Basic Structure Doctrine Amending Power Article 368

The claim of a 'facile' amendment procedure in the Constituent Assembly needs context. Members like K. Santhanam argued for a flexible constitution akin to the UK's, while others, like T.T. Krishnamachari, highlighted the need for stability, suggesting a balance. Article 368, as originally enacted, provided two procedures for amendment:

• Procedure I: By a special majority (two-thirds of the members present and voting, and an absolute majority of the total membership of each House).
• Procedure II: By special majority plus ratification by the legislatures of at least half of the states (for provisions related to federal structure, Supreme Court/High Courts, distribution of legislative powers, representation of states, Union Territories, etc.).

Initially, it was debated whether this power extended to amending Fundamental Rights. The Supreme Court's interpretation evolved significantly over time:

Evolution of Judicial Interpretation on Article 368

• Sankari Prasad Singh Deo v. Union of India (1951): The Supreme Court held that the power to amend the Constitution under Article 368 was plenary and included the power to amend Fundamental Rights. It ruled that the word 'law' in Article 13(2) (prohibiting states from making laws inconsistent with Fundamental Rights) did not include amendments made under Article 368.
• Sajjan Singh v. State of Rajasthan (1965): The Court, by a narrow majority, upheld the decision in Sankari Prasad.
• Shankari Prasad v. Union of India (1951) & Sajjan Singh v. State of Rajasthan (1965) laid the foundation for Parliament's broad amending powers.
• C.C. Golaknath v. State of Punjab (1967): In a significant shift, the Supreme Court ruled that Parliament did not have the power to abridge or take away any of the Fundamental Rights guaranteed under Part III of the Constitution. It held that Article 368 only conferred the power to amend, not to rewrite the Constitution, and that this power could not be used to impair the Constitution's fundamental character. This decision introduced the concept of implied limitations.
• The 24th Amendment Act, 1971: In response to Golaknath, Parliament amended Article 368. It asserted Parliament's power to amend any provision of the Constitution, including Fundamental Rights, by adding clauses that explicitly stated this and removed the requirement for state ratification for certain types of amendments.
• Kesavananda Bharati Sripadagalvaru v. State of Kerala (1973): This landmark judgment reviewed the 24th Amendment. The Supreme Court, by a narrow 7-6 majority, upheld Parliament's power to amend the Constitution (overruling Golaknath) but introduced the 'Doctrine of Basic Structure'. The Court held that while Parliament could amend any part of the Constitution, including Fundamental Rights, it could not alter or destroy the Constitution's 'basic structure' or 'framework'.

The Doctrine of Basic Structure and its Limitations

The Kesavananda Bharati case laid down that certain essential features constitute the basic structure, which cannot be abrogated or amended. While the SC did not provide an exhaustive list, subsequent judgments have identified several components:

• 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
• Sovereignty and unity of India
• Welfare state (socio-economic justice)
• Judicial review
• Parliamentary system
• Rule of law
• Harmony between Fundamental Rights and Directive Principles
• Freedom and fairness of elections
• Independence of the Judiciary
• Limited power of Parliament to amend the Constitution
• Essential features of individual freedom (dignity, liberty)

Following Kesavananda Bharati, Parliament attempted further amendments:

• The 42nd Amendment Act, 1976: This amendment added Clauses (4) and (5) to Article 368, seeking to override the Kesavananda ruling. Clause (4) stated that no amendment made under Article 368 shall be questioned in any court on any ground. Clause (5) declared that there shall be no limitation whatever on the Constituent Power of Parliament to amend by way of addition, variation, or repeal of any provision.
• Minerva Mills Ltd. v. Union of India (1980): The Supreme Court struck down Clauses (4) and (5) of Article 368, reasserting the Doctrine of Basic Structure. The Court held that the Constitution, not Parliament, is supreme. It emphasized that judicial review is a basic feature and that the amendments destroyed the 'balance' and 'harmony' between Part III (Fundamental Rights) and Part IV (Directive Principles), which is part of the basic structure.

Analysis: Does the Doctrine Significantly Limit Amending Power?

Yes, the Doctrine of Basic Structure significantly limits the amending power under Article 368 in several ways:

• Prevents Destruction of Core Values: It prohibits Parliament from making amendments that fundamentally alter the Constitution's identity, such as abolishing democracy, secularism, or the rule of law. This ensures the continuity of the constitutional ethos.
• Safeguards Constitutional Supremacy: It prevents Parliament from claiming unlimited constituent power, reinforcing the principle that the Constitution is supreme and Parliament operates within its bounds.
• Preserves Judicial Review: By holding judicial review as a basic feature, the doctrine ensures that constitutional amendments remain subject to judicial scrutiny, preventing potential overreach by the legislature.
• Maintains Balance: The doctrine helps maintain the delicate balance intended by the Constitution framers, for instance, between fundamental rights and directive principles, preventing Parliament from arbitrarily tilting this balance.

However, the limitation is not absolute. Parliament retains the power to amend most provisions of the Constitution, including Fundamental Rights, as long as the amendment does not damage the basic structure. The doctrine provides flexibility for necessary changes while ensuring foundational principles remain intact. This contrasts with the initial perception of 'facile' amendment, suggesting that judicial interpretation has introduced a necessary element of constitutional entrenchment for core values, making the procedure significantly more constrained than initially implied by some Constituent Assembly members regarding non-essential parts.

Comparison of Parliamentary Power vs. Basic Structure Doctrine

Aspect	Parliamentary Amending Power (Art. 368, Pre-Basic Structure)	Parliamentary Amending Power (Post-Basic Structure Doctrine)
Scope	Considered plenary; could amend any part, including Fundamental Rights (Sankari Prasad).	Plenary, but subject to the implied limitation that the 'basic structure' cannot be amended.
Fundamental Rights	Amendable (Sankari Prasad). Later held unamendable (Golaknath).	Amendable, provided the basic structure is not abrogated (Kesavananda Bharati).
Judicial Review	Limited scope initially; later affirmed strongly.	Integral part of basic structure; amendments are subject to judicial review.
Parliamentary Supremacy	Strongly asserted (especially post-24th Amendment).	Balanced with Constitutional Supremacy; Parliament is not supreme over the Constitution.
Flexibility vs. Rigidity	Leaned towards flexibility, potentially allowing radical changes.	Introduces controlled rigidity for core principles, ensuring stability.