“Parliament’s power to amend the constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement explain whether parliament under article 368 of the constitution can destroy the Basic Structure of the Constitution by expanding its amending power? (15 marks)

Mentor’s Comment:

  • The question is an analytical one and demands the proper understanding of the evolutionary process of the basic structure doctrine of the Indian Constitution.
  • In the intro, briefly state what the basic structure doctrine of the Indian Constitution is.
  • In the body, elaborate how plain reading of article 368 seems to place no explicit limit on the power of the Parliament while acting as a constituent body- mention 368 (1) and 368 (2).
  • Next, elaborate on how such reading of the article also seems to reduce the sanctity of the fundamental rights granted under the same constitution especially when we consider the fact that some of the fundamental rights are inalienable rights.
  • This argument was the basis of the judgment in I.C. Golaknath and Ors. vs State of Punjab which placed a restriction on the amending power of the Parliament in case of fundamental rights. Drawing on the argument given in this judgment and the argument elaborated further in Kesavananda Bharati it can be said that the constituent power conferred on the Parliament is not absolute. And the power to amend cannot be used to destroy. There lies an inherent restriction on this power.
  • Conclude by stressing how this limit on the power of the Parliament acts as a deterrence against the Legislative excesses.

Answer:

The case of Kesavananda Bharati v. State of Kerala (Kesavananda Bharati) is perhaps the most well-known constitutional decision of the Supreme Court of India (Supreme Court). While ruling that there is no implied limitation on the powers of Parliament to amend the Constitution, it held that no amendment can do violence to its basic structure (the “Basic Structure Doctrine”). Further, it established the Supreme Court’s right to review and, therefore, established its supremacy on constitutional matters.

Basic Structure of the Constitution Doctrine:

  • The “basic features” principle was first expounded in 1953, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. 
  • In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a “transcendental position” and are beyond the reach of Parliament. It also declared any amendment that “takes away or abridged” a Fundamental Right conferred by Part III as unconstitutional.
  • Kesavananda Bharati’s case was considered as the historical landmark case, where the first-time Supreme Court recognized the basic structure concept. 
  • In this case, the validity of the 25th Amendment was challenged with the 24th and 29th Amendments. The court by majority overruled the judgment of the Golaknath case.
  • The inherent ambiguity of the doctrine, as well as that of the ratio in Kesavananda Bharati, resulted in various challenges both to and under the doctrine before the Supreme Court. 
  • The period following Kesavananda Bharati was one where the doctrine has evolved on a case-to-case basis, resulting in a gradual expansion of the doctrine.
  • In Indira Gandhi v. Raj Narain, a Constitutional amendment to regularise Prime Minister Indira Gandhi’s election was struck down citing the basic features of democracy, rule of law and equality. 
  • From 1975 onwards, the courts have interpreted and expanded the doctrine to include judicial review of decisions by the High Court and Supreme Court under Articles 226 and 32, secularism and federalism, the freedoms under Article 19, judicial independence, and recently, judicial primacy in the judicial appointment process to the basic structure and framework of the Constitution.

Can Parliament destroy the Basic Structure of the Constitution by expanding its amending power:

  • In Minerva Mills v. Union of India, the Parliament, through the Constitution (42nd Amendment) Act, 1976, attempted to circumvent Kesavananda Bharati by making Parliamentary power unlimited. 
  • Immediately after the decision of the Supreme court in Kesavananda Bharati and Indira Gandhi’s case, the parliament introduced the 42nd Amendment and added the word secular and socialist in the preamble and added clause 4 and 5 to Article 368 of the Constitution. 
  • It indirectly declares that there is no limitation on the power of the parliament regarding the Amendment. 
  • The Court in this case struck down the amendment on the grounds that the judicial review of Parliamentary enactments, and the limitation of Parliamentary power to amend the Constitution, were themselves part of the basic structure of the Constitution.
  • However, it was not until much later that the Supreme Court ruled on the question of whether an addition to the Ninth Schedule would make the listed statute immune from the requirement of not infringing on a fundamental right. 
  • In I. Coelho v State of Tamil Nadu, the Supreme Court held that all laws were subject to the test of being consistent with fundamental rights, which are a part of the basic structure.
  • Hence we can summarize that:
    • Parliament has limited powers to amend the constitution.
    • Parliament cannot damage or destroy the basic features of the Constitution.
    • The procedure prescribed for the amendment is mandatory. Non-compliance with it will result in the invalidity of the amendment.
    • Clauses (4) and (5) inserted in Art. 368 by the 42nd Amendment Act are invalid because they take away the right of judicial review.
    • Parliament cannot increase its amending power by amending Art. 368.

However, experts have had major objections against the doctrine of basic structure like:

  • Amending power is not necessary to amend non-essential parts of the constitution.
  • This power is needed to make changes in the basic features of the constitution.
  • The doctrine leads to the uncertainty in mind of the parliament as to where it stands as to the extent of its amending power.

One certainty that emerged out of various SC judgments is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure is likely to be struck down by the SC. In essence Parliament’s power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments. 

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