Constitutional Law Project

Assignment on Amendment Of Fundamental Rights

CONSTITUTIONAL LAW ASSIGNMENT ON

“Amendment Of

Fundamental Rights” Faculty: Dr. Asad Malik

Page 1

Assignment on Amendment Of Fundamental Rights

Contents 1. Acknowledgement 2. Introduction 3. Amendment of the Constitution 4. Meaning of Amendment 5. Modes of Amendment of the Constitution 6. Fundamental Rights 7. Importance of Fundamental Rights 8. Power of Parliament to Amend the Constitution 9. Principles Relating to Amendment of the Constitution 10. Power of Parliament to Amend the Fundamental Rights 11. Controversy Surrounding the Amendability of Fundamental Rights 12. History of Amending Power of the Parliament in regard to Fundamental Rights under Article 368 13. Shankari Prasad v. Union of India 14. First Stage: a) Sajjan Singh v. State of Rajasthan 15. Second Stage: a) Golak Nath v. State of Punjab b) Doctrine of Prospective Overruling c) 24th Amendment Act, 1971 16. Third Stage: a) Kesavananda Bhararti v. State of Kerela b) Indira Nehru Gandhi v. Raj Narain c) 42nd Amendment Act, 1976 d) 42nd Amendment Act with reference to Article 368 17. Fourth Stage: a) Minerva Mills Limited v. Union of India b) Waman Rao v. Union of India c) S.P. Sampath Kumar v. Union of India d) Raghunath Rao v. Union of India e) L. Chandra Kumar v. Union of India

Page 2

Assignment on Amendment Of Fundamental Rights

f) M. Nagraj v. Union of India g) I.R. Coelho v. State of Tamil Nadu 18. Theory of Basic Structure 19. Limitations on the Constituent Power of Amendment 20. Conclusion 21. Bibliography

Page 3

Assignment on Amendment Of Fundamental Rights

ACKNOWLEDGEMENT I would like to express my heartfelt gratitude and thanks to the various authors whose books I have referred to while doing my project and also the various sources of information from where I have collected the data for my assignment. I am duly indebted to them. I am also indebted to the All India Reports of the Supreme Court and the judgments of various other Courts. Last but not the least; I would also like to thank my teacher, Dr. Asad Malik, for providing us the opportunity to do such projects and also for helping us with his valuable suggestions.

Page 4

Assignment on Amendment Of Fundamental Rights

Page 5

Assignment on Amendment Of Fundamental Rights

AMENDMENT OF FUNDAMENTAL RIGHTS  INTRODUCTION:The Constitution of India was adopted on 26 th November, 1949 and inaugurated on 26th January, 1950. It was framed by a Constituent Assembly which consisted of members who were elected by the Legislatures of the Provinces in 1946. The framers of the Constitution drew profusely on the Constitutions of the United States of America, Australia, Canada and the United Kingdom. However, the Indian Constitution though federal in form is not similar to the Constitutions of the United States of America or Australia. It is similar to the Constitution of Canada in some respects. The Indian Constitution is described as “Quasi-federal” by Professor Wheare, as “a new kind of federalism to meet India’s peculiar needs” Granville Austin and as “federal in times of peace and unitary in times of war” by Dr. Ambedkar. This divergence of views among the constitutional scholars is due to the fact that the framers did not follow any set pattern, but created an instrument of Government which according to them would enable the people of India to enjoy regional autonomy in a manner consistent with the paramount national interest. They also provided for Fundamental Rights to ensure that the liberty of the citizens of India would be a reality and not merely a promise. The inclusion of directive principles of State Policy in the Constitution assures to the citizens a better life wherein social and economic justice will be available. The

Page 6

Assignment on Amendment Of Fundamental Rights

goal which the framers of the Indian Constitution kept before the nation is fully explained in the Preamble to the Constitution. The Preamble represents the aspirations of the people of India and the other provisions of the Constitution are expected to enable the people of India to march towards the cherished goal enshrined in the Preamble. The objectives in the Preamble are a part of the ‘basic structure’ of the Constitution. Hence, the Preamble cannot be amended so as to destroy the objectives.1

 Amendment of the Constitution:Our first Prime Minister, Pandit Jawaharlal Nehru said, “It may be that the Constitution that this House may frame may not satisfy free India. A free India will do what it chooses.”2 He also said that, “While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in the Constitution. There should be a certain flexibility. If you make anything rigid and permanent you stop the nation’s growth, of a living, vital, organic people. In any event, we could not make this Constitution so rigid that it cannot be adopted to changing conditions. When the world is in a period of transition what we may do today may not be wholly applicable tomorrow. But the framers of our Constitution were also aware of the fact that if the Constitution was too flexible, it would be a playing of the whims and caprices of the ruling party. They were, therefore, anxious to avoid flexibility of the extreme 1 Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461 2 Constituent Assembly Debates

Page 7

Assignment on Amendment Of Fundamental Rights

type. Hence, they adopted a middle course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable changes. The machinery of amendment should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set in motion, an accumulation of force sufficient to explode it. The Constitution-makers have, therefore, kept the balance between the danger of having non-amendable Constitution and a Constitution which is too easily amendable.3 Dr. Ambedkar said, “One can, therefore, safely say that the Indian Federation will not suffer from the faults of rigidity of legalism. Its distinguishing feature is that it is a flexible federation.”4 George Bernard Shaw in his book “The Intelligent Woman's Guide to Socialism and Capitalism” 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 well if the judges happen to dislike them.”5

 Meaning of Amendment:-

3 Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461 4 Dr. Ambedkar in Constituent Assembly Debates, Volume IX, Pg. 1569. 5 The Intelligent Women’s Guide to Socialism and Capitalism by George Bernard Shaw

Page 8

Assignment on Amendment Of Fundamental Rights

The term “Amendment” must be construed in its natural meaning as “altered, by addition, substitution and omission”. Oxford’s Dictionary of Law defines Amendment as, “changes made to legislation, for the purpose of adding to, correcting or modifying the operation of the legislation.” 6 The new Britannica Encyclopedia explains Amendment as “Amendment, in Government and Law, an addition to or change of a constitution, statute or legislative bill or resolution. An amendment must actually be accompanied by some specified parliamentary or constitutional process.” 7

Black’s Law Dictionary defines Amendment as, “A formal revision or addition proposed or made to statute, Constitution, pleading, order, or other instrument”. In Parliamentary law, it means “a motion that changes another motion’s wording by striking out text, inserting or adding text, or substituting text.”8 The word ‘Amendment’ should be interpreted in the context of the legal and constitutional history of our Nation and Constitution.

 Modes of Amendment of the Constitution:There are two modes/types Constitution. They are: 1) Formal 2) Informal 6 Oxford Dictionary of Law 7 Britannica Encyclopedia 8 Black’s Law Dictionary

Page 9

of

Amendment

of

the

Assignment on Amendment Of Fundamental Rights



Formal Mode of Amendment –– The Constitution of India provides for its 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:a) 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 for 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. b) 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 two-third (2/3rd) of the members present and voting. c) Amendment by Special Majority and Ratification by States:

Page 10

Assignment on Amendment Of Fundamental Rights

Articles which require, in addition to the special majority mentioned above, ratification by not less than ½ of the State Legislatures. The States are given an important voice in the amendment of these matters. These are fundamental matters where States have important power under the Constitution and any unilateral amendment by Parliament may vitally affect the fundamental basis of the system built up by the Constitution. This class of Articles consist of amendments which seek to make any change in the provisions mentioned in Article 368. The following provisions require such ratification by the States – (1)Election of the President (Articles 54 & 55). (2)Extent of the Executive power of the Union and States (Articles 73 & 162). (3)Articles dealing with Judiciary, Supreme Court, High Court in the States and Union Territories (Articles 124 to 147, 214 to 231 and 241). (4)Distribution of Legislative powers between the Centre and the State (Articles 245 to 255). (5)Any of the Lists of the VIIth Schedule. (6)Representation of States in Parliament. (IVth Schedule). (7)Article 368 itself.

d) Amendment under Article 368 of the Indian Constitution.

