Amendment of fundamental rights.—The question whether fundamental ates Sree, amended under Article 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India.” In that case the validity of the Constnnton rai Amendment) Act, 1951, which inserted inter alia, Articles 31-A and 31-B ot the Constitution was challenged, The Amendment was challenged on the ground t! aes Purported to take away or abridge the rights conferred by Part III which fell within the Prohibition of Article 13 (2) and hence was void. It was argued that the “State’ in Article 12 included Parliament and the word “Law” in Article 13 (2), therefore, must include Constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Article 368, and that the word ‘Law’ in Article 13 (8) includes only an ordinary law made in exercise of the Legislative powers and does not include constitutional amendment which is made in exercise of constitutent power. Therefore, a AIR 1951 SC.455 at p. 458.abeidges oF takes any of the fundamen) constitutional amendment will be valid even if i sights sine valid than. the ¥ ian Singh v. State of Rajast me nana SEA on tens, Te SUE ven in Shankari Prasad's Case 1 Fovisions of the Constitution Jade Fe cans amenament of al Me ers intended 0 exclude jonsitution” meant en oF ition makers intended (0 exclude th Capa, 1 ithe Comming power ty WOU! RAYE Made ey fundamental ri scope prowaion in that behalf enon ie vay of the Constitution (17, tm Golak Nath». Sie of Fale te Acts in Ninth Schedule way again AAmensmeot) Act. 1964, wich imiened oT G9 § prospectively overruled is ea ‘challenged. The Supreme Court by, ‘cide Singh cases and held that Parliament had no ‘decision in Shankari Prasad's and SOO end Part Il of the Constitution so as to take owe rom the da of hs de® Subba Rao, C. J. supported his judgment on te feay ot abridge the fundamental igh foltowing reasoings (1) The Chiet Justice rejected the ity of the Constitution (179, Court approved the majority the words “amendment of argument that power to amend the Constitution was a Seyereign power and the said power was supreme tothe legislative power and thai (So act permit any implied limitations and that amendments made in exercise of tha over valve poltical questions and that therefore they were ouside of judicial review 2) The power of Parliament to amend the Constitution is derived from Article 2, sad with Ent 97 of List | ofthe Constitution and not from Art. 368. Article 368 lays down merely the procedure for amendment of the Constitution. Amendment is a legulaive process, (2) An amendment is a ‘law’ within the meaning of Article 13 (2) and therefore, i ‘it. violates any of the fundamental rights it may be declared void. The word *Law’ in ‘Arocie 13 (2) includes every kind of law, statutory as well as constitutional law and hence ‘constitutional amendment which contravened Anicle 13 (2) will be declared void. ‘The Chief Justice said that the fundamental rights are assigned transcendental place ‘wader our Constitution and, therefore, they are kept beyond the reach of Parliament. The Cie Jas applied the dotrng of Prospective Overruling and held that this decison ‘oly Prospective operation and, therefore, the Ist, 4th and 17th Amendment will ‘Seen fo Pe valid. It means that all cases decided before the Golak Nath's case shall ‘law’ in Article 13 (2) referred to only and hence Shankari Prasad's and Saja ‘them, Article 368 deals with not only the but also ‘contains the power to amend the ficulties created by the se Parliament enacted the (24th 5. AIR 1965 5c 45, 9. AIR 1971 SC 164sCHAP. ao} "THE AMENOMENT OF THE CONSTITUTION marginal in lace ofthe old heading “Procedure for amendment of lament ostmend the Consitaon tion (1)in Aric 468 whi provide ion, Parament may, in exereie of ha aration. or repeal any proviso of tae id down inthis Article") Tested who shal gv his bcm tothe Bil aad thereupon fo be preset.ed to the President for his sea anton such assent int give 0 the Bil” Thus it makes itablpasy for ae Tove Article 368 whee amending the Constitution. (5) Wak added eae EE mae unde inti roves that “thing in Ace 13 shah sosy ny tae) under this Arie Thus the 24th Amendment not only restored the h ot only restored the amending power of the Parliament bat also extended its scope by adding the words “wo wen by way of the addition or TaN oF peal any provision of this Constiution arse tans sa on laid down in this Article” oe os Cee Gisery of Basic Structure: A limitation on Amending power—The vali Of fe Constitution 24th Amendment) Act, 971, was clenaed etic ey Y. State of Kerala", Popularly known as the Fundamental ‘Right's case the petitioners had shatenged the validity ofthe Kerala Land Reforms Act IU Bet canan Te ees in 1971 and was placed in the Ninth Sehedled by the 2h Amendment Act The poner were peed to shallnge ie Gene ety Fit and Twext Ninh Amendment tte Coin ie Was the extent of he amending power confrra Artiste 368 ofthe Constitution? On behal ofthe Union of tte re ee the petitioner contended that the amending power was wide but not unlimited. Under Article 368 Parliament cannot destroy the Constitution. A Special Bench of 13 Judges was constituted to hear the case Ost