Amending the Constitution

To prepare for Indian Polity for any competitive exam, aspirants have to know about the basics of the Amendment of the Constitution. It gives an idea of all the topics important for IAS Exam and the polity syllabus (GS-II). Amendment of the Constitution and related topics are extremely important for the UPSC Exam. This is an essential portion of the polity. As IAS aspirants, you should be thorough with the Amendment of the Constitution. This article will provide you with relevant details about the Amending the Constitution.

• The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.
• Under some Constitutions, certain parts are immune from amendments and are given a special status compared to other provisions.
• Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

• In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
• The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership when leading freedom fighters were serving as Parliamentarians.
• In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

• In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath case.
• In RC Cooper, the court had struck down Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

• The question as to whether fundamental rights provided under the Constitution can be amended under Art. 368 has been a topic of debate for the Indian courts.
• 13(2)of the Constitution prohibits the enactment of any law which takes away or abridges the fundamental rights guaranteed under Part III of the Constitution.
• The question whether an amendment to the Constitution can be considered as a “law” within the meaning of Art. 13(2) was considered by the Supreme Court of India in the case of Shankari Prasad vs. Union of India (1951) wherein the Court held that an amendment affected under Art. 368 of the Constitution is not a “‘law” within the meaning of Art. 13(2) and therefore cannot be challenged on the ground of violation of Art. 13(2).
• On this basis, insertion of Art. 31A and 31B in the Constitution, by the first amendment to the Constitution, was held as valid even though it adversely affected the fundamental rights guaranteed under 14, 15 and 19.

In Sajjan Singh vs. State of Rajasthan, 1965

• The validity of the 17th Constitutional Amendment Act, 1964 had been challenged on the ground that it curtailed the jurisdictional power of High Courts under Art. 226 but had not been ratified by legislatures of half of Indian States in terms of proviso to Art. 368(2).
• By a 3:2 majority, the Supreme Court held that the impugned amendment was valid as it did not purport to affect Art. 226 of the Constitution and hence did not attract the requirement of being ratified by the Indian States in terms of proviso to Art. 368(2).

Golaknath vs. State of Punjab, 1967

• The Supreme Court overruled its earlier decisions in the cases of Shankari Prasad and Sajjan Singh, while holding that an amendment under Art. 368 of the Constitution would be treated as a law under Art. 13(2) so no such amendment could be allowed to take away the fundamental rights guaranteed under the Constitution.

24th Constitutional Amendment Act, 1971

• In order to nullify the effect of the Golaknath case, the Parliament sought to insert Art. 13(4) in the Constitution, by the Constitution (Twenty-fourth) Amendment Act, 1971, providing that “Nothing in this article shall apply to any amendment of this Constitution made under Art. 368“.
• The 24th amendment was challenged in the case of Kesavananda Bharti State of Kerala, 1973.
• While overruling its earlier judgment in the Golaknath case, the Supreme Court held that though the Parliament had the power to amend fundamental rights under Art. 368, the amending power could not be used to take away those fundamental rights which form the basic structure of the Constitution.

Kesavananda Bharati vs State of Kerala, 1973.

• The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
• The court held that under Art. 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
• The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
• Since then, the court has been adding new features to this concept.

‘Basic structure’ since Kesavananda Bharti case 1973

• The basic structure doctrine was first introduced by Justice Mudholkar in the Sajjan Singh case (1965).
• Major features were notably propounded by Justice Hans Raj Khanna in 1973.
• The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
• An example of its application is R Bommai (1994), when the Supreme Court upheld the dismissal of the governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

Minerva Mills vs. Union of India, 1980

• The constitutionality of the Constitution (forty-second) Amendment Act, 1976 had been challenged before the Supreme Court on the ground that it destroyed the basic structure of the Constitution.
• The Supreme Court held that amendment to be unconstitutional as it gave unbridled powers to the Parliament to amend the provisions of the Constitution and took away the power of courts to judicially review any amendment to the Constitution including an amendment to the fundamental rights provided therein.
• The power of judicial review was recognized to be a part of the basic structure of the Constitution.

Conclusion

• It can be stated that the Parliament has a limited power to amend the Constitution and cannot take away, by a constitutional amendment, any fundamental right which forms part of the basic structure of the Constitution.

• 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
• The court had ruled that the term “law” in Art. 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Art. 368.
• This means Parliament had the power to amend any part of the constitution including Fundamental rights, subject to the basic structure doctrine.