Informal Mode of Amendment –– The Informal mode of Amendment involves the amendment of the Constitution through through Judicial Interpretation, Conventions and

Page 11

Assignment on Amendment Of Fundamental Rights

Constitutional usages. When an amendment or a law made by the Parliament, if held unconstitutional by the Supreme Court, can be struck down or repealed by the Supreme Court on the grounds of unconstitutionality.

 FUNDAMENTAL RIGHTS:Part III of the Indian Constitution contains a long list of Fundamental Rights. This Chapter of the Indian Constitution has very well been described as the Magna Carta of India.9 There were no fundamental rights under any of the Government of India Acts because they were founded on the English doctrine of sovereignty of Parliament which was repugnant to any limitations upon the authority of Parliament, by way of safeguarding individual rights. But nationalist opinion, since the time of the Nehru Report, was definitely in favour of a Bill of Rights, because the experience gained from the British regime was that a subservient Legislature might occasionally help the Executive in committing inroads upon individual liberty. So, the Constitution of India embodied a number of Fundamental Rights in Part III of the Constitution, which are available not only against the Executive but are also limitations upon the powers of the Legislature. But though the model has been taken from the United States, the Indian Constitution does not go so far, and rather effects a compromise between the doctrines of Parliamentary sovereignty and judicial supremacy. On the one hand, the Parliament of India cannot be said to be sovereign in the English sense of legal omnipotence, –– for, the very fact that the Parliament is created and limited by a written 9 Fundamental Rights and Constitutional Remedies., Vol. 1 (1964), Pg-1 by V.G. Ram Chandran

Page 12

Assignment on Amendment Of Fundamental Rights

Constitution, enables our Parliament to legislate only subject to the limitations and prohibitions imposed by the Constitution. e.g., subject to the Fundamental Rights, the distribution of legislative powers, etc. On the other hand, the major portion of the Constitution is liable to be amended by the Union Parliament by a special majority, if, any case, the Judiciary proves too obtrusive. The inclusion of a Chapter of Fundamental Rights i8n the Constitution of India is in accordance with the trend of modern democratic thought, the idea being to preserve that which is an indispensable condition of a free society. The aim of having a Declaration of Fundamental Rights is that certain elementary rights, such as, right to life, liberty, freedom of speech, freedom of faith and so on, should be regarded as inviolable under all conditions and that the shifting majority in Legislature of the country should not have a free hand in interfering with these fundamental rights.10 Articles 12 to 35 of the Constitution pertain to fundamental rights. These rights are reminiscent of some of the provisions of the Bill of Rights in the United States Constitution but the former cover a much wider ground than the latter. The fundamental rights have been grouped under seven heads. Right to Equality comprises Articles 14 to 18, of which Article 14 is the most important. Right to Freedom comprises Articles 19 to 22 which guarantee several freedoms. Right against Exploitation consists of Articles 23 and 24. Right to Freedom of Religion is guaranteed by Articles 25 to 28. Cultural and Educational Rights are guaranteed by Articles 29 and 30. Right to Property is now very much diluted and is secured to some extent by Articles 30-A, 31-A, 31-B and 31-C. Right to Constitutional 10 A.K Gopalan v. State of Madras, AIR 1950 SC 27.

Page 13

Assignment on Amendment Of Fundamental Rights

Remedies is secured by Articles 32 to 35. These Articles provide the remedies to enforce the fundamental rights and of these, the most important is Article 32. As the fundamental rights constitute by and large a limitation on the government, the most important problem which the courts have been faced with while interpreting them has been to achieve a proper balance between the rights of the individual and those of the state or society as a whole, between individual liberty and social control. This is a very difficult task indeed in these days of development of the country into a social welfare state. The fundamental rights are not all distinct and mutually exclusive rights. Each freedom has different dimensions and a law may have to meet the challenge under various fundamental rights. Thus, a law depriving a person of hi personal liberty may have to stand the test of Articles 14, 19 and 21 to be valid. Formerly, however, the courts applied the Doctrine of Exclusivity of fundamental rights and treated each right as a distinct and separate entity, but this view has now undergone a change providing to the courts a better leverage to test the validity of laws affecting fundamental rights.

 Importance of Fundamental Rights:Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government. They were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. They are limitations upon all the powers of the Government, legislative as well as the executive and they are essential for the preservation of public and private rights,

Page 14

Assignment on Amendment Of Fundamental Rights

notwithstanding the representative character of political instruments.11 The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights. All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public Interest Litigation". In some cases, High Court judges have acted on their own on the basis of newspaper reports. These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasise on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, 11 Hartado v. People of California, 28 Led 232, per Mathew, J.

Page 15

Assignment on Amendment Of Fundamental Rights

including non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to overseas citizens of India. Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits beggary. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. Speaking about the importance of Fundamental Rights in the historic judgment of Maneka Gandhi v. Union of India, AIR 1978 SC 597, Justice Bhagwati observed, “These fundamental rights represent the basic values cherished by the people of this country (India) since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a “pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.” The object behind the inclusion of the Chapter of Fundamental Rights in Indian Constitution is to establish “a Government of law and not of man’ a governmental system where the tyranny of majority does not oppress the minority. In short, the object is to establish Rule of Law and it would not be wrong to say that the Indian Constitution in this respect goes much ahead than any other Constitutions of the world. The object is not merely to provide security and equality of citizenship of the people living in this land and thereby helping the process of nation building, but also and not less important to provide certain standards of conduct, citizenship, justice and fair play. They were

Page 16

Assignment on Amendment Of Fundamental Rights

intended to make all citizens and persons appreciate that the paramount law of the land has swept away privileges and has laid down the paramount perfect equality between one section of the community and another in the matter of all those rights which are essential for the material and more perfection of man.12 In M. Nagraj v. Union of India, AIR 2007 SC 71, the Supreme Court ‘speaking about the importance of the fundamental rights’ held that fundamental rights are not gift from the State to citizens. Part 3 does not confer fundamental rights but confirm their existence and give them protection. Individuals possess basic human rights independently of any Constitution by reason of basic fact that they are the human race. There rights are important as they possess intrinsic values. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. o The Six Fundamental Rights are as follows:1. Right to Equality (Articles 14 to 18) 2. Right to Freedom (Articles 19 to 22) 3. Right against Exploitation (Articles 23 and 24) 4. Right to Freedom of Religion (Articles 25 to 28) 5. Cultural and Educational Rights (Articles 29 and 30) 6. Right to Constitutional Remedies (Articles 32 to 35)

 POWER OF PARLIAMENT CONSTITUTION:-

TO

AMEND

12 Moti Lal v. State of Uttar Pradesh, AIR 1951 All. 257

Page 17

THE

Assignment on Amendment Of Fundamental Rights

The times & life of a Nation is not static. The Constitution acts like a living organism and a Constitution drafted in one era is often inadequate for another. There is a constant change in political, social and economic conditions of a nation. Hence it is the right of every generation to mould its future. A federal Constitution is a rigid Constitution. Hence the procedure for its amendment is usually a complicated one. The Indian Constitution however has provided for a simple procedure for its amendment. Article 368 of the Indian Constitution lays down the provisions of the Constitution regarding amendment. Article 368 of Part XX of the Indian Constitution deals with the Amendment of the Constitution and the procedure therefor. It states that: 368. [Power of Parliament to amend the Constitution and procedure therefor.]13— [(1) 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.]14 (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the 13 Subs. by the Constitution (24th Amendment) Act, 1971, Section 3(a), for “Procedure for amendment of the Constitution” (w.e.f. 5-111971). 14 Ins. by the Constitution (24th Amendment) Act, 1971, Section 3(b) (w.e.f. 5-11-1971).

