Explain the provisions relating to power and procedure of amending the Constitution ? Is the power to amend the Constitution absolute or subject to certain limitations ? Refer to case law. Or “The Constitution has conferred a limited amending power, the Parliament cannot enlarge that power.”Comment.
Ans. From the point of view of the Constatutional amendment the various Articles of the Constitution may be divided into three head —
1. Amendment by Simple Majority—Arts, of Constitution which can be amended by Parliament by simple majority as that requbed for passing of any ordinary law. The amendments contemplated in Arts. 5, 169, and 239-A, can be made by simple majority. These Arts, are specifically excluded from the purview of the procedure prescribed in Art. 368.
2. Amendment by Special Majority—Arts, of the Constitution which-can be amended by special majority as laid down in Art. 368. All Constitutional amendments, other than those referred to above, come within this category and must be effected by a majority of the total membership of each House of Parliament as well as by a majority of not less than 2/3 of the members of that House present and voting.
3. Amendment by Special Majority and Ratification by half of the States—Articles which require, in addition to the special majority mentioned above, ratification by not less than 1/2 of the State Legislatures. The States are given an important voice in the Amendment of these snatiers. These are fundamental matters where States have important power untjer 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 Ariu 368.
The following provisions require such ratification by the States —
(i) Election of the President —Arts, 54 and 55.
(ii) Extent of the Executive powers of the Union and States — Arts. 73 and 162,
(iii) Articles. dealing with judiciary, Supreme Court, High Courts in the States and Union territories —Arts. 124 to 147,214 to 231,241.
(iv) Distribution of Legislative powers between the Centre and the State-Art. 245 to 255. (v) Any of the Lists of the VII Schedule.
(vi) Representation of Slates in Parliament IV. Schedule.
(vii) Articles.. 368 itself. Procedure for theAmendment of the Constitution—Art. 368 of the Indian Constitution provides the procedure and empowers the Parliament to amend the Constitution. According to Art. 368, Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by a majority of the total membership to that House and by a majority of not less than 2/3 of the members of that House present and voting. When a Bill is passed by both Houses it shall be presented to the President for his assent who shall give his assent to Bill and thereupon the Constitution shall stand amended. But a Bill which seeks to amend the provisions mentioned in Art. 368 requires in addition to the special majority mentioned above the ratification by the 1/2 of the States. Art. 368, however, does not constitute the complete Code. The process of amending the Constitution is the legislative process governed by the rules of that process. Thus, it is clear that most of the provisions of the Constitution can be amended by an ordinary legislative process. Only a few provisions which deal with the federal principle require a special majority plus ratification by the States. The procedure to amend these provisions is in conformity with the federal principle. The procedure to amend the Constitution is, however, not so difficult as that of America or Australia.
Amendment of Fundamental Rights —The question whether fundamental rights can be amended under Art. 368 came for consideration of the Supreme Court in Shankari Prasad Vs. Union of India, A.1.R. 1951 S.C. 455. In that case the validity of the Constitution (1st Amendment) Act, 1951, which inserted inter alia, Art. 31-A and 31-B of 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 Art. 13 (2) and hence was void. It was argued that the “State” in Art, 12 included Parliament and the word “Law” in Art. 13 (2), therefore, must include Constitutional 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 Art. 368, and that the word “Law” in Art. 13 (2) includes only an ordinary law made in the exercise of the Legislative powers and does not include constitutional amendment which is made in the exercise of constituted power. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights. In Sajjan Stngh Vs. State of Rajasthan, A.I.R, 1965 S.C. 845, the validity of the Constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court approved the 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. In Golak Nath Vs. State of Punjab,A.I.R. 1971 S,C. 1643, the validity of the Constitution (17th Amendment) Act, 1964 which inserted certain State Acts in the Ninth Schedule was again challenged. The Supreme Court by a majority of 6 : 5 prospectively overruled its earlier decisions in Shankari Prasad and Sajjan Singh Cases and held that Parliament had no power from the date of this decision to arcend Part III of the Constitution so as to take away or abridge the fundamental rights. Subba Rao C. J. said that the fundamental rights are assigned transcendental place under our Constitution and, therefore, they are kept beyond the reach of Parliament. The Chi efJustice applied the doctrine of Prospective Overruling and held that this decision will have only prospective operation and, therefore, the 1st, 4th and 17th Amendment will continue to be valid. It means that all the cases decided before the Golak Nath’s Case shall remain valid. 