Article 368 gives Parliament the power to amend the Constitution. However, this power is not unlimited.
The Supreme Court has held that Parliament can amend the Constitution, including Fundamental Rights, but cannot alter or destroy the Basic Structure of the Constitution.
This principle is known as the Basic Structure Doctrine.
The constitutional amendment procedure is primarily provided under:
Article 368
Parliament exercises constituent power while amending the Constitution.
However, constitutional amendments are subject to judicial scrutiny on the ground that they cannot destroy the Basic Structure.
Therefore:
Article 368
↓
Parliament's Amending Power
↓
Subject to Basic Structure
↓
Judicial Review
Judicial Review is the power of courts to examine whether a law or governmental action conforms to the Constitution.
In the context of constitutional amendments, it means that courts can examine whether an amendment:
The Supreme Court is the final constitutional authority on this question.
No.
Parliament has wide power to amend the Constitution, but it cannot use Article 368 to destroy its Basic Structure.
The distinction is:
Power to amend ≠ Power to destroy
The doctrine evolved through several landmark judgments:
In Shankari Prasad v. Union of India, the Supreme Court upheld Parliament's power to amend Fundamental Rights.
The Court held that a constitutional amendment was not "law" within the meaning of Article 13.
Therefore, Article 13 did not restrict Parliament's constitutional amendment power.
In Sajjan Singh v. State of Rajasthan, the Supreme Court again upheld Parliament's power to amend Fundamental Rights.
However, some judges expressed concerns about the possibility of unlimited constitutional amendment power.
These observations contributed to the later development of the Basic Structure Doctrine.
In I.C. Golaknath v. State of Punjab, the Supreme Court changed its earlier position.
By a narrow majority, the Court held that Parliament could not amend Fundamental Rights.
The Court treated constitutional amendments as "law" for the purposes of Article 13.
Therefore:
Golaknath — 1967
↓
Parliament could not amend Fundamental Rights
Parliament responded to the Golaknath judgment through the:
24th Constitutional Amendment Act, 1971
It strengthened Parliament's constituent power under Article 368.
It expressly recognised Parliament's power to amend the Constitution and stated that Article 13 would not apply to constitutional amendments.
This led to the constitutional dispute examined in the Kesavananda Bharati case.
The landmark case was:
Kesavananda Bharati v. State of Kerala
The Supreme Court delivered its judgment in 1973 by a majority of:
7:6
The Court held that:
Parliament can amend any part of the Constitution, including Fundamental Rights, but cannot alter or destroy the Basic Structure of the Constitution.
This established the:
Basic Structure Doctrine
The Basic Structure Doctrine means that certain fundamental features of the Constitution cannot be destroyed through the amendment process.
The Constitution can evolve through amendments, but its essential identity must remain intact.
Therefore:
Parliament
↓
Can amend Constitution
↓
Cannot destroy Basic Structure
The Supreme Court has recognised several features as part of the Basic Structure.
Important examples include:
The list is not exhaustive.
Judicial Review itself is part of the Basic Structure.
Therefore, Parliament cannot completely eliminate the power of courts to examine constitutional validity.
This ensures that constitutional limitations remain enforceable.
The:
Independence of Judiciary
is also part of the Basic Structure.
An amendment cannot destroy the essential independence of the Judiciary.
This is important because the Judiciary must remain capable of exercising Judicial Review.
The:
Separation of Powers
is another important constitutional principle.
The amendment power cannot be used to destroy the essential distinction between:
Federalism is recognised as a Basic Structure feature.
Parliament cannot use Article 368 to completely destroy the federal character of the Constitution.
The Supreme Court has recognised:
Secularism
as a Basic Structure feature.
An amendment cannot fundamentally destroy the secular character of the Constitution.
The democratic character of the Constitution and the principle of:
Free and fair elections
have been recognised as part of the Basic Structure.
These principles were particularly important in the:
Indira Gandhi v. Raj Narain
case.
The Supreme Court examined provisions of the:
39th Constitutional Amendment
in Indira Nehru Gandhi v. Raj Narain.
The Court applied the Basic Structure Doctrine.
The judgment reinforced principles including:
The 42nd Constitutional Amendment Act, 1976 attempted to expand Parliament's amending power.
It inserted provisions into Article 368 intended to prevent constitutional amendments from being challenged in courts.
