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Amendability of Indian Constitution with Reference to Fundamental Rights

Written by: Kapil Raina - 4th Year Law Student, D.E.S. Law College, Pune
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  • George Bernard Shaw in "Intelligent Woman's Guide to Socialism" has said:
    The institutions under which we live are being changed continually by the Parliament, because we are never satisfied with them. Sometimes they are scrapped for new ones; sometimes they are altered; sometimes they are done away with as nuisances. The new ones have to be stretched in the law courts to make them fit, or to prevent them fitting to well if the judges happen to dislike them.

    The life of a state is vibrant and in order to facilitate the ever dynamic developments and needs of society, its economic, social and political conditions mutate continuously. So, a Constitution drafted in one context at a particular time may prove inadequate at a later stage. Every Constitution has some method of amendment whereby a provision is modified by way of addition, deletion or correction so as to suit the needs of the present.

    Provisions for the amendment of the Constitution are made with a view to overcome the difficulties which may encounter in future in the effective working of the Constitution. The framers of the Constitution were keen to avoid excessive rigidity and wanted it to a bit flexible. They wanted to have a document that could grow with a growing nation and adapt itself to the ever changing needs of people.

    Oxfords Dictionary of Law says Amendment means changes made to legislation, for the purpose of adding to, correcting or modifying the operation of the legislation.

    Blacks Law Dictionary defines Amendment as A formal revision or addition proposed or made to a statute, Constitution, pleading, order, or other instrument AND In Parliamentary law, it means a motion that changes another motions wording by striking out text, inserting or adding text, or substituting text.

    But Keshavananda Bharti V. State of Kerela provided the best explanation as to the scope and definition of the word Amendment. It purported that A broad definition of the word Amendment will include any alteration or change. The word amendment when used in connection with the Constitution may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular article or clause".
    The Constitution of India provides for amendment mainly in Article 368 and in some other parts as specified therein.

    Modes of Amending Constitution

    The Constitution of India provides for the amendment by way of Amendment Acts in a formal manner. For the purpose of amendment, the various Articles of the Constitution are divided into three categories. The first category is out of the purview of Article 368 whereas the other two are a part and parcel of the said Article. The various categories of amendment to the Constitution can be summarized as follows:

    # Amendment by Simple Majority
    As the name suggests, an article can be amended in the same way by the Parliament as an ordinary law is passed which requires simple majority. The amendment contemplated under Articles 5-11 (Citizenship), 169 (Abolition or creation of Legislative Councils in States) and 239-A (Creation of local Legislatures or Council of Ministers or both fir certain Union Territories) of the Indian Constitution can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed under Article 368.

    # Amendment by Special Majority
    Articles which can be amended by special majority are laid down in Article 368. All amendments, except those referred to above come within this category and must be affected by a majority of total membership of each House of Parliament as well as 2/3rd of the members present and voting.

    # Amendment by Special Majority and Ratification by States
    Amendment to certain Articles requires special majority as well as ratification by states. Proviso to Article 368 lays down the said rule. Ratification by states means that there has to be a resolution to that effect by one-half of the state legislatures. These articles include Article 54 (Election of President), 55 (Manner of election of President), 73 (Extent of executive power of the Union), 162 (Extent of executive power of State), 124-147 (The Union Judiciary), 214-231 (The High Courts in the States), 241 (High Courts for Union Territories), 245-255 (Distribution of Legislative powers) and Article 368 (power of the Parliament to amend the Constitution and procedure therefor) itself. Any list of seventh schedule or representation of states in Parliament as mentioned in the fourth schedule is also included.

    Procedure For Amendment U/A 368

    A Bill to amend the Constitution may be introduced in either house of the Parliament. It must be passed by each house by a majority of the total membership of that house and by a majority of not less than 2/3rd of the members present and voting. Thereafter, the bill is presented to the President for his assent who shall give his assent and thereupon the Constitution shall stand amended.In case, ratification by state is required it has to be done before presenting it to the President for his/her assent.

    Amendability of The Indian Constitution

    According to Vepa P. Sarathi, there will never be a conflict between Legislature and Judiciary and these two powerful organs will be better capable of guiding the third branch i.e. Executive, if the following view for the purpose of amendment is accepted. Article 368 can be interpreted in the following manner:
    A) The power of the Parliament to amend Constitution is absolute and there are no limits on that power.
    B) Parliament should not, however, take away the power of the courts to strike down ordinary legislation as tested against the amended Constitution.
    One can relate to what Shakespeare said in Measure for Measure:
    "O, it is excellent
    To have a giants strength; but it tyrannous
    To use it like a giant."

