Comment: ‘Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution’. (2016, 10 Marks)
The proposition states the holding of Kesavananda Bharati v. State of Kerala (1973): Parliament may amend any provision under Article 368, fundamental rights included, but may not damage the Constitution’s basic structure or framework. Its legal logic is strong; its democratic credentials remain contested.
The Legal Logic
- “Amendment” presupposes continuity. For H. R. Khanna, whose opinion decided the case, amending the Constitution implies that the Constitution survives the change. Replacing its identity is new constitution-making.
- Derived, not original, power. Parliament is a body created by the Constitution; its constituent power is delegated. The Constituent Assembly spoke for the people; a two-thirds majority speaks for a moment. This was Dietrich Conrad‘s argument (1965): an amending body cannot demolish the pillars of its own authority, as the Weimar Constitution had been demolished by lawful forms.
- The limit limits itself. The 42nd Amendment added Articles 368(4)–(5), excluding review and declaring the power unlimited. Minerva Mills (1980) struck both down; Chief Justice Y. V. Chandrachud reasoned that Parliament cannot enlarge a limited power into an absolute power. Limited amending power is thus itself a basic feature.
- The framework is illustrative: supremacy of the Constitution, democracy and free elections, secularism, federalism, separation of powers, judicial review, and the essence of fundamental rights (I. R. Coelho, 2007).
The Limit in Operation
- Indira Gandhi v. Raj Narain (1975) struck the 39th Amendment’s shield around the Prime Minister’s election; NJAC (2015) struck the 99th Amendment for judicial independence.
- It is no veto on change: Janhit Abhiyan (2022) upheld the 103rd Amendment, and Dr. Balram Singh (2024) the 42nd Amendment’s “socialist” and “secular”.
Critiques
- Textual: since the 24th Amendment, Article 368 permits amendment “by way of addition, variation or repeal” of any provision; the limit is implied, not written.
- Democratic: B. R. Ambedkar argued that those who cannot muster two-thirds of an elected Parliament have no claim that their dissatisfaction is the people’s. Judges now override majorities he thought sufficient.
- Doctrinal: H. M. Seervai, who argued Kerala’s case, questioned whether the nine-signature “View by the Majority” faithfully stated what a 7:6 bench of eleven opinions had held.
- Indeterminacy: the Court alone identifies the features; Jagdeep Dhankhar, as Vice-President (he resigned in July 2025), called the 1973 ruling a wrong precedent.
Conclusion
The proposition is sound as law: a power conferred by a constitution cannot be used to abolish it, and Minerva Mills closed the circle. Its legitimacy, however, depends on judicial restraint, reserving the doctrine for changes of identity rather than of policy, which the recent record suggests the Court accepts.