The Amendment of the Constitution

 Provision for amendment of a constitution is made with a

view to overcome the difficulties which may encounter in the
future of the working of the constitution. If no recourse would
have been given then people would have to take extra
constitutional method like revolution to change the
constitution.
 It is the nature of the amending process which helps to
classify federal constitutions. A federal constitution is
generally rigid in character as the amending procedure is
very difficult as in the case of the American constitution.
 The framers of the Indian Constitution were keen to avoid
excessive rigidity as they wanted to create a document
which could grow with a growing nation and adapt to the
changing need and circumstances of a growing people.
 But the framers were also aware that if our Constitution
became too flexible then it would be a playing of the whims
and caprices of the ruling party. Hence, they adopted a
middle course – neither too rigid nor too flexible.
 Modes of Amendment:
1. Amendment by Simple Majority – they are like passing
of any ordinary law. The amendments contemplated in
5, 169 and 239-A can be made by simple majority.
They are exclusively excluded from the purview of
Article 368.
2. Amendment by Special Majority – Articles which can be
amended by special majority are laid down in 368. It
must be affected 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. By special majority and ratification by states – Articles
which require the special majority majority and
ratification by not less than ½ of the state legislatures.
The states are given an important role here because
these are fundamental matters where States have
power and if not then the unilateral amendment may
vitally affect the fundamental basis set up by the
Constitution. Includes 54 and 55 (elec. of Pres.), any
lists of the 7th schedule, 368 itself, etc.
 Procedure of Amendment – a Bill to amend the constitution
may be introduced by any of the houses. It must be passed
by each house by a majority of not less than 2/3 of the
members of that house present and voting. When the bill is
passed by both the houses it shall be presented to the
President for his assent and who shall give his assent to the
Bill and thereupon the Constitution shall be amended. A bill
may also require the special majority by ratification of at
least ½ of the State Legislatures.
 Thus, it is clear that most of the provisions of the
Constitution can be amended by an ordinary legislative
procedure. Only a few provisions which deal with the federal
principle require a special majority plus ratification by states.

Amendment of Fundamental Rights

 The question whether FRS can be amended under Article 368

came for consideration in the SC in Shankari Prasad v UOI in
1951. In that case validity of the first amendment act which
inserted 31-A and 31-B of the Constitution were challenged.
 It was challenged on the ground that it purported to
take away or abridge the rights conferred by Part 3
which fell under prohibition of Article 13(2) and hence
was void. The SC stated that the power to amend the
constitution including FRS is contained in article 368
and that the word Law in article 13(2) includes only
ordinary law made in exercise of legislative power and
not amendments made in exercise of constitutional
power. Therefore, a constitutional amendment will be
valid even if takes away FRS.
 In Sajjan Singh v State of Rajasthan – 17th amendment was
challenged. The SC approved the majority judgement in
Shankari Prasad.
 In Golak Nath v State of Punjab the validity of the
Constitution (17th amendment) act, 1964 was again
challenged. By a 6:5 majority, the SC overruled its earlier
decisions in Shankari Prasad and Sajjan Singh and held
that the Parliament had no right to amend part 3 of the
Constitution as as to take away or abridge the FRS.
 CJ said that the power to amend the Constitution was
supreme to the legislative power.
  The power of Parliament to amend the C. is derived
from art 245 read with entry 97 of list 1 and not from
art 368. 368 lays down merely the procedure for
amendment of the constitution.
 An amendment is a law under 13(2) and therefore if it
violates any FRS it may be declared void. The word law
contains every kind of law – statutory as well as
constitutional and hence a constitutional amendment
which contravened 13(2) will be declared void.
 Prospective Ruling.
 24th Amendment Act, 1971 restored the amending power of
the Parliament but also extended its scope by adding the
words “to amend by way of the addition or variation or
repeal of any provision of this Constitution in accordance
with the procedure laid down in this Article.”
 Theory of Basic Structure: A limitation on amending power
-One of the various questions raised in this case was the
extent of the power of the Parliament to amend under Article
368. A 13 Judge Constitutional Bench was formulated under
Chief Justice Sikri in order to evaluate the intricacies of
Golak Nath’s case. The Supreme Court overruled its
decision in Golak Nath’s case and held that even before the 24th
Amendment, Article 368
contained power as well as procedure for Amendment. [The 
majority held that there are inherent limitations on the
amending power of the Parliament and Article 368 does not
confer power so as to destroy the “Basic Structure” of the
Constitution].

 On April 24, 1973, the eleven separate judgments

(Keshavanda 
Bharati) were delivered by nine judges; collectively these
ran into more than 1000 printed pages.
 Six judges were of the opinion that the Parliament's
 power
was limited because of implied and inherent limitations in 
the Constitution, including those in fundamental rights. Six
other judges were of the opinion that there were no
limitations at all on Parliament's power to amend the
Constitution. But one judge Justice H.R. Khanna
took neither side. He held that Parliament had the full
power of amending the Constitution; but because it had the
 power only "to amend," it must leave "the basic structure or
framework of the Constitution" intact. It was a hopelessly
divided verdict after all the labour and contest of five months.
No majority, no minority, nobody could say what was the
verdict.  Delivering the majority Judgement J. Skhri
said that the expression ‘amendment’ means any
addition or change in any of the provisions of the C.
within broad contours of the Preamble and the C. to
carry out the objectives in the Preamble and the C.
to carry out the DP applied to FRS, it would mean
that while FRS cannot be abrogated, reasonable
abridgements of FRS can be eff ected in public
interest. The true position is that every provision of
the C. can be amended provided that basic structure
remains the same.

 Basic Structure – to be determined by the facts of each

case. M. Nagraj v UOI – explained theory of BS in detail. BS
are systematic principles underlying and connecting
provision of the C. They give coherence and durability to
the C. Part of C law even if not states and is not based on
literal words. This theory is based on the concept of C
identity.
 BS contains the following features:
1. Supremacy of the C
2. Republican and Democratic form of the Govt
3. Secular character of the C
4. Separation of powers
5. Federal character of the C
 Illustrative and not exhaustive.
 In Minerva Hills v UOI – the judgement of the SC made it
clear that the CONSTITUTION and not the Parliament is
supreme in India – BF of the C:
1. Limited power of the parliament to amend the C
2. Harmony between FRS and DP
3. FRS in certain cases
4. Power of judicial review in certain cases.
 Independence of Judiciary – part of BS