24th Amendment Act, 1971 —In order to remove difficulties created by the decision of Supreme Court in Golak Nath’s Case Parliament enacted the 24th Amendment Act to the effect — (i) It has added a new Cl. (4) to Art. 13 which provides that nothing in this Art. shall apply to any amendment of this Constitution made under Art. 368 (ii) It substituted a new marginal heading to Art. 368 hi place of the old heading “Procedure for amendment of the Constitution”. The new heading is “Power of Parliament to amend the Constitution and Procedure therefor”, (iii) It inserted a new sub-section (1) in Art. 368 which provides that “notwithstanding anything in this Constitution, Parliament may, in the exercise of its constitutent power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this Art. (iv) It substituted the words, “it shall be presented to the President who shall give his ; assent to the Bill and thereupon” for the words “it shall be presented to the President for his assent and upon such assent being given to the Bill. Thus, it makes it obligatory for the President to give his assent to the Bill amending the Constitution, (v) It has added a new Cl. (3) to Art. 368 which provides that “nothing in Art. 13 shall apply to any amendment made Under this Art.” Keshavanand Bharti’s Case and Basic structure Theory —The validity of the Constitution (24th Amendment) Act, 1971 was challenged in Keshvanand Bharati Vs. State of Kerala, A.I.R. 1973 S.C. 1461, petitioners had challenged the validity of the Kerala land Reforms Act 1963, as amended by in 1969. But during the pendency of the petition the Kerala Act was amended in 1971 and was placed in the Ninth Schedule by the 29th Amendment Act. The petitioner was permitted to challenge the validity of 24th, 25th and 29th Amendment to the Constitution also. The question involved as to what was the extent of the amending power conferred by Art, 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 Art. 368 Parliament cannot destroy the “basic feature” of the Constitution, The Court by majority overruled the Golak Nath’s Case but held that under Art. 368 Parliament is not empowered to amend the basic structure or framework of the Constitution. It held that the first part of the twenty fifth Amendment Act is valid, but held that the second part, namely, “no such law, containing the declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy” is invalid As regards the scope of amending power contained in Art. 368, six judges held that there are inherent or implied limitations on the amending power of Parliament and Art 368 does riot confer power to amend the Constitution so as to damage or destory the essential elements or basic features of the Constitution.
What is the basic structure of the Constitution ?— According to Sikri, C. J. the basic structure of the Constitution consists of
(i) Supremacy of the Constitution,
(ii) Republican and democratic forms of the Government,
(iii) Secular character of the Constitution,
(iv) Separation of powers between the Legislature, the Executive and the Judiciary,
(v) Federal character of the Constitution. According to Shelat and GroLer.13., the following are the examples of the basic structure of the Co-nstitution, i.e.,
(i) Supremacy of the Constitution,
(ii) Republican and Democratic form of Government and sovereignty of the country,
(iii) Secular and federal character of the Constitution,
(iv) Demarcation of power between the Legislature, the Executive and the Judiciary,
(v) Dignity of the individual secured by various freedoms and basic rights in Part III and the mandate to build a Welfare State contained by Part iv,
(vi) Unity and integrity of the nation.
In Indira Nehru Gandhi Vs. Raj Narain,A.I.R. 1975 S,C. 2299, the Supreme Court applied the theory of basic structure and struck down Cl. (4) of Art. 329-A which was inserted by the Constitution (39th Arhendment) Act, 1975 on the ground thai it was beyond the amending power of Parliament as it destroyed the ‘basic feature’ of the Constitution. The amendment was made to validate with retrospective effect the election of the then Prime Minister Mrs. Indira Gandhi which was set aside by the Allahabad High Court. Khanna, J., struck down the clause on the ground that it violated the free and fair elections which was an essential postulate of democracy which in turn was a part of the basic structure of the Constitution; Chandrachud, J., struck down Cls. (4) and (5) as unconstitutional on the ground that they were outright negation of the right of equality conferred by Art. 14. The Supreme Court has thus added the following features as basic features of the Constitution to the list of basic features laid down in the Kashavananda Bharti’s Case—(i) Rule of Law. (ii) Judicial Review. (iii) Democracy, which implies free and fair Election. It has been held that the Jurisdiction of the Supreme Court under Art. 32, is the basic feature of the Constitution. In Minerva Mills Ltd. Vs. Union of India, A.LR, 1980 S.C. 1789, Supreme Court has held that the following are the basic features of the Constitution —
(i) limited power of Parliament to amend the Constitution;
(ii) harmony and balance between fundamental rights and directive principles;
(iii) fundamental rights in certain cases;
(iv) power of judicial review in certain cases.
It was held in Shri Kumar Padiaa Prasad Vs. Union of India, 1992 S.C.C. 428, that independence of judiciary is a part of the basic structure of the Constitution. In this case appointment of a High Court judge was quashed on the ground that he was unqualified. 42nd Amendment and , Art. 368 —After the decisions of the Supreme Court in Keshavananda Bharati and Indira Nehru Gandhi Cases the Constitution (42nd .Amendment) Act, 1976, was passed which added two new clauses, namely, Cls. (4) and (5) to Art. 368 of the Constitution. Cl. (4) provided that “no constitutional amendment (including the provision of Part HI) or purporting to have been made under Art. 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground. Cl. (5) declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. Thus, by inserting CI. (5) it was made clear that even the “basic feature” of the Constitution could be amended. In Minerva Mills Vs. Union of India, A.I.R. 1980 S.C. 1789, the Supreme Court by 4 to 1 majority struck down Cls. (4) and (5) of Art. 368 inserted by the 42nd amendment, on the ground that these clauses destroyed the essential feature of the “basic structure” of the Constitution. Limited amending power is a basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby conferred an unlimited amending power, it was destructive of the basic feature of the Constitution.