Constitutional Law: Limitations to Power of Amendment

The Indian constitution is one of the world’s most fascinating documents. No other country has a constitution as comprehensive as ours, which is the world’s largest. However, despite its comprehensiveness, this document’s appeal stems from its great flexibility. It was the goal of the founding fathers of our constitution that the constitution would not only help the country flourish, but also grow alongside it. As a result, based on the points raised, the government can alter the constitution. Article 368 confers these authorities. India’s Constitution states the country to be a “Sovereign, Socialist, Secular, Democratic, Republic.”

The Constituent Assembly of India ratified the Indian Constitution on November 26, 1949. India’s Constitution is the world’s longest written constitution, with 395 articles and 12 schedules. A constitution should be dynamic in character and capable of adapting to changing societal needs. Because of the rapid change in society, the Constitution and the government’s structure will need to be overhauled. The mechanism for amending the Indian Constitution is outlined in Article 368. Because of Article 368, the Indian Constitution is neither rigid nor flexible. A simple majority or a special majority, as well as a majority of not less than 2/3 members of each house, can modify the Constitution.

However, one must ask: Isn’t it the constitution that provides the government power? If that is the case, how can the government wield such control over a document that confers authority on it? In this article, we will look at the extent to which the government can edit, the process of amendment, the key judicial concerns that it raises, and a number of landmark cases in the hopes of finding answers to these questions.

Necessity of amendment provisions in constitution:

There is a reason why our founding fathers created a constitution that is as flexible as it is today. This will ensure that the text evolves and grows in line with the country. Also, People’s social, economic, and political circumstances are always changing. If the reforms to the Constitution are not made, we will be unable to face future challenges, and it will become a roadblock to growth. As a result, under Article 368, the Parliament’s power to alter the constitution is unconstrained in terms of the portions they desire to amend. However, giving Parliament complete control over constitutional amendments is risky. The constitution would be reduced to a tool to build Parliament’s tyranny, rather than being the backbone of our democracy. The administration will change a number of provisions to ensure that its powers are unrestricted.

Here it’s important to know the basic structure of constitution and judgements revolving around it. As in past giving by misusing the authority the govt. had made some amendments which have given the power to legislative.

Basic structure:

The backbone of the constitution is made up of various key structures and founding concepts, according to doctrine. In plain terms, these are constitutional beliefs that are necessary for the constitution’s survival. Free and fair elections, the federal nature of the nation, judicial review, and separation of powers are only a few examples. The government is prohibited from amending the constitution in any way that affects these contours. We haven’t been given a list of these beliefs by the Supreme Court. When specific judicial questions are presented to them, it is up to the courts to decide what they are. However, if the nature of the structures is to be described, it can be argued that if these ideals are violated, not only democracy, but the entire functioning of this country will collapse. Either utter anarchy or tyranny will ensue in the country. India remains one of the world’s largest democracies as a result of these systems. While Parliament has unfettered authority to alter various portions of the constitution, it cannot amend, repeal, or add provisions to the constitution[1].

In case of State of Kerala v. Kesavananda Bharati[2]

Swami Kesavananda Bharati, the plaintiff, was the spiritual leader of Edneer Matt, a Hindu monastic institution in Kerala. He challenged the Kerala government’s two-state Land Reform Act, which aimed to limit how his property was managed. He claimed that his fundamental rights under Articles 25 (Freedom of conscience and free profession, practise, and propagation of religion), 26 (Freedom to manage religious affairs), 14 (Equality before the law), 19(1)(f) (Right to property that has been omitted), and 31 (unrestricted private ownership) had been violated. A 13-judge bench was assigned to the case. It became one of India’s most important cases, establishing the Constitution’s Basic Structure Doctrine. They were debating the constitutionality of the 24th, 25th, and 29th amendments in this case. A 13-judge bench was assigned to the case. It became one of India’s most important cases, establishing the Constitution’s Basic Structure Doctrine. They were debating the constitutionality of the 24th, 25th, and 29th amendments in this case.

24th amendment:

The following are the changes made to Article 13. Article 13 governs government policy and ensures that laws passed by parliament do not infringe on citizens’ rights. Article 13 was changed as a result of the amendment. Clause (4) has been added. It stated that any alteration made under Article 368 would be exempt from Article 13’s requirements. Changes to Article 368 have been made to Parliament’s ability to amend. It said that, regardless of what the constitution says, the Parliament can add, remove, or change any portion of the constitution using the methods outlined in Article 368, including those included in the proviso of Article 368. Such a Bill or Act just needed the President’s consent after being passed by a majority.

