Parliamentary Power of Amendment: Is it Unlimited?

A constitution is a set of fundamental laws and principles that regulate how a country is governed. The general concepts and framework of the law and government are usually stated in the Constitution. A written constitution is one that is created at a single point in time. As a result, it is not born but rather grows through amendments that become part of it through incorporation[1]. Without amending provisions, no written constitution is complete. The amending provision is, in some ways, the most significant component of any Constitution[2]. “An un- amendable Constitution is the worst tyranny of time or rather the very tyranny of time”[3] The ability of future generations to amend the written Constitution is critical because it allows them to evolve it according to their requirements.

In fact, the mechanism of amendment is the heart of a written Constitution. The amendment process provides an opportunity to express democratic views on vital constitutional ideals while remaining true to the Constitution’s essential principles[4]. The Indian Constitution is the world’s largest and most detailed legal instrument. A preamble, 22 parts, 395 articles, 12 schedules, and four appendices make up the constitution. It is the tool that allows the government to function. It is India’s supreme and final law. Various amendments, such as the 7th, 42nd, 73rd, and 74th, have made significant changes to India’s original Constitution. Because it made numerous revisions to the Constitution, the 42 Amendment Act is also known as the Mini Constitution. As a result, it now has 25 parts, 12 schedules, and around 470 articles. The original Articles and Parts are not changed, but sub-articles, sub-parts, and new ones are added[5].

The Constitution can be amended by the legislature. This power, however, is limited by the legitimacy and limitations of constitutional provisions. Article 368 of the Indian Constitution contains extreme flexi-bile/formal and rigid/informal provisions to satisfy society’s growing needs. The conflict between the Supreme Court’s control mechanism, the “Basic Structure Doctrine,” and Parliament’s plenary jurisdiction under Article 368. The amending procedure is divided into three categories: simple majority (needed for the passage of an ordinary law and specifically excluded from the scope of Article 368), special majority (as defined in Article 368(2)), and additional special majority (as ratification by resolution passed by not less than one-half of the state legislature). The paper discusses important cases such as the Kesavananda Bharti Case, Woman Rao Case, Golaknath Case, and others, providing us with comprehensive information on constitutional amendments and their limitations in India.


The terms “revision,” “change,” “modification,” “qualification,” “adaption,” and “adjustment” are all synonyms for “amendment.” The word “amendment” comes from the Latin word “amendere,” which means “to amend”. The word “amend” means “to put right,” “to repair,” or “to rectify.” In everyday speech, the word “amendment” connotes a minor alteration. In the case of Sajjan Singh[6], the meaning of the word amendment was sought for the first time.

“The amendment provision of Constitution may include the delectation of any one or more of its provisions and substitution in their place of new provision” was held by the court. In the Golaknath case[7], the majority of judges decided that “in amendment only fundamental changes or improvements can be made, not entire deletion of the provisions currently existent in this Constitution.” However, the Kesavananda Bharati case[8] provided the best interpretation of the meaning and scope of the term “amendment.” It was proposed that the term “amendment” be defined broadly to embrace any alteration or change. When used in connection with the Constitution, the term “amendment” can refer to the addition of a provision on a new and distinct subject, complete in itself and completely separate from other provisions, or to a specific article or clause, and is then used to indicate an addition to, the striking out of, or a change in that specific article or clause.

The Articles of the Constitution are classified into three categories for the purpose of amendment:

  • Amendment by Simple Majority- Articles that can be altered by Parliament with a simple majority, as needed by any ordinary statute. Simple majority approval is required for the revisions envisioned in Articles 5, 169, and 239-A. Articles 368 and 369 are specifically exempt from the procedure outlined in Article 368.
  • Amendment by Special Majority- Articles of the Constitution that, under Article 368, can be amended by a special majority. All constitutional amendments, with the exception of those mentioned above, must be approved by a majority of the entire membership of each House of parliament, as well as a majority of not less than 2/3 of the members present and voting.
  • By Special Majority and Ratification by State- In addition to the special majority specified above, the article requires approval by at least 12 state legislatures. In the amendment of these issues, the states are given a significant say. These are basic issues over which States have significant jurisdiction under the Constitution, and any unilateral alteration by Parliament could have a significant impact on the Constitution’s essential foundations. These articles are amendments to Article 368 that aim to change any of the provisions specified in the article.

