Law optional 2019 Paper I

Q2. (b) "Power of the Parliament to amend the Constitution is wide, but not unlimited." Do you agree with this statement? Discuss whether the doctrine of basic structure has reinforced the power of judicial review under the Constitution.

Verified Answer
  1. Core Legal Answer & Context: I strongly agree with the statement: "Power of the Parliament to amend the Constitution is wide, but not unlimited." This statement encapsulates the essence of constitutionalism in India, particularly as evolved through judicial pronouncements. Article 368 of the Indian Constitution grants Parliament the power to amend the Constitution. Initially, the scope of this power was a subject of intense debate, with some arguing for its absolute nature, implying Parliament could amend any part of the Constitution, including Fundamental Rights.

However, the judiciary, through a series of landmark judgments, established that Parliament's amending power, though wide, is not absolute. The most significant development in this regard was the evolution of the 'Doctrine of Basic Structure'. This doctrine posits that while Parliament can amend any provision of the Constitution, it cannot alter or destroy the 'basic structure' or 'essential features' of the Constitution. The Supreme Court has identified several elements as part of the basic structure, including the supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers, federal character, judicial review, and the independence of the judiciary.

The doctrine of basic structure has profoundly reinforced the power of judicial review under the Constitution. Prior to this doctrine, the judiciary's power to review constitutional amendments was limited. With the basic structure doctrine, the judiciary gained the authority to scrutinize constitutional amendments and strike down any amendment that violates or abrogates the basic features of the Constitution. This effectively transformed judicial review from merely checking legislative competence to evaluating the substantive impact of amendments on the foundational principles of the Constitution. It ensures that the fundamental identity and spirit of the Constitution, as envisioned by its framers, are preserved against potential parliamentary overreach, thereby strengthening the judiciary's role as the ultimate guardian and interpreter of the Constitution.

  1. Relevant Statutes and Sections:
  • Article 368 of the Indian Constitution: Deals with the power of Parliament to amend the Constitution and the procedure for doing so.
  1. Important Landmark Cases:
  • Shankari Prasad Singh Deo v. Union of India (1951) & Sajjan Singh v. State of Rajasthan (1965): These early judgments held that Parliament's power to amend under Article 368 included the power to amend Fundamental Rights.
  • Golaknath v. State of Punjab (1967): The Supreme Court reversed its previous stance, holding that Fundamental Rights are transcendental and immutable, and Parliament cannot amend them. This led to a constitutional deadlock.
  • Kesavananda Bharati Sripadagalvaru v. State of Kerala (1973): This epoch-making judgment overruled Golaknath and introduced the 'Doctrine of Basic Structure'. The Court held that Parliament has the power to amend any part of the Constitution, including Fundamental Rights, but it cannot alter or destroy the 'basic structure' of the Constitution. This judgment established the limits of Parliament's amending power.
  • Minerva Mills Ltd. v. Union of India (1980): The Supreme Court reaffirmed the basic structure doctrine and struck down Sections 4 and 55 of the 42nd Constitutional Amendment Act, which had sought to give unlimited power to Parliament to amend the Constitution and place constitutional amendments beyond judicial review. This case firmly established judicial review as a basic feature of the Constitution.
  1. Clear Conclusion: The power of Parliament to amend the Constitution is indeed wide, encompassing all its provisions, but it is definitively not unlimited. The Doctrine of Basic Structure, enunciated in Kesavananda Bharati and reinforced in subsequent cases like Minerva Mills, acts as a crucial check on parliamentary power. This doctrine has significantly reinforced the power of judicial review, empowering the judiciary to safeguard the fundamental principles and identity of the Constitution, thereby ensuring constitutional supremacy and preventing any single organ of the state from altering the foundational framework of Indian democracy.