Constitutional Amendments Struck Down by the Supreme Court of India: Leading Cases
Parliament has wide power to amend the Constitution under Article 368, but that power is not unlimited. The Supreme Court has held that Parliament cannot use the amending power to damage or destroy the basic structure or essential framework of the Constitution. The doctrine was authoritatively formulated in Kesavananda Bharati v. State of Kerala.
Meaning of Article 368 and the Basic Structure Doctrine
Article 368 of the Constitution of India deals with Parliament's constituent power and the procedure for amendment of the Constitution. Certain amendments also require ratification by not less than one-half of the State Legislatures. Judicial decisions have established that an amendment made under Article 368 remains subject to the basic structure limitation.
The basic structure doctrine means that Parliament may amend constitutional provisions, including Fundamental Rights, but cannot alter the Constitution in a manner that destroys its basic identity. Features identified in the case law include, among others, constitutional supremacy, republican and democratic government, secularism, federalism, separation of powers, judicial review, rule of law and the limited nature of the amending power.
Leading Cases on Invalid Constitutional Amendments or Provisions
| Constitutional provision | Amendment | Year | Leading case | Legal effect explained |
|---|---|---|---|---|
| Article 31C | 25th Amendment | 1971 | Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; 1973 Supp SCR 1 | The Court established the basic structure limitation on the amending power. The part of Article 31C that sought to exclude judicial scrutiny of whether a law actually gave effect to the specified Directive Principles did not survive. |
| Article 329A(4) | 39th Amendment | 1975 | Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 | Article 329A(4), which attempted to immunize the election of specified high constitutional functionaries from ordinary judicial adjudication, was invalidated for violating basic constitutional features. |
| Article 368(4) and Article 368(5); expanded Article 31C | 42nd Amendment | 1976 | Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 | Clauses (4) and (5) of Article 368 were invalidated. The Court also invalidated the expansion of Article 31C to all Directive Principles. Limited amending power and judicial review were treated as parts of the basic structure. |
| Article 371D(5), proviso | 32nd Amendment | 1973 | P. Sambamurthy v. State of Andhra Pradesh, (1987) 1 SCC 362 | The proviso enabling the State Government to modify or annul an Administrative Tribunal's final order was held unconstitutional because it damaged the rule of law and the effectiveness of judicial review. |
| Tenth Schedule, paragraph 7 | 52nd Amendment | 1985 | Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 | Paragraph 7, which excluded court jurisdiction, was held invalid because the amendment affecting the jurisdiction of the Supreme Court and High Courts required State ratification under the proviso to Article 368(2). The remainder of the Tenth Schedule was upheld. |
| Articles 124A, 124B and 124C and connected changes | 99th Amendment | 2014 | Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1 | The 99th Amendment establishing the National Judicial Appointments Commission was struck down. The majority held that the changes impaired the independence of the judiciary, a feature of the basic structure. |
| Part IXB, insofar as it applied to State co-operative societies | 97th Amendment | 2011 | Union of India v. Rajendra N. Shah, (2021) 9 SCC 1 | The amendment was held invalid to the extent Part IXB governed co-operative societies operating within a State because the required ratification by at least one-half of the States had not been obtained. The provisions concerning multi-State co-operative societies survived. |
Was the 17th Amendment Struck Down in Golak Nath?
No. I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, is historically important because the majority treated a constitutional amendment as "law" for the purpose of Article 13 and held that Parliament could not amend Fundamental Rights. However, the Court used prospective overruling and did not invalidate the earlier constitutional amendments challenged before it. The later decision in Kesavananda Bharati rejected the proposition that Parliament has no power to amend Fundamental Rights and instead adopted the basic structure limitation.
What Test Does the Supreme Court Apply?
The central question is not merely whether a constitutional provision has been changed. The Court examines whether the amendment damages or destroys a feature forming part of the Constitution's basic structure. The doctrine therefore preserves a distinction between a permissible constitutional amendment and an impermissible alteration of the Constitution's essential identity.
Why Judicial Review Matters
Judicial review enables constitutional courts to test whether an amendment exceeds the limited amending power. In Minerva Mills, the Supreme Court rejected an attempt to make constitutional amendments immune from challenge. Later decisions have continued to apply the basic structure doctrine when reviewing constitutional amendments.
Official Legal Resources
Legislative Department, Ministry of Law and Justice Constitution Amendment Acts Supreme Court of India Supreme Court Constitution Resource