Indian Constitution has conferred the amending power on the ordinary legislative institutions with a few procedural hurdles. In view of this statement, examine the procedural and substantive limitations on the amending power of the Parliament to change the Constitution.

Introduction

The Indian Constitution, while being a living document, provides for its amendment under Article 368 to adapt to changing socio-political and economic needs. However, this power is not absolute and is subject to procedural hurdles and substantive limitations to safeguard the Constitution's basic structure and democratic ethos. The balance ensures flexibility without compromising the foundational principles.

Key Dimensions of Constitutional Amendment

Procedural Limitations on Amending Power

The procedure for amending the Constitution is outlined in Article 368, which prescribes different methods based on the nature of the amendment:

• Simple Majority Amendments: Certain provisions, such as those related to the creation of new states (Article 3), can be amended by a simple majority in Parliament. These are not considered formal constitutional amendments.

• Special Majority Amendments: Most constitutional amendments require a special majority (two-thirds of members present and voting, and a majority of the total membership of each House). For example, amendments to Fundamental Rights or Directive Principles.

• Special Majority with State Ratification: Amendments affecting the federal structure (e.g., distribution of legislative powers, representation of states in Parliament) require ratification by at least half of the state legislatures in addition to a special majority in Parliament.

• Restrictions on Initiation: Constitutional amendments can only be introduced in Parliament, not in state legislatures, and must be passed by both Houses. The President's assent is mandatory.

Substantiation

• ★ Example: The 42nd Amendment Act (1976), which introduced sweeping changes, followed the special majority procedure.
• Judicial Reference: In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court upheld the procedural sanctity of Article 368.

Substantive Limitations on Amending Power

The substantive limitations arise primarily from the Basic Structure Doctrine, which restricts Parliament from altering the Constitution's core principles.

1. Basic Structure Doctrine

• Introduced in Kesavananda Bharati v. State of Kerala (1973), the doctrine ensures that amendments cannot destroy the basic structure of the Constitution. Key elements include:
  • Supremacy of the Constitution
  • Rule of Law
  • Separation of Powers
  • Judicial Review
  • Federalism
  • Secularism
  • Parliamentary Democracy

2. Judicial Review

• The judiciary has the power to review constitutional amendments to ensure they do not violate the basic structure. For instance:
  • Minerva Mills v. Union of India (1980): Struck down parts of the 42nd Amendment for violating the balance between Fundamental Rights and Directive Principles.
  • I.R. Coelho v. State of Tamil Nadu (2007): Held that even laws placed in the Ninth Schedule are subject to judicial review if they violate the basic structure.

3. Limitations on Fundamental Rights

• Amendments cannot abrogate or nullify Fundamental Rights. For example:
  • Golak Nath v. State of Punjab (1967): Initially held that Parliament could not amend Fundamental Rights (later overruled by Kesavananda Bharati).

4. Federal Structure

• Amendments affecting the federal balance require state ratification, ensuring that the states' autonomy is not undermined.

Substantiation

• ★ Example: The 99th Amendment Act (2014), which sought to establish the National Judicial Appointments Commission (NJAC), was struck down in Supreme Court Advocates-on-Record Association v. Union of India (2015) for violating judicial independence.

Way Forward

To ensure a balance between flexibility and rigidity, the following measures can be considered:

• Codification of Basic Structure Elements: Clearly defining the components of the basic structure to reduce ambiguity.
• Strengthening Federalism: Enhancing the role of states in the amendment process for provisions affecting their interests.
• Public Consultation: Incorporating wider public participation in significant constitutional amendments to uphold democratic values.

Conclusion

The amending power of Parliament under Article 368 reflects the dynamic nature of the Indian Constitution. However, the procedural safeguards and substantive limitations, particularly the Basic Structure Doctrine, ensure that this power is exercised responsibly, preserving the Constitution's spirit and integrity. This balance between flexibility and rigidity is a hallmark of India's constitutional framework, enabling it to adapt while safeguarding its core principles.