of he 13 judges (II judges) delivered separate judgments, ‘The Count by majority overruled the Golak Nath's case which denied Parliament the power to amend fundamental rights of citizens. The majority held that Article 368 even before the 24th Amendment contained the power as well as the procedure of amendment ‘The 24th amendment merely made explicit what was implicit inthe unamended Article 368-A. The 24th Amendment does not enlarge the amending power of the Parliament ‘The 24th Amendment is declaratory in nature. It only declares the true legal postion as i Was before that amendment hence it is valid. The Court held that under Art. 368 Parliament is not empowered to amend the basic structure or framework of the Constitution. It held that the first part of the twenty-fifth Amendment Act is valid, but held that the second part, namely, “no such law, containing the declaration that itis for xiving effect so such policy shall be called in question in any Court on the ground that it does not give effect to such policy” is invalid. ‘As regards the scope of amending power contained in Article 368, six judges (Sikri, A. J. Shelat, Grover, Hegde, Reddy and Mukherjee, J.) held that there are inherent of implied limitations on the amending power of Parliament and Article 368 does not confer ower to amend the Constitution 50 as to damage or destroy the essential elements oF basic features of the Constitution, Khanna, J., held that though there is no implied “To. AIRI97a SCHm CONSTITUTIONAL LAW OF INDIA CHAP, 4g not include the power limitation on the amending power but the power (0 amend docs me stulated as abrogate the Constitution. The word “amendment” Pe 57 eat ee ia Sore ortumvive without Tos of indemnity 2 ver to destry « Constitution must suri efore, te power does nol include te Sbrogate the basic structure or framework ofthe COMO 7) petd ih 5% les (A.N. Ray, Chandrachud, Mathew, Bes, ‘Dwivedi and Palekar, 3}. hel at ther aren Ca ay ctse or implied onthe aeRO tion and ition, imitation. Pepe ent hs wide powes Of ATED cas an 1S eer ut the amending power int UT oration The pewerlied limitations om the power of ! under Article 368. Within thee or spate car La ee i aing poet ot et Wael te Wie dee eee word ‘amendment. : Delivering the leading majority judgment Sikri C.J sait the word, ‘amendment’ or ‘amend’ has been u Meagan some ances, the word ‘amendment’ in the content, as 8 wide Mis am anil, the wo ein vew ofthe great variation of the pas, the proc the Const m ‘that the word “amendment” must derive iis {sed all through the Constitution it follows aa a voaelicle 368 andthe rest ofthe provisions of the Constitution. Reading ih coroa evtnefundamental importance ofthe freedom of the individual. its inaliens?iiy eerie importance of the economic, social and political justice mentioned in the Preamble, the importance of digective principles, the non-inclusion in Amticle 368 of provision like Anicles 52, 53 and various other provisions, an irresistible conclusion prearaes that it was not the intention t0 use the word “amendment” inthe widest sense I sins common understanding thatthe fundamental rights would remain in substance as they are and they would not be amended out of existence. It seems also to have been ‘common understanding that the fundamental features of the Constitution, namely Secularism, democracy and the freedom of the individual would always subsist inthe ‘welfare State In view of the above reasons, a necessary implication arises on the post Of Parliament thatthe expression “amendment ofthis Constitution” has conseque!) 2 Timited meaning in our Constitution and not the meaning suggested by the Atworn:) General. The expression “amendment of this Constit ‘Article 368 mear> 0 ‘addition or change in any of the provisions of the Constitution within the broad con of the Preamble and the Constitution to cary out the objectives in the Preamble 2nd Directive Principle applied to fundamental rights, it would mean that while funda: rights, eannot be abrogated reasonable abridgements of fundamental rights can be fle inthe public interest. “If this meaning is given” the Chief Justice said “it would © Parliament to adjust fundamental rights in order to secure what the Directive PrinsiP°> direct to be accomplished, while maintaining the freedom and dignity of every citi ‘On behaf ofthe Union andthe States, it was urged that the conceptions of basic elem" and fundamental features are illusive conceptions and therefore it would be \<" unsatisfactory test for the Parliament 1 comprehend and follow. The Chief Justice = that the concept of amendment within the contours ofthe Preamble and of Cons" cannot be said tobe a vague and unsatisfactory idea which Parliamentarians and the Po ‘would not be able to understand. He said that the argument that because something 20% be cut and dried or nicely weighed or measured and therefore does not exist is fala There are many concepts of law which are not capable of exact definition, but it doe ean that it does not exist It was also argued that every provision ofthe Consttut Essential, otherwise it would not have been put in the Constivution. The Chief J farther said, “But this