Introduction
Article 368 of the Indian Constitution confers constituent power upon Parliament, aiming to balance dynamic adaptability with institutional stability. However, unlike the British doctrine of parliamentary sovereignty, this power in India is not absolute and is constrained by both procedural hurdles and substantive judicial guardrails.
Procedural Limitations Under Article 368
- Special Majority Requirements: Most constitutional amendments require a dual threshold—a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting.
- Federal Ratification: Amendments affecting the federal structure (such as representation of states, the Supreme Court and High Courts, or the distribution of legislative powers) require mandatory ratification by the legislatures of at least half of the states before presidential assent.
- Absence of Joint Sitting: Article 108 does not apply to Constitution Amendment Bills. A deadlock between the Lok Sabha and the Rajya Sabha cannot be resolved by a joint sitting, effectively granting either House a legislative veto.
- Monopoly on Initiation: State legislatures lack the power to introduce a constitutional amendment bill, limiting initiation exclusively to Parliament.
- Absence of Direct Popular Sanction: Unlike jurisdictions like Switzerland or Australia, the Indian framework does not provide for referendums or constitutional conventions, restricting democratic participation solely to representative bodies.
Substantive and Judicial Limitations
- The Basic Structure Doctrine: Established in the landmark Kesavananda Bharati (1973) judgment, the Supreme Court ruled that Parliament's constituent power does not extend to damaging, altering, or destroying the core identity and foundational ethos of the Constitution, such as secularism, democracy, and judicial independence.
- Limited Power Cannot Expand Itself: In Minerva Mills v. Union of India (1980), the Supreme Court struck down clauses (4) and (5) of Article 368, affirming that a limited amending power is itself a basic feature of the Constitution, and Parliament cannot convert a limited power into an unlimited one.
- Judicial Review of Ninth Schedule Laws: In I.R. Coelho v. State of Tamil Nadu (2007), the Court held that laws placed under the Ninth Schedule after April 24, 1973, are not immune from judicial review if they violate fundamental rights and impair the basic structure.
Conclusion
India's constitutional architecture purposefully integrates procedural rigidity for critical provisions with substantive judicial boundaries. This ensures that the Constitution remains a living, adaptable document capable of addressing contemporary needs without compromising its essential democratic identity.