The power of Parliament to amend the Constitution is limited". Examine this statement critically in view of the Constitution (24th and 42nd) Amendment Acts and Supreme Court decisions in that regard.

The Constitutional Text and the Original Controversy

Article 368 provides the mechanism through which Parliament may amend the Constitution by way of addition, variation, or repeal, requiring a Bill passed by a special majority in each House, and, for provisions touching the federal structure specified in its proviso, ratification by at least one-half of the State Legislatures, before presidential assent completes the process. The critical, and long-unresolved, question was whether this power was subject to any implied limitation beyond these procedural requirements, particularly whether Parliament could use Article 368 to abridge or take away the fundamental rights guaranteed under Part III.

This question first arose in Sri Sankari Prasad Singh Deo v. Union of India, where the Supreme Court held that a constitutional amendment does not constitute "law" for purposes of Article 13(2), and accordingly Parliament's amending power, including its power over fundamental rights, was treated as unrestricted, a position substantially reaffirmed in Sajjan Singh v. State of Rajasthan.

The Golak Nath Reversal and the Twenty-Fourth Amendment

The Supreme Court reversed this position in I.C. Golak Nath v. State of Punjab, holding by majority that a constitutional amendment does amount to "law" within the meaning of Article 13(2), and that Parliament could not, therefore, use its amending power to abridge or take away fundamental rights, though the Court applied prospective overruling to preserve amendments already made.

Parliament responded directly to this decision through the Constitution (Twenty-Fourth Amendment) Act, 1971, which amended Article 368 in two significant ways. First, it inserted the phrase "in exercise of its constituent power" into Article 368(1), expressly characterising the amending power as a distinct constituent power rather than ordinary legislative power. Second, it inserted a new clause, later renumbered as Article 368(3), providing that nothing in Article 13 shall apply to any amendment made under Article 368, thereby directly overriding the Golak Nath ruling and restoring Parliament's asserted power to amend fundamental rights. The Twenty-Fourth Amendment also made presidential assent to a constitutional amendment Bill mandatory rather than discretionary, removing any possibility of the President declining to sign such a Bill. The stated purpose of this Amendment was unmistakably to reassert an expansive, essentially unrestricted amending power, particularly with respect to Part III.

Kesavananda Bharati: Upholding the Twenty-Fourth Amendment While Limiting the Power It Restored

The constitutional validity of the Twenty-Fourth Amendment, along with the broader question of the limits on Parliament's amending power, came before a thirteen-judge Bench in Kesavananda Bharati v. State of Kerala, the largest Bench ever constituted by the Supreme Court. The Court, by a narrow majority, upheld the validity of the Twenty-Fourth Amendment, thereby confirming that Parliament does possess the power to amend fundamental rights and that Article 13 does not apply to constitutional amendments made under Article 368, effectively overruling Golak Nath on this specific point. However, in the very same judgment, the majority held that this wide amending power, while extending even to fundamental rights, does not extend to altering or destroying the "basic structure" or "basic features" of the Constitution. The Court reasoned that the word "amend" itself presupposes the continued existence and identity of the document being amended, and that Parliament's constituent power, however broad in reach, cannot be used to transform the Constitution into an essentially different document altogether. The judgment thus produced a carefully balanced outcome, restoring Parliament's power over fundamental rights as the Twenty-Fourth Amendment intended, while simultaneously subjecting that very power, and indeed every exercise of Article 368, to the newly articulated basic structure limitation, a limitation the Court deliberately left open-ended rather than confined to an exhaustive list, identifying features such as the supremacy of the Constitution, the republican and democratic form of government, the secular character of the polity, separation of powers, and the federal structure as illustrative components of this basic structure.

The Forty-Second Amendment: An Attempt to Overcome Kesavananda Bharati

Parliament's response to the constraint imposed by Kesavananda Bharati came through the Constitution (Forty-Second Amendment) Act, 1976, enacted during the 1975 to 1977 Emergency, an enactment sometimes described as a "mini-Constitution" given the sheer scale of changes it introduced. Section 55 of this Amendment inserted two new clauses into Article 368. Clause (4) provided that no amendment of the Constitution, including provisions of Part III, made or purporting to have been made under Article 368, whether before or after the commencement of this provision, shall be called in question in any court on any ground whatsoever, thereby seeking to place every constitutional amendment entirely beyond the reach of judicial review. Clause (5) declared, for the removal of doubts, that there shall be no limitation whatever on the constituent power of Parliament to amend, by way of addition, variation, or repeal, the provisions of the Constitution under Article 368, a clause explicitly designed to erase the basic structure limitation Kesavananda Bharati had just established, by declaring Parliament's amending power to be entirely without limit. The Forty-Second Amendment additionally amended Article 31C to extend primacy to all Directive Principles over Articles 14 and 19, considerably expanding an earlier, more limited version of that provision, and made several other far-reaching changes affecting the judiciary's power of review over central legislation and the balance between Parliament and the courts.

