Quick answer
No. In Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by a 13-judge bench of the Supreme Court, the majority (7:6) held that Article 368 allows Parliament to amend any part of the Constitution, including fundamental rights. It does not allow Parliament to alter the basic structure or framework of the Constitution. The decision overruled I.C. Golak Nath v. State of Punjab (1967), and the basic structure doctrine has limited the amending power ever since.
The case
Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225. Supreme Court of India, 24 April 1973, Writ Petition (Civil) No. 135 of 1970. Bench of 13 judges headed by S.M. Sikri, C.J. The petitioner challenged the Kerala Land Reforms Act, 1963, as amended in 1969 and 1971. The Twenty-ninth Amendment (in force from 9 June 1972) then placed the Kerala amending Acts of 1969 and 1971 in the Ninth Schedule. The case grew into a challenge to the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments.
Background: the amending power debate
| Stage | Position on amending fundamental rights |
|---|---|
| Sankari Prasad (1951) and Sajjan Singh (1964) | Allowed. An amendment is not "law" under Article 13(2). |
| Golak Nath (1967, 6:5) | Not allowed. An amendment is "law" under Article 13. |
| 24th Amendment (1971) | Inserted Article 13(4) and Article 368(3): Article 13 does not apply to amendments. |
| Kesavananda Bharati (1973, 7:6) | Allowed, but the basic structure cannot be altered. |
The basic structure doctrine
- Wide power: Parliament's constituent power (the power to amend the Constitution itself) extends to every Article, including Part III.
- Implied limit: "amendment" does not include the power to destroy the Constitution's identity. An amendment that alters its basic structure or framework is invalid.
- Open list: the Court did not fix a closed list of basic features. Individual judges gave different illustrations. Sikri, C.J. said the basic structure "may be said to consist of" the supremacy of the Constitution, a republican and democratic form of government, the secular character of the Constitution, separation of powers and the federal character of the Constitution. Later cases have added to these illustrations.
- Recognised features: in I.R. Coelho v. State of Tamil Nadu (11 January 2007), a nine-judge bench said that equality, the rule of law, judicial review and separation of powers form part of the basic structure, and described secularism as another fundamental feature.
Example
Suppose Parliament passes an amendment, following the procedure in Article 368, which says that no court may examine any law passed by Parliament. Aadil challenges it. Following the correct procedure is not enough. Judicial review is part of the basic structure, so the amendment can be struck down. Renu challenges a different amendment that only adds a new language to the Eighth Schedule. It survives, because it does not touch any essential feature.
Later use of the doctrine
The 24 April 1973 date matters in practice. In I.R. Coelho (2007), the Supreme Court held that laws added to the Ninth Schedule after that date do not get full protection. Such laws must be tested against the basic structure, in the light of Articles 14, 19 and 21. For the case Kesavananda overruled, see I.C. Golaknath v. State of Punjab.
Exam point
Kesavananda Bharati (24 April 1973, 13 judges, 7:6): Parliament can amend any provision under Article 368 but cannot alter the basic structure of the Constitution. Golak Nath was overruled.
