Constituent power
Topic: Amendment of the Constitution and the Basic Structure · NCERT: Class 11, Ch 9 "Constitution as a Living Document"
Meaning
Constituent power is the power to make or change the Constitution itself. It is higher than ordinary law-making power. After the 24th Amendment (1971), Art. 368(1) says Parliament amends the Constitution "in exercise of its constituent power". Arts. 13(4) and 368(3) add that such an amendment is not "law" under Art. 13. So an amendment cannot be struck down just because it affects a fundamental right.
Example
In Golaknath (1967), the Supreme Court held that an amendment is "law" under Art. 13, so Parliament could not take away fundamental rights. The 24th Amendment (1971) answered by declaring that amendments come from constituent power. Kesavananda Bharati (1973) upheld this, but it added a limit: constituent power cannot destroy the basic structure (the Constitution's essential features).
Don't confuse with
- Legislative power: Parliament's ordinary power to make laws. Such laws are "law" under Art. 13 and can be struck down if they violate fundamental rights.
Related concepts
- Amendment of the Constitution
- Amendment by simple majority
- Amendment by special majority and state ratification
- 97th Constitutional Amendment Act 2011