Minerva Mills: Striking Down the Forty-Second Amendment's Overreach

The constitutionality of clauses (4) and (5) of Article 368, along with the expanded Article 31C, was examined by the Supreme Court in Minerva Mills Ltd. v. Union of India. The Court struck down both clauses (4) and (5) as unconstitutional, holding that judicial review constitutes part of the Constitution's basic structure, and that a provision seeking to place every constitutional amendment beyond judicial scrutiny directly offends this basic feature, since without the possibility of judicial review, the basic structure limitation itself established in Kesavananda Bharati would become entirely unenforceable and illusory. On clause (5), the Court articulated what remains perhaps the single most quoted statement of principle in this entire line of jurisprudence, holding that Parliament's amending power, being itself a power granted and limited by the Constitution, cannot be exercised so as to enlarge that very power into an absolute, unlimited one, since a limited amending power constitutes one of the basic features of the Constitution, and any attempt to convert this limited power into an unlimited one would itself amount to destroying an essential element of the constitutional scheme, in the Court's memorable phrase, akin to the Constitution's own creature seeking to devour its creator. The Court also struck down the amended Article 31C, holding that according unconditional and blanket primacy to all Directive Principles over Articles 14 and 19 would destroy the harmony and balance between fundamental rights and Directive Principles, itself a facet of the basic structure the Constitution seeks to preserve.

Critical Assessment of the Statement

The statement that Parliament's amending power is limited, therefore, withstands close scrutiny when tested against this specific sequence of events. The Twenty-Fourth Amendment sought to expand Parliament's power over fundamental rights, and succeeded, since Kesavananda Bharati upheld it, demonstrating that the amending power genuinely extends quite far, even into the domain of fundamental rights themselves. Yet, in the same breath, the Court imposed the basic structure limitation, showing that even this wide power operates within an outer boundary that Parliament itself cannot lawfully cross through the ordinary Article 368 procedure. The Forty-Second Amendment then attempted a far more radical expansion, seeking not merely to enlarge the substantive reach of the amending power but to declare it entirely unlimited and beyond any judicial check whatsoever, and this attempt was comprehensively defeated in Minerva Mills, confirming decisively that the amending power, whatever its considerable breadth, remains a power operating within the four corners of a Constitution that has itself defined and constrained it, rather than an unconstrained sovereign power capable of redefining its own limits.

Illustration

Suppose Parliament today were to pass an amendment, following the full procedure of Article 368, including special majority and, where relevant, State ratification, declaring that Article 368 clauses (4) and (5), as originally inserted by the Forty-Second Amendment, are hereby restored and that no constitutional amendment shall ever be subject to judicial review. Applying the reasoning of Minerva Mills Ltd. v. Union of India, this amendment, despite perfect procedural compliance, would again be struck down, since judicial review over constitutional amendments remains part of the basic structure, and Parliament cannot revive, through a fresh exercise of its own limited amending power, precisely the kind of unlimited power that the Court has already held such a power cannot confer upon itself. Contrast this with an amendment altering the composition of the Rajya Sabha within reasonable bounds, or adjusting the retirement age of judges, changes that, following the reasoning applied consistently since Kesavananda Bharati, would remain valid, since they touch no basic feature of the Constitution.

The critical examination of the Twenty-Fourth and Forty-Second Amendment Acts, read alongside Kesavananda Bharati v. State of Kerala and Minerva Mills Ltd. v. Union of India, therefore fully vindicates the statement that Parliament's power to amend the Constitution is limited, since even after Parliament twice attempted, through direct constitutional amendment, first to expand its reach over fundamental rights and then to declare itself entirely unconstrained, the Supreme Court's consistent and ultimately decisive response was to affirm that no exercise of Article 368, however procedurally impeccable, can ever extend to destroying the basic structure of the Constitution, a principle that today stands as one of the most firmly entrenched features of Indian constitutional law.