Page 18

Assignment on Amendment Of Fundamental Rights

members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon]15 the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in— (a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. [(3) Nothing in article 13 shall apply to any amendment made under this article.]16 17 [(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-

15 Subs. by the Constitution (24th Amendment) Act, 1971, Section 3(c), for certain words (w.e.f. 5-11-1971). 16 Ins. by the Constituion (24th Amendment) Act, 1971, Section 3(d) (w.e.f. 5-11-1971). 17 Cls. (4) and (5) were ins. “in Article 368 by Section 55 of the Constitution (Forty-second Amendment) Act, 1976. This section has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others, (1980 ) 3 S.C.C. 625.

Page 19

Assignment on Amendment Of Fundamental Rights

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.] 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. 





Article 368, was first amended by the Constitution (Twenty-fourth Amendment) Act, 1971, w.e.f. 5-81971, in order to counteract the effects of the majority decision of the Supreme Court in Golak Nath’ case.18 But even such elaborate amendments proved ineffective to deter the Supreme Court from invalidating a Constitution Amendment Act on a substantive ground, as happened in Keshavananda 19 and Rajnarain’s20 cases. Hence, by the 42nd Amendment Act, Clause (4) and Clause (5) were inserted, to make it clear that on no ground (not even on the ground of procedural non-

18 Golak Nath v. State of Punjab, AIR 1967 SC 1643 19 Keshavananda Bharati v. State of Kerela, AIR 1973 SC 1461 20 Indira Gandhi v. Rajnarain, AIR 1975 SC 2299

Page 20

Assignment on Amendment Of Fundamental Rights





compliance with the requirements of Article 368, shall any be competent to invalidate any Constitution Amendment Act.21 Amendment of the Constitution: The power to amend cannot be equated with the power to frame the Constitution, which by no limitations or constraints. It is primary power, a real plenary power.22 Effects of Amendments: The net effects of these successive amendments on the 1949 provision may be explained below:–– Article 368 as it stood in 1949: 1) It was not obligatory for the President to give his assent to a Bill for amendment of the Constitution. 2) What was meant by ‘amendment’ was not explained. 3) Relying on the word “Bill”, it was held in Golak Nath’s case that a Constitution Amendment Act, though passed in exercise of the power conferred by Article 368, was a ‘law’ subject to Article 13(2). 4) Though the amending power conferred by Article 368 was not subject to any express limitations, it was held in Keshavananada and Rajnarain’s cases that it was subject to the procedural conditions imposed by Article 368, and to the implied limitation that the power to amend could not alter the ‘basic features’ of the Constitution or to make a new Constitution altogether.

21 But even this addition has been foiled by the Supreme Court in Miverva Milla v. Union of India, AIR 1980 SC 1789, holding Clause (4) and Clause (5) as void, on the ground that this amendment sought to totally exclude judicial review, which was “basic feature” of the Constitution. 22 I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861: (2007) 2 SCC 1.

Page 21

Assignment on Amendment Of Fundamental Rights

Article 368 as it stands after 1976: 1) It has been made obligatory for the President to give his assent to a Bill passed under Article 368 [Clause (2), as amended by the 24 th Amendment Act, 1971], though his power to veto other Bills remains intact, subject, of course, to ministerial advice under Article 74(1), as amended by the 42nd Amendment Act. 2) By inserting Clause (1), the 24th Amendment Act, 1971, has made it clear that amendment would include ‘addition, variation or repeal of any provision of the Constitution’. 3) The 24th Amendment Act, 1971 repelled the theory that a Constitution Amendment Act passed under the exercise of power conferred by Article 368 was a ‘law’ subject to Article 13(2). The 24 th Amendment Act repelled this theory by inserting Clause (4) in Article 13 and Clause (3) in Article 368. 4) The 42nd Amendment Act inserted Clause (5) to say that there are no limitations whatever to the power conferred by Article 368, and Clause (4) to say that a Constitution Amendment Act shall be immune from judicial review altogether, whether on substantive or procedural grounds. But this amendment has been annulled by the Supreme Court in Minerva Mills case. By inserting Clause (4) and (5) to Article 368, the Parliament tried to repel the theory that an amendment could not alter the ‘basic features’ of the Constitution. 

Principles relating to Amendment of the Constitution:(a) Subject to the special procedure laid down in Article 368, our Constitution vests constituent power upon the

Page 22

Assignment on Amendment Of Fundamental Rights

ordinary Legislature of the Union, i.e., the Parliament and there is no separate body for amending the Constitution, as exists in some other Constitutions.23 (b)Subject to the provisions of Article 368, Constitution Amendment Bills are to be passed in the same way as ordinary Bills. (c) Parliament may, by a Constitution Amendment Act, amend Article 368 itself. (d)While previously it was held that the courts are competent to examine the validity of a Constitution Amendment Bill to see whether the provisions of Article 368 have been complied with or violated, Clause (4) and Clause (5), as inserted by the 42 nd Amendment Act, 1976, intended to preclude judicial review even on that ground; but these Clauses have been declared ‘unconstitutional’ by the Supreme Court.

 POWER OF PARLIAMENT FUNDAMENTAL RIGHTS:-

TO

AMEND

THE

Part III of the Indian Constitution contains the Chapter on Fundamental Rights. Article 12 states that:12. Definition.–– In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. 23 Shankari Prasad v. Union of India, (1952) SCR 89; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 –– restored by 24 th Amendment Act; and Clause (5) inserted by the 42nd Amendment Act, 1976.

