Is India’s Parliament a True Constituent Power?

**Pragati Solanki

At the heart of every constitutional democracy lies a foundational question: who truly holds the power to create or transform the constitutional order? This idea often referred to as constituent power has long captivated legal scholars. Rooted in Enlightenment thought and crystallized by Emmanuel Sieyès, constituent power represents the original authority that gives birth to a constitution. In contrast, constituted power refers to the institutions and authorities such as the legislature, executive, and judiciary created by the constitution, whose powers are defined and limited by it.

India’s constitutional framework presents a fascinating case study of this distinction. Under Article 368, Parliament is vested with the authority to amend the Constitution. Indian courts have often affirmed that when exercising this function, Parliament wields constituent power. However, the landmark case of Kesavananda Bharati v. State of Kerala (1973) complicates this narrative by introducing the Basic Structure Doctrine (BSD), which imposes substantive limits on Parliament’s amending power. This paradox where Parliament is described as a constituent authority yet bound by intrinsic constitutional limits which highlights an unresolved tension within India’s constitutional design.

Why examine this through Carl Schmitt?

Understanding this tension through Carl Schmitt ‘s theory is valuable because it sharpens the conceptual boundary between true constituent power and ordinary legal authority. For Schmitt, constituent power is the “ultimate political will,” free from any pre-existing legal norm. Once a constitution is established, all powers derived from it including broad amendment powers are constituted, not constituent. In Schmitt’s framework, only “the people” in a revolutionary moment, or a specially convened constituent assembly, can claim genuine constituent authority.

Applying this lens to India reveals that Parliament’s amending power, although wide, is limited by the BSD and therefore functions as a form of constituted power. This insight matters because it challenges the routine judicial description of Parliament’s authority as “constituent” and compels us to ask whether India has mischaracterized its own constitutional architecture.

However, Schmitt is not the only theorist of constituent power. Scholars such as Bruce Ackerman, Antonio Negri, and Martin Loughlin have proposed alternative views seeing constituent power either as a recurring popular force (Ackerman), a permanent revolutionary energy (Negri), or an ongoing relationship between law and politics (Loughlin’s “relationalism”). Juxtaposing Schmitt’s rigid decisionism with these more flexible theories would enrich the debate and prevent reducing the issue to a single philosophical binary.

Case study: Article 370 and the blurred line between amendment and transformation

This tension between constituent and constituted authority was sharply illustrated by the abrogation of Article 370 in August 2019. The legal route using presidential orders under Article 370(1) and dissolving the J&K Constituent Assembly in 1957 which bypassed direct popular consent within Jammu and Kashmir. Was this a legitimate amendment, or an exercise of constituent power by bodies that were never meant to wield it?

Critics argue the move straddled the line between constitutional amendment and constitutional transformation, precisely the kind of manoeuvre Schmitt would condemn. Supporters, meanwhile, see it as an assertion of parliamentary supremacy and national integration. But both sides expose the underlying ambiguity in India’s constitutional scheme: if Parliament is a true constituent power, why should it be constrained at all? If it is merely constituted, then why describe its amending power in constituent terms?

Learning from Colombia but with clarity

The experience of Colombia’s Constitutional Court offers a useful comparison. Through its Substitution Doctrine (cases C-551/2003, C-141/2010), the Colombian Court created a structured test to determine when an amendment becomes a constitutional replacement. A change that alters the “core identity” of the Constitution is permissible only if enacted by a genuine constituent assembly i.e., an assembly called outside the existing constitutional order, with a clear popular mandate to re-found the state. Colombian jurisprudence even identifies which features form that core (e.g., the democratic and participatory character of the state, the separation of powers, and fundamental rights).

This level of precision is missing in India. The Basic Structure Doctrine has fortified constitutional stability but suffers from conceptual vagueness. Judges have never articulated a consistent method to determine what counts as “basic structure,” leaving Parliament’s limits subject to fluctuating judicial interpretation. Prescriptions to “adopt Colombia’s model,” while appealing, lack weight unless we explain what constitutes a “core identity” in India and what a “genuine” constituent assembly would look like in the Indian context.

Towards a more rigorous framework

Martin Loughlin’s taxonomy of constituent power helps position India’s experience between decisionism (sovereign will as supreme) and relationalism (a dynamic dialogue between law and politics). India’s judiciary, by invoking the BSD, acts as guardian of the constitutional order, but without a clear methodology. A more structured test similar to Colombia’s which could preserve foundational principles while reducing unpredictability.

Such a framework would answer two pressing questions:

1. What elements of India’s Constitution are truly beyond amendment?
2. If those elements must ever change, who is authorized to change them, and by what process?

Conclusion

The question of whether India’s Parliament is truly a constituent power is not a mere theoretical curiosity but also it has profound implications for how constitutional change is approached in practice. The Basic Structure Doctrine (BSD), while serving as a powerful check against authoritarian overreach, is an inherently judicially crafted tool without a transparent methodology for identifying what constitutes the “basic structure.” This ambiguity is especially critical today, when sweeping constitutional changes whether concerning federalism, judicial independence, or the rights of marginalized groups which are no longer rare hypotheticals but pressing realities.

Recent developments such as the abrogation of Article 370, debates on simultaneous elections, calls for a Uniform Civil Code, and efforts to overhaul electoral and institutional frameworks all underscore a deeper tension: who ultimately holds the authority to reshape India’s constitutional order, and how should that authority be exercised? If Parliament is treated as a true constituent power, then any substantive limit appears conceptually inconsistent. If, on the other hand, it is recognized as a constituted power, bound by inviolable principles, then we must define those principles clearly and specify what process if any can legitimately alter them.

This is not merely a technical legal issue but a democratic one. A clearer doctrine, perhaps informed by comparative insights like Colombia’s structured “substitution test,” could prevent constitutional change from becoming a product of transient political majorities or unrestrained judicial discretion. Defining what forms India’s “core constitutional identity,” and determining whether any future transformation should occur through a specially convened constituent assembly or direct popular mandate, are questions too critical to leave unanswered.

Yet, perhaps the deeper challenge is philosophical: should constituent power in a modern democracy be viewed as a one-time revolutionary act that ended in 1950, or as a living authority that must continuously find legitimate expression? Should the people themselves, rather than any single organ of the state, have a clearer role in foundational change?

These questions do not admit of easy answers. But confronting them openly is essential if India’s constitutional order is to remain both stable and responsive. As India moves into an era of rapid political and social transformation, scholars, courts, legislators, and citizens alike must decide whether to treat Parliament as the supreme author of constitutional destiny—or as its most powerful servant. The choice will determine not only the future of the Basic Structure Doctrine but the very character of Indian democracy itself.

**Pragati Solanki is an Assistant Professor.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.