Can Parliament amend Part III of the Constitution of India relating to Fundamental Rights? Discuss.

The Textual Basis: Article 368

Article 368 confers upon Parliament the "constituent power" to amend, by way of addition, variation or repeal, any provision of the Constitution, following a special procedure that requires a Bill to be passed by each House with a majority of the total membership and a majority of not less than two-thirds of members present and voting, followed by the President's assent, which after the Twenty-Fourth Amendment became obligatory rather than discretionary. For certain entrenched provisions touching federal architecture — such as the manner of electing the President, the extent of executive power of the Union and States, the organisation of the Supreme Court and High Courts, and Article 368 itself — an additional safeguard requires ratification by the legislatures of not less than one-half of the States before presidential assent can be given. Nothing in the original text of Article 368 singled out Fundamental Rights for special protection or exclusion from this amending process, and this textual silence became the seedbed of one of the most significant constitutional controversies in Indian legal history.

The First Phase: Shankari Prasad and Sajjan Singh

The question first arose in Shankari Prasad Singh v. Union of India, where the Constitution (First Amendment) Act, 1951, curtailing the right to property under Article 31, was challenged on the ground that the word "law" in Article 13(2) — which prohibits the State from making any law abridging Fundamental Rights — should be read to include a constitutional amendment. The Supreme Court rejected this argument, holding that "law" in Article 13 refers only to ordinary legislative enactments made in exercise of legislative power, not to amendments made in exercise of the qualitatively different constituent power under Article 368. Consequently, Fundamental Rights, while immune from erosion by ordinary statute, could be curtailed, abridged, or even nullified through the constitutional amending process. Thirteen years later, in Sajjan Singh v. State of Rajasthan, a 3:2 majority reaffirmed this position while examining the Seventeenth Amendment, though Justices Hidayatullah and Mudholkar in dissent sowed early doubts, with Hidayatullah, J. questioning whether rights so solemnly assured in Part III could truly be "playthings of a special majority," and Mudholkar, J. hinting, for the first time, at the existence of certain "fundamental features" of the Constitution incapable of destruction.

The Reversal: Golak Nath v. State of Punjab

Encouraged by those dissenting observations, the question was reagitated in I.C. Golak Nath v. State of Punjab in 1967, decided by an eleven-judge bench with a razor-thin 6:5 majority. Overruling Shankari Prasad and Sajjan Singh, the majority, led by Subba Rao, C.J., held that Fundamental Rights occupied a "transcendental position" and that Parliament possessed no power whatsoever under Article 368 to abridge or take away any Fundamental Right, treating a constitutional amendment as "law" within the meaning of Article 13(2) itself. The majority feared that permitting amendment of Part III might eventually allow rights to be eroded altogether, sliding the country toward a totalitarian order. Recognising the disruptive potential of applying this ruling retrospectively — since numerous agrarian and socio-economic reforms since 1950 rested on the premise that Parliament could amend rights — the Court invoked the doctrine of prospective overruling, sparing past amendments but declaring that going forward, no Fundamental Right could be touched by the amending process.

The Legislative Response: Twenty-Fourth Amendment

To neutralise Golak Nath, Parliament enacted the Constitution (Twenty-Fourth Amendment) Act, 1971, inserting into Article 368(1) an explicit declaration that Parliament may, in exercise of its "constituent power," amend "by way of addition, variation or repeal any provision of this Constitution," and adding a clause stating that nothing in Article 13 would apply to any amendment made under Article 368. This was Parliament's direct assertion of its authority to bring Fundamental Rights squarely within the amending process, setting the stage for the definitive constitutional confrontation.

