Amendment of fundamental rights.

The question whether fundamental rights can be amended under Article 368
came for consideration of the Supreme Court in Shankari Prasad v. Union of
I ndia
1
. In that case the validity of the Constitution (1
st
Amendment) Act, 1951,
which inserted inter alia, Articles 31-A and 31-B of the Constitution was
challenged. The Amendment was challenged on the ground that it purported to
take away or abridge the rights conferred by Part III which fell within the
prohibition of Article 13 (2) and hence was void. It was argued that the State
in Article 12 included Parliament and the world Law in article 13 (2),
therefore, must include constitution amendment. The Supreme Court, however,
rejected the above argument and held that the power to amend the Constitution
including the fundamental rights is contained in Article 368, and that the word
Law in Article 13 (8) includes only an ordinary law made in exercise of the
Legislative powers and does not, include constitutional amendment which is
made in exercise of constituent power. Therefore, a constitutional amendment
will be valid even if it abridges or takes any of the fundamental rights.
In Sajjan Singh v. State of Rajasthan
2
, the validity of the Constitution
(17
th
Amendment) Act, 1964 was challenged. The Supreme Court approved the
majority judgement given in Shankari Prasads case and held that the words
amendment of the Constitution means
amendment of all the provisions of the Constitution. Gajendragadkar, C.J. said
that if the Constitution-makers intended to exclude the fundamental rights from

1. AIR 1951 SC 455 pg 458
2. AIR 1965 SC 845
the scope of the amending power they would have made a clear provisioning
that behalf.
In Golak Nath v. State of Punjab
3
. the validity of the Constitution (17
th

Amendment) Act, 1964, which inserted certain State Acts in Ninth Schedule
was again challenged. The Supreme Court by a majority of 6 to 5 prospectively
overruled its earlier decision in Shankari Prasads and Sajjan Singh cases and
held that Parliament had no power from the date of this decision to amend Part
III of the Constitution so as to take away or abridge the fundamental rights
Subba Rao. C.J. supported his judgment on the following reasoning:
(1) The Chief Justice rejected the argument that power to amend the
Constitution was a sovereign power and the said power was supreme to
the legislative power and that it did not permit any implied limitations
and that amendments made in exercise of that power involve political
questions and that therefore they were outside of judicial review.
(2) The power of Parliament to amend the Constitution is derived from
Article 245, read with Entry 97 of List 1 of the Constitution and not from
Art. 368. Article 368 lays down merely the procedure for amendment of
the Constitution. Amendment is a legislative process.
(3) An amendment is a law within the meaning of Article 13 (2) and
therefore, if it, violates any of the fundamental rights it may be declared
void. The word Law in Article 13 (2) includes every kind of law,
statutory as well as constitutional law and hence a constitutional
amendment which contravened Article 13 (2) will be declared void.

3. AIR 1971 SC 1643

The Chief Justice said that the fundamental rights are assigned
transcendental place under our Constitution and, therefore, they are kept beyond
the reach of Parliament. The Chief Justice applied the doctrine of Prospective
Overruling and held that this decision will have only prospective operation and,
therefore, the 1
st
, 4
th
and 17
th
Amendment will continue to be valid. It means
that all cases decided before the Golak Naths case shall remain valid.
The minority, however, held that the world law in Article 13 (2)
referred to only ordinary law and not a constitutional amendment and hence
Shankari Prasads and Sajjan Singh cases were rightly decided. According to
them, Article 368 deals with not only the procedure of amending the
Constitution but also contains the power to amend the Constitution.




24
th
Amendment Act, 1971
In order to remove difficulties created by the decision of Supreme Court in
Golak Naths case Parliament enacted the (24
th
Amendment) Act. The
amendment has made the following amendments: (1) It has added a new clause
(4) to article 13 which provides that nothing in this Article shall apply to any
amendment of this Constitution made under Article 368. (2) It substituted a new
marginal heading to Article 368 in place of the old heading Procedure for
amendment of the Constitution. The new heading is Power of Parliament to
amend the Constitution and Procedure there for. (3) It inserted a new sub-
section (1) in Article 368 which provides that notwithstanding anything in this
Constitution, Parliament may, in exercise of its constituent power amend by
way of addition, variation, or repeal any provision of this Constitution in
accordance with the procedure laid down in this Article (4) It substituted the
words, It shall be presented to the President who shall give his assent to the
Bill and thereupon for the words It shall be presented to the President for his
assent and upon such assent being given to the Bill. Thus it makes it
obligatory for the President to give his assent to the Bill amending the
Constitution. (5) It has added a new clause (3) to Article 368 which provides
that nothing in Article 13 shall apply to any amendment made under this
Article.
Thus the 24
th
Amendment not only restored the amending power of the
Parliament but also extended its scope by adding the words to amend by way
of the addition or variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this Article.





















