Introduction
Under Article 368 of the Indian Constitution, Parliament possesses the constituent power to amend the constitutional text, yet this authority is neither unbridled nor absolute. Functioning as the sentinel on the qui vive, the Supreme Court of India has established substantial judicial safeguards to prevent arbitrary constitutional alterations and uphold the document's foundational integrity.
Judicial Checks on Amending Power: Evolution and Jurisprudence
The judiciary has consistently intervened to balance parliamentary supremacy with constitutional supremacy through landmark doctrines and verdicts:
- Basic Structure Doctrine (Kesavananda Bharati, 1973 & Indira Nehru Gandhi, 1975): The Supreme Court established that while Parliament can amend any part of the Constitution, it cannot alter its 'basic structure' or core identity, such as the rule of law, democracy, and free and fair elections.
- Limitation on Constituent Power (Minerva Mills v. Union of India, 1980): The Supreme Court invalidated Sections 4 and 55 of the 42nd Amendment Act, affirming that a limited amending power is itself a basic feature of the Constitution, and Parliament cannot expand this limited authority into absolute sovereignty.
- Accountability of the Ninth Schedule (I.R. Coelho v. State of Tamil Nadu, 2007): The Court ruled that blanket immunity under the Ninth Schedule is impermissible. Any law placed in the Ninth Schedule after April 24, 1973, remains open to judicial review if it violates fundamental rights or undermines the basic structure.
- Preservation of Judicial Independence (NJAC Case, 2015): Striking down the 99th Constitutional Amendment Act and the National Judicial Appointments Commission Act, the Court reaffirmed that judicial independence cannot be compromised by legislative intervention.
Critical Analysis: Concerns and Limitations
While judicial review acts as a vital bulwark against majoritarian impulse, the mechanism has drawn notable scrutiny:
- Lack of Objective Definition: The concept of 'Basic Structure' is not defined textually within the Constitution. Its open-ended and evolutionary nature leaves room for subjective, case-by-case determination, potentially turning judicial review into an unchecked veto.
- Erosion of Democratic and Legislative Mandate: The invalidation of constitutional amendments enacted with near-unanimous parliamentary and state legislative support (such as the NJAC Act) raises questions regarding unelected judges superseding elected representatives.
- Potential for Institutional Friction: An expansive application of judicial review risks trespassing into policy and constituent realms, perturbing the classical doctrine of separation of powers.
Conclusion
The doctrine of basic structure has preserved the soul of the Indian Constitution against executive and legislative encroachment. To ensure resilient constitutionalism, the relationship between parliamentary amending power and judicial review must rest on mutual institutional deference and checks and balances rather than competing claims of institutional supremacy.