Can Parliament Alter Your Rights? Understanding the Amendability of Fundamental Rights

Introduction: The Core Question

• The Indian Constitution guarantees Fundamental Rights (Part III) — the foundation of liberty, equality, and justice.

• Since independence, one recurring debate has shaped India’s constitutional history:
  Can Parliament amend or alter Fundamental Rights?

• This conflict between Parliament’s power to amend (Article 368) and Judiciary’s power to review (Article 13) defines the Constitutional balance of India.

The Constitutional Framework

Article 13

• Prohibits the State from making laws violating Fundamental Rights.

• Any such law is void.

Article 368

• Grants Parliament the power to amend the Constitution “by way of addition, variation or repeal.”

• Requires special majority (2/3 of members present + majority of total strength).

• In some cases, ratification by half of the states is required.

Core Conflict:
Does “law” in Article 13 include constitutional amendments under Article 368?
This question became the root of the Parliament–Judiciary conflict.

Early Phase: Judicial Acceptance of Parliamentary Supremacy

(a) Shankari Prasad v. Union of India (1951)

• Issue: Validity of the First Amendment Act, 1951, which curtailed the Right to Property (Article 31).

• Judgment: Supreme Court upheld Parliament’s power to amend Fundamental Rights.

  • Held that “law” in Article 13 does not include constitutional amendments.

• Impact: Parliament’s amending power = Unlimited at this stage.

(b) Sajjan Singh v. State of Rajasthan (1965)

• Issue: Validity of the 17th Amendment Act, 1964, protecting land reform laws from judicial review.

• Judgment: Reaffirmed Shankari Prasad.

• Observation: Justice Mudholkar hinted that Parliament’s power might be limited by the “basic features” of the Constitution.

  • This observation later evolved into the Basic Structure Doctrine.

Turning Point: Judicial Assertion

(a) I.C. Golaknath v. State of Punjab (1967)

• Issue: Could Parliament amend Fundamental Rights (like right to property, equality, etc.)?

• Judgment (6:5 Majority):

  • Parliament cannot amend Fundamental Rights.

  • Constitutional amendments = “law” under Article 13(2).

  • Hence, any amendment violating Fundamental Rights is void.

• Result: Parliament temporarily lost the power to alter Fundamental Rights.

• Impact: Created constitutional deadlock; prompted Parliament to respond through amendments.

Parliament’s Countermove: Constitutional Amendments

(a) 24th Amendment Act, 1971

• Enacted to overrule Golaknath.

• Key Provisions:

  • Explicitly declared that Parliament has power to amend any part of the Constitution, including Fundamental Rights.

  • Clarified that a Constitutional Amendment is not “law” under Article 13.

• Purpose: Restore Parliament’s supremacy in amending power.

(b) 25th Amendment Act, 1971

• Gave primacy to Directive Principles (Part IV) over Fundamental Rights in case of conflict.

• Introduced Article 31C — laws implementing certain Directive Principles cannot be challenged for violating Articles 14, 19, or 31.

Historic Showdown: Kesavananda Bharati v. State of Kerala (1973)

Background

• A 13-judge bench — the largest ever — examined the validity of the 24th, 25th, and 29th Amendments.

• Question: Is Parliament’s power to amend the Constitution unlimited?

Judgment (7:6 Majority):

• Parliament can amend any part of the Constitution, including Fundamental Rights.

• BUT — it cannot destroy or alter the “Basic Structure” of the Constitution.

Key Elements of the Basic Structure Doctrine:

1. Supremacy of the Constitution

2. Rule of Law

3. Separation of Powers

4. Judicial Review

5. Federalism

6. Secularism

7. Democracy

8. Balance between Fundamental Rights and Directive Principles

Impact:

• Limited Parliament’s power — it can amend, but not abrogate essential constitutional features.

• Restored balance between Parliamentary sovereignty and Judicial review.

Trivia: The verdict was decided by a 7–6 margin — a single vote saved India’s constitutional identity!

Emergency Era and Parliament’s Overreach

(a) 42nd Amendment Act, 1976

• Known as the “Mini-Constitution” passed during the Emergency (1975–77).

• Attempted to curb judicial power and enhance Parliament’s supremacy.

• Key Provisions:

  • Declared that no constitutional amendment could be questioned in court.

  • Gave Directive Principles precedence over Fundamental Rights.

  • Strengthened Executive control.

Effect:

Parliament attempted to make its amending power absolute, nullifying the Kesavananda Bharati limitation.

Judiciary’s Retaliation: Restoring Balance

(a) Minerva Mills v. Union of India (1980)

• Issue: Validity of 42nd Amendment provisions limiting judicial review.

• Judgment:

  • Struck down clauses that gave unlimited power to Parliament.

  • Declared that “limited amending power is part of the Basic Structure.”

  • Reaffirmed that Judicial Review and Balance between Fundamental Rights and Directive Principles form part of the Basic Structure.

Impact:

• Restored the supremacy of the Constitution.

• Reasserted that Parliament’s power is derived, not absolute.

Later Developments: Ninth Schedule and Judicial Review

(a) Waman Rao v. Union of India (1981)

• Issue: Laws placed in the Ninth Schedule (protected from judicial review).

• Judgment:

  • All laws inserted into the Ninth Schedule before April 24, 1973 (Kesavananda date) are valid.

  • But laws added after that date can be reviewed if they violate the Basic Structure.

(b) I.R. Coelho v. State of Tamil Nadu (2007)

• Judgment: Reaffirmed Waman Rao.

• Any law, even if protected under the Ninth Schedule, is subject to Judicial Review if it violates the Basic Structure.

Conclusion from both cases:
→ The Basic Structure Doctrine stands supreme.
→ Parliament cannot place any law beyond judicial scrutiny.