amend consti

8/10/2019 Amend Consti

1/10Electronic copy available at: http://ssrn.com/abstract=1688864

Introduction:

Constitution determines the powers of its different organs, providing for powers to

Parliament as well as State Legislatures to legislate in their respective jurisdiction.

However, this power is not absolute in nature but is subject to judicial scrutiny of the

Courts. Judiciary has power to adjudicate the constitutional validity of laws and for that

purpose it can even strike down any law which is inconsistent with constitutional

provision. This power of the courts thus makes the provisions in the constitution

sacrosanct and thus defeats the real intention of the makers of the constitution to make it

an adaptable and dynamic document rather than a rigid framework of governance. This was the

reason a counter weapon in form of power to amend constitution vide Art. 368 was

given to the legislatures by the constitution itself so as to make the constitution adaptable

to the contemporary circumstances. However, this power is not absolute and a counter-

check was imposed on the legislatures by making judiciary the watch-dogs of the

amending powers of the legislature. The Supreme Court with intentions to protect the

basic and original ideals of the makers has acted as a check over the legislative enthusiasm

of Parliament ever since independence. The apex court has pronounced that Parliament

could not distort, damage or alter the basic features of the Constitution under the pretextof amending it. The phrase 'basic structure' itself cannot be found in the Constitution.

The Supreme Court recognised this concept for the first time in the historic Keshavanad

Bhartis1case in 1973.

For the purpose of studying the history of Indian constitutional amendments and

how judiciary has countermanded the legislative actions of amending constitution, the

history can be divided in Four Periods:

Period starting from 1951 with Sankari Parasads2 judgement and ending with I.C.

Golaknaths3judgement in 1971.

Period starting with post Golaknath scenario and ending in 1973 with Keshawanand

bhartisjudgement.

1His Holiness Kesavananda Bharati Sripadagalavaru v. State Of Kerala And Another:1973 (4) SCC 2252(1952) S.C.R. 893AIR 1971 SC 1643


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Period Starting with post Keshavanand Bhartis senario and ending with Indira Nehru

Gandhis4case.

The Fourth period is still continuing with us. This period has witnessed judgement like

Minerva Mills case5 and Vaman Raos6 case which discussed consequences of

Keshavanad Bhartiscase and modified the result of Keshavanad Bharti.

1stPeriod - Sankari Prasads Caseto Golknaths Judgement

Parliament's authority to amend the Constitution, particularly the chapter on the

fundamental rights of citizens, was challenged as early as in 19517. After Independence

many laws relating to land reforms and tenancy matters were enacted and their

constitutional validity was challenged. The land reforms introduced as per the electoral

promise of the ruling congress party of implementing the socialistic goals. At that time

the Zamindari system was in vogue and congress party in pretext of giving effect to the

Constitutional provisions contained in Article 39 (b) and (c) of the Directive Principles of

State Policy, which envisaged equitable distribution of resources of production among all

citizens and prevention of concentration of wealth in the hands of a few, introduced land

reform acts which adversely affected the right to property of the property owners8.

The courts struck down the land reforms laws saying that they transgressed the

fundamental right to property guaranteed by the Constitution. Such a judgement was a

direct mockery of the legislative power of the legislature which they had perceived to be

absolute. Aggrieved by the unfavorable judgements, Parliament placed these laws in the

Ninth Schedule of the Constitution through the First and Fourth amendment (1951 and

1952 respectively), thereby effectively removing them from the scope of judicial review9.

The basic question raised has been whether the Part III of constitution can be amended

so as to dilute or take away any fundamental right? Since 1951 there have been several

4(1976) 2 S.C.R. 3475(1980) A.SC. 17896(1983) A.SC. 239

71stconstitutional Amendment was challenged in Shankari Prasads case8That time a fundamental right under article 19(1)(f) later removed by Constitutional 44thamendment.


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amendments in the Fundamental rights which have curtailed, to some extent, the scope

of some of these rights.

Shankari Prasad Singh v. Union of India

Shankari Prasad v. Union of India10was the first case on amenability of constitution, the

validity of the Constitution (First Amendment) Act, 1951, curtailing the right to property

guaranteed by Art. 31 was challenged.

The amendment was challenged on the ground that it takes away or abridges the rights

conferred by Part III which is prohibited under Article 13(2) and hence was void. Article

13(2) provides that any law passed by state contravening the provisions under Part III i.e.

