Until the case of Golak Nath, the Supreme Court had been holding that no part of our constitution was unamendable including Fundamental Rights and Article 368. But in Golak Nath Vs State of Punjab,1967 case Supreme Court overruled its earlier decisions Supreme Court held that Fundamental Rights embodied in Part III had been given a transcendental position by the constitution so that no authority functioning under the constitution including parliament exercising the amending power including Article 368, was competent to make amendment of Fundamental Rights.
But by the 24th Amendment Act,1971 Article 13 and 368 were amended to make it clear that Fundamental Rights were amendable under the procedure laid down in Article 368, the overriding the majority decision of the Supreme Court in Golak Nath Vs State of Punjab.
Article 13(1): All laws in force in the territory of India immediately before the commencement of the constitution in so far as they are inconsistent with this part shall be void.
Article 13(2): The state shall not make any law which takes away or abridge the rights conferred by this Part and any law.
Addition by 24th Constitutional Amendment Act,1971
Article 13(4): Nothing in this article shall apply to any amendments of this constitution under Article 368.
Article 368(3): Nothing in Article 13 shall apply to any amendment made under this article.
The majority decision in Kesavananda Bharti’s case upheld the validity of these amendments and also overruled the Golak Nath case, 13 judges bench hold that it is competent for parliament to make an amendment of Fundamental Rights under Article 368, but can not be used to alter the Basic Structures of the constitution.
In the meantime applying Kesavananda case majority of the constitution bench has invalidated clause(4) and (5) of Article 368 as it violates the Basic Structures of the constitution [Minerva Mill Vs Union of India,1980].
The current situation is that Parliament can amend any part of the constitution including Fundamental Rights but can not alter the ‘Basis Structures’ of the Constitution.
What is the “Basis Structures” of the constitution?
The concept of Basis Structure was evolved by Supreme Court during Keshavananda Bharti Case which says Parliament can amend any part of the constitution including Fundamental Rights but can not alter the ‘Basis Structures’ of the Constitution. But what all constitute the Basis Structure of the constitution was not defined exclusively by the Supreme Court. But time to time supreme court has put certain provisions as part of Basis Structures of the constitution. Here are certain Provisions which is the part of Basic Structures of the constitution :
Supremacy of constitution
Rule of Law
The balance between Fundamental Rights and DPSP
Parliamentary form of government.
Article 32 and 226
The fundamental rights ensured in Part III of the Indian constitution can be amended by the Parliament of India. This can be amended as per Article 368 of the Indian constitution. As per this article 2/3rd majority of total members, present and voting required to amend any part of the constitution.
The Basic Structures are some provisions of the Constitution of India which can be altered by the constitutional amendment act of Parliament. some of these are Rule of Law, Judicial Review, parliamentary form of government, Secularism…etc.