Theory of Basic Structure: A limitation on
Amending Power
The validity of the Constitution (24
th
Amendment) Act, 1971, was challenged
in Keshvananda Bharati v. State of Kerala
4
, popularly known as the
Fundamental Rights case the petitioners had challenged the validity of the
Kerala Land Reforms Act 1963. But during the pendency of the petition the
Kerala Act was amended in 1971 and was placed in the Ninth Scheduled by the
29
th
Amendment Act. The petitioner was permitted to challenge the validity of

4. AIR 1973 SC 1461
Twenty Fourth. Twenty Fifty and Twenty Ninth Amendment to the
Constitution also. The question involved was as to what was the extent of the
amending power conferred by Article 368 of the Constitution? On behalf of the
Union of India it was claimed that amending power was unlimited and short of
repeal of the Constitution any change could be effected. On the other hand, the
petitioner constituted to hear the case. Out of the 13 judges (11 judges)
delivered separate judgments.
The Court by majority overruled the Golak Naths case which denied
Parliament the power to amend fundamental rights of citizens. The majority
held that Article 368 even before the 24
th
Amendment contained the power as
well as the procedure of amendment. The 24
th
amendment merely made explicit
what was implicit in the unlamented Article 368A. The 24
th
Amendment does
not enlarge the amending power of the Parliament. The 24
th
Amendment is
declaratory in nature. It only declares the true legal position as it was before that
amendment hence it is valid. The Court held that under Art. 368 Parliament is
not empowered to amend the basic structure or framework of the Constitution. It
held that the first part of the twenty-fifth Amendment Act is valid, but held that
the second part, namely, no such law, containing the declaration that it is for
giving effect so such policy shall be called in question in any Court on the
ground that it does not give effect to such policy: is invalid.
As regards the scope of amending power contained in Article 368, six
judges (Sikri, A.J. Shelat, Grover, Hegde, Reddy and Mukherjee, JJ) held that
there are inherent or implied limitations on the amending power of Parliament
and Article 368 does not confer power to amend the Constitution so as to
damage or destroy the essential elements or basic features of the Constitution,
Khanna, J., held that though there is implied limitation on the amending power
but the power to amend does not include the power to abrogate the Constitution.
The world amendment, he said postulated that the old Constitution must
survive without loss of indemnity and it must be retained through in the
amended form and, therefore, the power does not include the power to destroy
or abrogate the basic structure or framework of the Constitution. The remaining
six judges (A.N. Ray, Chandrachud, Mathew, Beg, Dwivedi and Palekar, JJ)
held that there are no limitations, express or implied on the amending power.
Thus the Court by majority of 7 to 6 held that the Parliament has wide powers
of amending the Constitution and it extends to all the Articles, but the amending
power is not unlimited and does not include the power to destroy or abrogate the
basic feature or framework of the Constitution. There are implied limitations
on the power of amendment under Article 368. Within these limits Parliament
can amend every article of the Constitution. Whether there are implied
limitations on the amending power or not would depend upon the interpretation
of the word amendment.
Delivering the leading majority judgment Siri, C.J., said : in the
Constitution the world, amendment or amend has been used in-various
places to mean different things. In some articles, the word amendment in the
context, has a wide meaning and another context it has a narrow meaning. In
view of the great variation of the phrases used al through the Constitution it
follows that the word amendment must derive its colour from Article 368 and
the rest of the provisions of the Constitution. Reading the Preamble, the
fundamental importance of the freedom of the individual, its inalienability and
the importance of the economic, social and political justice mentioned in the
Preamble, the importance of directive principles, the non-inclusion in Article
368 of provisions like Articles 52, 53 and various other provisions, an
irresistible conclusion emerges that it was not the intention to use the world
amendment in the widest sense. It was the common understanding that the
fundamental rights would remain in substance as they are and they would not be
amended out of existence. It seems also to have been a common understanding
that the fundamental rights would remain in substance as they are and they
would not be amended out of existence. It seems also to have been a common
understanding that the fundamental features of the Constitution, namely,
secularism, democracy and the freedom of the individual would always subsist
in the welfare State. In view of the above reasons, a necessary implication arises
on the power of Parliament that the expression amendment of this
Constitution has consequently a limited meaning in our Constitution and not
the meaning suggested by the Attorney-General. The expression amendment
of this Constitution in Article 368 means any addition or change in any of the
provisions of the Constitution within the braod contours of the Preamble and the
Constitution to carry out the objectives in the Preamble and the Directive
Principle applied to fundamental rights, it would mean that while fundamental
rights, cannot be abrogated reasonable abridgements of fundamental rights can
be effected in the public interest. If this meaning is given, the Chief justice
said it would enable parliament to adjust fundamental rights in order to secure
what the Directive Principles direct to be accomplished, while maintaining the
freedom and dignity of every citizen. On behalf of the Union and the States, it
was urged that the conceptions of basic elements and fundamental features are
illusive conceptions and therefore it would be very unsatisfactory test for the
parliament to comprehend and follow. The Chief Justice said, that the concept
of amendment within the contours of the Preamble and of Constitution cannot
be said to be a vague and unsatisfactory idea which Parliamentarians and the
public would not be able to understand. He said that the argument that because
something cannot be cut and dried or nicely weighted or measured and therefore
does not exist is fallacious. There are many concepts of law which are not
capable of exact definition, but it does not mean that it does not exist. It was
also argued that every provision of the Constitution. Is essential, otherwise it
would not have been put in the Constitution. The Chief Justice further said, But
this does not place every provisions of the Constitution in the same position.
The true position is that every provision of the Constitution can be amended
provided in the result the basic foundation and structure of the Constitution
remains the same.