Fundamental Rights would be considered void to the extent of contravention. It was

argued thatState in Article 12 included Parliament and the word Lawin Article 13(2)

therefore must include Constitutional Amendment. Hence it was contended that

amendments are Law passed by stateas for the purpose of article 13(2).Supreme Court

rejected the above argument and held thatpower to amend the Constitution including

the fundamental rights is contained in Article 368 and though constitutional amendment

is a Lawthere is a clear distinction between legislative and constituent power. 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

constitutional power.

The Supreme Court ruled that a constitutional amendment, not being law under

article 13(2), will be valid even if it abridges or takes any of the fundamental

rights.

SAJJAN SINGH V. STATE OF RAJASTHAN11

In this case the validity of the Constitution (17thAmendment) Act, 1964 was challenged.

This amendment again adversely affected the right to property under Art. 19(f) by

inserting certain other land acquisition acts in the 9thschedule. Similar question as that in

Shankari Prasadscase was raised in this case also. Supreme Courtapproved the majority

10AIR 1951 SC 45811AIR 1965 SC 845


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judgement given in Shankari PrasadsCase and held that the words amendment of the

Constitution means amendment of all the provision of the Constitution i.e. Article 368

extends to all the parts of the constitution.

GOLAKNATH v. STATE OF PUNJAB12

The question to the amending power of the legislatures as envisaged under Article 368

was again raised in Golaknaths case. The constitutional validity of the Constitution

(Seventeenth Amendment) Act which inserted certain state acts in Ninth Schedule again,

was challenged.

The majority in 6:5 ratio, prospectively overruling the earlier judgements of Shankari

Prasad and Sajjan singhscase, held that the Parliament had no power from the date of this

decision to amend Part III of the Constitution so as to take away or abridge the

fundamental rights.

Chief Justice Subba Rao, in this caseput forth the curious position that Article 368,

containing the provisions related to the amendment of the Constitution, merely lays

down the amending procedure.Article 368 did not confer upon Parliament the power to

amend the Constitution. The amending power which is a constituent power of

Parliament arose from other provisions contained in the Constitution (i.e. Articles 245,

246, 248) which gave it the power to make laws (plenary legislative power). Thus, the

apex court held that the amending power and legislative powers of Parliament were

essentially the same and therefore, any amendment of the Constitution must be deemed

to be a law as understood in Article 13 (2).

The majority judgement invoked the concept of implied limitations on Parliament's

power to amend the Constitution. This view held that the Constitution gives a very

sacrosanct place to the fundamental rights and while giving to themselves the

constitution, the people of India, have reserved these rights for themselves which is

clearly expressed in the words of Art 13(2). Parliament could not modify, restrict or

impair fundamental freedoms due to this very scheme of the Constitution and the nature

of the freedoms granted under it. They observed that a Constituent Assembly might be

12(1967) 2 S.C.R. 762


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summoned by Parliament for the purpose of amending the fundamental rights if

necessary.

POLITICAL CONSEQUENCES OF THE VERDICT:

The verdict in Golaknaths caseled to direct conflict of power between the parliament and

judiciary. The ruling government suffered heavy losses of votes in parliamentary elections

as it failed to fulfill its promises. The power conflict led the government to introduce a

bill seeking to restore supremacy of parliament which was later not pressed because of

some political compulsions.13But hungry to prove it supreme, parliament again, under

the pretext of ensuring equitable distribution of wealth and resources, introduced two

major lines of laws, one related to nationalization of banks and other related to de-

recognition of Privy Purses.

Supreme Court struck down both the moves of the parliament14. Now the basic question

had shifted as to the relative position of directive principles and the fundamental rights.

This led to a political situation which the Indian history had never witnessed. Judiciary

and Parliament were at loggerhead in proving their supremacy. For the first time, the

Constitution itself became the electoral issue in India. In 1971 and 1972 many

amendments were carried on to establish the supremacy of parliament over constitution.

2ndPeriod- Post GolakNath scenarioKeshavanand Bhartis case

This period started with the foundation of Golaknaths case judgement. The concept of

implied restriction on the power of the parliament was recognized and to some extent the

legislative supremacy was curtailed. Under the urge to prove its supremacy, parliament

came up with many constitutional amendments. The 24 th amendment brought in some

changes in art 368 and 13 expressly displacing the reasons on which Golaknaths

judgement was based. 25thamendment amended Article 31 and introduced Article 31 C

13 A bill was introduced to amend the Article 368 and even a select committee was appointed to examine thewitnesses and submit report. But bill was further not pressed because of the judgement in ShantilalMangaldass case((1969) 3 S.C.R 341) which gave effect to 4thamendment making adequacy of compensation not justiciable. This wasa clear win of parliament over judiciary. However this amendment ass nullified later in Bank nationalization case((1970) 3 S.C.R 530) and thus the conflict was restored.

