(a) "Amending power does not extend to damaging or destroying the basic structure or framework of our Constitution." Discuss. (20…

The constituent power under Article 368 is a derivative and limited power, distinct from original plenary constituent power. The scope of amending power evolved through sustained judicial contestation: Shankari Prasad (1951) and Sajjan Singh (1965) accepted unlimited parliamentary amending power, which was reversed in Golak Nath (1967) by holding Fundamental Rights inviolable. This conflict culminated in Kesavananda Bharati (1973), where the Supreme Court ruled that while Parliament can amend any provision, it cannot alter the "basic structure" or essential framework of the Constitution. In Minerva Mills (1980), the Court held that a limited amending power is itself a basic feature. I.R. Coelho (2007) extended judicial review to Ninth Schedule laws using the "rights test" and "essence of rights test". Core components include democracy, secularism (S.R. Bommai), federalism, and judicial review (L. Chandra Kumar). Contemporary litigation, such as the challenge to the 103rd Constitutional Amendment in Janhit Abhiyan (2022), applies this test to ensure affirmative action does not destroy the constitutional identity. While critics argue that the doctrine is judicially created, inherently vague, and creates an unelected veto, it serves as the ultimate safeguard against legislative overreach and authoritarianism.

Parliamentary Privileges and Fundamental Rights

Articles 105(3) and 194(3) confer legislative privileges to secure institutional autonomy, frequently intersecting with Part III guarantees. Early jurisprudence in Gunupati Keshavram Reddy (1952) prioritized Article 22(2) over legislative arrest warrants. However, M.S.M. Sharma (Searchlight) (1959) applied harmonious construction, holding that general free speech under Article 19(1)(a) yielded to specific privileges. This was refined in the Keshav Singh Reference (1965), establishing that privileges remain subject to Articles 21, 32, and 226. In Raja Ram Pal (2007), the Supreme Court laid down a balancing test, ruling that the exercise of parliamentary privilege is subject to judicial review for patent illegality, perversity, or gross violation of fundamental rights. Recently, in Sita Soren (2024), an authoritative bench overruled P.V. Narasimha Rao (1998), holding that legislative immunity under Article 105(2) does not protect criminal acts like bribery. The recurring friction between legislative sovereignty and individual rights underscores the longstanding need to codify parliamentary privileges to ensure transparency and legal certainty.

Equality and Hierarchy Among Directive Principles

Article 37 declares Directive Principles of State Policy (DPSPs) "fundamental in the governance of the country," though explicitly non-justiciable. DPSPs are conventionally classified into socio-economic principles (Articles 38, 39, 41), Gandhian ideals (Articles 40, 43, 47), and liberal-intellectual principles (Articles 44, 45, 50). Despite Article 37’s uniform mandate, all DPSPs are not treated as equally fundamental in judicial enforcement or constitutional practice.

Early jurisprudence (State of Madras v. Champakam Dorairajan, 1951) subordinated all DPSPs to Fundamental Rights. Minerva Mills (1980) redefined their relationship as complementary, describing Parts III and IV as twin wheels of a constitutional chariot. However, an operational hierarchy exists. First, Articles 39(b) and (c) enjoy specific constitutional priority through Article 31C protection against Articles 14 and 19. Second, judicial activism has selectively integrated specific DPSPs into Article 21, creating directly enforceable rights—such as the right to education (Unni Krishnan, now Article 21A), livelihood (Olga Tellis), and a clean environment (M.C. Mehta). Conversely, other principles, such as a Uniform Civil Code (Article 44) or the separation of the judiciary from the executive (Article 50), have remained non-justiciable programmatic goals, demonstrating that their operational fundamentalness depends on legislative will and judicial interpretation.

Way Forward

Judicial review under the basic structure doctrine maintains the organic harmony between amending power, fundamental rights, and socio-economic directives. Moving forward, codifying parliamentary privileges, maintaining objective criteria for basic structure adjudication, and establishing structured legislative impact assessments to progressively realize non-enforceable DPSPs will reinforce Indian constitutionalism.