Parliamentary Competence to Amend the Constitution and the Principle of Basic Structure
Introduction
The Indian Constitution is
a living document, designed to evolve with changing social, political,
and economic needs. While Parliament has the power to amend the Constitution,
this power is not absolute. Over the decades, the Supreme Court has
established limits on Parliament’s amending powers, ensuring that
amendments do not destroy the Constitution’s core principles.
The Basic Structure Doctrine,
first articulated in the Kesavananda Bharati case (1973), serves as a constitutional
safeguard against unchecked amendment powers. It prevents Parliament from altering
fundamental aspects of the Constitution, such as democracy, secularism,
judicial independence, and federalism.
This article explores Parliament’s
competence to amend the Constitution, the evolution of the Basic
Structure Doctrine, and landmark Supreme Court cases that have
defined the boundaries of constitutional amendments in India.
Constitutional Framework for Amendment
Article 368: The Source of
Parliament’s Amending Power
Article 368 of the Indian
Constitution lays down the procedure for amending the Constitution.
Amendments can be classified into three categories:
- Simple Majority Amendments – Passed like ordinary legislation (e.g., changes in Parliamentary procedures).
- Special Majority Amendments – Require a two-thirds majority in both Houses (e.g., Fundamental Rights modifications).
- Amendments Requiring Ratification – Require
approval from at least half of the state legislatures (e.g., federal
structure changes).
While Article 368 grants broad
powers to Parliament, the judiciary has interpreted its scope to
ensure that it does not violate the Basic Structure of the Constitution.
Early Amendments and Judicial Review
(1950-1970)
Key Amendments and Their
Challenges
- First Amendment (1951) – Added restrictions to free speech and placed land reform laws in the Ninth Schedule.
- Fourth and Seventeenth Amendments –
Strengthened land reform provisions, leading to judicial conflicts.
Supreme Court’s Initial
Stance on Amendment Powers
- Shankari Prasad v. Union of India (1951): The Supreme Court upheld Parliament’s power to amend Fundamental Rights.
- Sajjan Singh v. State of Rajasthan (1965):
Reaffirmed that Article 368 allowed Parliament to amend any part
of the Constitution.
These rulings gave Parliament unchecked
authority until the landmark case of Golaknath v. State of Punjab (1967),
which reversed previous judgments by ruling that Fundamental Rights
could not be amended.
The Kesavananda Bharati Case (1973): Birth of the Basic
Structure Doctrine
Background and
Constitutional Crisis
- In 1973, the Supreme Court was asked to determine whether Parliament could amend Fundamental Rights.
- A 13-judge bench heard the case in Kesavananda
Bharati v. State of Kerala.
Key Ruling: Limiting
Parliament’s Amending Power
- The court ruled that Parliament could amend any part of the Constitution, but not its Basic Structure.
- Justice H.R. Khanna defined the Basic Structure as including:
- Sovereignty and democracy
- Secularism
- Judicial review
- Separation of powers
This ruling preserved
constitutional integrity while allowing for necessary amendments.
Expansion of the Basic Structure Doctrine (1973-2000)
The Basic Structure Doctrine was reinforced
in later judgments:
Indira Gandhi v. Raj
Narain (1975)
- Struck down the 39th Amendment, which aimed
to protect Indira Gandhi’s election victory from judicial review.
Minerva Mills v. Union of
India (1980)
- Ruled that Parliament cannot destroy the balance
between Fundamental Rights and Directive Principles.
Waman Rao v. Union of
India (1981)
- Clarified that amendments made before
Kesavananda Bharati (1973) were valid, but future amendments must
conform to the Basic Structure Doctrine.
These cases cemented the judiciary’s role in reviewing amendments and protecting the Constitution’s core values.
Landmark Amendments and Challenges Post-2000
The Basic Structure Doctrine
has played a crucial role in shaping constitutional amendments in post-2000
India. Several landmark amendments and judicial pronouncements have
reaffirmed the judiciary’s role as the guardian of the Constitution.
The NJAC Judgment (2015):
Judicial Independence as a Part of Basic Structure
One of the most significant
rulings regarding the Basic Structure Doctrine came in Supreme Court
Advocates-on-Record Association v. Union of India (2015), commonly known as
the NJAC case.
- The 99th Constitutional Amendment Act, 2014, sought to replace the collegium system of judicial appointments with the National Judicial Appointments Commission (NJAC).
- The amendment gave the executive a greater role in judicial appointments, raising concerns over judicial independence.
- The Supreme Court struck down the NJAC as
unconstitutional, ruling that judicial independence is an essential
part of the Basic Structure Doctrine.
This case reaffirmed the court’s
authority to strike down amendments that undermine constitutional values.
The Right to Privacy
Judgment (2017)
In K.S. Puttaswamy v. Union of
India (2017), the Supreme Court ruled that privacy is a fundamental
right under Article 21 (Right to Life and Personal Liberty).
- The government argued that privacy was not explicitly mentioned in the Constitution and could be regulated by Parliament.
- The Supreme Court held that privacy is an intrinsic part of human dignity, making it an element of the Basic Structure Doctrine.
- This ruling influenced laws on data protection,
Aadhaar authentication, and surveillance policies.
Abrogation of Article 370
(2019): Impact on Federalism
In 2019, the government abrogated
Article 370, which granted special status to Jammu & Kashmir.
