GS Paper 2 10 marks · 200w 14 min Hard
‘The Supreme Court of India keeps a check on arbitrary power of the Parliament in amending the Constitution.’ Discuss critically.
Subtopic: Constitution & Polity · amending power and the basic structure doctrine
How to structure your answer
Introduction → early phase: Shankari Prasad and Sajjan Singh give Parliament a free hand → Golak Nath and the 24th Amendment tussle → Kesavananda Bharati: the basic structure balance → the doctrine applied: 1975, 1980, 2007, 2015 → critical appraisal: counter-majoritarian yet necessary → Conclusion
Written within the word limit
213 words · target 200 words · 14 min
Article 368 confers wide constituent power on Parliament; the Supreme Court's role has been to ensure this power does not become a licence to rewrite the Constitution's identity.
Evolution of the Check
- Shankari Prasad (1951) and Sajjan Singh (1965) held constitutional amendments were not 'law' under Article 13, leaving Parliament unchecked.
- Golak Nath (1967) swung the other way, placing Fundamental Rights beyond amendment; Parliament responded with the 24th Amendment (1971) reasserting its power.
- Kesavananda Bharati (1973) struck the enduring balance: Parliament may amend any provision but cannot damage the basic structure — constitutional supremacy, judicial review, federalism, free and fair elections, secularism.
The Doctrine in Action
- Indira Nehru Gandhi v. Raj Narain (1975) struck down Article 329A(4), inserted by the 39th Amendment to shield the Prime Minister's election from scrutiny.
- Minerva Mills (1980) invalidated clauses (4) and (5) of Article 368 added by the 42nd Amendment — a limited amending power is itself a basic feature.
- I.R. Coelho (2007) opened post-1973 Ninth Schedule laws to review; the NJAC judgment (2015) annulled the 99th Amendment to protect judicial independence.
Critical Appraisal
- The check is counter-majoritarian and rests on a judge-made, open-ended doctrine — breeding uncertainty and charges of judicial supremacy.
- Yet the Emergency-era 42nd Amendment showed why an inviolable core is a democratic necessity, not judicial vanity.
The Court checks abuse, not amendment: constituent power remains plenary in scope but bounded in spirit.
What an examiner expects to see
- Shankari Prasad (1951) and Sajjan Singh (1965): amendments are not 'law' under Article 13 — no judicial check on Article 368.
- Golak Nath (1967) barred amendment of Fundamental Rights; Parliament countered with the 24th Amendment (1971).
- Kesavananda Bharati (1973): Parliament may amend any part of the Constitution but cannot destroy its basic structure — the operative check ever since.
- Applications: Indira Nehru Gandhi (1975, Article 329A(4) struck), Minerva Mills (1980, Article 368(4)-(5) struck), Waman Rao (1981), I.R. Coelho (2007, Ninth Schedule), NJAC verdict (2015, 99th Amendment).
- Criticism: the doctrine is judge-made and open-ended, counter-majoritarian, and creates uncertainty about what counts as 'basic'.
- Defence: the Emergency and the 42nd Amendment demonstrated the danger of unlimited constituent power; the check targets abuse of amendment, not amendment itself.
Concrete cases, schemes and judgments
- Kesavananda Bharati v. State of Kerala (1973) — 13-judge bench, basic structure doctrine propounded.
- Indira Nehru Gandhi v. Raj Narain (1975) — Article 329A(4) struck down.
- Minerva Mills v. Union of India (1980) — clauses (4) and (5) of Article 368 invalidated.
- I.R. Coelho v. State of Tamil Nadu (2007) — Ninth Schedule laws after 24 April 1973 reviewable.
- Supreme Court Advocates-on-Record Association v. Union of India (2015) — 99th Amendment and NJAC Act struck down.
Terminology to weave into the answer
Article 368basic structure doctrineconstituent powerjudicial reviewNinth Scheduleconstitutionalism