Page 23

Assignment on Amendment Of Fundamental Rights

Article 13 states that:13. Laws inconsistent with or in derogation of the fundamental rights.–– (1)All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2)The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3)In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. 24

[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]

24 Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 2 (w.e.f. 5-11-1971)

Page 24

Assignment on Amendment Of Fundamental Rights







State: Article 12 clarifies that the term “State” occurring in Article 13 (2), or any other provision concerning fundamental rights, has been given an expansive meaning. According to Article 12, ‘the state’ includes the Government and Parliament of India, the Government and the Legislature of a State, and all local or other authorities within the territory of Indi, or under the control of the Central Government. The actions of any of these organs can be challenged before the courts as violating fundamental rights. Article 12 has given an extended significance to the term ‘state’. Justiciability of Fundamental Rights : Article 13 gives teeth to the fundamental rights and makes them justiciable. The effect of Article 13 is that all preConstitution laws shall be void to the extent of their inconsistence with the fundamental rights. According to Article 13(2), the state ‘shall not make any law’ which takes away or abridges the fundamental rights; and a law contravening a fundamental rights is, to the extent of the contravention, void. Most of the fundamental rights are claimed against the state and its instrumentalities and not against private bodies.25 The two important concepts used in these provisions is ‘state’ and ‘law’. Law: The term ‘law’ in Article 12 has been given a wide connotation so as to include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. Thus, not only a piece of legislation, but any of the things mentioned here can be challenged as infringing a fundamental right. Accordingly, a resolution passed by a State Government under Fundamental Rule 44 of the State,26 a government notification under the Commissions

25 P.D. Shamdasani v. Central Bank of India, AIR 1952 SC 59. 26 Madhya Pradesh v. Mandawar, AIR 1954 SC 493.

Page 25

Assignment on Amendment Of Fundamental Rights

of Inquiry Act setting up a commission of inquiry, 27 a notification28 or an order29 under a statute, an administrative order,30 a custom or usage,31 bye-laws of a municipal or statutory body,32 regulations made by a statutory corporation like the Life Insurance Corporation, 33 have been held to be ‘law’ under Article 13. The bye-laws of a co-operative society framed under a co-operative societies act do not fall within the purview of Article 13. 34 Though a law as such may not be invalid, yet an order made under it can still be challenged as being inconsistent with a fundamental right because no law can be presumed to authorize anything unconstitutional.35 Article 13 is a key provision as it makes fundamental rights justiciable. It confers a power, and imposes an obligation, on the courts to declare a law void if it is inconsistent with a fundamental 27 Dalmia v. Justice Tendolkar, AIR 1958 SC 538 28 Madhubhai Amathalal Gandhi v. Union of India, AIR 1961 SC 21. 29 Pannalal Binjraj v. Union of India, AIR 1957 SC 397. 30 Balaji v. Mysore, AIR 1963 SC 649 31 Sant Ram v. Labh Singh, AIR 1965 SC 314. 32 Tahir v. District Board, AIR 1954 SC 630. 33 Bhagatram, supra, 462; Hirendra Nath Bakshi v. Life Insurance Corporation, AIR 1976 Cal. 34 Co-op. Credit Bank v. Industrial Tribunal, AIR 1970 SC 245. 35 Narendra Kumar & Others v. Union of India, AIR 1960 SC 430.

Page 26

Assignment on Amendment Of Fundamental Rights

right. The Supreme Court has figuratively characterized this role of the judiciary as that of a ‘sentinel on the qui vive’. 

Doctrine of Severability: According to Article 13, a law is void only “to the extent of the inconsistency or contravention” with the fundamental right. This means that an Act may not be void as a whole; only a part of it may be void and if that part is servable from the rest then the rest of the Act may continue to stand and remain operative. The Act will then be read as if the invalid portion was there. If, however, it is not possible to separate the valid from the invalid portion, then the whole of the statute will have to go.36

o CONTROVERSY AMENDABILITY RIGHTS:-

SURROUNDING THE OF FUNDAMENTAL

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. The question whether fundamental rights can be amended under Article 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India.37 In this case the validity of 36 Kameshwar Pd. v. State of Bihar, AIR 1962 SC 1166; Madhya Pradesh v. Ranojirao Shinde, AIR 1968 SC 1053. 37 AIR 1951 SC 455 at pg. 458.

Page 27

Assignment on Amendment Of Fundamental Rights

the Constitution was challenged. The Amendment was challenged on the ground that it purported to take away or abridge the rights conferred by Part III which fell within the prohibition of Article 13(2) and hence was void. It was argued that the term “State” in Article 12 included Parliament and the word “Law” in Article 13(2), therefore, must include constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Article 368, and that the word ‘Law’ in Article 13 (2), includes only an ordinary law made in exercise of the Legislative powers and does not include constitutional amendment which is made in exercise of constituent power. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.

History of Amending Power of the Parliament in regard to Fundamental Rights under Article 368:A review of judgments of the Supreme Court indicates that the Court interpreted the provisions of the Constitution relating to the amendment of the Constitution differently at different times. From Shankari Prasad’s case to Sajjan Singh’s case,38 Golak Nath’s case39 to Kesavananda Bharati’s case40, Minerva Mills’ case;41 we can divide the 38 AIR 1965 SC 845. 39 AIR 1971 SC 1643. 40 AIR 1973 SC 1461. 41 AIR 1980 SC 1789.

Page 28

Assignment on Amendment Of Fundamental Rights

entire chronology of the history of these cases and their decisions thereof into various Stages. The important cases related with Amendment of Fundamental Rights, that I will be referring to in my assignment, in chronological order are as follows:1) Shankari Prasad v. Union of India, AIR 1951 SC 455 2) Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 3) Golak Nath v. State of Punjab, AIR 1971 SC 1643 4) Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461 5) Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 6) Minerva Mills Limited v. Union of India, AIR 1980 SC 1789 7) Waman Rao v. Union of India, AIR 1981 SC 271 8) S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 9) Raghunath Rao v. Union of India, AIR 1993 SC 1267 10) L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 11) M. Nagraj v. Union of India, AIR 2007 SC 71 12) I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 8617

 First Stage:From Shankari Prasad’s case to Sajjan Singh’s case, the Supreme Court held that Parliament has unlimited power of amending the Constitution and an amendment of the Constitution was not a “law” within the meaning of Article 13. This meant that there were no limitations on the power of Parliament to amend the Constitution and the Supreme Court had no authority to consider the legality or otherwise of an amendment of the Constitution. Only two judges in the Sajjan Singh case expressed doubts about this proposition. 

In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the validity of the Constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court approved the

Page 29

Assignment on Amendment Of Fundamental Rights

majority judgment given in Shankari Prasad’s case and held that the words “Amendment of the Constitution” means amendment of all the provisions of the Constitution. Gajendragadkar, C.J. said that, “If the Constitution makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in that behalf.” 

Doubts expressed in Sajjan Singh’s Case: For more than a decade, controversy seemed to have been settled; but in Sajjan Singh v. State of Rajasthan42, certain doubts were expressed by Hidayatullah and Madholkar, JJ. Hidayatullah, J said: “But I make it clear that I must not be understood to have subscribed to the view that the word ‘law’ in Article 13(2) does not control Constitutional amendments. I reserve my opinion on that case for I apprehend that it depends on how wide is the word ‘law’ in that Article.” Madholkar, J. also made the following observations : “In view of these considerations and those mentioned by my learned brother Hidayatullah I feel reluctant to express a definite opinion on the question whether the word ‘law’ in Article 13(2) of the Constitution excludes an Act of Parliament amending the Constitution and also whether it is competent to parliament to make any amendment at all to Part III of the Constitution.”

 Second Stage:

In Golak Nath v. State of Punjab, AIR 1971 SC 1643, the validity of the Constitution (17th Amendment) Act, 1964, which inserted certain State Acts in Ninth Schedule

42 A.I.R. 1965 SC 845.

Page 30

Assignment on Amendment Of Fundamental Rights

was again challenged. The Supreme Court laid down by a majority (six out of eleven Judges) that there was no distinction between legislative and constituent power. The Supreme Court prospectively overruled its earlier decision in Shankari Prasad’s case and Sajjan Singh’s case and held that Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge fundamental rights. Hence, an amendment of the Constitution that abridged or curtailed any of the fundamental rights was subject to Article 13(2). The Court laid down that Parliament had no power to curtail or abridge fundamental rights. The Court also laid down that Article 368 merely laid down the procedure for an amendment of the Constitution, the power to amend was to be traced to the residuary power of legislation. The Court however did not declare the amendment made to the Constitution up to the date of the judgment (i.e. 27-2-1967) as void, in order to avoid “the disastrous effect” of the decision. Hence, it introduced the “Doctrine of prospective overruling”. 



