How does the 42nd Amendment affect the power of judicial review as stated in Article 368, and what are the limits of Parliament's amending power?

Detailed Legal Analysis

The 42nd Amendment to the Indian Constitution, enacted in 1976 during the Emergency period, made significant changes to the Constitution, including provisions that affected the power of judicial review. Judicial review, as established under Article 13 of the Constitution, allows the judiciary to examine the constitutional validity of legislative acts and executive actions. The 42nd Amendment sought to limit this power by explicitly stating in Article 368 that Parliament has the power to amend the Constitution, and this power was made more expansive, suggesting that no law passed under this authority could be challenged in courts. However, this interpretation has not been upheld uniformly, as the Supreme Court has reaffirmed the basic structure doctrine that restricts Parliament from altering the fundamental framework of the Constitution.

The basic structure doctrine was established in the landmark case of Kesavananda Bharati v. State of Kerala (1973), wherein the Supreme Court held that while Parliament has wide powers to amend the Constitution under Article 368, it cannot alter the basic structure or essential features of the Constitution. Subsequent rulings, including Minerva Mills Ltd. v. Union of India (1980), reinforced this principle, indicating that any amendment attempting to dilute the power of judicial review could be struck down if it undermines the Constitution's basic structure. Therefore, even with the provisions of the 42nd Amendment that aimed to limit judicial scrutiny, the judiciary retains its authority to ensure that Parliament does not exceed its bounds.

In practical terms, this means that while Parliament can amend various provisions of the Constitution, it must do so while respecting the core principles that uphold democracy and the rule of law. If any amendment is perceived to infringe upon these principles, individuals or groups can challenge such amendments in the Supreme Court, which will review the amendment's constitutionality. The procedure for challenging an amendment typically involves filing a writ petition under Article 32 or Article 226, depending on whether the aggrieved person approaches the Supreme Court or a High Court.

In conclusion, while the 42nd Amendment attempted to assert greater control over the judicial review process, the courts have consistently maintained their role as guardians of the Constitution through the basic structure doctrine. Therefore, any action by Parliament that threatens the foundational values of the Constitution may still be subject to judicial review, safeguarding the democratic framework of India. If you wish to challenge an amendment or seek clarity on any constitutional issue, consulting with a lawyer who specializes in constitutional law is advisable to navigate the complexities of such cases effectively.