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What are the limitations on the constituent power? The answer to this question is found in Election case,

Kesavananda Bharati case and the Miverva Mills case.

1. In the Election case, the Supreme Court pointed out that Parliament, acting in its constituent capacity, cannot exercise judicial power itself directly without vesting it in itself first by an amendment of the Constitution (Beg, J.). The resolution of an election dispute by the amending body is not a law. It is either a judicial sentence or a legislative judgment like of attainder (Mathew, J.).

2. Other limitations on the power of Parliament to amend the Constitution are laid down by the Supreme Court in

Kesavananda Bharati’s case. The Majority in that

case laid down the following propositions with regards to amendment of the Constitution:

(a)The expression “Amendment of the Constitution” in Article 368 means “any addition or change in any of the provisions of the Constitution within the broad counters of the preamble” and the constitutional amendment does not include the repeal of the Constitution.

(b)There are no implied limitations on the power of the amendment.

(c) Article 13(2) is not applicable to an amendment of the Constitution. Chandrachud, J. rightly pointed out that Article 368 avoids with scrupulous care the use of the word “law”, because this is a fundamental distinction between “constitutional law” and “ordinary law”.

3. In Minerva Mills case, the Supreme Court laid down the following principles:

(a)The power to destroy is not a power to amend.

(b)The Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary.

(c) The abridgement of a fundamental right may involve violation of basic structure. It would all depend on the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution. Hence the Court concluded that “the conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction seems to be a transparent case of transgression of the limitations on the amending power.”

4. Parliament, however, has no power to amend the basic features of the Constitution.

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CONCLUSION:-

The problem of the nature and scope of constituent and amending power raised ever since, Golak Nath’s case still remains unresolved. As a matter of strict law, it remains possible to argue even now that Kesavananda Bharati’s case did not decide that basic structural limitations contained the amending power; that the decision in Indira

Nehru Gandhi’s case was based on the concessions; that

there is no warrant either to accept the Kesvananda

Bharati’s summary as binding or to accept the gloss placed

by Justice Khanna in Indira Nehru Gandhi as being elucidative of Kesavananda rationes; and the Minerva Mills case and Waman Rao case in so far as they regard either

Kesavananda Bharati or Indira Nehru Gandhi as binding.

This strategy of argument remains open to the government in future and it is idle to say that it exists only by way of “flutter in ivory towers”. Indeed, the very arguments used by the Court for rejecting ‘stare decisis’ may well apply to this strategy.

But even if the present holdings that Kesavananda judgment imposes basic structural limitations on amending power is accepted as representing the Constitutional consensus, the decisions so far do not fully elucidate what these limitations precisely are. It appears however that certain limitations are emergent. Firstly, a total repeal of the Constitution would be violative of basic structure. Secondly, any expansion of Article 368 powers to achieve this consequence would also be similarly violative. Thirdly, any attempt to deprive the court of the power of judicial review over Constitutional amendments would also be transgressive of basic structure. Fourthly, the power to amend may not be used to adjudicate specific disputes. Fifth, the freedoms guaranteed by Article 14, 19 and 21 constitute limits to power of amendment. Sixth, any

attempt to abrogate Part IV of the Constitution may violate the basic structure. Seventh, the ‘democratic’ nature of the Constitution may not be validly transformed by the use of Article 368 power.

The scope of basic structure limitations on the amending power above and beyond these seven categories remains indeterminate. It would appear that the Supreme Court is inclined to delineate these limitations case by case, rather than abstractly.

Since Kesavananda Bharati case, the matter has been considered by the Supreme Court in several cases and the Court has had occasion to declare several features of the Constitution as fundamental features or basic structures of the Constitution.

It is generally agreed that all fundamental Rights do not constitute basic features. For example, in Kesavananda itself it has been held that the right to property does not pertain to the basic structure of the Constitution53_{. Now} that Article 31 has been repealed, and Article 300-A included in the Constitution, right to property has ceased to be a Fundamental Right, as well as basic feature of the Constitution. It is now merely a constitutional right54_.

We can say that Fundamental Rights as a whole may not form a basic structure/feature of the Constitution but a certain Fundamental Right or some of them together do form a very important part of the “Basic Structure” of the Constitution.

The final word on the issue of Amendability of Fundamental Rights can be related to the “Theory of Basic Structure” of the Constitution defined in Kesavananda Bharati’s case.

53 Jilubhai Nanbhai Khachar v. State of Gujrat, AIR 1995 SC 142. 54 J.N. Khachar v. State of Gujrat AIR 1995 SC 154.

It may be said that the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court –– a scenario that is unlikely to change in the near future. While the idea that there is such a thing as a basic structure to the Constitution is well established; its contents cannot be completely determined with any measure of finality until a judgment of the Supreme Court spells it out. Nevertheless the sovereign, democratic and

secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens, etc. are some

of the essential features of the Constitution that have appeared time and again in the apex court's pronouncements. One certainty that emerged out of this tussle between Parliament and the Judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.

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