The power of Parliament to amend the Constitution, specifically with reference to provisions relating to fundamental rights, has been under scrutiny since 1951. The amending power of Parliament was considered essentially plenary, as ‘law’ in Article 13 was held to be only legislated law and not constitutional amendment acts. The amending power was significantly restricted in I.C. Golak Nath (1967), where the amending power was held to be limited to the extent of fundamental rights and ‘law’ was held to include constitutional amendment acts. This ratio was reversed in Kesavananda Bharti (1973) where Parliament’s amending power was held to be limited to the Constitution’s basic structure .

Consequently, the power to amend the Constitution through entries in the IX Schedule would have to satisfy the test of ‘basic structure’ and it was the scope of this test, which was decided by the apex court in I.R. Coelho earlier this year. This judgment has caused much consternation among political parties and evoked a most remarkable response — a demand for a new constitution.

The apex court has held in this judgment that the extent of immunity provided by Article 31B read with IX Schedule would be subject to fundamental rights that form part of the basic structure. Therefore, challenges on the ground that insertion is not a mere violation of a fundamental right but a violation of the basic structure, would succeed.

Parliament is constituted by duly elected persons. However, given the fact that our politicians are given to ‘impulses of majority’ and ‘temporary excitement and popular caprice or passion’ it would not be prudent to make the Constitution a prisoner of such whims and fancies. Fundamental rights are rights which the Constitution declares as fundamental and not what ‘Parliament regards, at a given moment conducive to the public benefit’.

... contd.