- This move was challenged in the Supreme Court, with petitioners arguing that it violated federalism, a core component of the Basic Structure Doctrine.
- While the Supreme Court has yet to issue a final
ruling, this case raises important questions on whether federalism is
protected under the Basic Structure Doctrine.
These cases highlight how constitutional
amendments continue to be tested against the Basic Structure Doctrine.
The Fine Balance: Judicial Review vs. Parliamentary
Supremacy
The separation of powers
between the legislature and the judiciary is a defining feature of
India’s constitutional democracy.
Parliament’s Authority to
Amend vs. Judicial Review
- Article 368 gives Parliament the power to amend the Constitution.
- Article 32 and Article 226 give the Supreme Court and High Courts the power of judicial review.
- The Kesavananda Bharati case (1973) struck a
balance between both, ensuring that amendments cannot alter the
Basic Structure.
Cases Where Parliament
Successfully Defended Amendments
While the judiciary has struck
down amendments violating the Basic Structure, some amendments have survived
legal challenges:
- The 73rd and 74th Amendments (1992), which established Panchayati Raj institutions, were upheld as valid.
- The 86th Amendment (2002), which made the Right
to Education a Fundamental Right, was never challenged under the Basic
Structure Doctrine.
Ongoing Debates on the
Limits of Constitutional Amendments
- Should Parliament be able to define the Basic Structure Doctrine itself?
- What happens if an elected government has a strong majority to pass amendments?
- Can the Supreme Court limit all amendments by
using Basic Structure as a safeguard?
The delicate balance
between legislative power and judicial review remains a dynamic and
evolving issue.
Global Perspective: How Other Countries Approach
Constitutional Amendments
India’s Basic Structure
Doctrine is unique, but several countries also impose limitations on
constitutional amendments.
United States: A Rigid
Amendment Process
- The U.S. Constitution requires a two-thirds majority in Congress and ratification by three-fourths of states to amend the Constitution.
- The U.S. Supreme Court does not have a Basic
Structure Doctrine, but it can interpret constitutional provisions
restrictively.
United Kingdom: No Written
Constitution, No Amendment Limits
- The UK follows the principle of Parliamentary Sovereignty.
- The British Parliament can amend laws without
judicial interference, making it radically different from India’s
approach.
Germany: A Constitutional
“Eternity Clause”
- Article 79(3) of the German Constitution prohibits amendments that alter the country’s democratic and federal structure.
- This concept is similar to India’s Basic
Structure Doctrine, as it protects core constitutional principles.
Lessons for India
- The U.S. and German systems ensure stability and constitutional integrity.
- The UK model lacks judicial review, which could lead to unrestricted parliamentary power.
- India’s Basic Structure Doctrine acts as a
safeguard, ensuring that constitutional amendments remain within
democratic principles.
Future of Constitutional Amendments in India
Key Emerging Challenges
Several legal and political
challenges are likely to shape constitutional amendments in the coming decades:
- Implementation of a Uniform Civil Code (UCC) – Whether UCC will be introduced as a constitutional amendment remains uncertain.
- Reservation Policies – Future amendments regarding OBC, SC/ST reservations might face judicial scrutiny under the Basic Structure Doctrine.
- Electoral Reforms – The one nation, one
election proposal might require constitutional changes affecting the
federal structure.
Potential Areas for Future
Amendments
- Gender Justice: Expanding the definition of family and marital rights to include LGBTQ+ individuals.
- Data Protection and Privacy: Strengthening digital rights under Article 21.
- Climate and Environmental Laws: Recognizing
the Right to a Healthy Environment as a Fundamental Right.
Judiciary’s Evolving Role
in Safeguarding Basic Structure
- The Supreme Court continues to interpret the Basic Structure Doctrine dynamically.
- Future rulings will determine how Parliament’s
power is balanced with constitutional integrity.
The next few decades will
test whether India’s constitutional framework remains flexible yet protected.
Conclusion
The power of Parliament to
amend the Constitution is immense, but not unlimited.
- The Basic Structure Doctrine, established in Kesavananda Bharati (1973), ensures that Parliament cannot alter fundamental constitutional principles.
- Judicial review acts as a check against authoritarian amendments while allowing necessary constitutional evolution.
- Global comparisons show that India’s approach is
unique but necessary to maintain constitutional democracy.
As India progresses, the conflict
between Parliamentary sovereignty and judicial oversight will continue to
shape constitutional law. The challenge remains: how to balance
change with stability, and flexibility with protection.
The Constitution is a living
document—but how much can it change before it loses its essence?
FAQs
1. Can Parliament amend
Fundamental Rights?
Yes, but amendments cannot
violate the Basic Structure Doctrine, as ruled in Kesavananda Bharati
(1973).
2. What are the most
significant constitutional amendments in India?
- 42nd Amendment (1976): Strengthened Parliament’s power.
- 73rd & 74th Amendments (1992): Established Panchayati Raj institutions.
- 99th Amendment (2014): NJAC (struck down in
2015).
3. What role does the
judiciary play in constitutional amendments?
The judiciary reviews amendments
and can strike down those that violate the Basic Structure Doctrine.
4. Is the Basic Structure
Doctrine mentioned in the Constitution?
No, it was developed by the Supreme
Court in Kesavananda Bharati (1973).
5. Can the Basic Structure
Doctrine be removed?
Not easily—since it limits
Parliament’s power, any attempt to remove it would likely be struck down
by the Supreme Court.
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