What is the basic structure? What
then are the essentials of the basic structure of the Constitution? Although the
Judges enumerated certain essentials of the basic structure of the Constitution,
but they also made it clear that they were only illustrative and not exhaustive.
They will be determined on the basis of the facts in each case. In M. Nagraj v.
Union of I ndia
5
, 5 Judge Bench of the Supreme Court has explained the basic
feature theory again in details as follows. Basic structure are systematic
principles underlying and connecting provisions of the Constitution. They give
coherence and durability to Constitution. These principles are part of
constitutional law even if not expressly stated. This doctrine has essentially
developed from the German Constitution. It not based on literal words. These
principles are part of constitutional law even if not expressly stated. Theory of
basic structure is based on the concept of Constitution identity. The main object
behind the theory is continuity and within that continuity of identity.
In Keshwananda Bharti, the Judges has enumerated certain essentials of
basic structure as follows: According to Sikri, C.J., the basic structure of the
Constitution consists of the following features :
(1) Supremacy of the Constitution,

5. AIR 2007 SC 71
(2) Republican and democratic forms of the Government,
(3) secular character of the Constitution,
(4) Separation of powers between the Legislature, the executive and the
Judiciary, (5) Federal character of the Constitution.
According to Shelat and Grover, JJ., the following are the illustrations of
the basic structure of the Constitution, i.e.
(1) Supremacy of the Constitution,
(2) Republican and Democratic form of Government an sovereignty of the
country
(3) Secular and federal character of the Constitution,
(4) Demarcation of power between the Legislature, the Executive and the
Judiciary,
(5) Dignity of the individual secured by various freedoms and basic rights in
Part III and the mandate to build a welfare State contained by Part V,
(6) Unity and integrity of the nation.
According to Hegde and Mukherjee, JJ., the following are the examples
of the basic structure:
(1) Sovereignty of India,
(2) The democratic character of our policy,
(3) The Unity of the country,
(4) Essential features of individual freedoms secured to the citizens,
(5) Mandate to build a welfare State.
However, they said that these limitations are only illustrative and not
exhaustive.
According to Mr. Jagmohan Reddy, J., (1) a sovereign democratic
republic, and (2) parliament democracy certainly constitute the basic structure.
Khanna, J., concurred with the majority decision but delivered a separate
judgment. He said:
The amendment of the Constitution necessarily contemplates that the
Constitution has not to be abrogated, (Indeed, this much has been conceded by
the Attorney-General). The word amendment postulates that the old
Constitution survives without loss of its identity despite the change and
continues even though it has been subject to alterations. As a result of the
amendment, the old Constitution cannot be destroyed, and done away with, it is
retained though in the amended form. The words amendment of the
Constitution with all their wide sweep and amplitude cannot have the effect of
destroying and abrogating the basic structure or framework of the Constitution.
It would not be competent under the garb of amendment, for instance, to change
the democratic government into dictatorship of hereditary monarchy nor it
would be permissible to abolish the Lok Sabha and the Rajya Sabha. The
secular character of the Stat according to which the State shall be discriminated
against any citizen on the ground of religion only cannot likewise be done away
with. Provision regarding the amendment of the Constitution does not furnish a
pretence for subverting the structure of the Constitution nor can Article 368 be
so construed as to embody the death wish of the Constitution or provide
sanction for what may perhaps be called its lawful hara-kiri. Such subversion or
destruction cannot be described to be amendment of Constitution as
contemplated by Article 368.
His Lordship further held that the power of amendment under Art. 368
