UPSC Mains 2019 GS Paper 2 Q12: model answer

In 1976 the 42nd Amendment added clauses (4) and (5) to Article 368, declaring that no amendment could be questioned in any court and that Parliament's amending power had no limits. Four years later, the Supreme Court struck both clauses down.

Article 368

Gives Parliament the power to amend 'by way of addition, variation or repeal' through a special majority, with state ratification for federal matters.

Attempts to expand the power

• 24th Amendment (1971): after Golaknath, it said Article 13 does not apply to amendments.
• 39th Amendment (1975): placed the Prime Minister's election beyond courts.
• 42nd Amendment (1976): clauses (4) and (5) of Article 368.

The Court's response

• Kesavananda Bharati (1973): 'amend' does not mean 'destroy'; the basic structure is beyond amendment.
• Indira Gandhi v Raj Narain (1975): free and fair elections are basic structure; the 39th Amendment clause was struck down.
• Minerva Mills (1980): clauses (4) and (5) struck down. The Court said a limited amending power is itself a basic feature; Parliament cannot convert a limited power into an absolute one.
• Waman Rao (1981) and Coelho (2007): extended review to Ninth Schedule laws after 1973.
• NJAC (2015): the 99th Amendment was invalid as it hurt judicial independence.

Reasoning

• Parliament is a creature of the Constitution, not a constituent assembly.
• A derived power cannot destroy its source.
• Rights and democracy need protection from temporary majorities.

Criticism

• Basic structure is judge-made and undefined.
• It can be seen as a counter-majoritarian limit on the people's will.

Conclusion

Parliament can amend any provision, including Fundamental Rights, but cannot use Article 368 to enlarge its own power or destroy the Constitution's identity. As Minerva Mills put it, the donee of a limited power cannot convert it into an unlimited one.