Updated: Aug 3, 2020
By- Ayush Kumar Singh
Indian constitution is the most dynamic document which could be amended as per the changing societal needs and objective of citizens. Our constitution grows with the living need of the citizens. It is a vibrant document and had been compiled with great efforts by its makers. Article 368 of the Indian Constitution gives power to the Parliament to amend the constitution. Now the question arise that what is the limit of the amendment. Till what extend the construction of India can be amended. And what is the supreme power in Indian law system, Parliament or Judiciary? Conflict of supremacy started with the first constructional amendment, 1951. In this amendment parliament amended part 3 of the Indian constitution and inserted Article 31A and 31B. These two inserted articles were considered as the attack on the right to property and were challenged in the court. This lead to the case-
Shankari Prasad Singh Deo v. Union of India
This was the first time when the question raised weather the parliament has the power to amend the fundamental rights because article 13 protects the fundamental rights. The Supreme Court unanimously held that the terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception. In the context of article 13, “law” 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, with the result that article 13 (2) does not affect amendments made under article 368.
Next conflict came into the frame when 17th amendment was brought by the parliament. Then leaded to the cases-
Sajjan Singh v. State of Rajasthan
By a majority of 3-2, the Supreme Court held, "When article 368 confers on Parliament the right to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution. It would be unreasonable to hold that the word "Law" in article 13 (2) takes in Constitution Amendment Acts passed under article 368."
In 1967 Supreme Court reversed its decision. It was the first time and the largest, when the 11 judges’ bench passed the judgement. And the case was-
I.C. GolakNath and Ors.vs. State of Punjab and Anr.
The main issue raised in this case was weather the power of parliament to amend the constitution is limited or unlimited. This issue again challenged the 17th amendment.Chief Justice KokaSubbaRao writing for the majority held that:
A law to amend the constitution is a law for the purposes of Article 13.
Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.
Article 368 does not contain a power to amend the constitution but only a procedure.
The power to amend comes from the normal legislative power of Parliament.
Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.
On 4th August, 1974 Parliament of Indian passes 24th Amendment. The main aim of this amendment was to repudiate the decision of Supreme Court in the Golak Nath’s case. Therefore, parliament changed the marginal heading of Article 368, which is Procedure for amendment of the Constitution to Power of Parliament to amend the Constitution and procedure therefore,Article 13(4) was added according to which “Nothing in this article shall apply to any amendment of this constitution made under article 368.”and Article 368(3) was added according to which “Nothing in article 13 shall apply to any amendment made under this article.”
Hence, the 24th amendment excludes the applicability of article 13 on article 368. It was clear that the parliament can dilute the constitution including the fundamental rights.
After this amendment the issue arose that what is the scope of amendment the parliament reserves? And on this issue 24th amendment was challenged and leaded to the case-
KesavanandaBharati v. State of Kerala (Fundamental Right’s case)
The court by the majority of 7 to 6 overruled the Golak Nath’s case which denied parliament the power to amend the Part III of the constitution. According to the majority the article 368 even before 24th amendment contained the power as well as procedure of amendment. 24th amendment is declaratory in nature which declares the true legal position as it was before the amendment hence, it is valid. Thus the parliament has wide power of amending the constitution, but the power is not unlimited and does not include the power to destroy the ‘basic structure’ or ‘Framework’ of the constitution.
The court defined basic structure as-
Supremacy of the constitution,
Republican and Democratic form of Government,
Secular character of the Constitution,
Separation of power between the Legislature, the Executive, the Judiciary,
Federal character of the constitution.
In 1975 39th amendment was passes. This amendment was passed for validating the election of Prime Minister Mrs Indira Gandhi which was declared invalid by the Allahabad High Court. The new article 329-A was included according to which the election of who holds the office of a Prime Minister at the time of such election or appointed as Prime Minister after such election to the House of the people can be challenged only before such a body or forum as may be established by parliament by law. The validity of any such law creating a forum and the decision of any authority or body under such law shall not be called in question in any court. It also provide that where any person is appointed a Prime Minister while an election petition in respect of hid election is pending, such petition shall abate upon such person being appointed as Prime Minister. The provision of this Article shall have effect notwithstanding anything contained in the constitution.
Therefore 39th amendment was challenged in the court which leads to the case-
Indira Nehru Gandhi v. Raj Narayan
Applying the theory of Basic Structure the Supreme Court struck down the CL.4 of Article 329-A, on the ground that it is beyond the amending power of the parliament as it destroyed the basic feature of the constitution that is, right of free and fair election which is an essential postulate of democracy.The Supreme Court has thus added the following feature as the Basic Structure-
1. Rule of law
2. Judicial Review
3. Democracy, free and fair election
In the year 1976, 42nd amendment was introduced. It added two new clauses to article 368 of the constitution. Clause 4 provides that “no constitutional amendment (including the provision of Part III) or purporting to have been made under article 368 whether before or after the commencement of the constitution (42nd amendment) Act, 1976 shall be called in question in any court on any ground. Clause 5 removed any doubts the scope of the amending power. It declared that there shall be no limitation whatever on the constituent power of the parliament to amend by way of addition, variation or repeal of the provisions of the constitution under this article. Thus by this amendment it was clear that the basic structure of the constitution can also me amended.
According to Mr Swaran Singh, the Chairman, Congress Committee on Constitutional Amendment, Clause 4 asserted the supremacy of the parliament. It was urged that parliament represents the will of the people and if people desire to amend the constitution through parliament there can be no limitation whatever on the exercise of this power. This amendment removed the limitation imposed on the amending power of the parliament by the ruling of the Supreme Court in Keshavananda Bharati’s case.
Now, can we ask that an amendment made by parliament is an amendment made by the people? Thus the 42nd amendment was challenged on the ground that they are destructive of the basic feature.
Minerva Mills v. Union of India
By the majority of 4 to 1 the Supreme Court struck down both the clauses added in article 368 through 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 limitation on the amending power and there by conferred an unlimited amending power, it was destructive of the basic feature of the constitution.
Supreme Court finally made it clear that the power to amend, the constitution should not lead to the total destruction neither being liberal from all restriction. Therefore it was clear now that the written Constitution of India has the Supreme Power and the Legislature, the executive and the Judiciary are empowered as well as bound by the constitution.
1. Constitution law of India, Central Law Publication, Dr. J. N. Pandey
2. Indian Polity 5th Edition, McGraw Hill, M Laxmikant
3. The Indian Constitution, NCERT
4. The Constitution of India, 1949, Bare Act
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