Indian Constitution has conferred the amending power on the ordinary legislative institutions with a few procedural hurdles. In view of this statement, examine the procedural and substantive limitations on the amending power of the Parliament to change the Constitution.

Procedural limitations

• Special majority: Each House must pass the Bill separately by:
  • Majority of the total membership of that House, and
  • Two-thirds of members present and voting.
• No joint sitting: Unlike ordinary legislation under Article 108, a Constitutional Amendment Bill cannot be resolved through a joint sitting. If either House rejects it, the amendment fails.
• State ratification for federal provisions: Amendments affecting specified federal provisions require ratification by at least half of the State legislatures by a simple majority.
  • These include provisions concerning the election of the President, Union-State executive powers, Supreme Court and High Courts, distribution of legislative powers, representation of States in Parliament, and Article 368 itself.
• No ordinary legislative route: An ordinary law passed by simple majority cannot be used to amend provisions requiring the Article 368 procedure.
• Procedural limitations are therefore a safeguard against: hasty amendments, unilateral action by one House and excessive centralisation in amendments affecting the federal structure.

Substantive limitations

• Basic Structure Doctrine: Parliament can amend the Constitution, including Fundamental Rights, but cannot alter, destroy or emasculate its basic structure.
  • Kesavananda Bharati v. State of Kerala (1973): Established that Parliament's amending power is subject to the Basic Structure Doctrine.
  • Minerva Mills v. Union of India (1980): Struck down provisions of the 42nd Amendment that attempted to make Parliament's amending power unlimited. It affirmed that a limited amending power cannot be converted into an unlimited power.
• Constitutional identity: The basic structure includes features such as democracy, rule of law, judicial review, separation of powers, federalism, secularism and the balance between Fundamental Rights and Directive Principles.
• Judicial review: Constitutional amendments are subject to judicial scrutiny when they damage the basic structure.
  • I.R. Coelho v. State of Tamil Nadu (2007): Held that laws placed in the Ninth Schedule after 24 April 1973 can be judicially reviewed if they damage the basic structure.
• Judicial independence: Parliament cannot use its amending power to undermine the independence of the judiciary.
  • NJAC Case (2015): The Supreme Court struck down the 99th Constitutional Amendment and NJAC Act, holding that judicial independence is part of the basic structure.
• Thus, substantive limitation acts as the ultimate constitutional boundary: Even a constitutionally valid amendment passed with the required majority can be invalidated if it damages the Constitution's basic structure.

How the two limitations operate together

• Procedure controls the process: It prevents a constitutional change through a simple or fleeting majority and protects the federal principle through State ratification.
• Substance controls the destination: It prevents Parliament from using even a constitutionally valid procedure to destroy the Constitution's essential identity.
• Hence, Parliament has wide amending power, but not constituent sovereignty. It can reform the Constitution, but cannot replace its fundamental constitutional character.