Q . “Parliament’s power to amend the Constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement explain whether Parliament under Article 368 of the Constitution can destroy the basic structure of the Constitution by expanding its amending power? 16TH NOVEMBER,2020 (15 marks, 250 words, GS-2)
Answer-
Approach-
- In the introductory para, about the provisions in the Constitution with respect to amendment
- The next para could be about the evolution of the Doctrine of Basic Structure.
- Third para could include the arguments against the Doctrine of Basic structure.
- Concluding with the way forward
India adopted for Parliamentary system of Government with Parliamentary supremacy and sovereignty. However, it incorporated Article 13 to provide for checks & balances by courts so that they do not over-reach their sphere of power. Parliament has since used Article 368 to amend Constitution multiple times (104 amendments till now) and SC, too, have used Article 13 to check the arbitrariness of Parliament and declare many amendments as null & void.
The tussle has been long between the Court and the Parliament regarding who is supreme and how the power of other can be curtailed. With long tussle between SC and Parliament over the powers provided under Article 13 and Article 368 immediately after commencement of Constitution came the judgment in Keshwanand Bharti case of 1973. Before that, the Court’s stand varied in each case like in Shankari Prasad Case, court upheld the power of Parliament to amend the Constitution. But the stand took sudden change in Golaknath case where court observed that the Parliament can’t amend the Part-III of Constitution after which came a series of amendments (Ex- 24th Amendment Act) by Parliament in Article 13 and Article 368 to extend its power by clearly defining that the amendment in Constitution is out of the purview of Court under Article 13.
However, in 1973, in Keshwanand Bharti case, the SC evolved the Doctrine of Basic Structure. With this doctrine, court held that Article 368 provides for power to the Parliament to amend the Constitution but it should not change the very nature i.e. basic structure of the Constitution. However it was argued that it is against the Constitutionalism itself as India opted for Parliamentary form of governance where the Parliament is considered is supreme and can amend the Constitution.
But the Constitution can’t be left with the Parliament who can with ill-will may modify or amend any provision at anytime suiting its interest. Thus keeping a check was must so thus the Doctrine of Basic structure. But Judges couldn’t be allowed to interfere in all matters of Parliamentary actions.
Now the stand is that, while deciding the elements of basic structure, the SC has clearly maintained that Parliament do not possess immense power to amend whatever it suits them rather to keep the basic nature of the Constitution well intact.