The Constitution gives Parliament the power to amend the Constitution under Article 368.
A major constitutional question has been whether Parliament can amend Fundamental Rights.
The Supreme Court's position evolved through several important judgments.
The key constitutional journey is:
Shankari Prasad → Sajjan Singh → Golaknath → 24th Amendment → Kesavananda Bharati → Minerva Mills
The Constitution did not expressly state whether Parliament could amend Fundamental Rights.
This led to a series of constitutional cases.
The central question was:
Can Parliament amend Fundamental Rights through Article 368?
In:
Shankari Prasad v. Union of India
the Supreme Court upheld Parliament's power to amend Fundamental Rights.
The Court held that:
Constitutional amendments are not "law" within the meaning of Article 13.
Therefore, Article 13(2), which prohibits laws taking away or abridging Fundamental Rights, did not prevent constitutional amendments.
Parliament can amend Fundamental Rights.
In:
Sajjan Singh v. State of Rajasthan
the Supreme Court broadly reaffirmed the position taken in Shankari Prasad.
Parliament could amend Fundamental Rights through the constitutional amendment process.
However, some judges expressed concerns about whether there should be limitations on Parliament's amending power.
In:
I.C. Golaknath v. State of Punjab
the Supreme Court changed its position.
The majority held that Parliament could not amend Fundamental Rights in a manner that took away or abridged them.
The Court treated a constitutional amendment as "law" for the purposes of Article 13.
Fundamental Rights cannot be abridged by constitutional amendment.
This created a major constitutional conflict between:
Parliament's amending power
and:
Judicial protection of Fundamental Rights.
Parliament responded to Golaknath through the:
24th Constitutional Amendment Act, 1971.
It strengthened Parliament's constitutional amending power.
Important changes included:
The amendment was intended to restore Parliament's power to amend Fundamental Rights.
The landmark:
Kesavananda Bharati v. State of Kerala
reconsidered Parliament's amending power.
The Supreme Court held that:
Parliament can amend Fundamental Rights.
However:
Parliament cannot destroy or alter the Basic Structure of the Constitution.
This created the:
Basic Structure Doctrine
The Basic Structure Doctrine means that Parliament's power to amend the Constitution is:
Wide but not unlimited.
Parliament can change constitutional provisions, including Fundamental Rights.
But an amendment cannot:
Destroy the basic structure of the Constitution.
Fundamental Rights are not automatically immune from constitutional amendment.
However, certain constitutional principles associated with Fundamental Rights may form part of the:
Basic Structure
Examples recognised by the Supreme Court include:
The exact content of Basic Structure is not contained in one exhaustive constitutional list.
The Supreme Court further developed the Basic Structure Doctrine in:
Indira Nehru Gandhi v. Raj Narain
The Court applied the doctrine to invalidate a constitutional amendment that violated basic constitutional principles.
The judgment reinforced the idea that:
Constitutional amendments are subject to judicial review.
The:
42nd Constitutional Amendment Act, 1976
attempted to give Parliament very broad amending power.
It inserted provisions intended to prevent courts from questioning constitutional amendments on the ground that they violated constitutional limitations.
It also attempted to establish that:
No limitation could be placed on Parliament's constituent power.
In:
Minerva Mills v. Union of India
the Supreme Court struck down important parts of the 42nd Amendment relating to Parliament's unlimited amending power.
The Court reaffirmed:
Limited amending power
as part of the Basic Structure.
It held that Parliament cannot use its amending power to destroy the Constitution itself.
One of the most important principles from Minerva Mills is:
Parliament's power to amend the Constitution is itself limited.
Parliament cannot use:
Article 368
to eliminate constitutional limitations on its own power.
Limited amending power = Basic Structure
The present constitutional position can be summarised as:
Parliament can amend Fundamental Rights
but:
The amendment cannot destroy the Basic Structure.
Therefore:
Fundamental Rights are amendable
but:
Basic Structure is protected.
Article 13 and Article 368 must be distinguished.
Deals primarily with:
Laws inconsistent with Fundamental Rights
Deals with:
Constitutional amendment
After the constitutional developments following Golaknath and the 24th Amendment, constitutional amendments are treated under the special framework of Article 368.
However, amendments remain subject to:
Basic Structure Doctrine
This distinction is extremely important.
Made by:
Legislature
↓
Must conform to:
Fundamental Rights
↓
Can be invalidated if unconstitutional.
Made under:
Article 368
↓
Can amend Fundamental Rights
↓
But cannot:
Destroy Basic Structure
Parliament may amend or modify Fundamental Rights through Article 368.
However, if the amendment destroys the Constitution's Basic Structure, the Supreme Court can invalidate it.
Therefore:
Amendment ≠ Unlimited power
The:
44th Constitutional Amendment Act, 1978
made important changes affecting Fundamental Rights.
One major change was:
Right to Property
was removed from Part III.
Article 19(1)(f) was removed and Article 31 was substantially altered.
The Right to Property was subsequently protected under:
Article 300A
as a constitutional right.
The 44th Amendment also strengthened protection of:
Articles 20 and 21
during a National Emergency.
Even when an emergency is proclaimed, the President cannot suspend the right to move courts for enforcement of:
Article 20
and:
Article 21
under Article 359.
