Leading Cases For Supreme Court AOR Exams 2021 [Part 3- Constitutional Amendments and Reservations]

His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala

Case: WP(C) 135 of 1970; 24 April 1973; CJI Sikri, S.M., Justices Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V.

Citation: AIR 1973 SC 1461; [1973] Suppl. SCR 1; (1973) 4 SCC 225

Background: In Golak Nath vs. State of Punjab, the Supreme Court (6:5) reversed its earlier rulings that no part of the Constitution, including the fundamental rights, was unamendable. It was held that an amendment of the Constitution under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if a Constitution amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. In response to this judgment, the Parliament passed the Constitution (Twenty-fourth Amendment) Act, 1971, to provide expressly that Parliament has power to amend any part of the Constitution including the provisions relating to Fundamental Rights. A new clause (4) was inserted in article 13 of the Constitution to provide that the provisions of article 13 shall not be applicable to any amendment made under article 368. Article 368 was also amended to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further provided that when a Constitution Amendment Bill is presented to the President for his assent, it would be obligatory upon him to give his assent thereto. The validity of the 24th amendment, along with 25th and 29th Constitution Amendments were challenged before the Supreme Court in Kesavananda Bharathi case. Since it involved reconsideration of a decision rendered by a 11 judge bench, a thirteen bench judge was constituted to decide these issues. 

Though it overruled Golak Nath and also upheld the 24th Amendment, the majority held that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. The observations regarding the 'basic structure' theory in 'majority' judgments are the following:

Sikri CJ: 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.

Shelat and Grover JJ: 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.

Hegde and Mukherjea JJ: Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution. (Hegde and Mukherjea JJ)

Jaganmohan Reddy J: Parliament could amend Art. 368 and Art. 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Art. 368 expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the construction placed by me,the Twenty-fourth Amendment is valid, for it has not changed the nature and scope of the amending power as it existed before the Amendment.

Khanna J: 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 or framework of the Constitution. Subject to the retention of the basic Structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from the amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles.

According to judgment by Sikri CJ, the true position is that every provision of the Constitution can be amended provided that the basic foundation and structure of the constitution remains the same. The basic structure, according to the judge, may be said to consist of the following features: Supremacy of the Constitution; Republican and Democratic forms of Government; Secular character of the Constitution; Separation of powers between the legislature, the executive and the judiciary; Federal character of the Constitution. "The above structure is built on the basic foundation, i. e., the dignity and freedom of the individual.This is of supreme importance. This cannot by any form of amendment be destroyed.", Sikri CJ said.  

25th Amendment had inserted a new article 31C which provided that a law giving effect to the Directive Principles of State Policy specified in article 39(b) and (c) shall not be void on the ground of contravention of articles 14, 19 or 31 and that a law containing a declaration that it is for giving effect to these Directive Principles will not be open to judicial scrutiny on the ground that it does not give effect to these Directive Principles. The first part was held to be valid. The second part namely "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy" was declared invalid. The other amendments were upheld subject to some observations.

Epilogue: Kesavananda Bharati judgment is known for its basic structure theory. In various judgments, the Supreme Court has held that the following constitute basic structure of the Constitution: The principle of Separation of Powers; The objectives specified in the Preamble to the Constitution; Judicial Review under Articles 32 and 226; Federalism; Secularism; The Sovereign, Democratic, Republican structure; Freedom and dignity of the individual; Unity and integrity of the Nation; The principle of equality, The Parliamentary system of government; The principle of free and fair elections; Limitations upon the amending power conferred by Article 368; Independence of the Judiciary; Effective access to justice;, are termed as some of the basic features of the Constitution.

Minerva Mills Ltd. Vs. Union of India 

Sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976 made the following changes to the Constitution. Article 31C as amended by Section 4 of the 42nd Amendment Act reads thus: "31C. Notwithstanding anything contained in article 13. no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent." Section 55 amended Article 368 to include these clauses: "(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power - of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article". These provisions were challenged on the ratio of the majority judgment in Kesavananda Bharati's case that the Parliament cannot destroy the basic structure of the Constitution through its power to amend.

The Constitution bench held that the Section 4 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution. Section 55 of the Constitution 42nd Amendment Act was also held to be beyond the amending power of the Parliament and void since it removes all limitations on the power of the Parliament to amend the Constitution and confers power upon it to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure.

L Chandra Kumar vs Union of India

Case Details: Appeal (Civil) 481 of 1980 ; 18 March 1997 ; CJI A.M. Ahmadi, Justices M.M. Punchhi, K. Ramaswamy, S.P. Bharucha, S. Saghir Ahmad, K. Venkataswami, K.T. Thomas

Citations: AIR 1997 SC 1125 ; (1997) 3 SCC 261; (1997) 3 SCALE 40

Background: Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from March 1,1977. It comprised of two provisions, Articles 323A and 323B. The question before the Constitution bench in this was whether the power conferred upon Parliament or the Stale Legislatures, as the case may be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B?