does not include the power to abrogate the Constitution nor does it include the
power to alter the basic structure of framework of the Constitution. Subject to
the retention of the basic
The power to amend is wide and unlimited. The power to amend means the
power to add, alter or repeal any provisions of Constitution. There can be or is
no distinction between essential and unessential feature of the Constitution to
arise any impediment to amendment of essential features. Parliament in exercise
of constituent power can amend any provision of the Constitution. Under
Article 368, the power to amend can also be increased. He accepted that an
amendment does not mean mere abrogation or wholesale repeal of Constitution.
An amendment must have an organic mechanism providing the Constitution
organization and system for State.
According to Mr. Justice Beg. though the word amendment did not
include the power to completely abrogating the Constitution at one stroke, it
was, however, wide enough to erode the Constitution completely step by step so
as to repalce it by another Constitution. According to Mr. Justice Dwivedi, the
word amendment in Article 368 was broad enough to authorize the varying,
repealing or abrogating each and every provision in the Constitution including
Part III.
In I ndira Nehru Gandhi v. Raj Narayan
6
, the Supreme Court applied the
theory of basic structure and struck down Cl. (4) of Article 329-A, which was
inserted by the Constitution (39
th
Amendment) Act. 1975 on the ground that it
was beyond the amending power of Parliament as it destroyed the basic feature
of the Constitution. The amendment was made to validate with retrospective
effect the election of the then Prime Ministers which was set aside by the
Allahabad High Court, Khanna, J., struck down the clause on the ground that it
violated the free and fair electiosn which was an essential postulate of
democracy which in turn was a part of the basic structure of the Constitution;
Chandrachud, J. struck down Cls. (4) and (5) as unconstitutional on the ground
that they were outright negation of the right of equality conferred by Art. 14, a
right which is a basic postulate of our Constitution. He held that these
provisions were arbitrary and were calculated to damage or destroy the Rule of
law. The Supreme Court has thus added the following features as basic features
of the Constitution to the list of basic features laid down in the Keshavanada
Bhartis case.
1. Rule of law.
2. Judicial Review
3. Democracy, which implies free and fair Election
It has been held that the Jurisdiction of the Supreme Court under Article 32,
is the basic feature of the Constitution.

6. AIR 1975 SC 2299
In Minerva Mills Ltd v. Union of I ndia
7
. Supreme Court has held that the
following are the basic features of the Constitution.
1. limited power of Parliament to amend the Constitution.
2. harmony and balance between fundamental rights and directive principles
3. fundamental rights in certain cases;
4. power of judicial review in certain cases
Independence of judiciary is part of the basic structure.
The doctrine of basic structure has been vehemently criticized. It has been
said that the Court has not precisely defined as to what are the essential features
of the basic structure and if this doctrine is accepted every amendment power
of the Parliament cannot be subjected to this vague and uncertain doctrine.
It is, however, submitted that the criticism of the doctrine of basic
structure cannot be justified on the ground that it lays down a vague and
uncertain test. The basic structure of the Constitution is not a vague concept.
The fact that a complete list of the essential elements constituting the basic
structure cannot be enumerated is no ground for denying that these do not exist.
There are many concepts of law which cannot still be defined precisely, but they
do exists and play very important part in our law. Quoting Lord Reid in Ridge v.
Baldvin
8
in Keshavananda Bharatis case. Sikri, C.J. , said, in modern times
opinions have sometimes been expressed that natural justice is so vague as to be
practically meaningless. But I would regard these as tainted by the perennial
fallacy that because something cannot be cut and dried or nicely weighed or