14Bank nationalization case ((1970) 3 S.C.R. 530) nullified 4thamendment and Privy Purses case (Madhav Rao Scindhia v.Union(1971) 3 S.C.R. 9) held that the justiciable right to property to the rulers of India had been granted clearlyunder Article 291 and parliament cannot take that away.


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for giving higher sanctity to Directive Principles of State policy than fundamental rights.

26thamendment abolished privy purses and thus rendered Madhav Rao Scindhias case

ineffective. 29th amendment further added two Kerela acts to 9th schedule. These

amendments being over-ambitious were inevitably challenged in Keshavanands cae andother petition. C.J Sikri constituted a 13 judge bench to reconsider Golaknath judgemet 15

and deal with the petitions against these amendments.

Keshavanand Bharati v. State of Kerala16

This is a landmark case in history of constitutional amendment in India. All judges held

that 24th amendment is valid as Article 368 confers power to amend all or any of the

provisions of constitution. Majority of judges held that judgment in Golaknaths case was

wrong and that the power to amend was very much there under Article 368. Seven judges

took the view that basic structurecannot be amended17. The phrase 'basic structure'

was introduced for the first time by M.K. Nambiar and other counsels while arguing for

the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in

the text of the apex court's verdict18

The basic structure doctrine was defined and it was held that the power to amend is

channelized and limited. Khanna J. along with other six judges agreed with this theory.

Rest of the six judges held that it is an absolute power in hands of the parliament. So

Supreme Court with a majority of 7:6 decided that some parts of the constitution which

gives it a meaning cannot be changed or amended. However, only six out of the seven

majority judges, with Khanna J. dissenting, held that fundamental rights form the basic

structure of the constitution and hence are un-amendable.

15It is interesting to note here that even Sikri C.J. and Shelat J. who were part of the majority judgment inGolaknaths case did not expressed any opinion on the Article 368 but sub silentio overruled Golaknaths casejudgement.16AIR 1973 SC 146117The phrase 'basic structure'was introduced for the first time by M.K. Nambiar and other counsels while arguingfor the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in the text of the apexcourt's verdict as mentioned in :

www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf Lastvisited on 30th of Sep., 2008
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So, again Supreme Court with a majority of 7:6 held that in the fundamental rights per se

are amendable.

So as far as the issue of amendability of the constitution is concerned, it was held that

constitution is amendable to the extent it does not affects the basic structure of the

constitution. However this judgement was not specific as to what forms the basic

structure of the constitution. Judges gave their own examples of basic structure and

enumerated few of them but that list was not held to be exhaustive.

Keshavanads case proved that theParliament is not sovereign in Indian context and its

power is not absolute but channelized and controlled.

3rdPeriod: Post Keshavanad Bharti Judgment to Election case19

Till now the judgements were in regards to the specific amendment which were related to

the property issues, even the challenge to 24th amendment was made under the same

context. The Constitutional (39th amendment) Act, 1975 inserted Article 329A.

According to clause (4) of the amendment election of a candidate cannot be challenged in

court of law. This amendment was passed when an appeal against Allahabad HighCourts judgement dismissing the election of Mrs. Indira Gandhi as Prime minister was

pending in the Supreme Court. In this appeal and a cross appeal against the new

amendment filed by Mr. Raj Narayan, popularly known as Election Case, for the first

time, an amendment was challenged not on property issue or social welfare but with

reference to the law designed for free and fair election which forms the base of

democratic parliamentary form of government. Not only that the amendment decided an

election dispute between two contesting parties but also decided a pending appeal in

Supreme Court.

This case introduced new dimensions to the judgement given in Keshavanads case.20

Although the amendment was upheld but the provision curbing judiciarys right to keep a

19Indira Nehru Gandhi v. Rajnarayan: Supra 420In Election case for the first time the judges had to considered words constituent power and law introduced

by constitutional 24thamendment held valid in Keshavanads case. More over in Keshavanads case basic questionwas regarding amendibility of a fundamental right while here it was amendibility of essential feature of representativegovernment namely free and fair election.


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check on elections was struck down. The doctrine of basic structure was widened and it

was held that free and fair election being a part of basic structure cannot be amended.

Mrs. Gandhi's election was declared valid on the basis of the amended election laws. The

judges grudgingly accepted Parliament's power to pass laws that have a retrospectiveeffect. The Supreme Court rejecting the argument of Mr. Shanti Bhushan ruled that the

doctrine of basic structure is restricted only to the amendment of the constitution not to

other ordinary legislation.

