Author: – Ravinandan Bajpai, School of Law, University of Mumbai
ABSTRACT
The Indian Constitution grants Parliament the power to amend the constitution under Article 368, but this power of the legislature is not absolute in nature. The Judiciary by its Basic Structure Doctrine established in the Keshvanand Bharti v. State of Kerala, 1973 restricts the amendments which alter the fundamental principles of the constitution. This doctrine has since then paved the way to curb the legislative supremacy, ensuring the core democratic values remain intact.
This Article examines the legislature’s competence to amend the constitution and the judiciary’s role in upholding the constitutional supremacy. By analyzing the key judgements such as Golaknath Case (1967), Keshvanand Bharti case (1973), Minerva Mills Case (1980) and I.R. Coelho (2007), it highlights the judicial checks on Parliament’s amending power.
INTRODUCTION
The legislature and the judiciary are the two essential pillars of the democracy, the powers and functions of both are guided and differentiated in the constitution of India. Under Article 368 of Indian Constitution the parliament has the power to amend the constitution but the power is not unlimited or absolute in nature. From time to time when the legislature has stepped out of the prescribed limits of amending the constitution, the judiciary has stepped in to prevent the legislature from violating the fundamental structure of the constitution. The Basic Structure Doctrine, developed by the Supreme Court, places restrictions on Parliament, ensuring that essential elements such as democracy, secularism, and fundamental rights remain inviolable. This article examines the scope and limitations of Parliament’s power to amend the Constitution in light of this doctrine.
The Parliamentary Power to Amend Under Article 368
Article 368 provides two procedures for constitutional amendment:
Simple Majority Amendments – Changes to non-essential provisions can be made through a simple majority, similar to ordinary legislation.
Special Majority Amendments – Certain provisions require a two-thirds majority in both Houses of Parliament and, in some cases, ratification by at least 50% of state legislatures.
Initially, the Supreme Court upheld Parliament’s absolute amending power in cases like Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), stating that Fundamental Rights could be amended under Article 368. However, this view changed significantly in Golaknath v. State of Punjab (1967), where the Supreme Court ruled that Parliament could not amend Fundamental Rights, treating them as immutable.
The Basic Structure Doctrine: A Judicial Check on Parliament
The landmark judgment in Kesavananda Bharati v. State of Kerala (1973) altered the course of constitutional law by holding that while Parliament has the power to amend the Constitution, it cannot alter its “basic structure.” The Supreme Court did not provide a fixed list of what constitutes the Basic Structure, but over time, the judiciary has identified several principles, including:
Supremacy of the Constitution
Sovereign, Democratic, and Republic nature of India
Secularism and Federalism
Separation of Powers
Judicial Review
Free and Fair Elections
This doctrine serves as a safeguard against authoritarianism and arbitrary constitutional changes. It prevents Parliament from fundamentally altering the essence of the Constitution under the guise of amendments.
Analysis of Judicial Precedents
Several key rulings have reinforced the Basic Structure Doctrine and clarified the limits of parliamentary competence:
Golaknath v. State of Punjab (1963)
The Golak Nath case was a landmark ruling that restricted Parliament’s power to amend Fundamental Rights under the Constitution of India. The issue arose when the validity of land reform laws placed under the Ninth Schedule was challenged on the grounds that they violated the right to property (Article 19 & Article 31).
A 11-judge bench of the Supreme Court, by a 6:5 majority, held that Parliament cannot amend Fundamental Rights under Article 368, as they are sacrosanct and beyond legislative alteration. The Court reasoned that Fundamental Rights occupy a “transcendental position” and cannot be taken away by an amendment. It applied the prospective overruling doctrine, meaning the judgment would not affect past amendments but would apply to future amendments.
This decision led to the 24th Constitutional Amendment (1971), which expressly gave Parliament the power to amend Fundamental Rights. However, the ruling was later overruled in Kesavananda Bharati (1973), which introduced the Basic Structure Doctrine, allowing amendments as long as they did not violate the essential framework of the Constitution.
Keshvanand Bharti v. State of Kerala (1973) {Basic Structure Doctrine Case}
The Kesavananda Bharati case is one of the most significant rulings in Indian constitutional history, establishing the Basic Structure Doctrine. The case challenged the Kerala Land Reforms Act, 1963, and questioned whether Parliament had unlimited power to amend the Constitution under Article 368.
A 13-judge bench of the Supreme Court ruled, by a 7:6 majority, that while Parliament can amend the Constitution, it cannot alter or destroy its Basic Structure. The Court did not provide an exhaustive list of what constitutes the Basic Structure, but over time, key elements such as supremacy of the Constitution, democracy, secularism, federalism, separation of powers, and judicial review have been identified.