In this case three Writ Petitions (one against State of Punjab and two against State of Mysore) were filed to challenge the validity of certain land reforms as well as of the Constitution (17th Amendment) Act, 1964 on the ground of violation of fundamental rights under Articles 14, 19 and 31. The main ground in favour of un-amendability of fundamental rights was based on the construction of Articles 13(2) and 368 of the Constitution. The Court held that it is true that the Constitution does not directly prohibit amendment of fundamental rights but the word ‘law’ in Article 13(2) includes Constitutional law and Constitutional amendments being law cannot take away or abridge fundamental rights in the face of express prohibition in

Page 31

Assignment on Amendment Of Fundamental Rights



Article 13(2). If fundamental rights are abridged or taken away by amendment, this could be possible only by a Constituent Assembly, which maybe convoked by Parliament by enacting a law under residuary powers. All the three amendments challenged in the Writ Petitions were upheld by the Court on the ground that they were made on the basis of earlier decisions of the Supreme Court and holding them invalid after such a long time would create chaos and would unsettle the conditions in the country. Since the land reform legislations challenged were protected by the Constitution (17th Amendment) Act and the amendment was held valid, the Court held that the legislation in question could not be challenged and dismissed the petitions. However, the Court applied the doctrine of prospective overruling and held that in future Parliament could not abridge fundamental rights by Constitutional amendments or legislation.

Doctrine of Prospective Overruling (Meaning):The basic meaning of prospective overruling is to construe an earlier decision in a way so as to suit the present day needs, but in such a way that it does not create a binding effect upon the parties to the original case or other parties bound by the precedent. The use of this doctrine overrules an earlier laid down precedent with effect limited to future cases and all the events that occurred before it are bound by the old precedent itself. In simpler terms it means that the court is laying down a new law for the future.  24th Amendment Act, 5th November, 1971:

Page 32

Golak Nath’s 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”

Assignment on Amendment Of Fundamental Rights





to a new heading – “Power of the Parliament to Amend the Constitution and Procedure Therefor.” This Act made it clear that a constitution amendment is not “law” as mentioned in Article 13. Article 368 was amended with a view to ensuring that Parliament has power to amend any provisions of the Constitution. This was done to negative the effects of the Golak Nath’s judgment. The Supreme Court in the Kesavananda Bharati case upheld the validity of the amendment. 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.

 Third Stage:

Page 33

The validity of the Constitution (24 th Amendment) Act, 1971 was challenged in Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461, popularly known as the Fundamental Rights’ case. In this case, His Holiness Swami Kesavananda Bharti Sri Padagalwaru was the head of a Math in Kerela. Land reform legislation in Kerela had affected the property of his religious institution. Subsequently, these changes in the Land Reform Law were placed in the Ninth Schedule by the 29th Amendment. The petitioners had challenged the validity of the Kerela

Assignment on Amendment Of Fundamental Rights





Page 34

Land Reforms Act, 1963. But during the pendency of the petition, the Kerela Act was amended in 1971 and was placed in the Ninth Schedule by the 29 th Amendment Act, 1972. The petitioner was permitted to challenge the validity of the 24 th Amendment Act, 25th Amendment Act and also the 29 th Amendment Act. The question involved was as to what was the extent of the amending power conferred by Article 368 of the Constitution? On behalf of the Union of India it was claimed that amending power was unlimited and short of repeal of the Constitution any change could be effected. On the other hand, the petitioner contended that the amending power was wide but not unlimited. Under Article 368, Parliament cannot destroy the “basic feature” of the Constitution. A Special Bench of 13 Judges (the largest bench by far in our country) was constituted to hear the case. The decision in this case would completely alter the constitutional landscape of India for generations to come. This decision continues to be one of the longest reported judgement and covers 594 pages of All India Reporter. The 13 Judges gave elaborate reasons and analysing them critically is extremely strenuous. Several propositions have been repeated again and again. The Court by majority overruled the Golak Nath’s case which denied Parliament the power to amend fundamental rights of citizens. The majority held that Article 368 even before the 24 th Amendment contained power as well as the procedure of amendment. The 24th Amendment merely made explicit what was implicit in the unamended Article 368-A. The 24th Amendment Act does not enlarge the amending power of the Parliament. The 24th

Assignment on Amendment Of Fundamental Rights





Amendment is declaratory in nature. It only declares the true legal position as it was before that amendment, hence it is valid. The Court laid down that: (1) Article 368 does not empower Parliament to amend the basic structure of the Constitution. (2) The 24th Amendment Act is valid. (3) The first part of Section 3 of the 25 th Amendment Act is valid. The part of the Section, namely, “no such law containing the declaration that is for giving effect to such policy shall be called in question in any court on the ground that is does not give effect to such policy”, is invalid. (4) The Court also upheld the validity of other provisions which related to an amendment of the Constitution and which were challenged in the case. In this case, it was urged that there are implied limitations on the amending power of Parliament. However, the majority did not uphold this plea. Only five out of the thirteen judges subscribed to the view of implied limitations. The Court also laid down that the Parliament has power to amend even the provisions relating to fundamental rights. For, the majority did not hold that fundamental rights are a basic feature of the Constitution; but the Parliament has no power to amend the Constitution so as to affect the basic structure of the Constitution. It was also held in this case that the Supreme Court may strike down even an amendment of the Constitution.

o The Decision in Kesavananda Bharati case was also followed in the famous case of Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, also known as the Election case. In this case, the election

Page 35

Assignment on Amendment Of Fundamental Rights

o o o o o

of Mrs. Indira Gandhi was set aside by the Allahabad High Court on grounds of corrupt practices. Instead of gracefully waiting for the outcome of her appeal before the Supreme Court, the Parliament passed the 39th Amendment Act, 1975 on 10th August 1975, taking the election of President, Vice President, and Prime Minister outside the pale of Judicial Review. The amendment was tailor made to nullify the decision of the Allahabad High Court. The constitutional validity of this amendment came up for consideration in the aforesaid Indira Gandhi’s case. Article 329-A(4) was held to be constitutionally invalid. Several observations regarding the law relating to elections are not relevant here. As regards to basic structure, Chandrachud J. who was part of the majority, referred to the five aspects that would constitute the basic structure: Sovereign democratic republic status Equality of status in opportunity of an individual Rule of law Secularism and freedom of conscience and religion Judicial review

The Supreme Court struck down Clause (4) of Article 329-A on various grounds. Ray, C.J. pointed out: “Clause (4) of Article 329-A……..has passed a declaratory judgment and not law. Legislative judgment in clause (4) is an exercise of judicial power………the validation of election cannot rest on clause (4).” Mathew, J. held that “democracy” is basic feature of the Constitution and this basic feature has been damaged by clause (4). Hence the clause was invalid. “An election dispute can be resolved only by a tribunal and not by a legislature.” This judgment had an extensive discussion on the basic structure theory and to what extent it would apply to the

Page 36

Assignment on Amendment Of Fundamental Rights

ordinary law making powers of Parliament. This judgment is also important from the point of view of the meaning of the expression “constituent power”. The power exercised by a Constituent Assembly in framing a new Constitution is a plenary power and is not subject to any limitations. But the constituent power exercised by a body empowered to amend the Constitution is subject to limitations. After the judgments of Kesavananda Bharati case and Indira Gandhi Election case were delivered, Parliament amended the Constitution in 1976 (Forty-second Amendment) Act and added the clauses (4) and (5) to Article 368.