7. AIR 1980 SC 1789
8. 1964 AC 401
measured therefore it does not exist-The idea of negligence is equally
insusceptible of exact definition, but what a reasonable man would regard as
negligence in particular circumstances are equally capable of serving as tests in
law, and natural justice as it has been interpreted in the courts is much more
defined than that.
If the historical background, the Preamble, the entire scheme of the
Constitution and the relevant provisions there of including Art. 368 are kept in
mind then there can be no difficulty, in determining what are basic elements of
the basic structure of the Constitution. These words apply with greater force to
the doctrine of the basic structure, because, the federal and democratic structure
of the Constitution, the separation of powers, the secular character of our State
are very much more definite than either negligence or natural justice
9
.






42
nd
Amendment and Article 368.
After the decisions of the Supreme Court in Keshavananda Bharati and Indira
Nehru Gandhi cases the Constitution (42
nd
Amendment) 368 of the
Constitution. Clause (4) provided that no constitutional amendment (including
the provision of Part III) or purporting to have been made under Art. 368

9. H.M.Seervai : Constitutional Law of India Vol 2 pg 1568
whether before or after the commencement of the Constitution (42
nd

Amendment) Act, 1876 shall be called in any court on any ground. Clause (5)
removed any doubts about the scope of the amending power. It declared that
there shall be no limitation whatever on the provisions of the Constitution under
this Article. Thus by inserting clause (5) it made it clear that even the basic
feature of the Constitution could be amended.
This amendment would, according to Mr. Swaran Singh, the Chairman,
Congress Committee on Constitutional Amendments, put an end to any
controversy as to which is supreme, parliament or the Supreme Court. Clause
(4) asserted the supremacy of parliament. it was urged that Parliament
represents the will of teh people and if people desire to amend the Constitution
through Parliament there can be no limitation whatever on the exercise of this
power.
This amendment removed the limitation imposed on the amending power
of parliament by the ruling of the Supreme Court in Keshavananda Bharatis
case. It was said that the theory of basic structure as invented by the Supreme
Court is vague and will create difficulties. The amendment was intended to
rectify this situation. It was however, not pointed out clearly as to what were the
difficulties faced by Parliament due to the basic structure theory.
A question may be asked here, Can we say that an amendment made by
parliament is an amendment made by the people? The 42
nd
Amendment was
intended to achieve this object. It was argued that the amending body under
Article 368 has the full constituent power. In other words, the Parliament acts in
the same capacity as the Constituent Assembly when exercising the Power of
amendment under Art. 368. It is submitted that this proposition is totally wrong.
The reason are:-
First, an amendment made by Parliament cannot be said to be an
amendment made by the people. There is a distinction between the power of the
people to amend a Constitution and the power of the legislature to amend it. It is
true that Parliament represents the will of the people. But it is not equally true
that whatever Parliament does is usually approved by the people. The Lok-
Sabha election held in 1977 is a good example to show that the representatives
of the people in Parliament do not always reflect the peoples will. Whatever
was done during the emergency was done in the name of the people. But from
the election result it was clear that they had rejected all what had been in their
name by their representatives. Therefore it is not possible to derive support for
an unfettered amending power from the theory that the representatives of the
people always reflect the peoples will. The theory of basic structure
propounded by the Supreme Court in Keshavananda Bharatis case is correct
and will act as a safety-valve against arbitrary use of the amending power. In
Australia out of 30 amendments proposed by the absolute majority of Australian
Parliament only four were accepted and 26 were rejected by the people. This
illustration makes it clear that parliament does not always represent the will of
the people.
Secondly, the assertion of parliamentary supremacy is based on wrong
nations. The supremacy of Parliament is the main characteristics of the British
Constitution, the Parliamentary supremacy means that Parliament has unlimited
law-making power. It includes both the constituent power and ordinary law-
making powers. Parliament can change the Constitution by passing an ordinary
law. It means that there is no distinction in England between constitutional law
and ordinary law. Secondly, no law passed by parliament can be declared
unconstitutional by the courts. In India, parliament is not supreme but the
Constitution is supreme Parliament is a creature of the Constitution and derives
its powers from the provisions of the Constitution including the power to amend
the Constitution under Art. 368 Laws passed by Parliament can be declared
ultra vires the Constitution. There is distinction between the constituent power
of Parliament and its ordinary law-making power. The amending power under
Article 368, therefore, cannot be exercised in such a way so as to subvert or
abrogate the Constitution.
Thus the Constitution amendments made under Article 368 can still be
challenged on the ground that they are destructive of the basic features of the
Constitution.
In Minerva Mills v. Union of India. the Supreme Court by 4 to 1 majority
struck down clauses (4) and (5) of Article 368 inserted by the 42
nd
Amendment,
on the ground that these clauses destroyed the essential feature of the basic
structure of the Constitution. Limited amending power is a basic structure of the
Constitution. Since these clauses removed all limitations on the amending
power and thereby conferred and unlimited amending power, it was destructive
of the basic feature of the Constitution.
The judgment of the Supreme Court thus makes it clear that the
Constitution- not the Parliament - is supreme in India. This is in accordance
with the intention of the framers who adopted a written Constitution for the
country. Under the written Constitution there is a clear distinction between the
ordinary legislative power and the constituent power (amending power) of
Parliament. Parliament cannot have unlimited amending power so as to damage
or destroy the Constitution to which if owes its existence and also derives its
power. The Parliament elected for a fixed period of five years is meant for
certain specific purposes and cannot be vested with unlimited amending power.
The Court, however, held that the doctrine of basic structure is to be applied
only in judging the validity of amendment to the Constitution and it does not
apply for judging the validity of ordinary laws made by legislatures. The
decision of the Court on the point is correct. It has put at rest the long drawn
controversy between the Courts and the Executive. The Government should not
take the decision of the Court as a challenge against it but in the spirit of the
compromise and co-operation between the two organs of the Government.
In Waman Rao v. Union of I ndia
10
the Supreme Court held that all
amendment to the Constitution which were made before April 24, 1973 (i.e. the
date of which the judgment of Kesavananda Bharati was delivered) including
those by which the Ninth Schedule top the Constitution was amended from time
to time were valid and constitutional. But amendments to the Constitution made
on or after that date by which the Ninth Schedule was amendment were left

