CONSTITUTIONAL LAW: AMENDABILITY OF THE

CONSTITUTION

INTRODUCTION

The Indian Constitution is the lengthiest written constitution in the world and was adopted on
26th January 1950. Currently, it contains 448 articles in 25 parts and 12 schedules and 5
appendices. It is the supreme law of the country and is the basis of safeguarding and
governing the country. The economic, social and political conditions of the country keep on
changing and the intention of the framers was to make the constitution flexible so that it
could adapt to the new changes and could evolve with the passage of time.

There has been a total of 104 amendments made up to 25th January 2020. The power of the
legislature to make and amend laws of the constitution has always been in dispute as this
authority is provided to them from the provisions of the constitution itself.

This article highlights the scope of governments power to amend the constitution. The article
also tends to look into the evolution of constitutional amendability and various major
amendments that were challenged that led to major changes in the country.

PROVISIONS INVOLVED

Article 368: Power of Parliament to amend the constitution and procedure therefor

The power of the parliament to amend the constitution is enshrined in this article. It provides
the various procedure and modes of amendment. Accordingly, amendment can be done in
three ways:

 Amendment by simple majority – The articles 5-11, 169 and 239-A can be amended
similar to passing any ordinary bill.
 Amendment by special majority – This is done through majority of 2/3rd people
present and voting in each house.
 Amendment by special majority and ratification by states. – Article 368 is amended
through ratification by not less than half of states and assent from president.
EXPLAINATION OF THE CONCEPT

The parliament is provided with absolute power to amend the constitution in the Article 368.
Its powers are unfettered and can amend any provision or section of the constitution. This
could lead to abuse of power and result in parliament totalitarian and superiority.

Due to this issue, the Indian judiciary has propounded the concept of Basic Structure
Doctrine through the landmarks case of Kesavananda Bharathi v State of Kerala. According
to this theory, there are some fundamentals and ideologies that forms the foundation on
which the entire constitution exists. These basic features of the constitution are non-
amendable and are exhaustive in nature. They apply only to the constitutionality of the
amendment and not the ordinary laws. The list of these features has not emerged and it is on
the discretion of the court to decide.

Some examples are: Judicial review, federal character of constitution, separation of powers
etc.

The main question that raises is whether the Fundamental Rights, the basic human rights
mentioned in part III of constitution that protect the interests of the people in the society,
considered within the ambit of the Basic structure can they be taken away by way of an
amendment?

CRITICAL ANALYSIS

Constitutionality of amendment of fundamental rights.

There have been many amendments made affecting the fundamental rights. The worst one
have been the Article 31, right to property, which has been amended several times with the
objective to immune the states interference in property rights from article 14 and 19. This can
be seen from the cases;
Shankari Prasad Singh v UOI, (1951)

This was the first case on amendability of constitution. The validity of First Amendment
Act,1951 which infringed the right to property (Article 31) was challenged. The SC upheld
the validity and limited the scope of Article 13 stating that ‘law’ in Article 13 refers to a
‘legislative law’ and not ‘constitutional law’ and parliament can amend any fundamental right
under the ambit of Article 368.

Sajjan Singh v State of Rajasthan, (1965)

In this case, the validity of 17th Amendment Act that amended 31A was challenged. Under
this, 44 acts that affected the right to property were put into ninth schedule and made immune
to judicial review, thus affecting Article 226. The SC ruled that the effect of the amendment
was indirect on high court powers and was valid.

L.C Golaknath v State of Punjab, (1967)

In this case, the 17th Amendment Act was again challenged and reversed the earlier
judgements. The eleven judges bench ruled that Fundamental Rights occupied a
‘transcendental position’ and are non-amendable under Article 368 as it merely laid down the
procedures to amend. They also included constitutional law under the ‘law’ mentioned in
Article 13(2).

Evolution of Basic Structure.

Kesavananda Bharathi V State of Kerala (1974)

The concept of basic structure evolved from this case. In this, the 13-judge bench upheld the
validity of 24th amendment act, which changed the powers of parliament and included 13(4)
which stated that any amendment made under 368 would not attract article 13. It also ruled
the second part of 25th amendment act ultra-vires.

The SC created a difference between constitutional and ordinary law and provided unfettered
power to the parliament to amend the constitution on the condition that it was restricted from
altering the basic structure.
Does the basic structure really provide unfettered power to amend?

Indra Nehru Gandhi v Shri Raj Narain (1975)

In this case, Article 329-A which barred judicial review under 39th Amendment Act was held
constitutionally invalid. Indira Gandhi called for an emergency meeting under the article
when she was held guilty of election malpractices. It was held that right to free and fair
elections and judicial review were infringed which were a part of basic feature of
constitution.

Directive Principal and Fundamental Rights.

Minerva Mills Ltd v Union of India

In this case, Article 368(4) that deprived judicial review, 368(5) that gave parliament absolute
power; and 42nd Amendment Act that let any law effecting Directive Principal to violate
Article 14 and 19 through Article 31C, were considered unconstitutional based on the
doctrine of basic structure.

The court also stated that both directive principal and fundamental right must be given equal
preference as both are the foundation of our constitution.

CONCLUSION

Through this article, it can be concluded that the doctrine of basic structure is an effective
judicial decision to protect the human rights. The makers of our constitution have provided
provisions for amendability to ensure flexibility and the misuse of this would deprive the
citizens of a democratic country. Though the parliament has an immense power to amend the
entire constitution into new, it still has to survive its basic features. Thus, the parliament
doesn’t have the absolute power, the final arbitrary power of interpretation of constitutional
amendments lies with the judiciary.