 42nd Amendment Act, 18th December, 1976:

Page 37

This was the most extensive Amendment Act. It contained 55 Sections and sought to amend a number of Articles. It proved to be a most controversial amendment as it was attacked more from the point of view of political affiliations rather than purely legal objections. There was a national debate on the proposals contained in this amendment. As the amendment was undertaken during the period of emergency when the freedom of expression was subject to many restrictions and a number of members of Parliament from opposition parties were in prison, it was denounced by many. The principles on which the amendment was based were the sovereign powers of Parliament to amend the Constitution, wide powers to the Union Government with a view to maintaining law and order in the country, curtailment of the power of the

Assignment on Amendment Of Fundamental Rights

judiciary with the purpose of taking away the jurisdiction of the Supreme Court as regards deciding the validity by a constitutional amendment, avoiding the interpretation of constitutional provisions. This amendment became one of the topics of general election to Parliament at the end of the emergency period.

 42nd Amendment Act with reference to Article 368–– Encouraged by the decision in Kesavananda Bharati’s43 case, Clauses (4) and (5) were inserted in Article 368 by the 42nd Amendment Act, 1976, by Mrs. Gandhi’s Government, to control another part of the Kesavandanda decision that though the Fundamental Rights constituted no limitation on the amending power, there were other ‘implied limitations’, namely, that the power to amend could not be used to alter the ‘basic features’ of the Constitution or to make a new Constitution. This latter view in Kesavananda’s case was intended to be superseded by Clause (4)-(5) which say that: (a) there are no limitations, express or implied, upon the amending power under Article 368 (1), which is a ‘constituent power’, and that (b)a Constitution Amending Act would not, therefore, be subject to judicial review, on any ground. 

But the Constitution (42nd Amendment) Act, 1976, in so far as it inserted Clauses (4) and (5) in Article 368, has been held to be void by the Supreme Court in the Minerva Mills case.44 The Supreme Court held the new clauses to be void on the ground that this

43 Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461.

Page 38

Assignment on Amendment Of Fundamental Rights

amendment sought to totally exclude judicial review, which was ‘basic feature’ of the Constitution. 

A question may be asked here, can we say that an amendment made by Parliament is an amendment made by people? The 42nd amendment was intended to achieve this object. It was argued that the amending body under Article 368 has the full constituent power. In other words, the Parliament acts in the same capacity as the Constituent Assembly when exercising the power of amendment under Article 368. It is submitted that this proposition is totally wrong. The reasons are:1) Firstly, an amendment made by Parliament cannot be said to be an amendment made by the people. There is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend it. It is true that Parliament represents the will of the people. But it is not equally true that whatever Parliament does is usually approved by the people. The Lok Sabha election held in 1977 is a good example to show that the representatives of the people in Parliament do not always reflect the people’s will. Whatever was done during the emergency was done in the name of the people. But from the election result it was clear that they had rejected all what had been in their name by the representatives. Therefore it is not possible to derive support for an unfettered amending power from the theory that their representatives of the people always reflect the people’s will. The theory of basic structure propounded by the Supreme Court in Kesavananda’s case is correct and will act

44 Minerva Mills v. Union of India, AIR 1980 SC 1789.

Page 39

Assignment on Amendment Of Fundamental Rights



Page 40

as a safety valve against arbitrary use of amending powers. In Australia out of 30 amendments proposed by the absolute majority of Australian Parliament only four were accepted and 26 were rejected by the people. 2) Secondly, the assertion of parliamentary supremacy is based on wrong nations. The supremacy of the parliament is the main characteristic of the British Constitution, Parliamentary supremacy means that the Parliament has unlimited law making power. It includes both the constituent powers and ordinary law making powers. Parliament can change the Constitution by passing an ordinary law. It means that there is no distinction in England between constitutional law and ordinary law. Thirdly, no law passed by the Parliament can be declared unconstitutional by the courts. In India, Parliament is not supreme but the Constitution is supreme. Parliament is the creature of the Constitution and derives its powers from the provisions of the Constitution including the power to amend the constitution under Article 368. Laws passed by Parliament can be declared ultra vires the Constitution. There is distinction between constituent powers of Parliament and its ordinary law making powers. The amending power under Article 368, therefore, cannot be exercised in such a way so as to subvert or abrogate the Constitution. Thus the Constitutional amendments made under Article 368 can still be challenged on the ground that they are destructive of the ‘basic features’ of the Constitution.

Assignment on Amendment Of Fundamental Rights

 Fourth Stage:o In Minerva Mills Limited v. Union of India, AIR 1980 SC 1789, the Supreme Court by 4:1 majority struck down Clauses (4) and (5) of Article 368 inserted by the 42 nd Amendment Act, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby conferred an unlimited and absolute amending power to the Parliament, it was destructive of the basic feature of the Constitution. The judgment of the Supreme Court thus makes it clear that the Constitution –– and not the Parliament –– is supreme in India. This is in accordance with the intention of the framers who adopted a written Constitution for the country. o In this case, the Supreme Court has held that the following are the basic features of the Constitution: a) limited power of Parliament to amend the Constitution; b) harmony and balance between fundamental rights and directive principles; c) fundamental rights in certain cases; d) power of judicial review in certain cases. Independence of Judiciary is also a part of the basic structure of the Constitution.45 o In Waman Rao v. Union of India, AIR 1981 SC 271, the Supreme Court held that all amendment to the Constitution which were made before 24th April, 1973 (i.e., the date on which the judgment of Kesavananda Bharati was delivered) including those by which the Ninth Schedule to the Constitution was amended from time to time were valid 45 Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428. In this case appointment of a High Court Judge was quashed on the ground that he was unqualified.

Page 41

Assignment on Amendment Of Fundamental Rights

and constitutional. But amendments to the Constitution made on or after that date by which the Ninth Schedule was amendment were left open to challenge on the ground that they were beyond the constituent power of Parliament because they damaged the basic structure of the Constitution. o In this case, the Supreme Court laid down,” All amendments to the Constitution before April 24 th, 1973 and by which the Ninth Schedule to the Constitution was amended from time to time by inclusion of various Acts and Regulations therein are valid and Constitutional. Amendments to the Constitution made on or after April 24th, 1973, by which the Ninth Schedule was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or the basic structure.”46 o In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the constitutional validity of Article 323-A and the provisions of the Administrative Tribunals Act, 1985, was challenged on the ground that the Act by excluding the jurisdiction of the High Courts under Articles 226 and 227 in service matters had destroyed the power of judicial review which was a basic feature of the Constitution. The Supreme Court upheld the validity of Article 323-A and the Act as the necessary changes suggested by the Court were incorporated in the Administrative Tribunal Act. It held that though the Act has excluded the judicial review of High Court in service matters under Articles 226 and 227, but as it has not excluded judicial review under Articles 32 and 136, the Act is valid. The Amendment does not affect the 46 Waman Rao v. Union of India, AIR 1981 SC 271

