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.