Legally Speaking | Can the fundamental principles of the Constitution be altered?

The Parliament has unrestricted authority to alter the Constitution as long as it does not damage the essential structure of the Constitution

On March 9, 2024, Anantkumar Hegde, Bharatiya Janata Party (BJP) member of Parliament from Uttara Kannada in Karnataka, said that there is a specific reason why the BJP is aiming for more than 400 seats in the 2024 general elections. He said, “Modi ji said that we need to secure more than 400 seats this time. Why 400? We currently have a two-thirds majority in the Lok Sabha, but we lack the same in the Rajya Sabha where our majority is lesser. Additionally, we lack the required majority in the state governments.” Hegde further said. “If we are to make amendments to the Constitution, like the ones Congress made, twisting the fundamental principles of the Constitution and introducing provisions and laws that oppressed Hindus, then this majority won’t suffice.”

The Constitution of India is the supreme law of the land. (Shutterstock)

To analyse the practicality and possibility of the above-mentioned comments by Mr Hegde we need to inquire into constitutional law. The primary legal questions raised here are, can the Constitution be amended? If yes, how? To what extent can parliamentarians bring such changes? What are the fundamental principles of the Constitution? And finally, can these principles also be changed, as Mr. Hegde hinted? In this article, we will look for answers to these legal questions.

The provision for Constitutional amendment

 

The Constitution of India is the supreme law of the land. It is binding on the government and the people. It is not static but a living document which is adaptable, evolving and partly flexible based on the requirements of the evolving society. For this, the framers of the Constitution inserted Article 368 which provides the mechanism for the amendments. It empowers the Indian Parliament to exercise its constituent power to amend the Constitution by way of addition, variation or repeal of any provision following the procedure prescribed under the said Article.

The process of Constitutional amendment

 

The process of Constitutional amendment can be put into motion only by the introduction of a bill for this particular purpose in either House of Parliament, the Lok Sabha or the Rajya Sabha. The amendment bill has to be passed by each House by a majority of the total membership of that House and requires a two-thirds majority of the members of that House present and voting. In certain specified cases, the amendment requires ratification by at least half of the state legislatures. This includes provisions relating to India’s federal scheme which distributes power between the Union and the states, such as for the election of the President, Goods and Service Tax Council, the extent of executive power of the Union and states, the Union judiciary and the high court of the states. Further, some changes—like the reorganisation of states under Article 3—may take place through a simple parliamentary majority, in the same manner as the enactment of ordinary legislation.

A check on Constitutional amendment by judicial review

 

The Indian Constitution adopted the judicial review which entrusts the Supreme Court with the power of reviewing the legislative enactments, both by Parliament and state legislatures. Judicial review has laid down its solid foundation on the reasoning that it is the constitution, constitutionalism and rule of law that are being protected by the judiciary; and that it is not the institutional supremacy of the judiciary, rather it is that of the constitution that is being defended by judicial review.

In 1967, in IC Golaknath v. State of Punjab, the Supreme Court (by a 6:5 majority) held that Parliament is considered to have no power to take away or curtail any of the fundamental rights of the citizens guaranteed by Part III of the Constitution. The Parliament passed the Constitution (Twenty-fourth Amendment) Act in 1971 reversing this judgement to expressly provide power to Parliament to amend any part of the Constitution, including the provisions relating to Fundamental Rights.

Emergence of basic structure doctrine

 

In the landmark case of Kesavananda Bharati v. State of Kerala, 1973, the Supreme Court reviewed the decision in the Golaknath v. State of Punjab case and went into the validity of the 24th and other Constitution amendments. The Court (by a 7:6 majority) overruled the Golaknath ruling. In the majority view, the court came up with the basic structure doctrine and held that Article 368 does not enable Parliament to alter the basic structure of the Constitution. The Court in its judgment further held that although Parliament has the power to amend any part of the Constitution, including the fundamental rights, certain basic features of the Constitution cannot be violated. These features are known as the basic structure doctrine of the Indian Constitution.

Some of the key features of the basic structure framework include the ideals that the Constitution is supreme, and its provisions cannot be overridden by any other law. Fundamental rights to all citizens, including but not limited to the right to equality, freedom of speech and expression, and the right to life and liberty. It also includes certain principles, such as federalism, which allocates powers between the central government and the state governments; and secularism, which means that the state is neutral in matters of religion and treats all religions equally. The framework also includes the ideals of the republic and democratic nature of the government, and the separation of powers of the legislative, executive, and judicial branches, each of which has specific responsibilities, authority, and independence.

However, the Indian courts have further broadened the interpretation of the basic structure doctrine by adding the rule of law in Indira Sawhney v Union of India (1993), as well as judicial review in Minerva Mills v Union of India (1980).

Accordingly, the Parliament has unrestricted authority to alter the Constitution as long as it does not damage the essential structure of the Constitution. The apex court’s jurisprudence in the matter of constitutional amendments substantiates that the use of the phrase “amend” in Article 368 did not allow for fundamental modifications to the Constitution. Such changes, if brought about, would be subject to the basic structural test in judicial review.

So, Mr Hegde and his party can bring about amendments to the constitution following the due process under Article 368 as required. However, such constitutional changes must not abridge or curtail the provisions related to the basic structure of the Constitution. If those changes contradict the principles laid down by the apex court of the country as part of the basic structure, these will be rendered unconstitutional and void.

Prashant Bhaware, a lawyer and researcher, writes about the finer legal points of a case that's making news this week. The views expressed are personal