Parliament’s power to amend the constitution is limited power and it cannot be enlarged
into absolute power”. In light of this statement explain whether parliament under Article
368 of the constitution can destroy the Basic structure of the constitution by expanding
its amending power?
Introduction
Article 368 of the Indian constitution gives the Parliament the power to amend by way of
addition, variation or repeal any provision of the constitution in accordance with the procedure laid
down by the law.
The power to amend the constitution is necessary to overcome the challenges and to meet
the demands for the nation’s growth and development.
However, in the process of amending the constitution under Article 368, the Parliament at
times has breached the constitutional limits by transgressing the areas related to:
1. federal relation between Union and States,
2. issues of Individual liberty and
3. to a certain extent misused Article 368 itself.
This is evident from amendments like the 25th and 42nd Constitutional amendment Acts
which has threatened the principle of constitutionalism.
Therefore, the Supreme Court intervened to create a harmonious balance between
fundamental rights and the Directive Principles which eventually led to the emergence of the
doctrine of ‘basic structure’ of the constitution.
Basic Structure Doctrine
The basic structure doctrine is an Indian judicial principle that the Constitution of India has
certain basic features that cannot be altered or destroyed through amendments by the Parliament.
It was given by the judgment of Supreme Court in the landmark Kesavananda Bharati case, 1973.
Major components of Basic structure:
1. Supremacy of constitution
2. Unity and integrity of India
3. Balance between fundamental rights and DPSP
4. Judicial review
5. Federalism
6. Secularism
7. Parliamentary system
8. Rule of Law
9. Free and fair elections
10. Independence of judiciary
11. Welfare state
12. Individual freedom
Over time, many other features have also been added to this list of basic structural features.
Any law or amendment that violates these principles can be struck down by the SC on the grounds
that they distort the basic structure of the Constitution.
Emergence and Applications of Basic Structure
The emergence and the application of the doctrine of ‘basic structure’ can be seen in light of
following Supreme Court judgments:
1. Kesavananda Bharati Case (1973): The Supreme Court held that Parliament’s power to
amend the constitution is limited as it cannot alter the ‘basic structure’ of the constitution.
a) A limited amending power is one of the basic features of the constitution and,
therefore, the limitations on that power cannot be destroyed.
b) Parliament cannot, under Article 368, expand its amending power so as to acquire
for itself the right to repeal or abrogate the Constitutional provisions which
threatens the basic features or the Constitution itself.
2. Minerva Mills v/s Union of India Case (1980): The Supreme Court struck down clauses (4)
and (5) of Article 368 inserted by the 42nd Constitutional Amendment Act, on the ground that
these clauses destroyed the essential feature of the basic structure of the constitution.
3. Chandra Kumar v/s Union of India (1997): The judgment held that every provision of the
Constitution was open to amendment provided the basic foundation or structure of the
Constitution was not damaged or destroyed.
Conclusion
Thus, Parliament is restricted in its power to amend the Constitution so that the soul of
Constitution as envisaged by the founding fathers of India remains intact. It is to be noted that, the
doctrine of basic structure does not undermine the legislative competence of the Parliament, rather
it helps in maintaining the supremacy of the constitution and upholding the constitutional spirit.
