Amending Power of the Parliament

Introduction

The amending power of Parliament has been a major issue in Indian constitutional law. It led to a conflict between the judiciary and legislature, especially over the right to property. This debate shaped the limits of Parliament’s power under the Constitution.

Meaning / Definition

The amending power refers to the authority of Parliament under Article 368 to change (amend) the Constitution. This includes adding, removing, or modifying any provision, including Fundamental Rights.

The key issue is whether this power is unlimited or subject to restrictions.

Modes or Types

Unlimited amending power (early view)

• Parliament can amend any part of the Constitution, including Fundamental Rights.
• Constitutional amendments are not considered “law” under Article 13.
• Therefore, they cannot be challenged for violating Fundamental Rights.

Limited amending power (later development)

• Parliament can amend the Constitution, but cannot destroy its basic structure (core features like democracy, rule of law).
• This ensures a balance between flexibility and protection of core values.

Conflict between Fundamental Rights and Directive Principles

• Amendments like Article 31C gave priority to Directive Principles over Fundamental Rights.
• This raised concerns that basic rights like equality and freedom could be overridden.

Judicial control over amendments

• Courts review whether amendments damage the basic structure.
• This prevents misuse of power by Parliament or State legislatures.

Important Case Law

Shankari Prasad v. Union of India
The Court held that Parliament can amend Fundamental Rights and such amendments are not “law” under Article 13.

Sajjan Singh v. State of Rajasthan
The Court confirmed that the power to amend includes all parts of the Constitution.

Keshavananda Bharati v. State of Kerala
The Court introduced the Basic Structure Doctrine. It held that Parliament can amend the Constitution but cannot alter its basic structure.

Distinction / Comparison

Constitutional Amendment vs Ordinary Law

• Nature

  • Amendment: Change to the Constitution under Article 368
  • Ordinary Law: Law made by Parliament under normal legislative power

• Under Article 13

  • Amendment: Not treated as “law” (early view)
  • Ordinary Law: Must not violate Fundamental Rights

• Judicial Review

  • Amendment: Can be checked if it violates basic structure
  • Ordinary Law: Can be struck down if it violates Fundamental Rights

Practical Example

If Parliament passes a law restricting freedom of speech, the Court can strike it down as violating Fundamental Rights.

But if Parliament amends the Constitution to change the scope of free speech, the Court will check whether this amendment damages the basic structure. If it does, the amendment will be invalid.

Summary

• Parliament has the power to amend the Constitution under Article 368.
• Early view: This power was unlimited and included Fundamental Rights.
• Later, the Supreme Court limited this power through the Basic Structure Doctrine.
• Parliament cannot destroy core features like democracy and rule of law.
• Amendments like Article 31C raised concerns about overriding Fundamental Rights.
• Courts act as a check to prevent misuse of amending power.
• This ensures balance between change and protection of constitutional values.