Model Answer
0 min readIntroduction
The Indian Constitution, while providing a framework for governance, is also a dynamic document capable of adaptation through amendments. Article 368 outlines the procedure for constitutional amendments, granting Parliament the power to alter the Constitution. However, this power is not absolute. The landmark Kesavananda Bharati v. State of Kerala (1973) case established the ‘Basic Structure’ doctrine, placing limitations on Parliament’s amending power. This doctrine asserts that while Parliament can amend any part of the Constitution, it cannot alter its fundamental features, thereby ensuring the Constitution’s essential character remains intact. The question at hand probes whether Parliament, through an expansive interpretation of Article 368, can circumvent this limitation and destroy the Basic Structure.
Article 368 and the Amending Power
Article 368 of the Constitution lays down the procedure for amendment. An amendment requires a special majority in both Houses of Parliament – a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting. Some amendments affecting federal structure require ratification by the legislatures of not less than one-half of the states. Initially, the scope of Article 368 was interpreted broadly, allowing Parliament significant leeway in amending the Constitution.
The Emergence of the Basic Structure Doctrine
The 24th Amendment Act of 1971 sought to curtail the judiciary’s power to review constitutional amendments. This led to the Kesavananda Bharati case (1973), a watershed moment in Indian constitutional history. The Supreme Court, while upholding Parliament’s amending power, propounded the doctrine of the Basic Structure. The court held that Parliament could not amend the Constitution in a manner that would destroy its fundamental features or alter its basic structure.
Identifying the Basic Structure
The precise contours of the Basic Structure have evolved through subsequent judgments. While there is no definitive list, some commonly recognized elements include:
- Supremacy of the Constitution
- Republican and Democratic form of government
- Secular character of the Constitution
- Federal character of the Constitution
- Separation of powers
- Judicial review
- Principle of free and fair elections
- Rule of Law
- Sovereignty of India
Can Parliament Expand its Amending Power?
The question posits whether Parliament can expand its amending power to overcome the Basic Structure doctrine. The answer is a resounding no. The Supreme Court has consistently held that the Basic Structure is inviolable. Any attempt by Parliament to amend the Constitution in a way that destroys or alters its basic features would be declared unconstitutional.
The 42nd Amendment and its Aftermath
The 42nd Amendment Act of 1976, enacted during the Emergency, attempted to significantly alter the Constitution and curtail judicial review. It introduced the concept of ‘Directive Principles’ being above Fundamental Rights. However, the Supreme Court, in Minerva Mills v. Union of India (1980), struck down several provisions of the 42nd Amendment, reaffirming the Basic Structure doctrine. The court held that the power of judicial review and the balance between Fundamental Rights and Directive Principles were essential features of the Constitution.
Subsequent Judgments Reinforcing the Doctrine
Several subsequent cases, including Waman Rao v. State of Maharashtra (1981) and Indira Nehru Gandhi v. Raj Narain (1975), have further solidified the Basic Structure doctrine. These judgments demonstrate the judiciary’s commitment to safeguarding the Constitution’s core principles against legislative overreach.
Limitations on Amending Power – A Comparative Perspective
| Country | Amendment Process | Judicial Review |
|---|---|---|
| USA | Requires proposal by 2/3 of Congress and ratification by 3/4 of states. | Judicial review is strong; Supreme Court can invalidate amendments. |
| Australia | Requires approval by absolute majority in both Houses of Parliament, followed by a referendum. | Judicial review exists, but is less assertive than in the US or India. |
| India | Requires special majority in Parliament (and state ratification for certain provisions). | Strong judicial review based on the Basic Structure doctrine. |
Conclusion
In conclusion, while Article 368 grants Parliament the power to amend the Constitution, this power is not unlimited. The Basic Structure doctrine, established by the Supreme Court, acts as a crucial check on Parliament’s amending power, preventing it from altering the fundamental features of the Constitution. Parliament cannot, through any expansion of its amending power, destroy the Basic Structure. The doctrine ensures the preservation of the Constitution’s essential character and safeguards the principles of justice, liberty, equality, and fraternity enshrined within it. The delicate balance between constitutional amendment and preservation of core principles remains a cornerstone of Indian constitutionalism.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.