10. AIR 1981 SC 271
open to challenge in the ground that they were beyond the constituent power of
Parliament because they damaged the basic structure of the Constitution.
In S.P. Sampat Kumar v. Union of I ndia
11
the constitutional validity of
Art. 323-A and the provisions of Administrative Tribunals Act, 1985 was
challenged on the ground that the Act by excluding the jurisdiction of the High
Courts under Arts. 226 and 227 in service matters had destroyed the power of
judicial review which was a basic feature of the Constitution. The Supreme
Court upheld the validity of Art. 323-A and the Act as the necessary changes
suggested by the Court were incorporated in the Administrative Tribunal Act. It
held that though the Act has excluded the judicial review over legislative action
vested in the High Court under Arts. 226 and 227, but as it has not excluded
judicial review under Arts. 32 and 136 the Act is valid. The Amendment does
not affect the basic structure of the constitution as it has vested powers of
judicial review in an alternate institutional mechanism, after taking it from the
High Courts which is not less effective than the High Court.

In a Landmark judgment in L.Chandra Kumar v. Union Of I ndia
12
,
a seven-member Constitution Bench of the supreme court has unanimously
while reconsidering the Sampath Kumars case has struck down clause (d) of
Arts. 323-A and clause 3 (d) of Arts. 323-B which provided for the exclusion of
the jurisdiction of the High Courts under Arts. 226 and 227 and the supreme
Court under Art. 32 of the constitution as unconstitutional and invalid as they

