lawyers in India

Constitutionality of Constitutional Amendment

Written by: Prateek Deol - Student of 3rd year of Gujarat National Law University
Juvenile Law
Legal Service
  • Present Article involves very wide variety of Constitutional issues into it. It covers constitutionality of a Constitutional Amendment. It also involves the extent to which the Parliament has the power to amend Constitution. It tries to see Constitutional Amendment in the light of following Basic Structure. And also looks at concept of Pith and Substance as to whether a law enacted for purposes of enforcing D.P.S.P. u/A.39 can be declared valid if it is able to establish a nexus with A.31 C of Constitution.

    Topic of Article involves a case study. And, case is Minerva Mills Ltd v. U.O.I[1]. It is a 5 Judge Bench unanimous decision. In this case the question of law that was discussed was of validity of S. 4 and S. 55 of the 42nd Constitutional Amendment.

    Judgment for majority was written by C.J. Chandrachud. Out of 5, four judges were Gupta, Chandrachud, Untwalia, and Kailasam J.J. And 5th Judge was J. Bhagwati, who with his great intellectual capacity to link law with philosophy gave a separate judgment to held S.4 and S.55 of 42nd Constitutional Amendment as Ultra Vires of Constitution.

    Case covers wide areas of Constitution. It covers what is basic structure and give criteria are as to what particular feature can be termed as part of basic structure.

    Whether Fundamental Rights[2] or Directive Principles of State Policy[3] are important?

    What is the limit of power of Parliament to amend the Constitution and is their any limitation to that power of Parliament or not? Whether the amendments that have been brought to 9th Schedule of the Constitution are they supposed to pass Keshavananda Bharti[4] Case Test or not?

    Basically these two Sections of 42nd Constitutional Amendment introduced a dramatic change in the feature of Indian Constitution and gave a wide power to Parliament to amend Constitution.

    S.4 of amendment was drafted in such a way that it subordinated A.14 andA.15 of Constitution. And S.55 introduced A. 368(4) and (5) which in turn took away power of judiciary of Judicial Review and by that Parliament was allowed to destroy the basic feature of Constitution and A.368 was also amended and (4) & (5) to A.368 were inserted by S.55, after Constitutional Amendment which reads: -
    (4) No amendment of this Constitution including the provisions of Part III; made for purporting to have been made under this article (whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground.

    (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

    # Whether S.4 and S.55 of the Forty Second Constitutional Amendment Act, 1976 is constitutionally valid and do they destroy the Basic Structure of Constitution?
    # Whether Parliament has an unlimited power u/A.368 to amend Constitution?
    # In case of conflict, what will have priority, D.P.S.P. or F.R’s?
    # Is it necessary to pass the Test of Basic Structure for any Constitutional Amendment Law?

    Mr. Palkhivala who appeared on behalf of the petitioners argued that: The amendment introduced by Section 4 of the 42nd Amendment destroys the harmony between Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The Constitution makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other. The basic structure of the Constitution rests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the Constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purport to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.

    He further argued that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayats, providing living wages for workers and just and humane conditions of work, free and compulsory education for children, organisation of agriculture and animal husbandry, .and protection or environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between parts III and IV is brought back by the 42nd Amendment,

    Finally it was urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President. Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation. Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation. While Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times. Thus, apart from destroying one of the basic features of the Constitution, namely, the harmony between Parts III and IV, Section 4 of the 42nd Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.

    These contentions were stoutly resisted by the learned Attorney General appearing on behalf of respondents stating that: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution. Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far us Clauses (d) and (e) of Article 19(1) are concerned. They would therefore be saved in any case. The history of the Constitution, particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by Articles 31A, 31B and the amended Article 31C, which were all upheld by this Court, establish the width of the amending power under Article 368. The impugned amendment therefore manifestly falls within the sweep of the amending power.

    The learned Attorney General further argued that a law which fulfils the directive of Article 38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the Constitution inasmuch as that structure itself is founded on the principle of justice- social, economic and political. Article 38, which contains a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. A law which complies with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimizing inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It. will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article 19 does not damage the basic structure of the Constitution.

