Parliament's Power to Amend Constitution: Limitations

Procedural Limitations on Amending Power

The Constitution of India lays down specific procedural hurdles that Parliament must overcome to amend its provisions, ensuring that constitutional changes are not undertaken lightly or arbitrarily. These procedures are detailed in Article 368 and other provisions:

• Initiation of the Amendment: An amendment to the Constitution can only be initiated by the introduction of a Bill for the purpose in either House of Parliament (Lok Sabha or Rajya Sabha). It cannot be initiated in state legislatures, except for a resolution for the creation or abolition of legislative councils.
• Special Majority Requirement: Most provisions of the Constitution require a special majority for amendment. This means the Bill must be passed in each House by:
  • A majority (more than 50%) of the total membership of that House.
  • A majority of not less than two-thirds of the members of that House present and voting.
  This higher threshold, unlike the simple majority required for ordinary legislation, compels greater consensus. For instance, the 104th Amendment (2019), extending SC/ST reservations, was passed with such a majority.
• Ratification by States: For amendments that affect the federal structure of the Constitution, such as those relating to the election of the President, the extent of the executive power of the Union and states, the Supreme Court and High Courts, or the distribution of legislative powers, an additional hurdle exists. Such a Bill must be ratified by the Legislatures of not less than one-half of the States by resolutions passed by a simple majority. The 101st Amendment (2016) introducing the Goods and Services Tax (GST) is a prime example of an amendment requiring state ratification.
• No Provision for Joint Sitting: Unlike ordinary legislation, there is no provision for a joint sitting of both Houses of Parliament in case of a disagreement on a Constitutional Amendment Bill. This implies that both Houses must individually agree to the amendment, reinforcing the bicameral check.
• Mandatory Presidential Assent: Once a Constitutional Amendment Bill is passed by both Houses (and ratified by states where necessary), it is presented to the President for assent. The President is bound to give assent to such a Bill and cannot withhold it or return it for reconsideration (as per the 24th Constitutional Amendment Act, 1971).

Substantive Limitations on Amending Power

Beyond the procedural checks, the Indian judiciary has, through a series of landmark judgments, imposed substantive limitations on Parliament's amending power, most notably through the Basic Structure Doctrine.

The Basic Structure Doctrine

The most significant substantive limitation emerged from the Supreme Court's pronouncement in Kesavananda Bharati v. State of Kerala (1973). The Court held that while Parliament has the power to amend any part of the Constitution under Article 368, this power does not extend to altering or destroying its 'basic structure' or 'essential features'. The doctrine aims to preserve the fundamental identity and values of the Constitution.

• Key Elements of Basic Structure (Illustrative, not exhaustive): While the Supreme Court has not exhaustively defined the 'basic structure', it has, over time, identified several elements as part of it. These include:
  • Supremacy of the Constitution
  • Republican and Democratic form of Government
  • Secular character of the Constitution
  • Separation of powers between the Legislature, Executive, and Judiciary
  • Federal character of the Constitution
  • Judicial Review
  • Rule of Law
  • Parliamentary System
  • Free and fair elections
  • Independence of the Judiciary
  • Limited power of Parliament to amend the Constitution
• Impact on Parliamentary Power: The Basic Structure Doctrine implies that any amendment attempting to undermine these core features would be declared unconstitutional by the judiciary. For example, in Minerva Mills v. Union of India (1980), the Supreme Court reaffirmed the doctrine, emphasizing that Parliament's power to amend is limited, and it cannot destroy or abrogate the Constitution. Similarly, the 99th Constitutional Amendment Act, which sought to establish the National Judicial Appointments Commission (NJAC), was struck down in 2015 for violating the independence of the judiciary, a basic feature.
• Judicial Review of Amendments: The doctrine empowers the judiciary to review constitutional amendments to ensure they adhere to the basic structure. In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court clarified that even laws placed in the Ninth Schedule after April 24, 1973 (the date of the Kesavananda Bharati judgment) are subject to judicial review under the basic structure doctrine.