The court held that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. "Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules.", it was held.

This case was also included in the part dealing with the topic: Tribunals.

Kihoto Hollohon Vs. Zachilhu  

Case:  Transfer Petition (Civil) No.40 of 1991; 18 February 1992 ; Sharma, L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J), Reddy, K. Jayachandra (J), Agrawal, S.C. (J)

Citation: (1992) Supp 2 SCC 651; [1992] 1 SCR 686

In this case, the Court dealt with a challenge to the Tenth Schedule to the Constitution inserted by the Constitution (Fifty-Second amendment) Act 1985. Though the Tenth Schedule was to deal with the evil of defection, it also purported to oust the jurisdiction of all courts by virtue of paragraph-7, which reads as follow: "7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of the Member of a House under this Schedule." This was under challenge in Kihoto Hollohon case.

The court struck down Para 7, and invoked doctrine of severability to uphold the rest of the paragraphs of Tenth Schedule. "The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.", the Court held.

Supreme Court Advocates-on-Record Association vs. Union of India

Case:  WP(C) 13 OF 2015 ; 16 October  2015 ; CJI Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph, Adarsh Kumar Goel

Citation: 2016(5) SCC 1 ; [2015] 13 SCR 1 

The 99th Constitutional Amendment changed Article 124 and 217 of the Constitution which deals with establishment and constitution of Supreme Court and High Courts respectively. As per the Amendment which introduced various other provisions including Article 124A, a Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred. A new six member body called the National Judicial Appointments Commission was to be constituted under Article 124A. The CJI had to be its ex-officio Chairperson. Two senior Judges of the Supreme Court next to the CJI and the Union Law Minister are also ex-officio members, apart from two eminent persons to be nominated by a Committee contemplated in Article 124A (1)(d).In 2015, the Constitution Bench (4:1 Majority) of the Supreme Court declared the 99th Constitutional Amendment and National Judicial Commission (NJAC) unconstitutional on the ground that it violates Basic Structure of Constitution of India. The majority judgment authored by the then CJI JS Khehar held as follows:

(i) Causes (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another). The same are accordingly, violative of the principle of "independence of the judiciary".

(ii) Clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the principles of "independence of the judiciary", as well as, "separation of powers".

(iii) Clause (d) of Article 124A(1) which provides for the inclusion of two "eminent persons" as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the "basic structure" of the Constitution. In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside.

Pramati Educational & Cultural Trust vs Union Of India

Case: WP(C) 416 OF 2012; 6 May 201 4; R.M. Lodha, A.K. Patnaik, Sudhansu Jyoti Mukhopadhaya, Dipak Misra, Fakkir Mohamed Kalifulla

Citation: [2014] 11 SCR 712 ; (2014) 8 SCC 1

Background: Clause (5) of Article 15 of the Constitution was inserted by the Constitution (Ninety-third Amendment) Act, 2005 and Article 21A of the Constitution was inserted by the Constitution (Eighty-Sixth Amendment) Act, 2002. Clause (5) of Article 15 of the Constitution enabled the State to make a special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30 of the Constitution. Article 21A of the Constitution, provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Following the mandate of Article 21A, the Right of Children to Free and Compulsory Education Act, 2009, was also enacted. These amendments/law were challenged before the Supreme Court.

The court, upholding Article 15(5), held that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution. The court also disapproved the view that the imposition of reservation on unaided institutions by the Ninety-third Amendment has abrogated Article 19(1)(g), a basic feature of the Constitution is not correct.

The court, upheld the Constitution (Eighty- Sixth Amendment) Act, by holding that a new power was made available to the State under Article 21A of the Constitution to make a law determining the manner in which it will provide free and compulsory education to the children of the age of six to fourteen years. "This additional power vested by the Constitution (Eighty-Sixth Amendment) Act, 2002 in the State is independent and different from the power of the State under clause (6) of Article 19 of the Constitution and has affected the voluntariness of the right under Article 19(1)(g) of the Constitution. By exercising this additional power, the State can by law impose admissions on private unaided schools and so long as the law made by the State in exercise of this power under Article 21A of the Constitution is for the purpose of providing free and compulsory education to the children of the age of 6 to 14 years and so long as such law forces admission of children of poorer, weaker and backward sections of the society to a small percentage of the seats in private educational institutions to achieve the constitutional goals of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the Constitution.", the court held.

The court also observed that the power under Article 21A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice. It observed that, if members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. It said that, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution, the court held. 

Read about other Constitutional Amendments struck down by Supreme Court here.

Reservations