The amendment attempted to make Parliament's amending power effectively unlimited.
In Minerva Mills v. Union of India, the Supreme Court struck down important provisions of the 42nd Amendment relating to Article 368.
The Court held that:
Limited amending power is itself part of the Basic Structure.
Parliament cannot convert its limited power to amend the Constitution into an unlimited power.
Therefore:
Limited Amending Power
↓
Basic Structure
In Waman Rao v. Union of India, the Supreme Court examined constitutional amendments relating to the Ninth Schedule.
The Court treated:
24 April 1973
as an important cut-off date.
Constitutional amendments made after this date could be examined under the Basic Structure Doctrine.
The Ninth Schedule was originally intended to protect certain laws from Judicial Review.
However, Parliament cannot use the Ninth Schedule as an absolute shield against the Basic Structure Doctrine.
This principle was clarified further in:
I.R. Coelho
In I.R. Coelho v. State of Tamil Nadu, the Supreme Court held that laws inserted into the Ninth Schedule after:
24 April 1973
can be examined to determine whether they violate the Basic Structure.
Therefore:
Ninth Schedule
↓
Not absolute immunity
↓
Basic Structure Review
The present position can be summarised as:
Parliament
↓
Article 368
↓
Can Amend Constitution
↓
Can Amend Fundamental Rights
↓
Cannot Destroy Basic Structure
↓
Subject to Judicial Review
Yes.
The present position after Kesavananda Bharati is that Parliament can amend Fundamental Rights.
However, the amendment cannot destroy the Basic Structure.
This differs from the position in:
Golaknath — 1967
Parliament:
Could not amend Fundamental Rights
Parliament:
Can amend Fundamental Rights
but:
Cannot destroy Basic Structure
This distinction is important for UPSC.
India follows:
Constitutional Supremacy
rather than absolute Parliamentary Sovereignty.
Parliament derives its constitutional authority from the Constitution.
Therefore, Parliament cannot use its amendment power to destroy the Constitution's fundamental identity.
The Basic Structure Doctrine creates a balance between:
The doctrine prevents constitutional amendment power from becoming unlimited.
The Basic Structure does not mean that every provision of the Constitution is unamendable.
Parliament can amend numerous constitutional provisions.
The restriction applies when an amendment:
Destroys or damages the essential features of the Constitution.
The Supreme Court examines the:
Substance and effect
of an amendment.
The important question is:
Does the amendment damage or destroy a Basic Structure feature?
If the answer is yes, the amendment can be declared unconstitutional to that extent.
The validity of a constitutional amendment can also involve examination of the prescribed procedure.
Depending on the amendment, the Constitution may require:
The prescribed constitutional procedure must be followed.
Certain amendments affecting federal provisions require:
Special Majority of Parliament
plus:
Ratification by at least half of the State Legislatures
This reflects the federal nature of the Constitution.
1951
↓
Shankari Prasad
Broad Parliamentary Amending Power
1965
↓
Sajjan Singh
Broad Power Reaffirmed
1967
↓
Golaknath
Fundamental Rights Cannot Be Amended
1973
↓
Kesavananda Bharati
Basic Structure Doctrine
1975
↓
Indira Gandhi v. Raj Narain
Basic Structure Applied
1980
↓
Minerva Mills
Limited Amending Power
1981
↓
Waman Rao
24 April 1973 Cut-off
2007
↓
I.R. Coelho
Ninth Schedule Subject to Basic Structure Review
Strengthened Parliament's constitutional amendment power following Golaknath.
Its provisions concerning election disputes were examined in Indira Gandhi v. Raj Narain.
Attempted to expand Parliament's amending power.
Important provisions were struck down in Minerva Mills.
It protects:
It prevents a temporary parliamentary majority from fundamentally altering the constitutional system.
The doctrine has also been criticised because:
Despite these criticisms, the doctrine remains an established principle of Indian constitutional law.
Article 368
→ Constitutional amendment procedure
Shankari Prasad — 1951
→ Parliament's amendment power broadly upheld
Sajjan Singh — 1965
→ Broad amendment power reaffirmed
Golaknath — 1967
→ Parliament could not amend Fundamental Rights according to the judgment
24th Amendment — 1971
→ Strengthened Parliament's amending power
Kesavananda Bharati — 1973
→ Basic Structure Doctrine
Kesavananda majority
→ 7:6
39th Amendment — 1975
→ Examined in Indira Gandhi v. Raj Narain
42nd Amendment — 1976
→ Attempted to expand amending power
Minerva Mills — 1980
→ Limited amending power is Basic Structure
Waman Rao — 1981
→ 24 April 1973 cut-off
I.R. Coelho — 2007
→ Post-24 April 1973 Ninth Schedule laws subject to Basic Structure review
"Parliament cannot amend Fundamental Rights."