In India, a Constitutional Amendment Bill can be introduced in either House of Parliament. It must be approved by a majority of the entire membership of each House, as well as a majority of not less than two-thirds of the members present and voting. When a Bill is passed by both Houses, it is presented to the President for his assent. If the President gives his assent, the Constitution is amended[9]. However, any amendment to the provisions of Article 368 requires a special majority in addition to the special majority mentioned above. Article 368, however, does not constitute the entire Code. The constitutional amendment process is a legislative process governed by its own set of rules[10].


In I. R. Coelho by LRs V. State of Tamil Nadu & Ors.[11], Parliament cannot enhance the amending authority by amending Art. 368 to neither confer on itself unlimited power of amendment and demolish and harm the fundamentals of the Constitution, nor can it employ Art. 31-B to achieve the same goal. The basic structure idea is an important and practical aspect of our constitutional law. The story of how this concept came to be is an intriguing component of India’s constitutional development. The legitimacy and limitations of the “basic structure doctrine” because of the Constitution’s amending power have sparked debate from time to time. Over the course of the year, several controversies have been contested in both the Supreme Court and the High Court. As a result, they are divided into three eras: Pre Kesavananda Bharati, from Kesavananda Bharati to I.R. Coelho, and Post I.R. Coelho.

Pre Kesavananda Bharati-

In Shankari Prasad v. Union of India[12], the Supreme Court was asked to assess whether fundamental rights can be changed under Art. 368. The constitutionality of the Constitution (1st Amendment) Act of 1951, which included Art. 31-A and 31-B of the Constitution, was questioned in that case. The Amendment was challenged on the grounds that it purported to take away or limit the rights granted by Part III, which was prohibited by Art. 13 (2) and hence void. It was contended that the term “State” in Art. 12 meant Parliament, and that “Law” in Art. 13 (2) meant constitution amendment. The Supreme Court, on the other hand, rejected the above argument, holding that the power to amend the Constitution, including fundamental rights, is found in Art. 368, and that the term “law” in Art. 13 (8) refers only to ordinary laws made in the exercise of legislative power, not to constitutional amendments made in the exercise of constituent power. As a result, even if a constitutional amendment restricts or eliminates one or more fundamental rights, it will be legal.

The legality of the Constitution (17th Amendment) Act, 1964, was questioned in Sajjan Singh v. State of Rajasthan[13]. The Supreme Court upheld the majority decision in Shankari Prasad’s case, ruling that the term “amendment of the Constitution” refers to amendment to all of the Constitution’s provisions.

 The legality of the Constitution (17th Amendment) Act, 1964, which brought certain State Acts into the Ninth Schedule was questioned anew in Golak Nath v. State of Punjab[14]. The Supreme Court, by a 6–5 majority, overturned its earlier decisions in the Shankari Prasad and Sajjan Singh cases, holding that Parliament could not take away or limit fundamental rights. According to the Chief Justice, fundamental rights are given transcendental status in our Constitution and are thus maintained out of Parliament’s reach. The Chief Justice used the Prospective Overruling theory to rule that this decision will only have prospective effect and that the 1st, 4th, and 17th Amendments will remain valid. It means that any decisions made before to the Golak Nath case are still valid.

The minority, on the other hand, claimed that the term “law” in Art. 13 (2) only related to ordinary law, not a constitutional change, and therefore the cases of Shankari Prasad and Sajjan Singh were correctly ruled. Art. 368, they claim, deals not only with the mechanism for amend the Constitution, but also with the power to amend it[15].

