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Limits of Parliament's Amending Power

Parliament's power to amend the constitution is limited and it cannot destroy the Basic Structure. The document discusses whether Parliament can expand its amending power under Article 368 to destroy the Basic Structure. It introduces the Basic Structure doctrine established by the Supreme Court, which held that certain features like the supremacy of the constitution cannot be altered. It then examines how the doctrine has been applied in cases like Kesavananda Bharati and Minerva Mills.

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0% found this document useful (0 votes)
68 views2 pages

Limits of Parliament's Amending Power

Parliament's power to amend the constitution is limited and it cannot destroy the Basic Structure. The document discusses whether Parliament can expand its amending power under Article 368 to destroy the Basic Structure. It introduces the Basic Structure doctrine established by the Supreme Court, which held that certain features like the supremacy of the constitution cannot be altered. It then examines how the doctrine has been applied in cases like Kesavananda Bharati and Minerva Mills.

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Hrxla Bualte
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd

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.

Common questions

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In the Chandra Kumar v/s Union of India case, the Supreme Court addressed the conflict between constitutional amendments and the basic structure doctrine by reaffirming that all provisions of the Constitution are amendable, provided they do not harm the basic structure. The judgment clarified that while Parliament can amend the Constitution, such amendments must not damage or destroy the foundational principles that form the basis of the Constitution. This case underscored the role of the judiciary in ensuring that amendments remain within constitutional limits, thus preserving the basic structure .

The Kesavananda Bharati case played a pivotal role in defining the limits of Parliament’s power to amend the Constitution by establishing the doctrine of the basic structure. In this landmark 1973 judgment, the Supreme Court stated that while Parliament has the authority to amend the Constitution under Article 368, it cannot alter its 'basic structure' or fundamental framework. This doctrine preserves essential features like the supremacy of the Constitution, federalism, and judicial review, thereby restricting Parliament from enacting amendments that could damage or destroy the Constitution’s core principles .

Before the emergence of the basic structure doctrine, the Directive Principles of State Policy (DPSP) served more as guiding principles for governance rather than enforceable rights, often taking a backseat to fundamental rights. With the adoption of the basic structure doctrine, particularly following the Kesavananda Bharati case, the DPSPs gained more prominence as their balance with fundamental rights became part of the Constitution's essential framework. Amendments aimed at enhancing socio-economic welfare and aligning with DPSPs must now respect the established balance with fundamental rights, ensuring that neither is unjustly compromised .

The doctrine of basic structure preserves the balance between fundamental rights and the Directive Principles of State Policy (DPSP) by ensuring that amendments do not disproportionately undermine one in favor of the other. The doctrine, as articulated in the Kesavananda Bharati case, prohibits Parliament from enacting amendments that would alter this balance, which is considered a fundamental aspect of the Constitution. By maintaining this equilibrium, the doctrine ensures that both sets of principles can coexist, thereby protecting individual liberties while allowing the state to pursue socio-economic welfare policies .

The Minerva Mills case reinforced the basic structure doctrine by preventing Parliament from diminishing the essence of constitutional provisions under the guise of amendments. In this 1980 judgment, the Supreme Court invalidated clauses (4) and (5) of Article 368, which were introduced by the 42nd Constitutional Amendment. These clauses attempted to curtail judicial review, thereby undermining the basic structure. By striking down these provisions, the Supreme Court reaffirmed the limitations on parliamentary amendments, ensuring that they do not compromise fundamental constitutional elements like the balance between fundamental rights and the Directive Principles of State Policy .

The Indian Parliament cannot amend the Constitution under Article 368 to eliminate the principle of federalism. According to the doctrine of basic structure, certain principles such as federalism are integral to the Constitution and cannot be modified or destroyed by constitutional amendments. The Supreme Court's judgment in the Kesavananda Bharati case highlights that Parliament cannot utilize Article 368 to alter or abrogate the basic features, including federalism, which form the essential framework of the Constitution .

The principle of judicial review supports the basic structure of the Indian Constitution by acting as a mechanism to ensure that legislative and executive actions conform to constitutional boundaries. Judicial review empowers the judiciary to invalidate laws and amendments that violate the basic structure, thereby safeguarding essential constitutional elements such as rule of law, separation of powers, and protection of fundamental rights. This principle ensures that no amendment under Article 368 can override the core values of the Constitution, maintaining its integrity and preventing unconstitutional abuse .

The Parliament’s amending power is essential in that it provides the flexibility needed for the Constitution to adapt to changing circumstances and address national growth and development needs. However, this power is limited by the doctrine of basic structure, as established in the Kesavananda Bharati case. This doctrine prevents Parliament from making amendments that could alter or destroy fundamental constitutional features. While amendments are necessary to update and evolve the constitutional framework, they cannot contravene the core principles that define the identity of the Constitution, ensuring a balance between change and continuity .

The doctrine of basic structure is considered vital for upholding the constitutional spirit in India because it preserves the core principles and values that define the essence and identity of the Constitution. By restricting Parliament's power to amend only within the limits that do not alter these core principles, the doctrine ensures continuity in adhering to the ideals envisioned by the Constitution's framers. It acts as a guardian against arbitrary amendments that may disrupt the balance of power, threaten individual rights, or diminish the integrity of the federal structure, thus maintaining the Constitution's intended spirit and purpose .

The basic structure doctrine implies significant limitations on the legislative competence of the Indian Parliament by establishing boundaries beyond which it cannot legislate through constitutional amendments. While it does not undermine Parliament's ability to make necessary legislative changes, it restricts the scope of amendments that could potentially alter or abolish fundamental features of the Constitution. Thus, the doctrine ensures the supremacy of the Constitution while maintaining its intended constitutional philosophy and preventing arbitrary legislative alterations that could distort constitutional principles .

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