Article 368 Amendments
The process to amend and adapt the provisions of the Indian Constitution is contained in Article 368. The phraseology of Art. 368 has been amended twice since the inauguration of the Constitution. However, the basic features of the amending procedure have remained intact in spite of these changes. These basic features are:
(i) An amendment of the Constitution can be initiated only by introducing a Bill for the purpose in either House of Parliament.
(ii) After the Bill is passed by each House by a majority of not less than two-third of the members of that House present and voting, and after receiving the assent of the President, the Constitution Stands amended in accordance with the terms of the Bill.
(iii) To amend certain constitutional provisions relating to its federal character, characterized as the ‘entrenched provisions’, after the Bill to amend the Constitution is passed by the House of Parliament as mentioned above, but before being presented to the President for his assent, it has also be ratified by the legislatures of not less than one-half of the States by resolutions.
The procedure to amend the ‘entrenched provisions’ is in conformity with the federal principle which requires the consent of the State Legislatures also to any amendment which vitally affects federalism in which both the Centre and the States are interested.
In Shankari Prasad Singh V. Union of India, the first case on amendability of the Constitution, the validity of the First Amendment curtailing the right to property guaranteed by Art. 31 was challenged. The argument against the validity of the First Amendment was that Art. 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights, that the world ‘law’ in Art. 13 would include any law, even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinized with reference to the Fundamental Rights which it could not infringe.
The Supreme Court upheld the validity of the First Amendment. Ruling that the ‘law’ in Art. 13 would not include within its compass a constitution amending law passed under Art. 368. The Court stated on this point, ‘We are of the opinion that is the context of Art. 13 law must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368’.
The Court held that the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution without any exception. The Fundamental Rights are not excluded or immunized from the process of constitutional amendment under Art. 368. The Court insisted hat there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power.
The Court thus held that the Parliament could by following the ‘procedure’ laid down in Art. 368 amend any Fundamental Right.
The same question was raised in Sajjan Singh V. Rajasthan, when the validity of the Seventeenth Amendment was called in question. This Amendment again adversely affected the right to property. By this amendment, a number of statutes affecting property rights were placed in Ninth Schedule and were thus immunized from court review. The majority in this case ruled that the ‘pith and substance’ of the Amendment was only to amend the Fundamental Right so as to help the State Legislature in effectuating the policy of the agrarian reform.
The question whether any of the Fundamental Rights could be abridged or taken away by Parliament in exercise of its power under Art. 368 was raised again in Golak Nath. The Constitutional validity of the Seventeenth Amendment was challenged. The majority now held, overruling the earlier cases that the Fundamental Rights were non-amendable through the constitutional amending procedure set out in Art. 368.
The majority now took the position that the Fundamental Rights occupy a ‘transcendental’ position in the Constitution, so that no authority functioning under the Constitution, including Parliament exercising the amending power under Art. 368, would be competent to amend the Fundamental Right. It apprehended that if the courts were to hold that Parliament had power to take away or abridge the Fundamental Rights, a time might come when these rights are completely eroded and India would gradually and imperceptibly pass under a totalitarian regime. They equated Fundamental Rights with natural rights and characterized them as ‘the primordial rights necessary for the development of human personality’. Art. 368 merely laid down the procedure for constitutional amendment and did not by itself confer a substantive power to amend. The amending process in Art. 368 is merely ‘legislative’ and not ‘constituent’ in nature.
It was now ruled that the term ‘law’ in a comprehensive sense would include constitutional law as well. ‘An amendment of the Constitution is law within the inclusive definition of law under Art. 13 of the Constitution and, as the entire scheme of the Constitution postulates the inviolability of Part III thereof, Art. 368 shall not be so construed as to destroy the structure of our Constitution.’
Under Art. 368, a Constitutional amendment is to be enacted by following a procedure which is similar to the procedure for making laws. The fact that a larger majority, and in case of amendment of some Articles even ratification by State Legislatures, are provided for, would not make the constitutional amendment any the less a ‘law’. Therefore, the amendment made under Art. 368 is ‘law’ and is subject to Art. 13. The Constitution Amendment Act in question was thus held void inasmuch as it abridged the Fundamental Right. Thus, the majority ruled that the Fundamental Rights would fall outside the amendatory process if the amendment sought to abridge or take away any of these rights.
To neutralize the effect of Golak Nath bill was introduced in Lok Sabha for amending Art. 368, so as to make it explicit that any constitutional provision could be amended by following the procedure contained in Art. 368. The proposed bill was justified as an assertion of the ‘Supremacy of Parliament’, which principle implied ‘the right and authority of Parliament to amend even the Fundamental Rights.’ Parliament enacted Twenty-Fourth Amendment introducing certain modifications in Art. 13 and 368 to get over the Golak Nath ruling and to assert the power of Parliament, denied to it in Golak Nath, to amend the Fundamental Rights.
A clause was added to Art. 368 to make an express grant of power to Parliament to amend any part of the Constitution including Fundamental Rights. It was also clarified that once a bill is passed by both House of the Parliament the President would have no option but to give his assent to it.
Another effect of the Amendment was that the Directive Principles had been treated as subservient to Fundamental Rights. Now this relationship was sought to be reversed; Directive Principles contained in Art. 39 (b) and (c) were not sought to be given precedence over Fundamental Rights.