Amending the Ninth Schedule by Twenty-Ninth amendment:

The Constitution (29th Amendment) Act of 1972 amended the Ninth Schedule to add two Kerala Amendment Acts in support of land reforms following Entry-64, namely the Entry-65 Kerala Land Reforms Amendment Act, 1969[16] and the Entry-66 Kerala Land Reforms Amendment Act, 1971[17]. In the case of Kesavananda Bharathi[18], the legality of the 24th, 25th, and 29th amendments were challenged. The main issue at hand was the scope of Parliament’s amending power under Article 368 of the Constitution. This case is commonly referred to as the “Fundamental Right” case. The petitioners in this case were challenging the constitutionality of the Kerala Land Reforms Act of 1963. However, the Kerala Act was revised in 1971 and placed in the Ninth Schedule by the 29th Amendment to the Constitution during the petition’s pendency.

From Kesavananda Bharati to I.R. Coelho Case:

In Kesavananda Bharati V. State of Kerala, a writ petition was filed to challenge the constitutionality of the Kerala Land Reforms Act of 1963, as amended in 1969, and the legitimacy of preceding amendments was called into doubt. However, because the Act was amended in 1971 and placed in the Ninth Schedule by the Twenty-ninth Amendment, the petitioner was allowed to question the constitutional validity of the Twenty-fourth, Twenty-fifth, and Twenty-ninth Amendments as well. The petition was heard by a Supreme Court bench of thirteen judges. The petitioner argued that construing the power of amendment as empowering Parliament to wield the complete constituent power of the people and authorizing it to demolish or abrogate the Constitution’s essential features, basic elements, and fundamental provisions would be unconstitutional.

In this case[19], all the judges agreed that the Twenty-fourth Amendment is legal, and that parliament has the jurisdiction to change any or all of the Constitution’s provisions, including those relating to fundamental rights, under Art. 368, as amended by the Twenty-fourth Amendment. Seven of the judges (Sikri, C.J., Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna, and Mukherjea, JJ.) held that the power to amend the Constitution under Art. 368 is subject to certain implied and inherent limitations, and that parliament cannot change the Constitution’s basic structure or framework in exercising its amending power. Six of them (except Khanna, J.) believed that the fundamental rights entrenched in Part III relate to the Constitution’s core structure or framework and, as a result, are not amendable. By and large, six judges (Ray, Palekar, Mathew, Beg, Dwivedi, and Chandrachud, JJ.) were unwilling to recognize any limitation on parliament’s plenary right to amend the Constitution. Khanna, J., on the other hand, held that the right to property was not part of the Constitution’s basic structure or framework, tipping the balance in favor of the majority, which included Ray, Palekar, Mathew, Beg, Dwivedi, and Chandrachud, JJ[20].

 Shelat and Grover JJ. pointed out that the argument that there was no implied limitation since there were no explicit limitations was a contradiction in terms because implied limitations could only exist when express limitations were absent[21]. According to Hegde and Mukherjea, JJ., it is a general feature of all statutes, including the Constitution, that a grant of power is qualified by the implications of the context or by considerations arising out of the general scheme of the statute, and there is no difference between other power and the amending power under the Constitution in this regard.

The implied or inherent limitations on the power to amend under the unamended Art. 368 would still apply after the amendment of Art. 368, according to these judges, and the Twenty-fourth Amendment was valid by virtue of the exercise of the power to amend along with its implied or inherent limitations, which could not be eliminated within the current constitutional structure or framework. It was unnecessary for Jaganmohan Reddy, J. to consider the existence or non-existence of implied or inherent limitations. He explained that the word “amendment” was employed in the sense of authorizing a change in contrast to the destruction that a repeal or abrogation would suggest, and that Art. 368 only enables a change in the Constitution when read with other provisions. He concurred with the Chief Justice that the amending power in Art. 368 could not be expanded by changing the amending power, for a variety of reasons.

