Vaiko in December 2021, on the grounds of abusing the standard in the Kesavananda judgment which was that law and order are essential for the fundamental construction of the Indian Constitution. 

As a result, Parliament would be unable to alter any aspect of the Constitution’s fundamental structure. Fundamental rights are included in the Constitution’s fundamental structure in Part III. According to A.V. Dicey, a nation is said to adhere to the rule of law only if it upholds citizens’ liberties. Article 368 of the Constitution both grants and restricts Parliament’s powers to amend specific sections of the Constitution. 

Constant Turbulence Between Article 13 and Article 368

First Constitutional  Amendment According to Article 13 of the Indian Constitution[5], the Parliament cannot enact laws that restrict, infringe, or violate the fundamental rights outlined in Part III. In contrast,  Parliament is empowered to amend specific sections of the Constitution by Article 368. There is still no answer to the question of whether the two articles can coexist harmoniously. 

The fundamental rights, Preamble, basic structure, and other elements necessary to regulate the three organs of governance and the Indian people are all encapsulated in the Constitution,  according to many. The amount of power Parliament has under Article 368 to amend the  Indian Constitution is symbolized by the scissors used to cut or change the cloth into something else. 

The Constitution only contained seven fundamental rights when the 1st Constitutional  Amendment Act of 1951 was enacted, including the right to property under Articles 31A and  31B[6], which was later eliminated by the 44th Constitutional Amendment. 

The introduction of this right at the time of independence was motivated by two reasons: first and foremost, to boost agricultural production; secondly, to provide farmers, cultivators, and the rural population, who were oppressed by the pre-independence zamindari system, with opportunities, land, and job security. 

They used socialist-welfarist methods and set limits on how much land a person could own to prevent too much land and power from being concentrated in a few hands; a term that is comparable to constitutionalism. In addition, the State was permitted to legally seize someone’s property instead of providing compensation for rehabilitation following displacement. 

A revolutionary policy of the Indian National Congress later led to the establishment of such an exploitative structure to close the gap between the widespread inequality in land ownership. Further changes were set up by the ideological group through the Agrarian Changes Council with Administrator J.C. Kumarappa, overcoming the need to keep the right to property as a key right in a free India.

The 9th Schedule and reasonable restrictions stipulated in Article 19(1)(g)[7] were also included in the First Amendment Act, making it possible for the government to completely or partially acquire the person of any individual. Many citizens were dissatisfied with this Act because it reduced the scope of the most important aspect of the Constitution—the fundamental rights— and gave the Centre too much power to interfere with their lives. 

They filed a case against this Amendment Act in the Supreme Court of India because the Parliament did not have the authority to change fundamental rights. This case became known as Shankari Prasad v. Union of India[8], which was a landmark decision. 

The Supreme Court held that Article 368 allowed Parliament to amend any of the fundamental rights through Constitutional Amendments and that the changes made by the first Constitutional Amendment stand. This proportion smothered the fight for control between the lawmaking body and the legal executive since they explained that Article 13  simply applied to common privileges and not Protected Revisions. 

Numerous state governments incorporated their respective Land Reforms Acts into the 9th Schedule of the Constitution as a result of this decision. This had a significant impact because, normally, any law that violates fundamental rights would be invalidated; however,  by including it in the 9th Schedule, the laws would not be invalidated regardless of whether they violate fundamental rights. 

In Sajjan Singh v. State of Rajasthan[9], this provision of the 17th Constitutional Amendment was challenged. With a 3:2 vote, the five-judge bench decided that the 17th Constitutional Amendment Act does not fall under Article 13. Chief Justice P.B. Gajendragadkar looked into the deeper intentions of the people who wrote the Constitution and concluded that they didn’t want to protect fundamental rights completely because they didn’t put in place a clause that said fundamental rights couldn’t be changed. As a result, both Shankari and Sajjan appeared to favour Article 368 over Article 13. 