The 25th Amendment:

Changes made in article 13are following. No one may be dispossessed of his or her property, according to Article 31. Clause (2) has been added. The section declared that any law allowing the government to seize property for a specific amount would not be challenged in court. Nothing indicated in Article 19 (1)(f) shall influence such laws, according to Clause 9(b) after (2A)[3].

Article 31C was added to the Constitution.

This was in relation to laws enforcing the Directive Principles’ principles. It declared that laws enacted to ensure the implementation of Directive Principles would not be subject to Articles 14, 19, or 31’s scrutiny. If they abridged such rights, they will not be deemed void. This is only true if the law has been passed by state legislature and has received the President’s approval.

The court affirmed the 24th Amendment while declaring the second half of the 25th Amendment to be unconstitutional. In this decision, the court addresses an exceedingly crucial point that was left unaddressed in Golak Nath v. State of Punjab, namely, the extent to which Parliament can amend the Constitution. The court stated that such a power should strike a balance between the Parliament’s constitutional obligations and its social-economic responsibilities.

They devised the Doctrine of Basic Structure to answer this question. While they acknowledged that the Parliament’s right to amend the constitution was unfettered in terms of the amount of the constitution they wanted to change, they also stated that certain aspects of the constitution should be left alone. The Indian constitution, according to justices Hedge.J and Mukherjee.J, is more of a social document founded on social philosophy than a political document. The constitution, like any philosophy, has some fundamental aspects that should not be changed.

Procedure of having an amendment:

Step 1 is that the bill can be introduced in either chamber of the legislature.

Step 2 The Bill must be passed by both houses with a total majority (regardless of vacancies or absentees) and a majority of not less than 2/3rds of those present and voting. If there is a disagreement between the two houses, there is no provision for a combined sitting.

Step 3: Once the bill has gained a majority, it is forwarded to the President, who will then offer his approval.

It must be ratified by at least half of the states in order to change the requirements listed in Article 368. A resolution voted by the state legislature should be used to ratify the treaty. Before the amendment Bill is given to the President for his signature, this must be passed.

Constitutional Amendments:

The fundamental rights mentioned in Part III of the constitution form the backbone of human rights in this country. The United States’ judiciary has repeatedly demonstrated in historic instances that an individual’s or private organization’s fundamental right is untouchable. In many cases, these rights have been given precedence over other provisions of the constitution, and they might be considered an integral component of it.

Shankari Prasad v. Union of India[4]

In this case, the question of whether or not the FR can be altered under Article 368 was raised for the first time. In this case, the legitimacy of the First Amendment, which introduced Articles 31A and 31B to the Constitution, is at issue. According to the five-judge bench, Article 368 gives the legislature broad and rigorous authority to modify the Constitution by following certain procedures.

In Sajjan Singh v. Rajasthan State[5]

Fundamental rights might be altered in this case as long as they were indirect, incidental, or inconsequential to the power granted by Provision 226, the article under which the High Court gained its powers. It was decided that laws had no bearing on Article 226. The provisions of Article 336 do not apply if the effect of the Act on the powers of Article 226 is indirect, incidental, or negligible. The core and substance of the Act must be examined in order to comprehend the Act’s implications.

In the case of Golaknath v. Punjab State[6]

The 1st, 17th , and 4rth Amendments were all challenged in this case. This time, a majority of six justices on the eleven-judge bench determined that the parliament does not have the authority to change Part 3 of the Constitution. The court, on the other hand, believed that the parliament had a duty to correct legal errors, and thus adopted the doctrine of prospective overruling, under which the three Amendments discussed remained valid, but the parliament would have no power to amend Part III of the Constitution in the future.

The 24th Amendment was passed in 1971 in response to the Supreme Court’s decision in the Golaknath case, and it marked a significant change in article 13 and 268.

Is Amending Power limited by the Theory of Basic Structure?

The government has a responsibility to achieve particular socioeconomic objectives. They must occasionally modify the constitution to attain them. What happens, though, when these adjustments cause the underlying framework to be disrupted? Will their duty to conduct socioeconomic tasks take precedence over their duty to uphold the constitution? The following examples provide an answer to that question.

