Constitutionalizing the Unconstitutional: A Deep Dive into Article 368

Decoding the Limits of Constitutional Amendment

As I delved deeper into the labyrinthine corridors of the Indian Constitution, I stumbled upon a fascinating aspect – the power to amend the Constitution itself. Article 368, a seemingly innocuous provision, holds the key to understanding the delicate balance between the legislative and judicial branches of the government. In this article, we will embark on a journey to explore the intricacies of Article 368 and its implications on the Indian polity.

Article 368 empowers the Parliament to amend the Constitution, subject to certain limitations. The provision reads: "Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with such law as Parliament may enact." On the surface, this provision appears to grant the Parliament unfettered power to alter the Constitution. However, the Supreme Court has consistently ruled that this power is not absolute and is subject to judicial review.

In the landmark case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament's power to amend the Constitution is not plenary, but is limited by the basic structure doctrine. This doctrine, enshrined in the judgment, prohibits Parliament from altering the fundamental features of the Constitution, such as the principles of federalism, secularism, and democracy. The Court ruled that any amendment that seeks to alter these basic features is ultra vires and void.

The basic structure doctrine has been a subject of intense debate and has been the focal point of several landmark cases, including Indira Gandhi v. Raj Narain (1975) and Minerva Mills v. Union of India (1980). In Indira Gandhi v. Raj Narain, the Supreme Court struck down the 39th Amendment to the Constitution, which had retrospectively validated the election of Indira Gandhi from her Rae Bareli constituency. The Court held that the amendment was violative of the basic structure doctrine.

Fast forward to the present day, and the basic structure doctrine continues to be a vital component of the Indian Constitution. Recent developments, such as the Narendra Modi Sarkar case (2018), have reinforced the significance of this doctrine. In this case, the Supreme Court upheld the constitutional validity of the Goods and Services Tax (GST) regime, while also reiterating the importance of the basic structure doctrine in limiting Parliament's power to amend the Constitution.

As we navigate the complexities of the Indian Constitution, it becomes evident that Article 368 is not a straightforward provision. Rather, it is a nuanced and multifaceted aspect that requires careful analysis and interpretation. The basic structure doctrine, while limiting Parliament's power, also provides a safeguard against any attempt to undermine the fundamental features of the Constitution. In the context of current legal developments, the significance of Article 368 and the basic structure doctrine becomes even more pronounced, as we witness a growing trend of legislative activism and judicial activism. As the Indian polity continues to evolve, it is essential to grasp the intricacies of Article 368 and the basic structure doctrine, lest we risk undermining the very foundations of our Constitution.