The disagreeing assessment given by Equity M. Hidayatullah and Equity J. R. Mudholkar set forward the inquiry with regards to whether changing an essential element of the Constitution would be considered as a revision or as a revamping, and thus, whether the ability to roll out this improvement was presented by Article 368. 

This reexamining of the composers’ aim drove the Court to allude the case to a bigger seat,  forming it into the Golaknath v. State of Punjab[10], which tested the Sajjan choice. By the majority’s decision in Sajjan, the 11-judge bench ruled that the parliamentary powers granted by Article 368 were not absolute and that the Parliament cannot curtail fundamental rights because they are included in Part III, giving them a transcendental status outside of the  Parliament’s purview. In addition, it stated that any amendment violating a fundamental right granted by Part III is unconstitutional, restricting the Parliament’s authority and requiring a  judicial review. 

Golaknath, in contrast to Shankari and Sajjan, prioritized Article 13 over Article 368 because the Supreme Court ruled that Parliament can enact a Constitutional Amendment. This decision by a larger bench of the Supreme Court effectively overturned its previous two decisions and sided with those who opposed amending fundamental rights. 

The Parliament’s Comeback

The 24th Constitutional Amendment, which removed the right to property as a fundamental right that had been included in the 1st Constitutional  Amendment, was challenged in the courts shortly after Golaknath by a large number of cases brought by the general public. The Supreme Court had to clarify that Golaknath would apply retroactively to previous amendments to prevent all of this chaos. 

The Golaknath case narrowed the scope of Parliament’s powers, while the first constitutional amendment restricted the scope of fundamental rights. The decision to enact the 24th Constitutional Amendment, which effectively added a fourth sub-clause to both Articles 13 and 368, was made by Parliament to expand its power to amend. 

The 24th Amendment stated in Article 368(4) that if Parliament enacts another Constitutional  Amendment, it will not apply to Article 13, whereas Article 13(4) stated the opposite to reverse the Golaknath decision. As a result, following the passage of the 24th Amendment  Act, the position was that Parliament could alter any section of the Constitution, including fundamental rights. 

Following the 24th amendment, additional constitutional amendments were enacted to repeal previous amendments that restricted citizens’ rights. The 29th Amendment introduced land reforms, while the 25th Amendment restricted property rights. In 1947, the Privy Purse, a  payment made to ruling families to give up their powers and merge their princely states, was made obsolete by the 26th Constitutional Amendment. In Kesavananda Bharati v. State of Kerala[11] and Golaknath’s position as well, the 24th, 25th, 26th, and 29th Constitutional Amendments were challenged. 

The Supreme Court made it clear that Parliament has the full power to change fundamental rights even before the 24th and 26th Amendments to the Constitution. The 24th Constitutional Amendment, which clarified parliamentary powers, was also upheld by the  Court. In this instance, the issue of how much power the Parliament has over the applicability of fundamental rights came up once more. The Court decided to take a balanced approach in support of a harmonious interpretation, which is referred to as the basic structure doctrine. It did not investigate whether Article 13 or Article 368 is more powerful. 

The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment

On the twelfth of June 1975, Allahabad High Court set out a verifiable choice wherein they suppressed the discretionary triumph of Indira Gandhi’s administration, referring to proof of constituent misrepresentation. They also decided that no one in her cabinet could hold an election office position for six years as punishment. 

After that, Indira Gandhi appealed to the Supreme Court. Just one day before the hearing, she enacted the 39th Constitutional Amendment Act and declared a national emergency on the grounds of internal unrest.

The 39th CAA resulted in the addition of Article 329A and the elimination of Article 71. The dispute over the election was still before the Court at this point. According to Article 329A,  an independent body would handle all electoral disputes involving the Speaker of the Lok  Sabha, the Prime Minister (at the time, Indira Gandhi), the President, or the Vice President. 

Because of the death of this CAA, the forthcoming legal dispute against her could as of now not be active. As a result, the 39th CAA’s goal was clear: to allow Indira Gandhi to continue serving as India’s Prime Minister without interference. The constituent outcomes incidentally showed that Janata Dal Party won the political decision overwhelmingly, making Morarji  Desai the new State head. 