In the case of Indira Gandhi v. Raj Narayan[7]

The basic structure concept was once again reaffirmed in this example. The Supreme Court used the same logic to strike down the 4th clause of Article 329 A, claiming that the Amendment exceeded parliament’s authority and damaged the Constitution’s fundamental structure. The amendment was designed to clarify that all courts, including the Supreme Court, have jurisdiction over a dispute over the Prime Minister of India’s election.

The 42nd Amendment was enacted shortly after the Supreme Court’s verdict in the Kesavanada Bharti and Indira Gandhi case, adding the words secular and socialist to the preamble and adding clauses 4 and 5 to Article 368 of the Constitution. It implies that the parliament’s power to amend the Constitution is unrestricted. The parliament has unrestricted ability to amend or repeal any provision of the Constitution, even after the supreme court’s decision. As a result, this Amendment raises the issue of supremacy, namely, who is supreme: Parliament or the Supreme Court? The parliament determined the supreme court’s idea of basic structure to be unclear and unconstitutional by this Amendment[8].

In case of Union of India v. Minerva Mills[9]

The legitimacy of the 42nd Amendment was challenged in this case because it damaged the Constitution’s core framework and violated Article 368 clauses 4 and 5. The Supreme Court, by a majority, knocked down the 42nd Amendment’s clauses, stating that the parliament’s limited jurisdiction is inherent in the basic framework.

 In case of Union of India v. L. Chandra Kumar[10]

The constitutionality of Articles 323A and 323B, both of which deal with the exclusion of the High Court under Articles 226 and 227 and the Supreme Court under Article 32, was challenged in this case. In this case, the Supreme Court found both clauses unconstitutional, ruling that the power of judicial review under Articles 226, 227, and 32 was granted by the basic structure and that the legislature had no authority to change it.

Other Judges’ Points of View

C.J. Sikri

According to him, Article 368 gives parliament the right to change, but only to a limited extent. The essential framework, as well as the people’s fundamental rights, cannot be changed or harmed by the parliament. He believes that changing the fundamental right will have an impact on the public interest. As a result, the parliament’s Amendment power is ostensibly limited.

Jaganmohan Reddy

According to him, the word “amendment” does not provide parliament the authority to amend section III or the essential structure. Any alteration in the basic structure by the parliament would jeopardise the Constitution’s identity[11].

 Justice Khanna

He believes that the essential framework of the Constitution must be preserved without losing its uniqueness and that it should be made available to the people in its original form.

Conclusion:

We looked at how the constitution could be changed in this article. We discovered that the Basic Structure of the Constitution exists, and that violating it is against the fundamental principles of justice. The preamble was once thought to be the basic structure of the constitution, but later it was decided that other components of the constitution, such as judicial review, might also be considered basic structure. In a number of historic cases, the government attempted to change the constitution to make it simpler to ensure the best interests of the people. The judiciary was initially opposed to the idea, but later decisions show judges warming to the idea of the executive having the power to overrule certain components of the basic structure in order to protect the best interests of the public. Later judgements, however, were tough about changes that breached the essential framework unless the judiciary was fully sure that such Acts would be useful in promoting better public welfare.

The constitution, we must understand, is the backbone of this democracy. While the provision of amendments to the constitution was revolutionary on the part of our founding fathers, it is critical that such provisions not be abused. Excessive legislative or executive power could come from misuse, tearing the fabric of our democracy apart.


[1] Jain MP,  Indian Constitutional Law, P. 1678

[2] AIR 1973 SC 1461

[3]The Amendment of the Constitution: Article 368,  The Amendment of the Constitution: Article 368 under Indian constitution (ipleaders.in)( last visited june 22,2021)

[4] AIR 1951 SC 455 p.458

[5] AIR 1965 SC 845

[6] AIR 1971 SC 1643

[7] AIR 1975 SC 2299

[8]   Article 13 and Power of Amendment under Article 36,Article 13 and Power of Amendment under Article 368 (legalbites.in)(last visited june 23,2021)

[9] AIR 1980 SC 1789

[10] AIR 1997 (2) SCR 1186 

[11] Power of the Parliament under Article 368 to Amend the Constitution,The Procedure to amend the Constitution under Article 368 (ipleaders.in)(last visited june 22,2021)


Author: Raghav from B.R. National Law University, Haryana.


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