Amendment of Constitution: Parliament v. Judiciary

This blog is inscribed by Siddhant Tiwari.

This article contains the tussle between Parliament and Judiciary over the nature of the fundamental right. It was a long battle between legislature and judiciary, not only over Fundamental Right but over Judicial Appointment, some people criticized judicial activism, but it was necessary to safeguard the value enshrined in our constitution.


Fundamental rights are those rights that are important for the moral and spiritual development of the individual. These rights are important and essential for the existence and development of the individual; they were borrowed from the constitution of the USA. Initially, there were seven Fundamental Rights as of now there are only six the seventh being, the Right to Property was deleted. Fundamental Rights are enshrined in part III (Article12-35) of the Indian Constitution.

Amendment of Indian Constitution

An amendment can be made in the Constitution of India formally by introducing a Bill in either of the houses of Parliament. The amendment procedure is enshrined in Article 368, under which different kind of majority is needed for various amendment. For the amendment in fundament right special majority is needed, which 2/3 of the house present and voting.

Emergence of a Basic Structural Doctrine

The Question before the court of was whether Fundamental right can be amended under Article 368 of the Indian Constitution and can it came for consideration before Supreme Court with a year.

The states shall not make any law, which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention be void[1].”

Article 13 of Indian Constitution

In other words, it expressly provides for the doctrine of Judicial review: This power has been conferred to the supreme court ( Article 32) and the high court ( Article 226), they can check the constituality of any law, so that it didn’t infringe any of the Fundament Rights.  

In the case of Shankari Prasad v. Union of India[2] and Golanknath v. State of Punjab[3], The constitutional validity of the First Amendment Act (1951) was questioned, which curtailed the Right to Property. The Supreme Court ruled that the parliament’s power to amend the constitution pursuant to Article 368 also requires the powers to alter fundamental rights. In Article 13, the term ‘law’ only concerns ordinary law and not the constitutional amendment act (constituent laws). Consequently, by enacting a constitutional amendment act, the parliament may abridge or remove any of the Fundamental Rights, and such a law would not be invalid under Article 13.

The SC reversed its preceding stand. In this case, it checked the constitutionality of the Seventeenth Amendment Act (1964), which incorporated that state acts into the Ninth Schedule. The SC ruled that a ‘transcendental and permanent’ status is granted to the fundamental right and that the parliament can not abridge or abolish either of these rights. A constitutional amendment act is, therefore, a law under Article 13’s and would thus be unconstitutional to violate any of the Fundamental Rights.

In Golak Nath Case (1967), Parliament responded to the SC’s judgment by enacting the 24th Amendment Act (1971).  This Act amended Articles 13 and 368. It stated that pursuant to Article 368, the parliament has the power to abridge or eliminate any of the Fundamental Rights, and such an act would not be law within the scope of Article 13.

Further in the case of Kesavananda Bharti v. State of Kerala[4] the SC overruled its decision held in the case of Golak Nath. It retained the validity of the 24th Amendment Act (1971) and claimed that the parliament is empowered to abridge or abolish any of the Fundamental Rights. At the same time, it set forth a new theory of the constitution’s ‘basic structure‘ (or essential feature). It ruled that parliament’s legislative power under Article 368 does not empower it to modify the constitution’s ‘basic structure.’ This states the parliament can not shorten or withdraw a constitutional right, which forms part of the constitution’s ‘basic structure. Which entitles that the parliament can’t abridge or take away a Fundamental right that forms a part of the ‘basic structure’ of the constitution.

By enacting the 42nd Amendment Act (1976), Parliament responded to this judicially innovative theory of the ‘basic structure.’ This Act amended Article 368 and stated that the legislative power of Parliament is not limited. Any amendment on any ground, including that of any contravention of any of the Fundamental Rights, may be challenged in any case.

In the case of Minerva Mills v. Union of India[5] the Supreme Court invalidated this provision because it excluded judicial review, which is a ‘basic feature’ of the constitution. Applying the ‘basic structure’ doctrine in respect of Article 368, the court ruled that:

 “Since the Constitution had conferred a limited amending power on the parliament, the parliament cannot under the exercise of that limited power enlarge that very power into absolute power.”

Supreme Court “Minevra Mills v. Union of India”

Further in the case of Waman Rao v. Union of India[6], the SC adhered to the doctrine of the ‘basic structure ‘ and further explained that it would refer to constitutional amendment enacted after April 24, 1973 (i.e., the judgment date of Keshavnanda Bharti).

Present Position Regarding Amendment of Constitution

The present position is that the parliament can amend any article or law, but it can’t alter the ‘basic structure’ of the constitution.

Ingredient of the basic structure of the Constitution

  1. The constitution is supreme.
  2. Democratic, republic and sovereign nature of the Constitution
  3. Secular character of the constitution
  4. Separation of power
  5. Federal character.
  6. Unity and integrity of the nation.
  7. Welfare State (socio-economic justice)
  8. Judicial review.


There was never a question regarding the supremacy of Fundamental right in the mind of the constitution framer. Parliament has exercised their power to abridge the nature of fundamental rights, but the judiciary was always a resistance to the parliament in order to safeguard the value enshrined in the constitution and maintain the balance of power. Parliament has tried every method to curtail the power of the judiciary in order to become the ultimate source of power, but judicial activism, which is often criticized, safeguard the nature of fundamental right by evolving the basic structure doctrine.

[1] Article 13, Constitution of India, 1950

[2] 1951 AIR 458

[3] 1967 AIR 1643

[4] (1973) 4 SCC 225

[5] AIR 1980 SC 1789

[6] 1981 2 SCR 1


  • Chapter 11. Basic Structure of the Constitution (Indian ….

Leave a Reply

Your email address will not be published. Required fields are marked *