Constitutional Amendments

The Ninth Schedule was added to the Constitution by the 1st Constitutional Amendment Act of 1951, along with Article 31B. Its original purpose was to protect certain acts and regulations from being challenged in court on the grounds of violating Fundamental Rights. Initially, it contained only 13 acts, primarily dealing with land reforms and the abolition of the zamindari system. Over time, its contents expanded, reaching 282 acts and regulations by 2016. However, the Supreme Court, in the I.R. Coelho case (2007), ruled against providing blanket immunity to laws placed in the Ninth Schedule. The Court affirmed that judicial review is a 'basic feature' of the Constitution and cannot be removed by including a law in the Ninth Schedule. Specifically, laws placed in the Ninth Schedule after April 24, 1973, can be challenged if they violate Fundamental Rights guaranteed under Articles 14, 15, 19, and 21, or the 'basic structure' of the Constitution. This date corresponds to the Kesavananda Bharati case, where the doctrine of 'basic structure' was first propounded. The validity of such laws is subject to a "rights test" to determine if they abrogate or abridge fundamental rights that form part of the basic structure.

The amendment procedure of the Indian Constitution has been subject to significant criticism from constitutional experts and scholars. Despite providing a framework that balances flexibility and rigidity, the procedure is viewed by many as having inherent structural limitations that distinguish it from amendment mechanisms in other democracies, particularly the United States. The critics argue that while the procedure has proven functional in practice, it concentrates too much constituent power in Parliament and offers insufficient safeguards against hasty or majoritarian amendment. The procedure lacks several protective mechanisms found in other constitutions: no special constitutional body (like the USA's Constitutional Convention) is mandated for amendments; state legislatures cannot independently initiate amendments; and there is no mechanism for joint sittings in case of deadlock between the two Houses of Parliament. However, it is important to note that despite these criticisms, the amendment procedure has "succeeded in meeting the changed needs and conditions" and "strikes a good balance between flexibility and rigidity." The procedure is "not so flexible as to allow the ruling parties to change it according to their whims" nor "so rigid as to be incapable of adopting itself to the changing needs."

The 91st Amendment Act of 2003 represents a significant strengthening of India's anti-defection framework, which was first established by the 52nd Amendment Act of 1985. The 1985 Act had introduced provisions in the Tenth Schedule of the Constitution to prevent legislators from switching political parties for personal gain. However, the anti-defection law came under sustained criticism for containing a loophole that allowed bulk defections under the guise of party splits, while simultaneously penalizing individual defections. This contradiction was deemed destabilizing to governments and undermined the original intent of maintaining political stability. The 91st Amendment Act of 2003 addressed these concerns through comprehensive reforms. Most significantly, it deleted the exemption clause that had allowed legislators to defect without disqualification when one-third of a party's members split away. This change closed the "wholesale defection" loophole that had long plagued the anti-defection law. Beyond strengthening defection provisions, the 2003 Amendment introduced substantial restrictions on the size of Council of Ministers at both central and state levels, capping ministerial strength at 15 percent of the total legislative strength. Additionally, it barred defectors from holding ministerial positions or other remunerative political posts, creating additional consequences for political defection beyond mere disqualification from legislative membership.

The Basic Structure Doctrine is a judicial innovation — it is NOT found anywhere in the text of the Constitution. It emerged from the Supreme Court's interpretation in the famous **Kesavananda Bharati case (1973)**. The doctrine has become the most important principle governing relations between the Parliament and the Judiciary. **Background — the Parliament-Judiciary conflict:** After the Constitution came into force, a controversy arose over Parliament's power to restrict the right to property in order to implement land reforms. The Court held Parliament could not restrict fundamental rights. When Parliament tried to amend the Constitution to overcome this, the Court said that even through amendment, a fundamental right cannot be abridged. Between 1967 and 1973, this conflict became very serious — involving land reform laws, preventive detention, job reservations, and property acquisition. **The Kesavananda Bharati ruling (1973):** The Supreme Court ruled that there is a basic structure of the Constitution and nobody — not even Parliament through constitutional amendment — can violate the basic structure. The Court did two more things: 1. It said that the right to property (the disputed issue) was NOT part of basic structure and could therefore be suitably abridged. 2. The Court reserved to itself the right to decide whether various matters are part of the basic structure. **Three key effects of this ruling:** 1. Sets specific limits to Parliament's power to amend — no amendment can violate basic structure. 2. Allows Parliament to amend any and all parts of the Constitution (within this limitation). 3. Places the Judiciary as the final authority in deciding what constitutes basic structure. **Evolution after Kesavananda:** - The right to property was removed from the list of Fundamental Rights in 1979 (changed to a constitutional right). - Parliament attempted to override the ruling through the 42nd Amendment (1976), asserting parliamentary supremacy. The Court repeated its stand in the **Minerva Mills case (1980)**. - Three decades after Kesavananda, all political parties, the government, and Parliament have accepted the theory of basic structure. - The basic structure doctrine is itself an example of a "living constitution" — it changed the constitutional framework without a formal amendment. **Rationale:** The Court turned to the "spirit" rather than the "letter" of the Constitution. A text or document must be read respecting the intent behind it. Social circumstances and aspirations that produce a law are more important than the mere text. Basic structure was described as something without which the Constitution cannot be imagined at all. **Other judicial interpretations that effectively amended the Constitution:** - Reservations in jobs and educational institutions cannot exceed 50% of total seats. - "Creamy layer" concept introduced by the SC — persons in the creamy layer within OBC communities are not entitled to reservation benefits. - Interpretations on right to education, right to life and liberty, right of minorities to manage educational institutions. **Judicial Review and Basic Structure:** The Supreme Court has declared the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution. This means the power of judicial review cannot be curtailed or excluded even by a constitutional amendment. The Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court and High Courts), and this power has been established as foundational to the constitutional system. Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the judiciary.