Democracy and Free and Fair Elections

In one line

Parliament may amend almost anything in the Constitution, but it may not amend away the things that make India a democracy, and holding elections that are genuinely free and fair is one of those things.

In the wording a student can write in an exam: article 368 confers on Parliament a constituent power to amend the Constitution, but the majority in Kesavananda Bharati v. State of Kerala held that the power does not extend to damaging or destroying the basic structure of the Constitution, and every list of that structure offered in that case names the republican and democratic form of Government. In Indira Nehru Gandhi v. Raj Narain the Court applied that limit for the first time and struck down a constitutional amendment, clause (4) of article 329A, Khanna J. holding that it "violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution". In Kihoto Hollohan v. Zachillhu the majority restated it: "Democracy is a basic feature of the constitution. . . Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the constitution."

Why the law has this at all

A government elected by a majority controls the legislature. If that legislature can amend the Constitution without limit, the majority can rewrite the rules by which it was chosen, and can rewrite them after it has already broken them. That is not hypothetical: the amendment struck down in 1975 declared one election valid after a High Court had found it void.

The question is not whether an amending power should exist. It must, or the Constitution would freeze. It is whether the power reaches the arrangements that decide who exercises it. If it does, the Constitution protects nothing a determined majority wants removed. If it does not, some limit has to be stated, and the Constitution states none. The basic structure doctrine is the judicial answer, worked in [The Basic Structure]; this chapter shows what it means for elections.

The provisions

Two articles carry this chapter, and they pull in opposite directions.

Article 368(1), headed Power of Parliament to amend the Constitution and procedure therefor, was inserted by the Twenty-fourth Amendment in 1971: "Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article." Clause (2) sets out that procedure: a Bill in either House, passed by a majority of the total membership and "by a majority of not less than two-thirds of the members of that House present and voting", and, for five classes of amendment listed in the proviso, ratification by the Legislatures of not less than one-half of the States.