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Submitted by Aadesh Agarkar

Introduction

Importance of Amendment

Procedure for Amendment

Amendment of Fundamental Rights

24th Amendment Act 1971

Basic Structure Doctrine

Limitation on Amending Power

INTRODUCTION

Time is not static and it goes on changing, with it the life of nation also changes. Social, political, economic conditions also change as the time changes. Therefore, it is important for a nation to Amend its Constitution with a view to overcoming the difficulties which may encounter in future in working of the Constitution. The framers of the Constitution provided for the process of amendment of the constitution, which is neither too rigid or too flexible. Art 368 specially deals with the provisions of amendment.

IMPORTANCE OF AMENDMENT

It has been the nature of amending process in federal constitutions which have led the political scientist to classify the federal constitutions as rigid. In federal constitution, the procedure of amendment is unduly complicated in character. Federal constitutions like USA, Australia, Canada, Switzerland have a very rigid, complicated, difficult to alter and is consequently behind the time. Framers of Indian Constitution have made Constitution which could grow with a growing nation, adapt itself to changing needs and circumstances of growing people. They were also aware of the fact that if the constitution was so flexible it would become a toy in the hands of ruling party. To avoid an extreme type of flexibility they adopted the middle course which was neither too rigid nor flexible for undesirable change. Indian federation has a distinguishing feature that it is a flexible federation.

PROCEDURE OF AMENDMENT

For the purpose of amendment the various articles of constitution are divided into 3 categories-
1)Amendment by simple majority
2)Amendment by special majority
3)By special majority and Ratification by State

1)Amendment by a simple majority.

The article that can be amended by Parliament by simple majority as that required for passing of any ordinary law. The amendments contemplating article 51,69 and 239A can be made by simple majority of 2/3 of the members of the house. These articles are specifically excluded from the purview of procedure prescribed under Article 368.

2)Amended by Special Majority

Articles of the constitution which can be amended by special majority are laid down in Article 368. All constitution amendments other than those mentioned 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 majority of not less than 2/3 of the members of the house present and voting.

3)By special majority and Ratification by state

Article which requires in addition to the special majority mentioned above ratification by not less than 1/2 of the state legislature. These are fundamental matters when state has important power under the constitution and any unilateral amendment by Parliament may affect fundamental basis of the system built up by the constitution. this class of article consist of amendment for provision mention in Article 368, which are as follows-


1)Election of president article 54 & 55.
2)The extent of the executive power of Union and States article 73 & 162.
3)Articles dealing with judiciary, Supreme Court, High Court in the states and union territories-Article 124 to 147,214 to 231,241
4)Distribution of Legislative powers between Central and state article 255 and 255.
5)Any of the list of the Seventh schedule.
6)Representation of states in Parliament 4th schedule.
7)Article 368 itself.

When the bill is passed by both house it shall be presented to president for his assent who shall give his assent to bill thereupon the constitution stands amended.

PROCEDURE OF OTHER FEDERAL CONSTITUTIONS

The procedure to amend this provision is in the conformity with federal principles. The difficult procedure of referendum followed by Australia and Switzerland or constitutional convention followed by USA have not been adopted by Indian Constitution.

In American constitutions amendment can be proposed by 2 ways-
1)by 2/3 of the votes of both Houses Congress.
2)by a convention called on the application of legislature of 2/3 of the states. amendment proposed in either of the above two ways can be ratified by in either of the two ways-
1)by legislature of 3/4 of states
2)by convention of 3/4 of states.

In Australian constitution, the constitutional amendment must be proposed by an absolute majority of the both the houses of parliament. It must be submitted to electors for approval within 6 months and must be approved by a majority of electors in a majority of states.

AMENDMENT OF FUNDAMENTAL RIGHTS

The question of amendment of fundamental right under 368 came for consideration of the SC in SHANKARI PRASAD V UNION OF INDIA.
In this case, the validity of the constitution (1st amendment of 1951) was challenged which inserted inter alia Art 31-A and Art 31-B and it was challenged on the ground that it purport to take away the rights conferred in part 3 which fell within the prohibition of art 13(2) and hence was void. It was argrued that the word "state" in art 12 includes parliament and the word "law" in art 13(2) also include constitutional amendments but was rejected by the Supreme court and held that power to amend constitution includes fundamentals right contained in art 368. The SC also said the word law in art 13(2) includes only ordinary law made in exercise of legislative power and does not include the constitutional amendment.Therefore, a constitutional amendment is valid even if it abridge any fundamental rights.

