Parliament has power to amend the any part of Constitution by the Virtue of the
Art 368 of Indian Constitution. this art is not the absolute in nature. The
basic structure of the constitution envision the fundamental ideas of the makers
of the constitution. The judiciary has power to check the amending power of the
parliament by applying the 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 the amendments by the parliament. Thus, it gives extra power
to court to review and strike down any constitutional amendments and act enacted
by the parliament. Coming to the basic structure doctrine generally question
came into our mind was who is
Superior. Under article.13 of the constitution supreme court serves as a
protector of fundamental rights. Under article 368 of the constitution
parliament holds the power to amend the constitution.
In Sankari Prasad v. Union of India
[i] in this case the question was whether
the fundamental rights can be amended under article 368 of the constitution. It
is the first amendment to the constitution. In this amendment to the
article.31-A and 31-B of the constitution which deals with right to property was
challenged. Generally, the question arose was this was abridging the fundamental
rights guaranteed under article.13(2) of the constitution.
So it has no right to
alter the fundamental rights under article.368 of the constitution. In this the
supreme court held that the parliament had power to amend fundamental rights
under article.368 of the constitution.
In Sajjan Singh v. State of Rajasthan
this case 17th constitutional amendment
act was challenged. The supreme court approved the majority judgement given in
Sankari Prasad case.
In this case it held that the words amendment to the
constitution means any part of the constitution means any part of the
In Golak Nath v. State of Punjab
 in this case also 17th
constitutional amendment act was again challenged. First time 11 judges' bench
was constituted and overruled the decision in first two cases and held that
parliament had no power to amend the part.III of the constitution. so as to take
away the fundamental rights.
So based on this case even the parliament had no power to amend the fundamental
rights under article.368 of the constitution. The chief justice applied the rule
of prospective operation and therefore the 1st ,4th ,17thamendment will continue
to be valid. It means all the cases decided before Golak Naths case shall remain
24th Amendment act of 1971 in order to remove the difficulties created by the
decision of supreme court in Golak Naths case. The parliament enacted 24th
It provides the new clause to article.13 and added new clause(4) to the article
13 .according to it "Nothing in this article shall apply to any amendment of
this constitution made under article.368.
It substituted a new marginal heading to article.368 in place of old heading
"procedure for amendment of the constitution. "The new heading "power of
parliament to amend the constitution and procedure thereof".
It has added a new clause (3) to article 368 which provides that "nothing in
article.13 shall apply to any amendment made under this article". By 24th
amendment act not only restored the amending power of the parliament but also
extended its scope.at the same time which was mentioned in golaknadh case has no
value. Under article.368 the parliament had option to amend any part of the
In Keshava Nanda Bharathi v. state of Kerala
4 In this case they said that what
extent the power to amend the constitution under article.368 of the
constitution. That mean the parliament's power to amend the constitution was
unlimited or limited is the question. In this matter, the court held that
without violation of basic structure and framework of the constitution the
parliament had a right to amend the constitution under article.368 of the
They Mentioned Certain Essentials For Basic Structure As FollowsAccording to
chief justice Sikri basic structure of the constitution consists of the
- Supremacy of the constitution.
- Republican and democratic form of government & sovereignty of the
- Secular and federal character of the constitution.
- Separation of powers between the legislature, the executive, and the
- Federal character of the constitution.
In Indira Gandhi v. Raj Narayan
in this case, they add some basic features to
the constitution. It added rule of law, judicial review, democracy which implies
free and fair elections.it added clauses (4) and (5) to article 368 of the
constitution .it said that even the part.III was amended it cannot be questioned
in any court and clearly said no limitation to parliament to amend the
constitution. In this case, it clearly mentioned who is supreme Parliament or
Supreme court. It says that parliament represents the will of the people. People
want to amend the constitution they can exercise through the parliament.
In Minerva mills, v. Union of India
 by 42nd amendment act added two new
clauses to article.368 are clause (4) and (5). According to these clauses the
parliament had the power to amend any part of the constitution even the basic
features of the constitution can be amended. In this case, the court held it
struck down clauses (4) & (5) of article.368. which was inserted by the 42nd
amendment on the ground that these clauses destroyed the essential features of
the basic structure of the constitution.
Judicial Review as tool to check the power of Article 368 of the Constitution
which gives the an opinion that the Parliament's amending powers are absolute
in nature can touch all parts of the Constitution But the Supreme Court has
acted as a hindrance to the legislative eagerness of Parliament.
With the aim to
protect the basic features of Indian Constitution which inscribed by the
constitution-makers, the Supreme court adjudicate that Parliament could not
twist,, damage or alter the basic features of the Constitution under the ambit
of amending power as the Supreme Court has been the guardian, of the
Constitution, interpreter and adjudicator of all amendments made by
Parliament. by applying the basic structure doctrine.
Written By: Swapna Vuyyuru
- AIR 1951 SC 455
- AIR 1965 SC 845
- AIR 1971 SC 1643
- AIR 1973 SC 1461
- AIR 1975 SC 2299
- AIR 1980 SC 1789
, Assistant Professor, MG Law College