    The elementary question in controversy has been whether Fundamental Rights are amendable so as to take away the basic rights guaranteed by the Constitution. Another controversy deals with the extent, scope and authority of Parliament to amend Constitution. The answer has been given by the Supreme Court from time to time, sometimes under immense pressure and can be understood in the light of the following cases:
    Shankari Prasad V. Union of India (AIR 1951 SC 458)
    The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to abridge the fundamental Rights under Part 3 of the Constitution of India. Supreme Court held that the power to amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law within the meaning of Article 13(2). Article 13(2) states that – "The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention to this clause shall, to the extent of the contravention, be void". An amendment is valid even if it abridges any fundamental Right.

    Sajjan Singh V. State of Rajasthan (AIR 1965 SC 845)
    The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview of Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court approved the judgment in Shankari Prasad case and held that on Article 13 (2) the case was rightly decided. Amendment includes amendment to all provisions of the Constitution.

    Golaknath V. State of Punjab (AIR 1967 SC 1643)
    The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend part 3 of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it may be declared void.

    24th Amendment Act, 1971:

    Golaknaths case created a lot of difficulties and as a result the Parliament enacted 24th Amendment act, 1971 whereby it changed the old heading of Article 368– "Procedure for Amendment of the Constitution" to a new heading – "Power of the Parliament to Amend the Constitution and Procedure Therefor."
    To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and extended the scope of power of Parliament to amend the Constitution by adding the words "amend by way of addition or variation or repeal any provision in accordance with the provisions laid down in this Article" Further, the amendment provided that "Nothing in Article 13 shall apply to any amendment made under this article" by way of an addition of Clause 3 to Article 368. Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461)

    One of the various questions raised in this case was the extent of the power of the Parliament to amend under Article 368. A 13 Judge Constitutional bench was formulated under Chief Justice Sikri in order to evaluate the intricacies of Golaknaths case. The Supreme Court overruled its decision in Golaknaths case and held that even before the 24th Amendment, Article 368 contained power as well as procedure for amendment. The majority held that there are inherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroy the Basic Structure of the Constitution.

    Basic Structure:
    The Theory of basic structure very effectively proved to be a limitation on the amending power of the Parliament. The Basic Structure doctrine applies only to the Constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just its basic structure.

    Chief Justice Sikri indicated that Basic structure is:

    1. The supremacy of Constitution
    2. The republican and democratic forms of government
    3. The secular character of Constitution
    4. Maintenance of separation of power
    5. The federal character of the Constitution

    Justices Shelat and Grover added another three:

    1. The mandate to build a welfare state contained in the Directive Principles of State Policy
    2. Maintenance of the unity and integrity of India
    3. The sovereignty of the country'

    Justices Hegde and Mukherjea listed the following:

    1. The Sovereignty of India
    2. The unity of the country
    3. The democratic character of the polity
    4. Essential features of individual freedoms
    5. The mandate to build a welfare state

    Justice Jaganmohan Reddy referred the Preamble only:

    1. A sovereign democratic republic
    2. The provision of social, economic and political justice
    3. Liberty of thought, expression, belief, faith and worship
    4. Equality of status and opportunity

    42nd Amendment Act, 1976 and Article 368:

    42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added clause 4 and clause 5 to Article 368. Article 368(4) provided that no Constitutional Amendment shall be called in any court on any ground. Article 368(5) provided that there shall be no limitation whatsoever on the constituent power of the Parliament.

    Minerva Mills V. Union of India (AIR 1980 SC 1789)
    Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment. Justification for the deletion of the said clauses was based on the destruction of Basic Structure. The Court was satisfied that 368 (4) and (5) clearly destroyed the Basic Structure as it gave the Parliament absolute power to amend Constitution. Limitation on the amending power of the Parliament is a part of the Basic Structure explained in Kesavanandas case.

    S. P. Sampath Kumar V. Union Of India (AIR 1987 SC 386)
    The Constitutional validity of Article 323A and the provisions of the Administrative Tribunals Act was challenged on the ground that it excluded the jurisdiction of High Court under Article 226 and 227. Supreme Court held that Article 323A and Administrative Tribunals Act was valid as it has not excluded Judicial Review under Article 32 and 136. It was not proved beyond reasonable doubt that Article 323A and Administrative Tribunals Act destroyed the basic structure and the Court upheld their validity.

    L. Chandra Kumar V. Union Of India (AIR 1997 SC 1125)
    The Supreme Court struck down clause 2(d)of Article 323A and clause 3(d) of Article 323B as they excluded the jurisdiction of High court under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 as they damage the power of Judicial Review which is a basic feature of Constitution.

    The final word on the issue of Amendability can be related to Basic Structure defined in Kesavananda Bhartis case. To name a few Minerva Mills case, S. P. Sampath Kumars case and L. Chandra Kumars case are well based on the principle of Basic Structure and this situation is unlikely to change in the near future. It is clear that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.

    Books referred:
    • H. M. Seervai, Constitutional Law of India
    • D. D. Basu, Shorter Constitution of India
    • M. P. Jain, Indian Constitutional Law
    • Vepa P. Sarathi, Interpretation of Statutes
    • Oxford Dictionary of Law
    • Mitras Legal and commercial Dictionary

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