(a) "Amending power does not extend to damaging or destroying the basic structure or framework of our Constitution." Discuss. (20…

(a) Amending power and the basic structure

Art 368 lets Parliament amend "by way of addition, variation or repeal any provision" of the Constitution. Whether this power is unlimited has been the central question.

• ***Shankari Prasad* (1951) and *Sajjan Singh* (1965):** an amendment is not "law" under Art 13(2), so fundamental rights can be amended. In Sajjan Singh, Mudholkar J asked whether some "basic features" lie beyond amendment.
• ***Golak Nath* (1967):** an amendment is "law", so fundamental rights cannot be abridged (prospective overruling). Parliament replied with the 24th and 25th Amendments (1971).
• ***Kesavananda Bharati* (1973, 13 judges, 7:6):** Golak Nath overruled, but the amending power does not extend to altering the basic structure. Illustrative features: supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism and the dignity of the individual.

Amendments struck down:

• ***Indira Nehru Gandhi v Raj Narain* (1975):** Art 329A(4) (39th Amendment) insulating the Prime Minister's election, as free and fair elections and judicial review are basic.
• ***Minerva Mills* (1980):** Art 368(4)-(5) and the extension of Art 31C to all Directive Principles (42nd Amendment). Limited amending power and the Part III-Part IV balance are basic features.
• ***Kihoto Hollohan* (1992): para 7 of the Tenth Schedule. *L. Chandra Kumar* (1997):** ouster of Arts 32 and 226-227 review.
• ***I.R. Coelho* (2007):** Ninth Schedule laws after 24 April 1973 (the cut-off from Waman Rao 1981) are open to review. ***NJAC case* (2015):** the 99th Amendment fell for compromising judicial independence.

Amendments upheld include the 93rd (Pramati 2014) and the 103rd EWS Amendment (Janhit Abhiyan 2022, 3:2).

Critics call the doctrine judge-made, open-ended and counter-majoritarian. Its defenders note that it protected the Constitution's identity against Emergency-era amendments and is applied sparingly, asking only whether an amendment destroys a core feature. It has been followed or debated abroad (Bangladesh, Anwar Hossain Chowdhury 1989, and Kenya's BBI case 2022). Parliament may reshape the Constitution but not destroy its identity.

(b) Fundamental rights and parliamentary privilege

Arts 105(3) and 194(3) give legislatures the privileges defined by law and, until then, those of the House of Commons on 26 January 1950. No law has been made, so privileges remain uncodified. Arts 105(1)-(2) and 194(1)-(2) protect speech and votes in the House, and Arts 122 and 212 bar inquiry into procedural irregularity.

• ***Gunupati Keshavram Reddy* (1954): a person arrested on the Speaker's warrant and not produced before a Magistrate within 24 hours was freed under Art 22(2)**.
• M.S.M. Sharma (Searchlight, 1959): privilege under Art 194(3) prevails over Art 19(1)(a), and Assembly rules under Art 208 satisfy Art 21.
• Keshav Singh (Special Reference 1 of 1964): the legislature cannot punish judges for hearing a habeas corpus petition. Arts 21, 32 and 226 remain available, and courts can examine whether a claimed privilege exists.
• ***Raja Ram Pal* (2007): expulsion of MPs upheld, but privilege is subject to judicial review** for gross illegality, irrationality or violation of fundamental rights, especially Arts 20 and 21.
• ***Amarinder Singh* (2010):** expulsion for an executive act in an earlier Assembly's term quashed.
• ***Arnab Goswami* (2020): threatening privilege action for approaching the Supreme Court interferes with Art 32**.
• ***Sita Soren* (2024, seven judges):** P.V. Narasimha Rao (1998) overruled. Bribery by a legislator is not protected, since privilege serves the House's collective functioning, not individual criminality.

The law has moved from privilege overriding rights (Searchlight) to privilege subject to Arts 20, 21, 22 and 32, though Art 19(1)(a) remains weaker against it. The NCRWC (2002) recommended codification to reduce uncertainty.

(c) Are all Directive Principles equally fundamental?

Art 37 makes the Directive Principles non-enforceable but "fundamental in the governance of the country". Textually all are equal, but in practice they carry different weight.

• Relationship with rights: Champakam Dorairajan (1951) made them subsidiary. Kerala Education Bill (1958) adopted harmonious construction. Minerva Mills (1980) held the balance of Parts III and IV a basic feature.
• Constitutional priority: only Arts 39(b) and (c) enjoy Art 31C protection against Arts 14 and 19. Property Owners Association (2024, nine judges) held that "material resources of the community" does not cover all private property.
• Absorbed into Art 21: education (Unni Krishnan 1993, then Art 21A), legal aid under Art 39A (Hussainara Khatoon 1979), livelihood (Olga Tellis 1985), food (PUCL, leading to the National Food Security Act 2013) and environment under Art 48A (M.C. Mehta).
• Justifying restrictions: prohibition under Art 47 (F.N. Balsara 1951) and the cow-slaughter ban under Art 48 (Mirzapur Moti Kureshi 2005). Kasturi Lal (1980) used them to test reasonableness.
• Implemented by law: Art 40 through the 73rd Amendment, Art 50 through the BNSS 2023 (earlier the CrPC 1973), and Arts 39(d) and 43 through the Labour Codes in force from 21 November 2025.
• Largely aspirational: Art 44 (Uniform Civil Code) urged in Shah Bano and Sarla Mudgal, enacted only in Goa and Uttarakhand (2024).

All are equally fundamental as duties of the State, but courts and Parliament have created a working hierarchy, with Arts 39(b)-(c) and the principles absorbed into Art 21 at the top.