Parliament's power to amend the Constitution is a limited power and it cannot be enlarged into absolute…

Question

Parliament's power to amend the Constitution is a limited power and it cannot be enlarged into absolute power. In the light of this statement explain whether Parliament under Article 368 of the Constitution can destroy the Basic Structure of the Constitution by expanding its amending power.

Ghissu Editorial · Accepted Answer

Parliament cannot destroy the basic structure by expanding its amending power, because Article 368 confers only a limited power. Minerva Mills (1980) struck down Article 368(4) and (5), added by the 42nd Amendment, for trying to make that power absolute.

**Introduction**

The statement restates Minerva Mills (1980): a limited power to amend cannot be used to make itself absolute. Between 1971 and 1976 Parliament tried to widen Article 368, and the Supreme Court tested each attempt against the basic structure doctrine.

**Parliament's Attempts to Expand the Amending Power**

1. **Answer to Golaknath**: The 24th Amendment (1971) added Articles 13(4) and 368(3) so that amendments could reach any part, including Fundamental Rights.
2. **Ousting courts and limits**: The 39th Amendment (1975) put the Prime Minister's election beyond courts, and the 42nd Amendment (1976) added Article 368(4) and (5), barring judicial review and claiming unlimited constituent power.

**Why Article 368 Cannot Destroy the Basic Structure**

SKETCH: flow | Minerva Mills logic
- Power is limited
- Cannot enlarge itself
- Article 368(4),(5) void
- Judicial review survives
- Basic structure intact

1. **Amend is not destroy**: Kesavananda Bharati (1973) upheld the 24th Amendment but held that an amendment must leave the Constitution's identity intact.
2. **Self-enlargement void**: Indira Gandhi v. Raj Narain (1975) struck Article 329A(4), and Minerva Mills struck Article 368(4) and (5) because judicial review guards the limit itself.
3. **Consistent application**: I.R. Coelho (2007) and NJAC (2015) applied the doctrine to the Ninth Schedule and judicial appointments, while Janhit Abhiyan (2022) upheld the 103rd Amendment, showing that reform remains open.

**Way Forward**

1. **Principled restraint**: Clear tests such as M. Nagaraj's width and identity tests, and committee scrutiny of amendment Bills, would reduce confrontation.

**Conclusion**

Parliament cannot destroy the basic structure by expanding its own power. It may reform the Constitution only as its trustee, which keeps constitutional supremacy intact.

Parliament's power to amend the Constitution is a limited power and it cannot be enlarged into absolute power. In the light of this statement explain whether Parliament under Article 368 of the Constitution can destroy the Basic Structure of the Constitution by expanding its amending power.

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