Page 42

Assignment on Amendment Of Fundamental Rights

basic structure of the Constitution as it has vested the power of judicial review in an alternative institutional mechanism, after taking it from the High Courts which is not less effective than the High Courts. o In Raghunath Rao v. Union of India, AIR 1993 SC 1267, the Supreme Court has reiterated the proposition that the basic features of the Constitution cannot be amended by following the procedure laid down in Article 368. The Court has observed that the Constitution is the supreme law of the land and all organs of governmentexecutive, legislature and judiciary derive their powers and authority from the Constitution. The Courts are entrusted with the important constitutional responsibilities of upholding the supremacy of the constitution. The amendment of the Constitution is only for the purpose of making the Constitution “more perfect, effective and meaningful”. An amendment should not result in “abrogation or destruction” of its basic structure or loss of its original identity and character and render the Constitution unworkable” If an amendment trespasses its limits and impairs and alters the basic structure or essential features of the Constitution then the Court has power to undo that amendment. “An amendment of the Constitution becomes ultra vires if the same contravenes or transgresses the limitations put on the amending power because there is no touchstone outside the Constitution by which the validity of the exercise of the said powers conferred by it can be tested.” The Supreme Court has stated that “unity and integrity of India” and the principle of equality contained in Article 14 constitute the “basic structure” of the Constitution. o In a landmark judgment in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, a seven-member

Page 43

Assignment on Amendment Of Fundamental Rights

Constitution Bench of the Supreme Court has unanimously while reconsidering the Sampath Kumar’s case, has struck down Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B which provided for the exclusion of the jurisdiction of the High Courts under Article 226 and 227 and the Supreme Court under Article 32 of the Constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic feature of the Constitution. The Court has held that, “power of judicial review over legislative action vested in the High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and formed part of its basic structure.” ‘Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted excluded’. Following the Kesavananda Bharati’s case, the Court declared unconstitutional Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B of the Constitution, to the extent that they excluded the jurisdiction of the High Courts under Article 226 and 227 and the Supreme Court under Article 32 of the Constitution. The Court said that while this jurisdiction cannot be ousted, other Courts and tribunals may perform a supplemental role in discharging the powers conferred by Article 226 and 227 and Article 32 of the Constitution, so long as the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is retained there is no reason the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under Article 323-A and Article 323-B of the Constitution.

Page 44

Assignment on Amendment Of Fundamental Rights

o In M. Nagraj v. Union of India, AIR 2007 SC 71, the petitioners challenged the Constitutional validity of the Constitution 77th Amendment Act, 1995, introducing Article 16 (4-A) nullifying number of decisions, the 81st Amendment Act, 2000, introducing Article 16 (4-B), introducing promotion in reservation also which was stopped in Indra Sawhney’s case,47 and 82nd Amendment Act, 2000, introducing proviso to Article 355 which emphasizes the importance of maintaining efficiency in administration and the 85th Amendment Act, 2001, adding words –– with consequential seniority in Article 16 (4-A) nullifying decisions in Ajit Singh’s case48 on the ground that they violate basic features of the Constitution. However, a five Judge Bench of the Supreme Court headed by Chief Justice of India, Sabharwal, J. unanimously held that these amendments do not violate the basic feature of the Constitution. They are enabling provisions and only apply to Scheduled Castes and Scheduled Tribes. They do not obliterate constitutional requirements, such as –– 50% ceiling limit in Reservation, Creamy Layer Rule and post based roster sub-classification between Other Backward Class (O.B.C.) on one hand, and Scheduled Tribes (ST) on the other hand, as held in Indra Sawhney’s case. They do not alter the structure of equality of codes, therefore, they are not beyond the amending power of the Parliament.

o In I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 8617, headed by Chief Justice Y.K. Sabharwal (comprising Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.P. Thakker, P.K. Balasubramanyam, Altaman Kabil and D.K. 47 AIR 1993 SC 477 48 Ajit Singh Januja v. State of Punjab, 1996 AIR 1189 JT 1996 (2) 727.

Page 45

Assignment on Amendment Of Fundamental Rights

Jain, JJ.) held that any law placed in the Ninth Schedule after 24th April, 1974, when Kesavananda Bharati’s judgment was delivered will be open to challenge. The Court said that even though an Act is put in Ninth Schedule by a Constitutional Amendment, its provisions would be open to challenge on the ground that they destroy or damage the basic feature, if the fundamental rights are taken away or abrogated pertaining to the basic feature of the Constitution. The Ninth Schedule was introduced to the Constitution through Article 31 (b) by the First Constitutional (Amendment) Act, 1951. The object of the Ninth Schedule was to save Land Reform Laws enacted by various states from being challenged in the court. Later on, it became an omnibus and every kind of law whether it related to election, mines and minerals, industrial relations, requisition of property, monopolies, coal or copper nationalization, general insurance, sick industries acquiring the Altcock Ashdown Company, Kerela Chillies Act, Tamil Nadu reservation of 69% and so on were inserted in it. No principle under lies this selection. Today the total number of Acts, inserted in Ninth Schedule of the Constitution is 284. The Tamil Nadu law in it was included because of the Supreme Court’s rulings in the Indra Sawhney’s case that overall reservation cannot exceed 50%. In the instant case, the politicians had challenged the validity of the various Central and State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The Court said that the validity of any Ninth Schedule law has been upheld by the Apex Court and would not be open to challenge it again, but if a law is held to be violative of Fundamental Rights incorporated in the Ninth Schedule after the Kesavananda Bharati’s case, such a violation shall be open to challenge on the ground that it destroys or damages the basic structure of the Constitution.

Page 46

Assignment on Amendment Of Fundamental Rights

 Theory of 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. The theory of basic structure which cannot be altered by amendment, is gaining ground internationally as a doctrine of constitutional interpretation which protects liberal Constitutions of nascent democracies and prevents encroachments on peoples’ human rights. Although the basic structure doctrine has been criticized as judicial legislation, it has helped to protect the Constitution against dictatorial law-making or changes in the Constitution that encroach upon the structural safeguards provided in the Constitution to protect independent yet harmonious functioning of the three organs of governance. Thus Rule of Law, judicial review and independence of the judiciary have been considered as basic features of the Constitution.49 Secularism has been also considered as a basic feature.50 Equality under Articles 14 and 16(1) is basic feature.51 Separation of powers and independence of the judiciary was again considered basic in the case of Bal Mukund Sah.52

49 C. Ravichandran Iyer v. Justice A.M. Bhattaharjee, (1955) 5 SCC 457 50 Valsamma Paul v. Cochin University, (1996) 3 SCC 545. 51 Indra Sawhney II v. Union of India, (2000) 1 SCC 168. 52 State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640

Page 47

Assignment on Amendment Of Fundamental Rights

What then are the essentials of the basic structure of the Constitution? Although the Judges enumerated certain essentials of the basic structure of Constitution, but they also made it clear that they were only illustrative and not exhaustive. They will be determined on the basis of the facts in each case. In Kesavananda Bharati v. State of Kerela, the Judges has enumerated certain essentials of basic structure theory. Most importantly seven of the thirteen judges, including Chief Justice Sikri who signed the summary statement, declared that Parliament's constituent power was subject to inherent limitations. Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution. 

