Basic Structure Doctrine: Kesavananda, 1975 and Minerva Mills

The basic structure doctrine, laid down in Kesavananda Bharati (1973), holds that Parliament's power under Article 368 reaches every part of the Constitution, including Part III, but it does not extend to damaging or destroying the Constitution's essential features. The Constitution itself does not list these features; the courts identify them case by case, for example supremacy of the Constitution, judicial review, secularism, federalism and free and fair elections. So the doctrine is a limit on the content of an amendment, not a bar on amending any Part.

Statement 2 is correct: courts decide live disputes between parties and normally decline hypothetical or academic questions, as when the matter has become infructuous. The President's advisory reference under Article 143 is a separate, special route. Statement 1 is incorrect: judicial review rests on the Constitution itself (Articles 13, 32, 226), and in Minerva Mills (1980) and L. Chandra Kumar (1997) the Court held it part of the basic structure. Not even a constitutional amendment, let alone an ordinary Act, can wholly exclude it.

In Waman Rao v. Union of India (1981), the Supreme Court held that laws placed in the Ninth Schedule before 24 April 1973, the date of the Kesavananda Bharati judgment, remain protected, while amendments adding laws to the Schedule after that date can be tested against the basic structure. The date was chosen because the basic structure doctrine itself began on that day. I. R. Coelho (2007) later confirmed that post-1973 Ninth Schedule laws can be reviewed for violating basic-feature rights.

The 24th Amendment Act, 1971 added Article 368(1), which says that Parliament may amend the Constitution 'in exercise of its constituent power'. It also added Article 13(4), so that Article 13 does not apply to an amendment, and made the President's assent to an amendment bill obligatory. These changes answered Golaknath (1967), which had treated an amendment as 'law' under Article 13 and so barred the abridgement of Fundamental Rights. Kesavananda Bharati (1973) upheld the 24th Amendment.

Statement-I is correct: under Article 368(2), an amendment bill must be passed by each House separately by the special majority. Statement-II is incorrect: the joint sitting under Article 108 is available only for ordinary bills when the Houses disagree; it does not apply to Money Bills or to Constitution Amendment Bills. If one House rejects an amendment bill, the bill simply fails. Since Statement-II is false, it cannot explain Statement-I.

Both statements are correct. The 40th Amendment Act, 1976 amended Article 297 so that the limits of the territorial waters, the continental shelf, the exclusive economic zone and other maritime zones are specified by Parliament by law; it also added more Acts to the Ninth Schedule. The 11th Amendment Act, 1961 changed the Vice-President's election from a joint meeting to an electoral college of both Houses, and inserted Article 71(4), under which an election of the President or Vice-President cannot be challenged on the ground of any vacancy in the electoral college.

Both statements are correct. Clause (e) of the proviso to Article 368(2) lists 'the provisions of this article' itself, so any change to the amending procedure needs ratification by half the States. In Kihoto Hollohan v. Zachillhu (1992), the majority held that paragraph 7 of the Tenth Schedule, which barred the jurisdiction of all courts in defection matters, in effect changed the powers of the Supreme Court and High Courts under Articles 136, 226 and 227. Since it was not ratified, paragraph 7 was invalid, but it was severed and the rest of the Schedule survived.

Both statements are incorrect. Courts read each entry in the Seventh Schedule Lists in the widest sense, so the power over a subject includes all incidental and ancillary matters that can fairly be said to be comprehended in it (United Provinces v. Atiqa Begum, 1940; Navinchandra Mafatlal, 1954). Statement 2 is wrong: under Article 248 and Entry 97 of the Union List, the residuary power belongs to Parliament, a feature taken from Canada. In the USA and Australia the residue lies with the States, which is the model the distractor borrows.