11. AIR 1987 SC 386
12. AIR 1997 SC 1125
damage the power of judicial review which is the basic feature of the
constitution. The court has held that power of judicial review which is the
legislative action vested in the high courts under Art. 226 and the Supreme
Court under Art. 32 of the Constitution is an integral and essential feature of ten
Constitution and formed part of its basic structure. Ordinarily, therefore, the
power of the High Courts and the Supreme Court to test the constitutional
validity of legislations can never be ousted excluded. Following the
Kesvananda Bahrtis case the Court declared unconstitutional clause 2 (d) of
Art. 323A and clause 3 (d) of Art. 323-B of the Constitution, to teh extent that
they excluded the jurisdiction of the High Courts under arts. 226 and 227 and
the Supreme Court under Art. 32 of the Constitution.
The Court said that while this jurisdiction cannot be ousted, other Courts
and tribunals may perform a supplemental role in discharging the powers
conferred by Arts. 226 and 227 and 32 of the Constitution, so long as teh
jurisdiction of the High Courts under Arts. 226 and 227 and of the Supreme
Court under Art. 32 is retained there is no reason the power to test the validity
of legislations against teh provisions of the Constitution cannot be conferred
upon Administrative Tribunals created under Arts. 323-A and 323-B of the
Constitution.
All decisions of these tribunals will, however, be subject to the scrutiny
before a Division Bench of the High Court which has to jurisdiction over the
tribunal concerned. The tribunals would, however, continue as the Courts of
first instance in respect of areas of the law for which they had been constituted.
It will not, therefore, be open to litigants to directly approach the High Courts
even in cases where they question the vires of statutory legislations except
where teh legislation which created the particular Tribunal was challenged by
overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the
Central Administrative Tribunal Act is constitutional.
The Court held that Section 28 of the Administrative Tribunal Act. 1985
and the exclusion of jurisdiction clauses in all other legislations enacted under
Arts. 323-A and 323-B will to the same extent be unconstitutional.
On the question of appointment of the Tribunals the Court suggested the
Central Government should initiate action on the basis of the recommendations
of expert bodies like the Law Commission of India and the Malimath
Committee. They were of the view that a wholly independent agency could be
set up for the administration of all tribunals. There should be a single model
Ministry to oversee the working of the Tribunals. The creation of a single
umbrella organization to supervise the working of the tribunals, the Court said,
will remove many of the ills of the present system. If the need arises there can
be a separate umbrella organization at the Central and State level.
The Supreme Court got an opportunity in this case to settle beyond doubt
the question whether judicial review is a basic feature of the Constitution. In
short, no amendment passed by Parliament in future can bar the Courts from
pronouncing judgments on its constitutional validity.
Two recent landmark Judgments of the Supreme Court are worth-
mentioning: One is M. Nagraj v. Union of I ndia and the other is I .R. Coelho v.
State of Tamil Nadu a nine bench judgment. In M. Nagraj v. Union of India, the
petitioners challenged the Constitutional validity of the Constitution (77
th

Amendment) Act, introducing Art. 164 A nullifying numbers of decisions, the
81
st
Amendment Act, 2000 introducing Art. 16 (4-B), introducing promotion in
reservation also which was stopped in Indra Sawhneys case, and 82
nd

Amendment Act, 2000 introducing proviso to Art. 355 which emphasis the
importance of maintaining efficiency in administration and the 85
th
Amendment
Act, 2001 adding words with consequential seniority in Art. 16 (4-A)
nullifying decisions in Ajit Singhs case on the ground that they violate basic
features of the Constitution. However, a five Judge Bench of the Supreme Court
headed by CJI Sabharwal unanimously held that these amendments do no
violate the basic feature of the Constitution. They are enabling provisions and
only apply to SC and ST. They do not obliterate constitutional requirements,
such as 50% ceiling limit in reservation, Creamy Layer Rule and post based
roster sub-classification between O.B.C. on one hand and Second STs on teh
other hand, as held in Indra Sawhneys case. They do not alter structure of
equality codes; therefore, they are not beyond amending power of Parliament.
In I .R. Coelho v. State of Tamil Nadu
13
headed by the Chief Justice Y.K.
Sabharwal (comprising Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia,
C.P. Thakkar, P.K. Balasubramanyan, Altman Kabil and D.K. Jain , JJ.) held
that any law placed in the Ninth Schedule after April 24, 1974 when
Keshwanand Bhartis judgment was delivered will be open to challenge. The
Court said that even though an Act is put in challenge on the ground that they

13. AIR 2007 SC 8617
destroy or damage the basic feature, if the fundamental rights are taken away or
abrogated pertaining to the basic feature of the Constitution
14
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14. Constitutional Law Of India Dr.J.N.Pandey