The Hindu Business Line : SC and Parliament

MY friend and noted columnist, Mr Pran Chopra, in one of his recent articles published in The Hindustan Times, has raised a Constitutional conundrum which had so far escaped attention. In fact, it is so very important that it deserves to be taken seriously by the legal fraternity so that citizens and their elected representatives in Parliament know where they stand.

The issue is about the power of Parliament under Article 368 to amend the Constitution.

In Kesavananda Bharati's case the Supreme Court had held that no amendment made to the Constitution by Parliament shall alter its basic structure or framework. (May it be added there is till date no clear-cut pointer to the basic structure other than different sets of dicta). On the other hand, that Article says without any scope for doubt or dispute that "there shall be no limitation" on the exercise of the "constituent power" of Parliament in this respect. The Constitution also makes clear that Parliament's power under Article 368 is not in any manner restricted by Article 13 forbidding the State from making any laws taking away or abridging fundamental rights. Shorn of legal jargon, the position seems to be that Parliament's power to amend "by way of addition, variation or repeal of any provision" of the Constitution is absolute and no such amendment "shall be called in question in any court on any ground".

Arvind P. Datar's Commentary (Millennium Edition) on the Constitution says that in the case of Minerva Mills Ltd. and Others the Supreme Court has declared invalid the Constitutional provision enabling Parliament to exercise its constituent power without limitation and without being called in question in any court on any ground.

Can the Supreme Court strike down any of the Articles of the Constitution itself? Are Constitutional amendments to be equated with ordinary laws made by Parliament? No doubt these latter are subject to judicial review as regards their being in accordance with the Constitution, whereas a Constitutional amendment is made pursuant to Parliament's constituent power (as distinguished from its legislative power) brooking no interference by any extraneous authority.

In sum, there are on one side categorical Constitutional provisions forbidding any encroachment on Parliament's power to amend the Constitution. On the other is the Kesavananda Bharati's case which curtails that power. The ambiguity needs to be resolved before it becomes a potential source of conflict.

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