does not place every provisions of the Constitution in he © the Constitution od in various places to mean differen73 cura THE AMENDMENT OF THE CONSTITUTION position, The tre postion is that every provision of the Constitution can be amended provided inthe result the basic foundation and structure of the Constitution remains the same. What is the basic structure ? What then are the essentials of the basic structure of the Constitution ? Although the Judges enumerated certain essentials of the basic structure of the Constitution, but they also made it clear that they were only illustrative and not exhaustive. They will be determined on the basis of the facts in each case. In M. ‘Nagraj v. Union of India,"' 5 Judge Bench of the Supreme Court has explained the basic feature theory again in detail as follows. Basic structure are systematic principles underlying and connecting provisions of the Constitution. They give coherence and durability to Consiitution, These principles are part of constitutional law even if not expressly stated. This doctrine has essentially developed from the German Constitution. It is not based on literal words. These principles are part of constitutional law even if not expressly stated. Theory of basic structure is based on the concept of Constitution identity. The main object behind the theory is continuity and within that continuity of identity In Keshwananda Bharati, the Judges has enumerated certain essentials of basic structure as follows : According to Sikri, C. J., the basic structure of the Constitution consists ofthe following features : (1) Supremacy of the Constitution, (2) Republican and democratic forms of the Government, (3) secular character of the Constitution, (4) Separation of powers between the Legislature, the Executive and the Judiciary, (5) Federal character of the Constitution, According to Shelat and Grover, JJ. the following are the illustrations of the basic ‘structure of the Constitution, ie., (1) Supremacy of the Constitution, (2) Republican and Democratic form of Government and sovereignty of the country, (3) Secular and federal character of the Constitution, (4) Demarcation of power between the Legislature, the Executive and the Judiciary, (5) Dignity of the individual secured by various freedoms and basic rights in Part III and the mandate to build a welfare State contained by Part V, (6) Unity and integrity of the nation. According to Hegde and Mukherjee, JJ, the following are the examples of the basic structure : (1) Sovereignty of India, (2) The democratic character of our policy, (3) The Unity of the country, (4) Essential features of individual freedoms secured to the citizens, (5) Mandate to build a welfare State. However, they said that these limitations are only illustrative and not exhaustive. ‘According to Mr, Jagmohan Redd); J, (1) sovereign democratic republic, and (2) Parliamentary democracy certainly conte the base suture. Khanna, J, concurred withthe majority decision bu delivered a separate judgment, He said “The amendment ofthe Constitution necessarily contemplates that the Constitution has not be abrogated, (Indeed, this much hasbeen conceded bythe Atomsy Ganeray ‘The word ‘amendment postulates thatthe old Constitution survives without lon efny identity despite the change and continues eventhough it hasbeen subject to alte ‘As esl ofthe amendment, the old Costiition caanot be desuoyed, and done nor with: itis retained though in the amended form. The words “amondinecr sna ‘Constitution’ with all their wide sweep and amplitude cannot have the effect of destroying And abrogating the baie srutre or Tramework ofthe Constuon hc cegeyine 11, AIR2007 5071™ ‘CONSTITUTIONAL LAW OF INDIA [ona 4 Seg te done omnptent under the garb of amendment for insinee, to change the democratic overnment into dictatorship of hereditary monarchy nor H woul Ne Permissible to Spot ine LAL Sab sate Raye Sa, Te eclar characte ofthe Sale acoring een Sens lh srinated against any een onthe ground of rlipin Saiy eat ie he done away wah Provison egarding Ne amendment of the Ceca Ae Ra rtence for subi te sore f the Cnsition ner an Arle 368 ss cota 1 lara S0h ven aeovie sanction for what may pears Me ement f Consiuion as contemplated by ‘nck is Lordship Farther held that he power of A 368 ds includ the powet abrogate te Conittion nor oes it include the Powe 0 eri aaa ee ancrk ofthe Conttion Sbjct 0 the retention of he hs a eat he Constante power of amendment i pen) and includes within itself the power to amend various articles of the a tut ae luding icles ihn ogi ay well at those which may be sad © rele OE na agdamentl ight can chim immunity Flom a mandy ‘foes by being described asthe essence or cre ofthat ight The power of amendment Soar cl te power tad aero epeal he various aries Thre would also ce ion on he power of eendment apart fom those whch aoa i re wed amendmen The ad power an also not be restric inher a a mi uman Nght Apart from te port ofthe Preamble which eee pase acters or framework ofthe Conaittion, the preamble doesnt tact the power of amendment However, he held thatthe right to propery did nt pein tothe basi suture of framework of te Constitution “Te minority view of 6 Judges out of 13 was tat the amending power under Atle 368 wi united. rinlodes poe oa, alter or repeal the various articles, There a ZARerctt ind implied limitations on the amending power im Arle 368. The leading Mein judgement was delivered by Mr usice AN. Ray to which Justices (Bes Die di Pteter'1)concured but elvred separate judgens. A. N.Ray, eld “The power to amends wide and unlimited. The power o amend means the pov! to.ad, aero repeal any provisions of Conttuion There canbe or fs no distinction feaween escent and unessntal feature of the Conon to are any impediment 0 Etrendment of essential features, Pariament in exer of constituent power eat med Sty provision ofthe Consttuon. Under Ace 368, the poster to amend can aso be increased: He sceped Ga an amendmen doesnot mean eve abrogation or wholesale ‘epeal of Constton, An amendment must have an organte mechanism providing te {CE ogaistion and yam for Ste to Mr, Justice Beg, though he word “amendment” didnot nlite power to compete sbroquing te Contiution atone sroker It wan, however, wile rough fo eroe the Constuton completely step by ep a0 aw replace iby ae Constitution. According to Mr. Justice Dwivedi, the word “amendment” in Article 368 se"broad enough to tthrie the varying, repealing or abrogaing each and C7 wa ieom inthe Contin ineluing Fat Hl In Indira Nehru Gandhi Raj Narayan, the Supreme Court applied the theo ! pasie structure and struck down Cl. (4) of Article 329-A. which was inserted by t° ‘amendment under Art. 368 does noi ‘AIR 1975 SC2299.Constitution (39th Amendment) Act. 1975 on the ground that it was beyond the amending power of Parliament a it destroyed the “basic feature’ of the Constitution. The mendmen vas made to validate with retmpective effec the election ofthe then Prime Ministers which was set aside by the Allahabed High Cour Khanna, struck down the Cae th rund at ted te re anf eons wich wa ota postulate of democracy which in tum was a prt ofthe base stroctre ofthe Constusn: Ghandrachud, J, struck down Cis. (2) and (6) as unconstitutional onthe ground that they sere outright negation ofthe right of equality confered by Art. 14. Fight which 8 Basic postulate of our Constitution: He hel that these provisions were arbitrary and were calculated to damage or destroy the Rule of law. The Supreme Court has thus added the following features as basic features of the Constitution to the list of basic features laid own in the Keshavananda Bharat case 1. Rule of taw 2. Judicial Review. 3. Democracy which implies fe and fair Election, thas been held that the Jurisdiction of the Supreme Court under Article 32, is the basic feature of the Constitution. In Minerva Mills Ltd v. Union of India,"® Supreme Court has held that the following are the basic features of the Constitution 1. limited power of Parliament to amend the Constitution; 2, harmony and balance between fundamental rights and directive principles; 3. fundamental rights in certain cases; 4. power of judicial review in certain cases Independence of judiciary is part ofthe basi structure" “The doctrine of basic structure has been vehemently criticised. It has been said that the Court has not precisely defined as to what are the essential features of the basic Structure and if this doctrine is accepted every amendment is likely to be challenged on the round that i effects some or the other essential features of the basic structure. In other aid. it is urged, that che amending power of the Parliament cannot be subjected to this vague and uncertain doctrine. Itis, however, submitted thatthe criticism of the doctrine of basic structure cannot te justified onthe ground that it lays down a vague and uncertain test The basi structure ae aaeee craton is not a vague concept. The fact that a complete list of the essential clement. constituting the basic structure cannot be enumerated is no ground for denying Geer thece do not exist. There are many concepts of law which cannot still be defined Frecisey, but they do exists and play very important part in our Iw. Quoting Lord Revd Pr fide v. Baldvn in Keshavananda Bharati’ case Sikri, C. 1. said, “in moder times pants have sometimes been expressed that natural jusice is so vague as wo be practically meaningless. But would regard these as tainted by the perennial fallacy that Pace comething cannot be cut and dried or nicely weighed oF measured therefore t does “13. AIR 1980 SC 1789. Fa ors Prasad v, Union of Ini. (192) 2 SCC 428. tate cae appnimen of 2 High He ee a uh on te pound th ewok wna “omm Wy 1s, 1964AC 401not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more defined than that”. If the historical background, the Preamble, the entire scheme of the Constitution ae areata thereof including Art. 368 are kept in mind then there can be no difficulty, in determining what are basic elements of the basic structure of the Constitution. These words apply with greater force to the doctrine of the basic structure. because, the federal and dei i tut “ the secular character of are structure of the Constitution, the separation of powers. te . . "i natural justice,'6 are very much more definite than either negligence 0°