The Watershed: Kesavananda Bharati v. State of Kerala

The validity of the Twenty-Fourth, Twenty-Fifth, and Twenty-Ninth Amendments was tested before a specially constituted thirteen-judge bench in Kesavananda Bharati v. State of Kerala, the longest-argued case in the Court's history, resulting in eleven separate opinions running over a thousand pages. By a majority of 7:6, the Court overruled Golak Nath on the specific point that Article 368 lacked substantive amending power, holding instead that Article 368 always contained both the power and the procedure to amend any part of the Constitution, including Part III. Yet the majority simultaneously imposed a crucial qualification: Parliament's amending power, however wide, "does not include the power to destroy or abrogate the basic structure or framework of the Constitution." This was the birth of the basic structure doctrine.

Different judges articulated the basic structure with varying emphasis. Sikri, C.J. identified supremacy of the Constitution, the republican and democratic form of government, the secular character of the State, separation of powers, and the federal character of the Constitution as core features, tracing them to the freedom and dignity of the individual underlying the Preamble. Shelat and Grover, JJ. went further, expressly including the dignity of the individual as secured by the various freedoms in Part III within the basic structure. Khanna, J., whose vote proved decisive, took a narrower, more textually anchored view, holding that the word "amendment" itself implied that the old Constitution must survive without loss of identity, and specifically singled out the right to property as capable of complete abrogation while leaving other rights ambiguous. Applying this test, the Court upheld the Twenty-Fourth Amendment in its entirety, upheld the first part of Article 31C (immunising laws implementing Articles 39(b) and (c) from challenge under Articles 14 and 19), but struck down the second part of Article 31C, which barred courts from even examining whether such a law genuinely implemented that directive principle, since ousting judicial review in this blanket fashion damaged the basic structure.

Consolidation: Indira Nehru Gandhi and the Forty-Second Amendment

In Indira Nehru Gandhi v. Raj Narain, the Court struck down clause 4 of the Thirty-Ninth Amendment, which sought to retrospectively validate the Prime Minister's own election and oust judicial scrutiny of it, holding that this offended free and fair elections, the rule of law, and separation of powers — all recognised as facets of the basic structure. Undeterred, Parliament through the Forty-Second Amendment, 1976, added clauses (4) and (5) to Article 368 declaring that no constitutional amendment could be questioned in any court on any ground, and that there would be "no limitation whatever" on Parliament's constituent power. This provoked the decisive rebuke in Minerva Mills Ltd. v. Union of India, where the Supreme Court, by a 4:1 majority, struck down both clauses, reasoning that a limited amending power was itself a basic feature of the Constitution, and that Parliament, being a creature of the Constitution, could not enlarge its own amending power to become unlimited, for that would allow it to convert a controlled constitution into an uncontrolled one. The Court also struck down the widened Article 31C, which sought to give all Directive Principles primacy over Articles 14 and 19, holding that the harmony and balance between Fundamental Rights and Directive Principles was itself part of the basic structure.

Ninth Schedule and Judicial Review: I.R. Coelho

The doctrine's reach was further extended in I.R. Coelho v. State of Tamil Nadu, where a nine-judge bench held that laws inserted into the Ninth Schedule after 24 April 1973 (the date of the Kesavananda judgment) would remain open to challenge if they violated rights forming part of the basic structure, particularly the essence of Articles 14, 19, and 21, applying what the Court termed the "rights test" and "essence of the right test." This confirmed that even the seemingly absolute immunity conferred by Article 31B could not shield legislation that annihilated the basic structure.

Illustrative Summary of the Doctrinal Journey

The Present Position

Parliament can amend any provision of Part III, including altering, restricting, or even removing a particular right — as happened with the right to property, ultimately relocated from Part III to Article 300-A as a mere legal right — provided the amendment does not damage the basic structure. Whether a particular Fundamental Right forms part of the basic structure is not decided in the abstract but is tested case by case, using an "effect test" that examines the real consequence of the amendment on the right in question rather than its form. This settled position represents a carefully calibrated compromise: it preserves Parliament's constituent authority to adapt the Constitution to changing social and economic needs, while reserving to the judiciary the final power to ensure that no transient parliamentary majority can, through the amending process, dismantle the essential identity of the constitutional document itself.