Each judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either. o Sikri, C.J. explained that the concept of basic structure included: supremacy of the Constitution republican and democratic form of government secular character of the Constitution separation of powers between the legislature, executive and the judiciary o federal character of the Constitution o o o o

o Shelat, J. and Grover, J. added two more basic features to this list: o the mandate to build a welfare state contained in the Directive Principles of State Policy o unity and integrity of the nation

Page 48

Assignment on Amendment Of Fundamental Rights

o Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features: sovereignty of India democratic character of the polity unity of the country essential features of the individual freedoms secured to the citizens o mandate to build a welfare state o o o o

o Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as: o sovereign democratic republic o parliamentary democracy o three organs of the State He said that the Constitution would not be itself without the fundamental freedoms and the directive principles. 

Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of the citizen belonged to the basic structure and Parliament could not amend it.

The minority view:The minority view delivered by Justice A.N. Ray (whose appointment to the position of Chief Justice over and above the heads of three senior judges, soon after the pronunciation of the Kesavananda verdict, was widely considered to be politically motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly. They upheld the validity of all three amendments challenged before the

Page 49

Assignment on Amendment Of Fundamental Rights

court. Ray, J. held that all parts of the Constitution were essential and no distinction could be made between its essential and non-essential parts. All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its power under Article 368. In summary the majority verdict in Kesavananda Bharati recognised the power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure. But there was no unanimity of opinion about what appoints to that basic structure. Though the Supreme Court very nearly returned to the position of Sankari Prasad (1952) by restoring the supremacy of Parliament's amending power, in effect it strengthened the power of judicial review much more.

 Limitations on the Constituent Power of Amendment:What are the limitations on the constituent power? The answer to this question is found in Election case, Kesavananda Bharati case and the Miverva Mills case. 1. In the Election case, the Supreme Court pointed out that Parliament, acting in its constituent capacity, cannot exercise judicial power itself directly without vesting it in itself first by an amendment of the Constitution (Beg, J.). The resolution of an election dispute by the amending body is not a law. It is either a judicial sentence or a legislative judgment like of attainder (Mathew, J.). 2. Other limitations on the power of Parliament to amend the Constitution are laid down by the Supreme Court in Kesavananda Bharati’s case. The Majority in that case laid down the following propositions with regards to amendment of the Constitution:

Page 50

Assignment on Amendment Of Fundamental Rights

(a) The expression “Amendment of the Constitution” in Article 368 means “any addition or change in any of the provisions of the Constitution within the broad counters of the preamble” and the constitutional amendment does not include the repeal of the Constitution. (b)There are no implied limitations on the power of the amendment. (c) Article 13(2) is not applicable to an amendment of the Constitution. Chandrachud, J. rightly pointed out that Article 368 avoids with scrupulous care the use of the word “law”, because this is a fundamental distinction between “constitutional law” and “ordinary law”. 3. In Minerva Mills case, the Supreme Court laid down the following principles: (a) The power to destroy is not a power to amend. (b)The Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. (c) The abridgement of a fundamental right may involve violation of basic structure. It would all depend on the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution. Hence the Court concluded that “the conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction seems to be a transparent case of transgression of the limitations on the amending power.” 4. Parliament, however, has no power to amend the basic features of the Constitution.

Page 51

Assignment on Amendment Of Fundamental Rights

 CONCLUSION:The problem of the nature and scope of constituent and amending power raised ever since, Golak Nath’s case still remains unresolved. As a matter of strict law, it remains possible to argue even now that Kesavananda Bharati’s case did not decide that basic structural limitations contained the amending power; that the decision in Indira Nehru Gandhi’s case was based on the concessions; that there is no warrant either to accept the Kesvananda Bharati’s summary as binding or to accept the gloss placed by Justice Khanna in Indira Nehru Gandhi as being elucidative of Kesavananda rationes; and the Minerva Mills case and Waman Rao case in so far as they regard either Kesavananda Bharati or Indira Nehru Gandhi as binding. This strategy of argument remains open to the government in future and it is idle to say that it exists only by way of “flutter in ivory towers”. Indeed, the very arguments used by the Court for rejecting ‘stare decisis’ may well apply to this strategy. But even if the present holdings that Kesavananda judgment imposes basic structural limitations on amending power is accepted as representing the Constitutional consensus, the decisions so far do not fully elucidate what these limitations precisely are. It appears however that certain limitations are emergent. Firstly, a total repeal of the Constitution would be violative of basic structure. Secondly, any expansion of Article 368 powers to achieve this consequence would also be similarly violative. Thirdly, any attempt to deprive the court of the power of judicial review over Constitutional amendments would also be transgressive of basic structure. Fourthly, the power to amend may not be used to adjudicate specific disputes. Fifth, the freedoms guaranteed by Article 14, 19 and 21 constitute limits to power of amendment. Sixth, any

Page 52

Assignment on Amendment Of Fundamental Rights

attempt to abrogate Part IV of the Constitution may violate the basic structure. Seventh, the ‘democratic’ nature of the Constitution may not be validly transformed by the use of Article 368 power. The scope of basic structure limitations on the amending power above and beyond these seven categories remains indeterminate. It would appear that the Supreme Court is inclined to delineate these limitations case by case, rather than abstractly. Since Kesavananda Bharati case, the matter has been considered by the Supreme Court in several cases and the Court has had occasion to declare several features of the Constitution as fundamental features or basic structures of the Constitution. It is generally agreed that all fundamental Rights do not constitute basic features. For example, in Kesavananda itself it has been held that the right to property does not pertain to the basic structure of the Constitution 53. Now that Article 31 has been repealed, and Article 300-A included in the Constitution, right to property has ceased to be a Fundamental Right, as well as basic feature of the Constitution. It is now merely a constitutional right54. We can say that Fundamental Rights as a whole may not form a basic structure/feature of the Constitution but a certain Fundamental Right or some of them together do form a very important part of the “Basic Structure” of the Constitution. The final word on the issue of Amendability of Fundamental Rights can be related to the “Theory of Basic Structure” of the Constitution defined in Kesavananda Bharati’s case. 53 Jilubhai Nanbhai Khachar v. State of Gujrat, AIR 1995 SC 142. 54 J.N. Khachar v. State of Gujrat AIR 1995 SC 154.

Page 53

Assignment on Amendment Of Fundamental Rights

It may be said that the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court –– a scenario that is unlikely to change in the near future. While the idea that there is such a thing as a basic structure to the Constitution is well established; its contents cannot be completely determined with any measure of finality until a judgment of the Supreme Court spells it out. Nevertheless the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens, etc. are some of the essential features of the Constitution that have appeared time and again in the apex court's pronouncements. One certainty that emerged out of this tussle between Parliament and the Judiciary is 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.

Bibliography Help was taken from the following sources:-

     

Page 54

Constitutional Law of India by Durga Das Basu. Constitutional Law of India by H.M. Seervai Interpretation of Statutes by Vepa P. Sarathi Oxford Dictionary of Law Black’s Law Dictionary Mitra’s Legal and Commercial Dictionary

Assignment on Amendment Of Fundamental Rights

 T.K. Tope’s Constitutional Law of India by Sujata V. Manohar.  The Constitutional Law of India by Dr. J.N. Pandey.  Indian Constitutional Law by M.P. Jain.  Constitution of India (Bare Act).  Supreme Court Cases.  All India Reports.  www.indiankanoon.org  www.google.com  Various Law Journals.

Page 55