GS2 PYQ (Mains Answer Writing): Article 368 and Constitutional Amendment | Indian Polity for UPSC CSE PDF Download

"Parliament's power to amend the constitution is a limited power and it cannot be enlarged into absolute power". In the 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? (UPSC GS2 Mains)

Introduction
The idea behind ‘Constitution as a living document’ highlights the necessity of making amendments in the constitution to make it more adaptive with time and to ensure that it doesn’t lose it relevance asthe social, economic and political conditions of the people keeps on changing. Whereas on the other side, too many changes in the constitution would lead to the loss of it’s essence. So, the pioneers of our constitution made sure to maintain the balance between a rigid and a flexible amendment process to the constitution.
Article 368 and Doctrine of Basic structure: 

• Article 368 of the constitution deals with the powers of parliament to amend the constitution and its procedure. It states that the Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down for the purpose. 
• However the parliament cannot amend those provisions which form the “basic structure” of the constitution. This was ruled by the Supreme Court in the Kesavananda Bharti case 1973. If the Judiciary feels to review the any amendment made by the parliament, it has the power to do so and if the Judiciary thinks that the amendment is unlawful or against any provision or against public morality, it has the power to make that amendment null and void. 
• In the Shankari Prasad case 1951, the Supreme Court ruled that the power of Parliament to amend the constitution under article 368 also includes the power to amend the fundamental rights. In Golak nath case 1967, the Supreme Court reversed its earlier stand and ruled that Fundamental rights are given a transcendental and immutable position and hence Parliament cannot abridge or take away any of these rights. The Parliament reacted to SC’s judgment by enacting 24th amendment act 1971 and stated the Parliament has the power to abridge any of the fundamental rights under article 368. 

Limitations on Parliament to amend the constitution: 

• However in Kesavananda Bharti case 1973, the Supreme court over ruled its judgment in Golak Nath case. It upheld the validity in of 24th Amendment act and stated that the parliament is empowered to abridge any of the fundamental rights. At the same time, it laid down a new doctrine of the ‘basic structure ‘of the constitution. It ruled that constituent power of the parliament under article 368 doesn’t enable it to alter the basic structure of the constitution. 
• Parliament reacted to it by enacting 42nd amendment where it declared that there’s no limitation on the constituent power of Parliament and no amendment can be questioned in any court of law. 
• However, the Supreme Court in Minerva Mills case 1980 invalidated this provision as it excluded judicial review which is a basic feature of the question. Conclusion: From various judgments, Unity and Integrity of the nation, judicial review, parliamentary system, free and fair elections, independence of judiciary etc. have emerged as the elements or ingredients of the basic structure. These cannot be amended by using the constituent amending power of the constitution under the article 368, thus limiting Parliament’s power to amend the constitution.

Topics covered - Amendment of the Constitution, Article 368