The relationship between Fundamental Rights and emergency provisions is therefore important.
The constitutional framework permitted broader suspension of enforcement of Fundamental Rights.
Articles:
20 and 21
receive special constitutional protection.
In:
Waman Rao v. Union of India
the Supreme Court considered the application of the Basic Structure Doctrine to constitutional amendments.
The Court identified:
24 April 1973
the date of the Kesavananda Bharati judgment, as an important dividing point for examining certain amendments.
In:
I.R. Coelho v. State of Tamil Nadu
the Supreme Court held that laws placed in the:
Ninth Schedule
after 24 April 1973
can be subject to judicial review if they violate the Basic Structure.
This prevents Parliament from using the Ninth Schedule as an unlimited constitutional shield.
The Ninth Schedule was originally created to protect certain laws from judicial review.
However, after:
I.R. Coelho
laws inserted into the Ninth Schedule after the Kesavananda date can be examined if they damage the:
Basic Structure
Constitution comes into force.
↓
Shankari Prasad
→ Parliament can amend Fundamental Rights.
↓
Sajjan Singh
→ Broadly reaffirms amendment power.
↓
Golaknath
→ Parliament cannot abridge Fundamental Rights.
↓
24th Amendment
→ Strengthens Parliament's amending power.
↓
Kesavananda Bharati
→ Basic Structure Doctrine.
↓
Indira Gandhi v. Raj Narain
→ Basic Structure applied.
↓
42nd Amendment
→ Attempts to expand Parliament's amending power.
↓
44th Amendment
→ Right to Property removed from Fundamental Rights.
↓
Minerva Mills
→ Limited amending power protected.
↓
Waman Rao
→ Basic Structure and Ninth Schedule.
↓
I.R. Coelho
→ Ninth Schedule laws subject to Basic Structure review.
The most important UPSC principle is:
Fundamental Rights can be amended.
But:
An amendment destroying the Basic Structure is unconstitutional.
This resolves the apparent conflict between:
Parliamentary amending power
and:
Constitutional supremacy.
The Supreme Court acts as a constitutional check on amendments.
It can examine whether a constitutional amendment:
This is an important aspect of:
Judicial Review
The constitutional system creates a balance.
Can:
Amend the Constitution
Can:
Review constitutional amendments
Parliament cannot:
Destroy the Basic Structure
Therefore:
Parliamentary sovereignty
is not the Indian constitutional principle.
The principle is:
Constitutional supremacy.
| Case | Principle |
|---|---|
| Shankari Prasad, 1951 | Parliament can amend Fundamental Rights |
| Sajjan Singh, 1965 | Reaffirmed broad amendment power |
| Golaknath, 1967 | Fundamental Rights cannot be abridged by amendment |
| Kesavananda Bharati, 1973 | Basic Structure Doctrine |
| Indira Gandhi v. Raj Narain, 1975 | Basic Structure applied |
| Minerva Mills, 1980 | Limited amending power |
| Waman Rao, 1981 | Basic Structure and Ninth Schedule |
| I.R. Coelho, 2007 | Ninth Schedule subject to Basic Structure review |
Article 368
Yes
No
Kesavananda Bharati, 1973
Minerva Mills, 1980
I.R. Coelho, 2007
24th Constitutional Amendment, 1971
44th Amendment, 1978
"Fundamental Rights cannot be amended."
False
They can be amended subject to the Basic Structure limitation.
"Parliament has unlimited power under Article 368."
False
The amending power is limited by the:
Basic Structure Doctrine.
"Kesavananda Bharati held that Fundamental Rights can never be amended."
False
It held that Fundamental Rights can be amended, but the Basic Structure cannot be destroyed.
"The Basic Structure Doctrine is expressly mentioned in the Constitution."
False
It is a doctrine developed by the Supreme Court.
"Article 13 and Article 368 operate identically."
False
Ordinary laws and constitutional amendments are governed by different constitutional frameworks.
"Minerva Mills established unlimited parliamentary amending power."
False
It reaffirmed:
Limited amending power.
"All Ninth Schedule laws are completely immune from judicial review."
False
After I.R. Coelho, Ninth Schedule laws inserted after 24 April 1973 can be reviewed if they damage the Basic Structure.
"How has the Supreme Court balanced Parliament's power to amend Fundamental Rights with the principle of constitutional supremacy?"
The Constitution grants Parliament the power to amend the Constitution under Article 368, but the scope of this power has evolved through constitutional amendments and Supreme Court judgments.
Initial position
→ Shankari Prasad
→ Sajjan Singh
Restriction
→ Golaknath
Parliamentary response
→ 24th Amendment
Constitutional balance
→ Kesavananda Bharati
→ Basic Structure Doctrine
Further development
→ Indira Gandhi v. Raj Narain
→ Minerva Mills
→ Waman Rao
→ I.R. Coelho
Parliament
→ Can amend
Supreme Court
→ Can review
Basic Structure
→ Cannot be destroyed
The Indian constitutional system balances flexibility with constitutional supremacy. Parliament possesses a broad amending power, but the Basic Structure Doctrine prevents constitutional amendments from destroying the identity and essential principles of the Constitution.