The majority in the Kesavananda Bharati case, signed by nine out of thirteen judges, reversed Golak Nath, and found that Art. 368 did not allow Parliament to change the Constitution’s basic structure or framework[22]. The majority also struck down the second part of Art. 31-C, which was added by the 25th Amendment and barred courts from determining whether a law protected by that article gave effect to the policy of securing the directive principles mentioned in that article, namely, the directives in Art. 39(b) and Art. 39 (c)[23].

There should be no trouble recognizing what are basic aspects of the basic structure of the Constitution if his historical context, the Preamble, the overall scheme of the Constitution, and the relevant sections therein, including Art. 368, are kept in mind. These terms are more emphatic when it comes to the theory of the basic structure, because the federal and democratic structure of the Constitution, the division of powers, and the secular character of our state are far more concrete than carelessness or natural justice[24].

The majority viewed the theory of implied limitation as having substantial force, despite the fact that it was not accepted in the Golak Nath case, and it was shelved to be dealt with later when the situation arose in which the Parliament sought to destroy the structure of the Constitution embodied in provisions other than Part-III of the Constitution[25]. This argument was then taken up by Nani Palkhivala in the Kesavananda Bharati case and successfully transformed to the theory of basic structure, as it stands now, thanks to several additional elements introduced by the Supreme Court under this umbrella throughout time.

Parliament’s amending power through Art. 31-B read with Ninth Schedule:

By excluding judicial review in the exercise of the legislature’s amending power, Article 31-B read with the Ninth Schedule of the Constitution tends to confer uncontrolled power on the legislature; whereas the doctrine of basic structure of the Constitution empowers the courts to control that uncontrolled power through judicial review, including the amending power exercised by the legislature in pursuance of article 31-B read with ninth schedule. This is necessary to sustain the fundamental basis of constitutional primacy. True, the overlaid basic structure concept reduces the effectiveness of Article 31-B, but that is unavoidable considering the development the laws have made since Kesavananda Bharati’s case. Since the constitutional validity of the First Amendment incorporating article 31-B has already been established, it is necessary to re-read or re-define it to maintain its legitimacy, subject to the overriding requirement of basic structural doctrine[26].

The nine-member constitutional bench in the I.R. Coelho case[27] has examined the entire matter from scratch, based on the court’s first principles of constitutionalism as developed in Kesavananda Bharati and expounded in later decisions.

Post I.R. Coelho Case:

The constitutional validity of the National Tax Tribunal Act, 2005 (NTT Act) was challenged, along with the constitutional validity of the Forty-Second Amendment, 1976, in Madras Bar Association V. Union of India[28], on the grounds that it violates the Constitution’s basic structure by restricting the power of judicial review by high courts. Another argument was that the National Tax Tribunal was an extra-judicial organization that could not replace the jurisdiction of courts by performing judicial functions. In his majority opinion, Khehar J. held that Parliament has the competence to make legislation and to vest adjudicatory responsibilities, which had hitherto been vested in the high courts, with an alternate body.

The exercise of this power would not, in and of itself, be a violation of the Constitution’s basic structure. If Parliament does to ensure that the newly formed court or tribunal complies to the norms and salient characteristics of the court sought to be replaced while implementing such legislation, the Constitution’s basic structure will be breached. This would also be indicative of constitutional conventions relating to Westminster-model constitutions. On these grounds, certain crucial parts of the NTT Act were found unconstitutional, and since these provisions were so important to the Act, the NTT Act was deemed unconstitutional.

 In a separate but concurring judgment in the NTT case, R.F. Nariman J. quoted paragraphs from L. Chandra Kumar V. Union of India[29], which restored the supervisory jurisdiction of high courts, so that a reference to article 323 B would be unnecessary because the legislative competence to make a law relating to tribunal would be traceable to Entries-77 to 79, and 95 of list-I entry 65 of list-II a and 46 of list- III of the 7th schedule to the Constitution of India. The power of judicial review over legislative action, which is conferred in the high courts under Art. 226 and the Supreme Court under Art. 32 of the Constitution, was declared to be an inherent and important aspect of the Constitution, forming part of its basic structure. As a result, the power of high courts and the Supreme Court to examine the constitutional legitimacy of legislation cannot ordinarily be revoked or limited.

