Constitutional Law: The Unwritten Rules of Power

A Close Look at the Amendment Process in India

As I delved deeper into the world of Constitutional Law, I couldn't help but think of the complex web of power struggles that unfold in Indian politics. Just like the intricate plot twists in a Salman Khan movie, the amendment process in India is a masterclass in intrigue and deception. But, unlike the Bollywood hero who often invokes the doctrine of promissory estoppel, our politicians rarely do. The Constitution (Amendment) Bill, 2020, which proposed to subsume the Jammu and Kashmir Reorganisation Act, 2019, into the Constitution, raises interesting questions about the limits of Parliament's power to amend the Constitution. The Supreme Court's judgment in Kesavananda Bharati v. State of Kerala (1973) remains a landmark ruling on the scope of Parliament's amending power. In this case, the Supreme Court held that Article 368 of the Constitution, which empowers Parliament to amend the Constitution, is not exhaustive and that the fundamental rights guaranteed under Article 14, 19, and 21 are inalienable and cannot be amended.

The Doctrine of Basic Structure: A Shield Against Abuse

The concept of the 'basic structure' of the Constitution, first enunciated in Golaknath v. State of Punjab (1967), has been a crucial check on the powers of Parliament. This doctrine holds that certain fundamental features of the Constitution, such as the principles of democracy, federalism, and the rule of law, are immune from amendment. The Supreme Court has consistently applied this doctrine to strike down amendments that contravene these principles.

The Amendment Process: A Delicate Balance

The amendment process in India is governed by Article 368 of the Constitution, which provides for two types of amendments: simple and special. Simple amendments can be introduced by a two-thirds majority in both Houses of Parliament, while special amendments require a two-thirds majority in both Houses and ratification by at least half of the States. The Supreme Court has held that even special amendments can be challenged on the grounds of unconstitutionality.

"We the People" are the ultimate arbiters of the Constitution. - Naz Foundation v. Union of India (2010)

The amendment process in India is a complex and nuanced affair, governed by a delicate balance of power between Parliament, the Supreme Court, and the States. As we navigate the intricate web of Constitutional Law, it is essential to remember that the Constitution is not a fixed entity, but a living document that evolves with the changing needs of society.