This judgment overruled Golak Nath (1967), which had held that Fundamental Rights were beyond Parliament’s amending power. However, Kesavananda Bharati clarified that Fundamental Rights can be amended as long as the amendment does not violate the Basic Structure. The ruling established judicial supremacy in constitutional interpretation, ensuring that no government could dilute the core values of the Constitution under the guise of amendments. It remains the bedrock of constitutional law in India, preventing authoritarian misuse of legislative power.
Indira Nehru Gandhi v. Raj Narain (1975) – It was a landmark judgement which shaped India’s constitutional framework particularly concerning free and fair elections and the basic structure doctrine. Raj Narain was the political opponent of Indira Gandhi from Rae Barelli Constituency, he alleged upon Ms. Gandhi of electoral malpractices. The Allahabad High Court found Gandhi of corrupt practices under Representation of People Act, 1951 disqualifying her from holding office for six years. In response, the government passed the 39th Constitutional Amendment, placing disputes regarding elections of the Prime Minister, President, Vice-President, and Speaker of Lok Sabha beyond judicial review.
The Supreme Court struck down Clause 4 of the 39th Amendment, ruling that placing election disputes beyond judicial scrutiny violated the Basic Structure of the Constitution, particularly free and fair elections and the rule of law.
However, the Court upheld Gandhi’s election by modifying the law retrospectively. The judgment reaffirmed judicial review and strengthened the Basic Structure Doctrine, preventing Parliament from making amendments that undermine democracy.
Minerva Mills v. Union of India (1980) – The Minerva Mills v. Union of India case reinforced the Basic Structure Doctrine by striking down amendments that sought to curtail judicial review and prioritize Directive Principles of State Policy (DPSP) over Fundamental Rights. The case challenged the 42nd Constitutional Amendment (1976), which granted Parliament unlimited power to amend the Constitution and prevented judicial review of such amendments. The Supreme Court ruled that judicial review and the balance between Fundamental Rights and Directive Principles form part of the Basic Structure. It held that while DPSPs are important, they cannot override Fundamental Rights, ensuring that social justice objectives do not infringe upon individual liberties. Additionally, the Court struck down Section 4 and Section 55 of the 42nd Amendment, which attempted to grant absolute amending power to Parliament.
This verdict reaffirmed the judiciary’s role as the guardian of the Constitution, preventing authoritarian rule by limiting legislative overreach. The ruling emphasized that democracy, separation of powers, and limited government are essential features of the Constitution that cannot be altered by Parliament.
I.R. Coelho v. State of Tamil Nadu (2007) – The I.R. Coelho v. State of Tamil Nadu case reaffirmed the Basic Structure Doctrine and strengthened judicial review over constitutional amendments. The key issue was whether laws placed under the Ninth Schedule of the Constitution were immune from judicial scrutiny. The Ninth Schedule, originally introduced by the First Amendment (1951), was meant to protect land reform laws from being challenged as unconstitutional. However, over time, various laws—including those infringing upon Fundamental Rights—were placed under this shield, bypassing judicial review.
The Supreme Court, in a unanimous decision, ruled that any law placed in the Ninth Schedule after April 24, 1973 (the date of Kesavananda Bharati judgment) must adhere to the Basic Structure Doctrine. If such laws violate fundamental rights or other core constitutional principles, they are subject to judicial review. This ruling prevented Parliament from using the Ninth Schedule as a loophole to escape constitutional limitations, reinforcing that judicial review is an integral part of the Constitution’s Basic Structure. The verdict upheld constitutional supremacy over legislative power, ensuring that no amendment can override the fundamental rights of citizens.
CONCLUSION
The Basic Structure Doctrine is a crucial constitutional safeguard ensuring that India’s democratic fabric remains intact. While Parliament’s power to amend is essential for legal evolution, it cannot be exercised in a manner that destroys the fundamental principles of the Constitution. The judiciary plays a critical role in maintaining this balance, preventing majoritarian excesses and unconstitutional alterations. However, the debate continues that should judiciary have the final say in the constitutional amendments or it violates the basic democratic nature of the country. This continuous debate enhances the Indian Constitutional jurisprudence while also prevailing the rule of law and supremacy of the constitution.
FAQS
What constitutes the Basic Structure of the Constitution?
Ans. Core principles like democracy, secularism, judicial review, and federalism are considered part of the Basic Structure.
Can the judiciary strike down a constitutional amendment?
Ans. Yes, if it violates the Basic Structure, as held in Minerva Mills (1980) and I.R. Coelho (2007).
Can Parliament amend any part of the Constitution?
Ans. No, Parliament cannot alter the Basic Structure as per Kesavananda Bharati v. State of Kerala (1973).
What was the impact of the Golaknath case?
Ans. It ruled that Fundamental Rights cannot be amended, leading to the 24th Amendment (1971), which restored Parliament’s amending power but within the limits later set by Kesavananda Bharati.
What is the definition of “Basic Structure” as iterated by the Supreme Court from time to time?
Ans. There is no particular definition given for the Basic Structure by the Supreme court it is an ever-evolving concept which collectively caters the issues retrospectively and prospectively.