R. Gandhi V. Union of India[30], in which the high court held that the creation of the National Company Law Tribunal and National Company Law Appellate Tribunal and vesting in them the powers and jurisdiction exercised by the high court in regard to company law matters, are not unconstitutional, differs from the NTT case because the prior case deals with one specialized tribunal replacing another specialized tribunal at the original stage. When it said that high courts’ jurisdiction could be taken away by deleting provisions for appeals, revisions, or references, and that these functions traditionally performed by courts could be transferred to tribunals, the court was only referring to a situation where the high court was supplanted at the original and first appellate stage, where questions of fact, not substantial questions, were to be considered. As a result, we can see how the basic structure theory was used to overturn ordinary laws[31].

A Supreme Court Constitution Bench held in State of West Bengal V. Committee for Protection of Democratic Rights that the power of judicial review conferred on the Supreme Court and high courts is an integral part of the Constitution’s basic structure, and that no Act of Parliament can exclude or curtail this power of the constitutional courts.

Khehar J. observed in the landmark Supreme Court Advocates on Record Association v. Union of India decision that all constitutional provisions, based on which the concerned “basic features” arise, are available for examining the constitutional validity of an ordinary legislative enactment, and that even a single provision breach is sufficient to render the legislation unconstitutional. If several articles of the Constitution are said to have been broken in a cumulative effect, all of them may be commenced, if necessary. In no uncertain terms, Khehar J. held that a challenge to an ordinary legislative enactment based on the doctrine of “basic structure” cannot be treated as having a legal infirmity. It was also decided that if a challenge to ordinary legislation is brought because of the cumulative effect of several articles of the Constitution, it is not always necessary to list out each article when the cumulative effect has already been determined to be one of the Constitution’s basic features. To summarize, it was previously stated that ordinary legislation can be challenged based on violating the basic structural concept. Madan B. Lokur, on the other hand, followed the majority’s decision in State of Karnataka v. Union of India[32]. “Only a constitutional amendment can be challenged on the ground of violation of the doctrine of basic structure, not an ordinary legislation.” he says.


For a long period in India, it was contested whether the Supreme Court should have the authority to examine constitutional amendments. Theoretically, there can be no dispute that Parliament, as the people’s representative, must be able to amend the Constitution to meet the requirements of the community. Between the court and Parliament, Parliament must be the last arbiter of what the Constitution should include[33].

In the area of property rights and agricultural reform, Parliament used its constituent power to make several revisions to the Constitution. However, in the Kesavananda Bharati case, the Supreme Court reversed its prior ruling that the word “law” in Art. 13 (2) encompassed constitutional changes and that the article operated as a limitation on the right to alter the Constitution in Art. 368 was erroneous and overruled. Furthermore, by creating the idea of basic structure theory, the Court in this judgment put Parliament’s power in jeopardy. According to this theory, the Parliament is not allowed to change the Constitution’s basic structure or framework under Art. 368. As a result, Parliament made another blunder by introducing Clauses (4) and (5) in Art. 368 of the Constitution by the 42nd Amendment. These clauses declare Parliament’s unrestricted power and make it plain that the Constitution Amendment Act will not be subject to judicial scrutiny on any basis.

In the Minerva Mills case, the Supreme Court declared clauses (4) and (5) of Art. 368 illegal, correcting Parliament’s error in the 42nd Amendment. Furthermore, the Court concluded that because a limited amending authority is one of the Constitution’s basic elements, the limitation on that power cannot be removed. The Supreme Court expanded on the concept of basic structure in cases such as Waman Rao, Bhim Singhji, S.P. Gupta, Samapth Kumar, Kihota Hollahan, and L. Chanrakumar, among others. Finally, in the case of I. R. Coelho, the Supreme Court correctly concluded that Parliament’s power to amend is subject to judicial review. While deciding the legitimacy of changes, the court stressed the notion of Basic structure theory propounded by it in the famous Kesavananda Bharati’s judgment. It’s how, over the years, the expansion and contraction of Parliament’s power have been questioned and contested in numerous cases, with I.R. Coelho’s case finally resolving the issue.