    Learned Additional Solicitor General argued further that: For extracting the ratio of Keshavananda Bharati[5] one must proceed on the basis that there were at many cases as there were declarations sought for by the petitioners therein. The majority in regard to Article 368 is different from the majority in regard to the decision in respect of Article 31C. The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of Article 31C will both sustain the validity of Section 4 of the 42nd Amendment. In regard to fundamental rights, the ratio of the judgments of 1 out of 13 Judges, i.e., all excepting Jaganmohan Reddy J. will empower amendment of each one of the articles Part III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential lectures is within the permissible limits of amendment. The unamended Article 31C having been upheld by the majority in Keshavananda Bharati both on the ground of stare decisis and an the ground of contemporaneous practical exposition, the amended Article 31C must be held to be valid, especially since it has not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases ‘inconsistent with’ or take away which occur in Articles 31A, 31B and 31C should be read down to mean ‘restrict’ or ‘abridge’ and not ‘abrogate’. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.

    The learned Counsel further argued that: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. The unamended Article 31C is valid in reference to laws relatable to Article 39(b) and (c), no dichotomy can be made between laws rein table to these provisions on the one hand and laws relatable to other directive principles. A value Judgment is not permissible to the Court in this area.

    It was finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider:
    (I) whether the impugned law has 'direct and reasonable nexus' with any of the directive principles;
    (ii) Whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;
    (iii) Whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and
    (iv) If so, whether the encroachment, in effect, abrogates that fundamental right.

    Both the Attorney General and the Additional Solicitor General raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court; whether the provisions of the Forty-second Amendment of the Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are ultravires the amending power of Parliament? is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.

    Court observed for first issue that Constitutional amendment involved Articles 13, 14, 19, 31-A, 31-B, 31-C, 32, 38, 132, 133, 134, 141, 226, 352 and 368 of Constitution of India. Vires of Articles 368 (4) and 368 (5) which was introduced by Section 55 of Constitution of India (43rd Amendment) Act is under challenge. Article 368 (5) conferred upon Parliament an unlimited power to amend Constitution. And, Article 368 (4) deprived Courts of its power of judicial review over constitutional amendments But, article 368 (5) was struck down as Parliament had only limited amending power. And, such limited power cannot be enlarged into absolute power by expanding its amending powers. Parliament cannot destroy Constitutions basic structure and limited power cannot be converted into unlimited power. Article 368 (4) prohibiting judicial review violates basic structure. So, S.C. held, Articles 368 (4) and 368 (5) as unconstitutional.

    For second and third issue court observed that Parliament has power to amend constitution but this power is not unlimited and unfettered. It is restricted by Basic Structure of Constitution. Question of Directive principles of State policy also rose, whether directive principles can have supremacy over fundamental rights? Merely because directive principles are non-justiciable it does not mean that they are subservient to fundamental rights. But, destroying fundamental rights in order to achieve goals of directive principles amounts to violation of basic structure. And, giving absolute primacy to one over another would disturb harmony. And, goals of directive principles should be achieved without abrogating fundamental rights. Directive principles enjoy high place in constitutional scheme. But, both fundamental rights and directive principles are to be read in harmony. So, S.C. observed amendments in Article 31C introduced by Section 4 of 42nd Amendment Act as Unconstitutional.

    S.C. observed that Judicial Review is a part of Basic Structure of Constitution. It was further stressed that it is the function of the judges to pronounce upon the validity of laws. If the Judiciary is deprived of that power then the Fundamental Rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will become uncontrolled. The court ruled that extension of shield of A.31 C to all Directive Principles of State Policy (D.P.S.P.) was beyond the amending power of Parliament u/A.368 of Constitution. Because by giving premises to all D.P.S.P. over Fundamental Rights in A 14 and A 19 , the basic or essential feature of Constitution viz Judicial Review will be destroyed.

    [1] A.I.R. 1980 3 SCC 625
    [2] Hereinafter termed as F.R
    [3] Hereinafter termed as D.P.S.P
    [4] (1973) 4 S.C.C 225
    [5] MANU/SC/0445/1973
    # Constitutionality Of Constitutional Amendment: A Case Study

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