The validity of the above amendment was challenge in the Supreme Court in Kesavananda Bharti V. State of Kerala, The Court now held that the power to amend the Constitution is to be found in Art. 368 itself. It was emphasized that the ‘provisions relating to the amendment of the Constitution are some of the most important features of any modern Constitution. Further, the Court recognized that there is a distinction between an ordinary law and a constitutional law. It was asserted that the constitution makers did not use the expression ‘law’ in Art. 13 as including ‘constitutional law’. This would thus mean that Art. 368 confers power to abridge a Fundamental Rights or any other part of the Constitution. To this extent, therefore, Golak Nath was now overruled.
But Kesavananda did not concede an unlimited amending power to Parliament under Art. 368. The amending power was now subjected to one very significant qualification, viz., that the amending power cannot be exercised in such a manner as to destroy or emasculate the basic or Fundamental Features of the Constitution. A constitutional amendment which offers the basic structure of the Constitution is ultra vires.
Some of the basic features regarded by the Court as fundamental and, thus, non-amendable are:
(i) Supremacy of Constitution;
(ii) Separation of Powers between the Legislature, the executive and the judiciary;
(iii) Republican and democratic form of Government;
(iv) Secular character of the Constitution;
(v) Federal Character of the Constitution;
(vi) The dignity of the individual secured by the various Fundamental Rights and the mandate to build a welfare state contained in the directive principles;
(vii) The unity and integrity of the nation;
(viii) Parliamentary System.
This, therefore, means that while Parliament can amend any constitutional provision by virtue Art. 368, such a power is not absolute and unlimited and the court can still go into the question whether or not an amendment destroys a fundamental or basic features of the Constitution. If an amendment does so, it will be constitutionally invalid. The list given above is not final or exhaustive of such features. It is for the court to decide as and when a question arises whether a particular amendment of the Constitution affect any ‘basic’ or ‘fundamental’ feature of the Constitution or not.
Kesavananda also answered the question left unanswered in Golak Nath, namely, can Parliament, under Art. 368, rewrite the entire Constitution and bring in a new Constitution. The answer to the question is that Parliament can only do that which does not modify the basic features of the Constitution and not go beyond that.
The majority judges sought to protect and preserve the basic features of the Constitution against the onslaught of transient majority in Parliament. An unqualified amending power could mean that a political party with a two-thirds majority in Parliament, for a few years, could make any changes in the Constitution, even to the extent of establishing a totalitarian State, to suit its own political exigencies.
In Indira Nehru Gandhi V. Raj Narayan, the validity of Cl. 4 of Thirty-ninth Amendment was challenged. The Amendment sought to do three things: one, generally, to withdraw the election of the Prime Minister and a few other Union officials from the scope of the ordinary judicial process; two, more specifically, to void the High Court decision declaring Indira Gandhi’s election to the Lok Sabha as void; and three, to exclude the Supreme Court’s jurisdiction to hear any appeal.
The amendment was challenged as destroying the basic feature of the Constitution insofar as it constituted a gross interference with the judicial process. The contention was that the clause in question wiped out not merely the High Court’s judgment, but even the election petition and the law relating thereto.
The Supreme Court upheld the contention and declared Cl.4 as unconstitutional. The first part of Cl. 4 was regarded to violate three essential ‘essential features’ of the Constitution. It destroyed an essential democratic feature of the Constitution, viz., the resolution of an election dispute ‘by ascertaining the adjudicative facts and applying the relevant law for determining the real representative of the people.’ A constitutional amendment cannot dispense with the requirement without damaging an essential feature of democracy, viz., the mechanism for determining the real representative of the people in an election as contemplated by the Constitution. Democracy could function only when there are free and fair election.
A more substantial ground against the proposed Amendment was that the decision of a specific election dispute was a judicial function. When the constituent body declared that the election of the Prime Minister would not be void, it discharged a judicial function. A judicial power has to be exercised according to some procedure and by following some law. In the instant case, in enacting the Amendment in question, the amending body exercised judicial power in violation of the principle of natural justice or audi alteram partem as it gave no hearing to the person challenging the Prime Minister’s election.
Art. 368 was again amended by 42nd Amendment in order to ensure that the courts should not have the power to pronounce a constitutional amendment invalid. It sought to ensure that a constitutional amendment may not be challenged before the court on any ground whatsoever. To achieve this objective, two new clauses were added to Art. 368.
In Minerva Mills Ltd. V. Union of India, the scope and extent of the doctrine of basic structure was again considered by the Supreme Court. The Court held certain section of 42nd amendment to be beyond the amending power of the Parliament and void since it sought to remove all limitations on the power of Parliament to amend the Constitution and confer a power on Parliament to amend the Constitution so as to damage or destroy its basic or essential features or its basic structures. The true object of these clauses was to remove the limitation imposed on Parliament’s power to amend the Constitution through the Kesavananda case.
The court observed that ‘the power to destroy is not a power to amend.’ The Constitution confers only a limited power on Parliament to amend Constitution; Parliament cannot therefore by exercising that limited power to enlarge that very power into an absolute power. ‘The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. A limited amending power is indeed one of the basic features of the Constitution. Therefore, the limitation on that power cannot be destroyed.
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