By Mayank and Preyoshi
This case-by-case analysis is done in order to determine how the law regarding ‘What can be amended?’ has been evolved. This article shall presue the following landmark judgements, namely, Shankari Prasad v. Union of India, L. C. Golak Nath V. State of Punjab, Kesavananda Bharti v. State of Kerala, Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India. It shall also analyse the 24th and the 42nd Constitutional Amendment.
Shankari Prasad V. Union of India, [AIR 1951 SC 458]
The question over amending power of the Parliament was first raised in Shankari Prasad v. Union of India [AIR 1951 SC 458] where the constitutionality of First Amendment Act, 1951 was challenged on grounds that it curtails Right to Property guaranteed under Article 31 and falls within prohibition under Article 13(2) which prevents State from making laws which abridges the Part III rights. The First Amendment introduced Art.31A and 31B along with the infamous Ninth Schedule in order to carry out land reforms.
The Supreme Court upheld the validity of First Amendment and limited the scope of Article 13 by interpreting the word ‘law’ to mean rules and regulations made in exercise of ordinary legislative power and not the amendments to Constitution made in exercise of constituent power and therefor Art. 13(2) does not affect amendment under Art. 368. The Court thus ruled out the inviolability of fundamental rights.
L. C. Golak Nath V. State of Punjab [AIR 1967 SC 1643]
The Constitutional validity of The Constitution (Seventeenth Amendment) Act, which adversely affected the right to property by placing a number of statutes in the Ninth Schedule, was challenged in this case. Eleven Judges Bench was divided in the ration of 6:5.
The family of William Golak Nath owned over 500 acres of land in Punjab. Acting under Punjab Security and Land Tenures Act, 1953 which was placed in 9th Schedule by the 17th Constitutional Amendment Act, 1964 the State Government intimated to petitioner that he can now possess only 30 acres of land & rest will be treated as surplus. Aggrieved by this intimation of the state government petitioner filed a writ petition under Art. 32 and pleaded the violation of fundamental rights under Art. 19(1) (f) i.e. Right to Hold & acquire property, 19(1) (g) i.e. Right to practice any profession &Art. 14 i.e. Equality before Law & Equal protection of laws.
The court held that Fundamental Rights occupy a “transcendental” position under the Indian Constitution and no authority including the Parliament acting under Art. 368 is competent to amend Fundamental Rights. The court observed the Art. 368 merely laid down the procedure for constitutional amendment and did not by itself confer a substantive procedure for amendment. Thus overruling the Shankari Prasad the court ruled that ‘law’ would include Constitutional law as well.
The Constitutional (Twenty-Fourth) Amendment Act, 1971
In order to retaliate to the Golak Nath Judgement the Parliament enacted the Twenty-Fourth Amendment in 1971 which made following changes.
- Art. 13 does not apply to any constitutional amendment made under Art. 368.
- The marginal note to Art. 368 was changed to “Power of Parliament to amend Constitution and Procedure thereof.”
- 368 was amended to provide that “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation, or repeal any provision of this constitution in accordance with the procedure laid down in this Constitution.”
Along with the twenty-fourth amendment was also enacted The Twenty-fifth Amendment of the Constitution, which added new Art. 31C and Directive Principles were given precedence over Fundamental Rights.
Kesavananda Bharti v. State of Kerala, [AIR 1973 SC 1461]
The Constitutional validity of 24th and 25th Amendment was challenged in Supreme Court through Art. 32 by Swami Kesavananda Bharti, a Mutt Chief of Kerala. The matter was heard by the largest bench ever, comprising of 13 Judges.
- The power to amend the Constitution is to be found in Constitutions itself. The view taken on Golak Nath that the power to amend Constitution was not to be found in Art. 368 was overruled.
- The court recognised distinction between ordinary and a constitutional law.
- The Court did not conceded unlimited amending power to the Parliament under Art. 368 but enunciated the Basic Structure Doctrine according to which the amending power was to be exercised in such a manner so as not to destroy the Fundamental Feature or the Basic Structure of the Constitution.
- Some feature which were regarded as fundamental, and thus non amendable are
- Supremacy of Constitution
b. Republican and Democratic form of government.
c. Secular character of the Constitution.
d. Separation of power.
e. Federal Character of the Constitution.
The list given is not final or exhaustive. Thus, it means that Parliament can amend any provision of constitution but its power is subjected to Basic Structure of the Constitution.
Indira Nehru Gandhi v. Raj Narain, [AIR1975 SC 2299]
On petition being filed by Raj Narain, the Allahabad High Court declared Indira Gandhi’s election void on grounds of corrupt practices. Indira Gandhi made an appeal against the decision. The Supreme Court was on vacation at that time so she was granted a conditional stay. Thereafter, emergency was declared due to internal disturbance. In the meantime, Indira Gandhi passed the 39thconstitutional amendment, which introduced Article 392A.
The Cl. 4 of the Constitution (Thirty-Ninth Amendment) Act, 1975 was challenged as destroying the basic feature of the Constitution. This amendment aimed at three things: to withdraw the election of the Pirme Minister and a few other Union official from judicial review; to void the High Court decision declaring Indira Gandhi’s election at Lok Sabha as void; to exclude the Supreme Court’s jurisdiction to hear any appeals.
The court declared the Cl. 4 as unconstitutional. The court held that the Amendment violated the basic feature of Democracy, Free and Fair Election and the Separation of Power.
The Constitution (Forty–second amendment) Act, 1976
In response to the decision in Indira Gandhi Case the 42nd Amendment brought out in order to maintain Parliamentary Supremacy over the Constitutional Amendments. Two new clauses were added to Art. 368 declaring that no Constitutional Amendment could be brought into question in any court on any ground and that there shall be no limitation on the amending power of the Parliament. A number of other changes were also made to numerous provisions of Constitution and that’s why 42nd Amendment is also called the Mini Constitution.
Minerva Mills v. Union of India, [AIR 1980 SC 1789]
Petition was filedin Supreme Court challenging the taking over of the management of mill under the Sick Textile Undertaking (Nationalisation) Act, 1979 and an Order made under S. 18A of Industrial (Development and Regulation) Act, 1951. The petition challenged the constitutional validity of the Cl. 4 &5 of Art. 368 introduced by S. 55 of the 42nd Amendment.
The Court held S. 55 of 42nd Amendment to be beyond the amending power of the Parliament and void since it sought to remove all limitation on the power of the Parliament to amend the Constitution so as to damage the basic structure. The Court observed that Cl. 4 of Art. 368 sought to deprive judges of power of judicial review and Cl. 5 empower the Parliament to abrogate democracy and substitute it for totally antithetical form of government. The power to destroy is not the power to amend and the Constitution confers only a limited power on Parliament to amend the Constitution and therefor Parliament by exercising limited power cannot enlarger it to absolute power.
Thus the long drawn battle of Parliamentary Supremacy over the Constitution finally rested with the introduction of Basic Structure Doctrine. The list of basic features of the constitution has grown enormously due to liberal interpretation of provisions of Constitution by the courts.