Also in SAJJAN SINGH V STATE OF RAJASTHAN the validity of 17th (1964 amendment act) constitutional amendment was challenged. The supreme court approved the majority judgement given SHANKARI PRASAD CASEand held the word amendment of the constitution means amendment of all provision of the constitution.

In GOLAK NATH V STATE OF PUNJAB

the validity of 17th amendment which inserted certain state acts in 9th schedule was again challenged. The Supreme court by a majority of 6 to 5 prospectively overruled it earlier decision in SHANKARI PRASAD'S and SAJJAN SINGH case and held that parliament has no right from date of this decision to amend part 3 of the constitution so as to take away the fundamental rights .SUBBA RAO C.J supported his judgement on the following reason-


1) the Chief justice rejected the argument that the power to amend the constitution was sovereign power and the said power was supreme to legislative power and it did not permit any implied limitations.
2)the power to amend the constitution is derived from art 245 read with entry 97 of list 1 of the constitution. Art 368 merely lays down procedure to amend. Amendment is legislative process.
3)An amendment is a law within the meaning of art 13(2) and therefore if it violates any of the fundamental rights it may be declared void. The word law in art 13(2) includes every kind of law, statutory as well as constitutional law.

The chief justice applied the doctrine of "prospective overruling" and held that this decision will only have prospective operation and, therefore, the 1st,4th and 17th amendment will continue to be valid. It means that all case before Golaknath shall remain valid.

24th AMENDMENT 1971

In order to remove difficulties arising out of GOLAKNATH'S case, the Parliament enacted 24th amendment act. The amendment has following amendments-
1)It has added clause 4) to art 13 which say that nothing in this art shall apply to any amendment of this constitution made under art 368.
2)New heading for art 368 - Power of parliament to amend constitution and procedure thereof.
3)it as inserted sub section 1) to art 368.
4)It has added a new clause 3) to art 368. Thus, the 24th amendment not only restored the amending power of the parliament but also extended its scope.

DOCTRINE OF BASIC STRUCTURE

the validity of constitution 24th amendment of 1971 was challenged in KESHAVANAND BHARATI V STATE OF KERALA, the petitioner challenged the validity of Kerala land reforms act 1963. Also, the petitioner was permitted to challenged the validity of 24th,25th and 29th amendment. The question involved in this case was as to what extent of amending power was conferred by constitution under article 368? On behalf of Union of India, it was argued that the power to amend constitution was unlimited and on the other side the petitioner argued that the power to amend is wide but not unlimited. The Supreme Court by a majority overruled the judgement of Golaknath which denied the power to amend fundamental rights to parliament but the majority held that the art 368 even before 24th amendment contain the power as well as the procedure of amendment. The 24th amendment does not enlarge the amending power of parliament. It only declared the true legal position as it was before the amendment hence it is valid. The court held that under art 368 parliament is not empowered to amend the basic structure of the constitution. It also held that 1st part of the 25th amendment is valid but the second part of the 25th amendment is invalid. Sekri C.J observed that the basic structure was built upon basic foundation i.e dignity and freedom of individual. He articulated the following feature to constitute basic feature-
1)Supremacy of constitution.
2)Republican and Democratic form of Government.
3)The secular character of constitution.
4)Separation of power between Legislature, Executive, Judiciary.
5)Federal character of constitution.

Again in the INDIRA NEHRU GANDHI V. RAJ NARAYAN popularly know as election case, Supreme court struck down clause 4) of 329-A on the ground that it was beyond the power of parliament as it destroyed the basic feature of constitution.

42nd AMENDMENT ACT 1976/LIMITATION ON AMENDING POWER.

The parliament of India enacted the 42nd amendment 1976. This amendment inter alia made 2changes-
1)It inserted clause 4) and 5) to art 368 to the effect that an amendment of constitution u/art368 shall not be called in question in any court on any ground and that there shall be no limitation, whatever in the constitution power of parliament.
2)It amended art 31(C) to provide precedents to all directives over fundamental rights.

In MINERVA MLL LTD. V. UNION OF INDIA AIR 1980.

Supreme court by 4 to 1 majority struck down clauses 4) and 5) of art 368 as inserted by 42nd amendment on the ground that it destroyed the basic structure of the constitution.The court unanimously held that, the power of judicial review was one of the basic structure of the constitution.

In above case it can be said that the amending power of the parliament is limited and that parliament cannot in the exercise of it constitution power under art368, destroy the basic structure of the constitution. Now it is settled that the Constitution and not the parliament is supreme in India.

Submitted by Aadesh Agarkar

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