4thperiod: Post Election case to the present scenario

After the decision in Election case reiterating that there are few features which are so

basic to the constitution that without them constitution cannot stand in its true spirits.

Such features cannot be amended. Aggrieved by this decision the Parliament came up

with 42ndConstitutional amendment amending, interalia, Article 368 making the power

almost absolute.21

In Minerva Mills case the validity of 42nd constitutional amendment was challenged. All

five judges held the amendment to be void. This case further held that the amended art

31 is void and it upheld that there is harmony between fundamental rights and directive

principles and they cannot be at conflict with each other.

Further Waman Raoscase unanimously upheldMinerva mills judgementthat amendments to

article 368 introducing Cls. 4 and 5 are void. It was further held in this case that all laws

placed in 9thSchedule after Keshavanand Bharti judgement are also available for judicial

review. This was further widened by I.R. Coelho v. State of Tamil Nadu.

Conclusion:

The basic structure doctrine had been applied by the judges every now and then. It

has till date proved to be a very effective tool in deciding the validity of the

constitutional amendments. The doctrine, however, had not yet been defined in any

of the judgements adequately and sufficiently. This can be taken to be a positive part

21The amendment introduced two sub clauses in Article 368. According to clause (4) no constitutional amendmentcan be challenged in courts and clause (5) was for clarifying the doubt that no limitation can be imposed on theconstituent power of the legislature.


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as it leaves it to the court to decide according to the facts of the case whether the

amendment is affecting basic structure of the constitution or not. If an exhaustive list

is provided for this purpose then that might have led to a situation where the

Supreme Court would fail to protect the integrity of the situation. There are many

things which are basic to the constitution and they cannot be decided beforehand.

The major objections against the doctrine of basic structure are:

Amending power is not necessary to amend non-essential parts of the

constitution.

This power is needed to make changes in the basic features of the

constitution.

The doctrine leads to the uncertainty in mind of the parliament as to where it

stands as to the extent of its amending power.

Seervai22in his book has dealt with these objections to the doctrine of basic structure.

It was put forth by him that between fundamental features of the constitution and the

non-essential parts of the constitution there is a huge range of articles with a varied

degree of importance. The doctrine only restricts itself to those features which are

very basic to the existence of the constitution itself and thus cannot be altered.

However, many other articles which are of very high importance have been allowed to

be altered. For example, power cede territory is very important power and this was

allowed to be altered in Berubari judgement23.

Moreover many amendments in the lists have been allowed to be done. These

amendments had either taken away some powers of the states and increased the

power of the centre or vice-versa. In a federal constitution the distribution of

legislative power between the constituents is of very high importance and power to

amend such an important provision has been given to the parliament. So it is wrong

22Seeravi H.M. Constitutional Law of India Universal Publication, Ed. 4 Vol. 3 at Pg.3159

23AIR 1960 SC 845


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on the part of the parliament to contend that they have been given power to amend

only non-essential parts of the constitution and that they are not allowed to make

changes in the fundamentals of the constitution. Thus first two objections are baseless

and doctrine of basic structure stands unaffected by them

The last relevant objection against the doctrine is also baseless. Seervai24 has gives

some illustration in his book showing that there are many things in the legal field

which cannot be defined with certainty. They are not defined with certainty because

such things cannot be given a rigid definition. For example, reasonableness,

negligence, natural justice etc. cannot be defined with certainty. Moreover it has to be

seen that even if the objection is taken to be right whether the consequences of not

applying this doctrine would be better than that of applying the doctrine. As we have

seen already in Election case if parliaments power is left unfettered it might lead to

tyranny. It is, therefore, submitted that the doctrine has done more good than wrongs.

Agreed that the doctrine puts the parliament in an uncertain position but that is

justified as it prevents more evil by allowing lesser one.

It is agreed that the amendment is a very important power which is given to the

parliament. It is in a sense itself a basic structure of the constitution. Mahavir Tyagi

during debates on draft constitution held that a constitution which was unalterable was

practically a violence committed on the future generation.25It is thus necessary to have some

fixed procedure to make constitution adaptable from time to time. However, to

determine the degree to which constitution can be amended is an equally important

task. The courts have done a great service to the nation by declaring that there are

certain basic features of the constitution which cannot be amended.

It has necessarily pointed out to the parliament that constitution is not any partys

manifesto which can be changed at their own will but is a national heritage which can

be amended only when a national consensus demands for it.

24Supra 27 at pg. 3160

25B Shivarao, The Framing of Indian Constitution, Universal Law Publications, Ed. 2

ndPg. no. 832

amend consti

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