The Indian Constitution has been amended a total of 104 times since independence. Several of these have been challenged in the Supreme Court in cases ranging from Sankari Prasad to I.R Cooelhi. On the basis that Parliament, as the representative of the people, had to meet the needs of the society, it adopted some controversial laws and changed the Constitution to give itself constituent powers. When the amendments were challenged in the Supreme Court, the justices looked at the amendments’ validity and restrictions using the touchstones of judicial review and the basic structure doctrine. In cases ranging from Golak Nath to Keshavanda to I.R. Cooelhi, the court has attempted to strike a balance between Parliament’s amending powers and the Judiciary’s power to keep it within bounds. The constitution has become livelier as a result of this balance, and it has been protected from being disfigured and defiled.

[1] CHATURVEDI, Amendment to the Constitution 29 (1985).

[2] JAMES WILFORD GARNER, Political science, and Government 528.

[3] ASHOK DHAMIJA, Need to Amenda Constitution 12 (2007).

[4] SUDHIR KRISHNASWAMY, Democracy and Constitutionalism in India 3 (2d ed. Oxford University Press 2011).

[5] Subs. By the Constitution (Forty-Second Amendment) Act, 1976, s.2 for “SOVEREIGN DEMOCRATIC

  REPUBLIC” (w.e.f) 3-1-1977) Subs by ibid, for “Unity of the Nation” (w.e.f 3-1-1977).

[6] A.I.R 1965 S.C. 845.

[7] A.I.R. 1967 S.C. 1643 (India).

[8] (1973) 4 S.C.C. 225 (India).

[9] The Constitution (24th Amendment) Act, 1971.

[10] J.N. PANDEY, The Constitutional Law of India 728-29 (45thed. CLC 2008).

[11] A.I.R. 2007 S.C. 861 (India).

[12] A.I.R. 1951 S.C. 455 (India).

[13] A.I.R. 1971 S.C. 1643 (India).

[14] A.I.R 1971 S.C. 1643 (India).

[15] PANDEY, supra note 24 at 730.

[16] Kerala Land Reforms Act, 1969, NO. 35, Acts of Kerala State Legislature, 1969 (India).

[17] Kerala Land Reforms Act, 1971, NO. 35, Acts of Kerala State Legislature, 1971 (India).

[18] A.I.R 1973 S.C. 1461 (India)

[19] (1973) 4 S.C.C. 225 (India).

[20] V.N. SHUKLA, Constitution of India 998 (11th ed. EBC 2010).

[21] (1973) 4 S.C.C. 225 (India).

[22] TRIPATHY: Some Insights into Fundamental Rights, 1 ff (1972).

[23]  V.N. SHUKLA, Constitution of India 998 (11th ed. EBC 2010).

[24] H.M. SEERVAI, Constitutional Law of India 1568 (2nd ed. Vol. 2).

[25] (1967) 2 S.C.R. 762.

[26] VIRENDRA KUMAR, Basic Structure of the Indian Constitution: Doctrine of Constitutionally Controlled

Government, 49 Journal of the ILI. 375-376 (2007).

[27] A.I.R. 2007 S.C. 861 (India).

[28] (2014) 10 S.C.C. 1 (India).

[29] (1997) 3 S.C.C. 261 (India).

[30] (2010) 11 S.C.C. 1 (India).

[31] SETU GUPTA, Vicissitudes and limitations of the Doctrine of Basic Structure, Winter Issue ILI Law Review.

    110, 119 (2016).

[32] (2010) 3 S.C.C. 571 (India).

[33] (2016) 5 S.C.C. 1 (India).

Author: Baisakhi Rout from JGLS, Sonipat.

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