Published On: 5th May 2025
Authored By: Saanya Vashishtha & Shreya Tiwari
Under Article 368 of the Indian Constitution, the Parliament has the power to amend the Constitution.[1] Clause 1 to Article 368 specifically calls it the Parliament’s “Constituent Power”.
1. Shankari Prasad case – Article 368 as a Constituent Power
In Shankari Prasad v. Union of India,[2] the Supreme Court stated that there are 3 types of Amendment under Constitution of India, 1 of simple legislative amendment and 2 included within the scope of Article 368.
- Outside scope of 368 – Legislative/Ordinary Lawmaking Power
- Requiring bare majority (outside the scope of 368)
- Within scope of 368 – Constituent Power
- Requiring special majority
- Requiring special majority along with state ratification
In Shankari Prasad case, a clear demarcation was drawn between such ordinary laws and constitutional laws, one of them being that unlike ordinary laws, laws/amendment made through constituent power of the Parliament do not come under the definition of “law” under S.13(2) of the Constitution, which states “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”[3]
Thus, constitutional amendment power, as a constituent power of parliament rather than an ordinary legislative power, is fundamentally different.
2. Sajjan Singh case – Fundamental Rights not immune to Constitutional Amendments
In the case of Sajjan Singh v. State of Rajasthan,[4] the Supreme Court held that Article 368 confers on the Govt. the power to amend all provisions of the Constitution. Reiterating that Law under Article 13(2) does not include constituent amendments, which are laws made in exercise of constitutional power rather than legislative power. It was not the intention of the makers of the constitution to make Fundamental Right immune to constitutional amendment under 368, and rather their goal was to make the rights open to changes as the country progresses.
From these 2 cases, we can see how the constitutional amendment, laws made in exercise of constituent power, are given a sort of “higher” status than legislative power as they are not included in the ordinary meaning of “law” under Article 13(2) of the Constitution, making them outside the scope of judicial review (interestingly since it’s the Judiciary itself which interpreted it in such a manner), and able to affect Fundamental Rights of the citizens.
3. Kesavananda Bharti case – Basic Structure Doctrine as a check and balance to constituent power under S.368.
While the case of IC Golaknath v. State of Punjab[5] overruled Sajjan Singh and Shankari Prashad, stating constitutional amendment under 368 do come under ambit of Law under S.13(2), the case of Kesavananda Bharti overruled Golaknath case and re-upheld Sajjan Singh and Shankari Prasad, albeit with restrictions.
In the case of Kesavananda Bharti v. State of Kerela, the Court stated that while law under Art.13 does not include constitutional amendments under 368, and they can amend the Fundamental Rights, they cannot amend the “Basic Structure” of the Constitution.[6]
The Basic Structure is essentially a limitation imposed on the constituent power of the parliament.
4. Indra Gandhi v. Raj Narain – Demarcation between Checks and Balance for Laws made by constituent power (Such as constitutional amendment under 368) and laws made by legislative power (Such as ordinary laws and amendments).
While it is true constituent power is a “higher power” compared to legislative power, it does not mean that whatever checks and balances are applicable to laws made through constituent power are also applicable to laws made through ordinary legislative power.
In the case of Indra Gandhi v. Raj Narain, while deciding on application of Basic Structure doctrine to Ordinary Law, Justice Ray held that the only ground for striking ordinary law is competency (Pith and Substance Test) and Violation of Fundamental Right (Article 13(2) of Constitution).[7]
Basic Structure Doctrine is not applicable to Ordinary Laws as it would be an encroachment on the legislative powers of the Parliament by the Judiciary and subsequently a constraint on the principle of separation of power.
Justice Chandrachud also stated that amendment power subjected to Basic Structure doctrine because it is a higher power. This can be attributed to Roznai’s Delegation Framework, where the Constituent Authority delates the power to the Amendment Authority to amend, rather than it being a power belonging to Legislation directly.
What we see from here is that nature of constitutional amendment not only gives it a special status, but also subjected to special restriction which ordinary laws are not subjected to, even though they are the “lower” power of parliament compared to constituent power.
This also sets a demarcation between not only the scope of these 2 authorities of the Parliament, but also the checks and balances for each of them.
5. M. Nagaraj case and IR Coelho Case – Further refinement for Application of Basic Structure Doctrine
Both the M. Nagaraj v. Union of India,[8] and IR Coelho v. State of Tamil Nadu,[9] gave further tests for determining application of the Basic Structure Doctrine.
In the M. Nagaraj Case, the Essence of Rights Test or the “Width and Identity” test was developed to see if the law is not destroying the constitutional limitation or altering the existing structure of the constitution.
In the IR Coelho case the “Rights” test was developed which stated that amendment under 9th schedule have to be tested on the touchstone of the basic or essential features of the constitution as reflected in Article 14, 19, 21 (Or the Golden Triangle Rights).
Conclusion
What we see from these cases and principles is that the constitution drafters have intended to clearly make a distinction between ordinary legislative power the Parliament has as well as the constituent power (which can be considered an original constituent power, created in the legal vacuum when our Constitution was still being drafted). And both of these powers have their own checks and balances.
Reference(s):
[1]India Const., art. 368.
[2]Sankari Prasad Singh Deo vs Union of India (UOI) and State of Bihar, AIR 1951 SC 458.
[3]India Const., art. 13, cl. 2.
[4]Sajjan Singh v. State of Rajasthan, 1965 AIR 845.
[5]Golaknath v. State of Punjab, 1967 AIR 1643.
[6]Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr, AIR 1973 SC 1461.
[7]Indira Nehru Gandhi vs Raj Narain and Ors., AIR 1975 SC 2299.
[8]M. Nagaraj & Ors. v. Union of India & Ors, AIR 2007 SC 71.
[9]I.R. Coelho (Dead) by L.Rs. vs. State of Tamil Nadu and Ors, AIR 2007 SC 861.