As a result, Indira Gandhi was forced to resign from her position reluctantly. The ruling party then decided to remove Article 329A, which was found to be unconstitutional in the case of  Indira Gandhi v. Raj Narain[12], applying the principles of the Kesavananda case, to undo everything the previous government had done wrong, including the 39th CAA and the unsolicited national emergency. Article 71 was likewise brought back, which offered back the powers to attempt constituent questions to the High Court. 

The Contextual Constitution

After the emergency period under Indira Gandhi’s rule in  1975, the 42nd Amendment to the Constitution made a significant number of changes to prevent similar power abuses from occurring again. It underwent two significant modifications: To begin, it added sub-clause 4 to Article 31C, which discusses property rights; Second, it added paragraphs 4 and 5 to Article 368. 

Article 368(4) stated that Parliament can amend, alter, or remove any fundamental rights under Part III and cannot be subjected to judicial review like Article 31C(4). On the other hand, Article 31C(4) stated that any law could be put in Part IV under the Directive Principles of State Policy (DPSP), even if it violates fundamental rights under Part III. This made it immune to even someone challenging it before the courts. 

As a result, Parliament can add or change any provision in Parts III and IV. The Parliament was granted absolute amending powers by Article 368 (5). Since the legal powers were diminished and the decent methodology in Keshavananda, the 42nd Established Alteration was tested in Minerva Mills v. Union of India and Ors[13]


The petitioners in Minerva owned the Bombay Minerva Mills company, which the government occupied under the guise of nationalization. In this case, the Supreme Court  ruled that the 42nd Amendment and all of its amendments were unconstitutional because of  the following three fundamental characteristics: 

First, judicial review, in which rights granted by courts of law are regarded as fundamental  features and cannot be suppressed through an amendment by Parliament; 

Second, Parliament’s limited amending power, which means that Parliament cannot use its limited amending power to expand its capabilities; Thirdly, the balance between Parts III and IV must be maintained so that DPSPs and fundamental rights do not conflict.

All the Established Alteration Acts after the Kesavananda essential regulation case were tested in Waman Rao v. Union of India[14], where the most relevant issue that emerged under the watchful eye of the court was regardless of whether these alterations sabotaged the fundamental construction. 

The Court provided an odd solution to this question by stating that the Kesavananda-based basic structure test will be applied in future amendments and laws. As a result, the Court made it clear that any amendment to the Constitution made after April 24, 1973, can be challenged if it does not adhere to the basic structure doctrine. 

As a result, this case reaffirmed the significance of the Kesavananda rule by allowing  Parliament to alter a portion of the fabric—representing the Constitution—but not the entire fabric. Even though Parliament had the power to change any part of the Constitution,  including the Fundamental Rights, this did not mean that the Constitution’s fundamental structure could be changed even by a Constitutional Amendment. This shows how strong the  Constitution still is in the social and political context of today. 


  1. The Indian Constitution, Article 368
  2. Sajjan Singh v. State Of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933
  3. Shankari Prasad v. Union of India, AIR. 1951 SC 458
  4. Waman Rao v. Union of India, (1981) 2 SCC 362
  5. The Indian Constitution, Article 13
  6. The Indian Constitution, Article 31(A) and Article 31(B)
  7. The Indian Constitution, Article 19(1)(g)
  8. Ibid 3
  9. Ibid 2
  10. Golak Nath v. State of Punjab, AIR. 1967, SC 1643
  11. Kesavanand Bharti v. State of Kerala, AIR. 1973 SC 1461
  12. Indira Gandhi v. Raj Narain, AIR 1975 S.C. 2299
  13. Minerva Mill Ltd. v. Union of India, (1980) 3 SCC, 625
  14. Ibid 4

This article is written by Shaurya Sharma, a third-year law student from Fairfield Institute of Technology and Management.

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