False under the present position.
Parliament can amend Fundamental Rights subject to the Basic Structure Doctrine.
"Basic Structure Doctrine is expressly mentioned in Article 368."
False
It is:
Judicially evolved
by the Supreme Court.
"Kesavananda Bharati completely prohibited amendments to Fundamental Rights."
False
It permitted amendments but imposed the Basic Structure limitation.
"The 42nd Amendment successfully made Parliament's amending power unlimited."
False
Important provisions were struck down in:
Minerva Mills
"Limited amending power is part of the Basic Structure."
True
This was clearly established in:
Minerva Mills
"Ninth Schedule laws can never be reviewed."
False
After I.R. Coelho, Ninth Schedule laws inserted after 24 April 1973 can be tested against the Basic Structure.
"Every constitutional amendment requires ratification by half of the States."
False
Only amendments concerning specified federal provisions require such ratification.
"Basic Structure is an exhaustive list."
False
The Supreme Court has not provided a single exhaustive list.
"India follows absolute Parliamentary Sovereignty."
False
India follows:
Constitutional Supremacy
ARTICLE 368
↓
PARLIAMENT'S AMENDING POWER
↓
NOT UNLIMITED
↓
BASIC STRUCTURE
GOLAKNATH — 1967
↓
FRs Cannot Be Amended
KESAVANANDA BHARATI — 1973
↓
FRs Can Be Amended
↓
BUT
↓
Basic Structure Cannot Be Destroyed
MINERVA MILLS — 1980
↓
LIMITED AMENDING POWER
↓
BASIC STRUCTURE
I.R. COELHO — 2007
↓
NINTH SCHEDULE
↓
POST-24 APRIL 1973
↓
BASIC STRUCTURE REVIEW
40. One-Page Revision
JUDICIAL REVIEW OF
CONSTITUTIONAL AMENDMENTS
│
├── Article 368
│ └── Constitutional Amendment
│
├── Evolution
│ ├── Shankari Prasad — 1951
│ ├── Sajjan Singh — 1965
│ ├── Golaknath — 1967
│ ├── Kesavananda Bharati — 1973
│ ├── Indira Gandhi — 1975
│ ├── Minerva Mills — 1980
│ ├── Waman Rao — 1981
│ └── I.R. Coelho — 2007
│
├── Basic Structure
│ ├── Constitutional Supremacy
│ ├── Democracy
│ ├── Secularism
│ ├── Federalism
│ ├── Rule of Law
│ ├── Separation of Powers
│ ├── Judicial Review
│ └── Judicial Independence
│
└── Core Principle
└── Parliament Can Amend
BUT
Cannot Destroy Basic Structure
41. Mains Answer Framework
Introduction
Article 368 grants Parliament the power to amend the Constitution, but the Supreme Court has evolved the Basic Structure Doctrine to ensure that this power cannot be used to destroy the Constitution's essential identity.
Evolution
Shankari Prasad — 1951
Sajjan Singh — 1965
Golaknath — 1967
Kesavananda Bharati — 1973
Indira Gandhi v. Raj Narain — 1975
Minerva Mills — 1980
Waman Rao — 1981
I.R. Coelho — 2007
Present Position
Parliament can amend:
Fundamental Rights
Other constitutional provisions
But cannot:
Destroy Basic Structure
Eliminate Judicial Review
Destroy judicial independence
Convert limited amending power into unlimited power
Significance
Protects constitutional supremacy
Prevents majoritarian excess
Protects democratic institutions
Preserves judicial independence
Maintains constitutional continuity
Criticism
Gives unelected judges significant constitutional power
Basic Structure is not exhaustively defined
May create tension between Parliament and Judiciary
Conclusion
The Basic Structure Doctrine balances Parliament's power to adapt the Constitution with the Judiciary's responsibility to preserve its fundamental identity. It ensures that constitutional amendment remains a power to reform the Constitution rather than a power to destroy it.