The Indian Constitution is a living document that breathes life into the rights of its citizens while maintaining institutional equilibrium. Among its most critical provisions is Article 368, which grants Parliament the power to amend the Constitution. However, this power is neither unbridled nor above the constitutional conscience. From a rights-centric perspective, the story of Article 368 is not about parliamentary supremacy—it is about judicial guardianship, constitutional morality, and the non-negotiable sanctity of Fundamental Rights.
In Shankari Prasad v. Union of India (1951), the Supreme Court made a pivotal error by holding that constitutional amendments under Article 368 do not constitute “law” under Article 13(2), thereby exempting them from scrutiny if they infringe Fundamental Rights. This decision elevated constituent power above rights, a formulation that risked subordinating individual liberty to institutional convenience. The Sajjan Singh ruling repeated this position, suggesting that the framers did not intend to insulate Fundamental Rights from the process of constitutional amendment. But such an interpretation missed the spirit of the Constitution—it allowed Parliament to dilute the very rights the Constitution was designed to guarantee.
A bold course correction came in I.C. Golaknath v. State of Punjab (1967), where the Court rightly placed Fundamental Rights beyond the reach of constitutional amendments. For the first time, the judiciary asserted that Parliament could not override Part III in the name of constituent power. This was a transformative moment: a clear pronouncement that rights are not policy preferences but inviolable entitlements. By bringing constitutional amendments under the definition of “law” in Article 13(2), the Court elevated individual dignity above parliamentary expedience.
The Kesavananda Bharati v. State of Kerala (1973) case, though partially rolling back Golaknath, delivered an even more powerful innovation: the Basic Structure Doctrine. While it allowed Parliament to amend Fundamental Rights, it drew a red line—no amendment could alter the basic structure of the Constitution. What emerged was a compromise, but one weighted in favour of constitutional continuity and rights protection. The Court made it clear: the Constitution is not Parliament’s plaything. It is a covenant between the state and the citizen, and some parts of it are beyond amendment—not because they are rigid, but because they are sacred.
Kesavananda Bharati thus established that even Parliament’s highest powers must operate within the moral architecture of the Constitution. The Basic Structure Doctrine became the Constitution’s immune system, protecting its soul from existential harm. This doctrinal shift was crucial in ensuring that core principles—democracy, secularism, equality, judicial independence—are never subjected to political expediency.
This doctrine was further clarified in Indira Gandhi v. Raj Narain (1975), where the Court drew a bright line between constituent and legislative powers. It stated that only constitutional amendments could be tested on the touchstone of basic structure, while ordinary laws were subject to traditional tests of legislative competence and rights violation. While this distinction was necessary, it reaffirmed that laws threatening the Constitution’s core values—even when passed through the constituent route—are not immune from judicial invalidation.
The evolution of this doctrine continued with M. Nagaraj v. Union of India (2006), which introduced the “width and identity” test. This test assesses whether amendments, even if facially valid, are so wide-ranging that they alter the identity of the Constitution. In other words, the Constitution cannot be rewritten in the guise of amending it. The I.R. Coelho v. State of Tamil Nadu (2007) judgment took this further, holding that even laws inserted into the Ninth Schedule after 1973 could be struck down if they violate the rights under Articles 14, 19, and 21—the Golden Triangle of Indian constitutionalism. This is a strong affirmation that there is no constitutional black hole where rights are extinguished.
At the heart of all these developments lies a fundamental truth: the Constitution places the citizen at its centre. Constituent power is not a divine right of Parliament, but a delegated power, subject to the original spirit of the Constitution. As Roznai argues, amendment powers are derived from constituent authority, not from legislative will. Parliament is a trustee—not a master—of the constitutional order. It can repair and refine, but never dismantle or distort.
From this perspective, the judiciary’s intervention through the Basic Structure Doctrine is not judicial overreach—it is constitutional fidelity. It is the Court’s solemn duty to ensure that the founding promises of justice, liberty, equality, and fraternity are not sacrificed at the altar of short-term political agendas. The test of a democracy lies not in its ability to make laws but in its ability to protect the most vulnerable from the worst excesses of those laws.
In conclusion, the constitutional amendment process under Article 368 must be viewed through a rights-respecting lens. The judiciary’s evolving jurisprudence has reaffirmed that while change is essential, it cannot come at the cost of constitutional identity. Rights are not negotiable. The Constitution does not belong to Parliament—it belongs to the people. And in safeguarding its essence, the Court has served its highest duty: to protect the citizen not just from the executive, but from Parliament itself when necessary. Article 368 is not a loophole; it is a responsibility. And the Basic Structure Doctrine ensures that this responsibility is exercised with humility, integrity, and an unwavering commitment to justice.
