Power and Procedure of Constitutional Amendments in India:

The Struggle for more Powers between Higher Judiciary and

Parliament

By Abdul Hafiz GandhiLecturer, ALS

11th February, 2014 12 O’ clockAuditorium, Clock Tower

Organised by: Amity Law School

Forthcoming lectures/workshops/discussions/events

1Legal Personality: Meaning and Evolution2Protection against Constitution: Article 31-A, 31-B, 31-C3Concept of Possession and Ownership: A Study of Jurisprudence4National Emergency under Article 3525Constitution vs. Personal Laws: Whether we need Uniform Civil Code or not?6Article 12 of the Constitution: Expanding Scope and Ambit7Judicial Appointments in Higher Judiciary: Transparency and Accountability in Indian Judiciary8A journey from ADM Jabalpur to Meneka Gandhi: Procedure of Law to Due Process of Law9Discussion on Mohd Ahmad Khan vs. Shah Bano case10Concept of Marriage and Divorce under Hindu and Muslim Law11How to be an effective Speaker: Winning confidence and achieving success12Discussion of Freedom of Religion: Articles 25-28 of the Constitution13President’s Rule: What Article 356 provides and how Supreme Court treated this provision14Right: Meaning and its various Avtaars; Jurisprudential theories of right

15 Death Penalty: Discussions on reasons why it should be abolished?16 Mercy Jurisprudence: An Indian Experience17 Freedom of Press: History and Law of the Freedom of Press in India18 What is Confession: Sections 24 to 30, Indian Evidence Act, 187219 Harassment of Women at Workplace: Vishaka to Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act, 201320 Who is Justice H. R. Khanna : Why he is famous for?21 Discussion by students on a book: 10 Judgments That Changed India22 One Week Course on Transparency and Accountability Laws in Summer

vacations: Constitutional Provisions for Transparency and Accountability, Prevention of Corruption Act, 1988, Central Vigilance Commission Act, Right to Information Act, 2005, Lokpal and Lokayukta Act, 2013, The Right of Citizen for Time bound Delivery of Goods and Services and Redresssal of their Grievances Bill, 2011, Whistle-blowers Bill, International Covenants and Documents providing for transparency and openess

23 A Discussion on Nani A. Palkivala: His work, achievements and contribution24 Lets Draft a Law : Anti-Racial Discrimination Bill, 2014: We will send this

Bill to Central government for consideration: Teams- Prize- Rs. 5000, 3000 and 2000

25 H. M. Seervai: Lets know him through his work26 Legal Eagles discussing Law under the Sky: A visit to some Monument/Park

India is a diverse Country

Very populous: more than 1 billion

linguistic, ethnic, religious, and cultural diversity

Indian Constitution contains certain compromises and adjustments to keep this diversity intact and flourishing

Need of Amending the Constitution

Times & Life of Nation - Not Static

Constitution - Living and Organic document

Constitution- Drafted in one era, often inadequate for another

Change in political, social and economic conditions of a nation

Right of every generation to mould its future

It is, therefore, quite possible that a constitution drafted in one era, and in a particular context, may be found inadequate/lacking in another era and another context.

It thus becomes necessary to have some machinery, some process, by which the constitution may be adapted/updated from time to time in accordance with contemporary national needs.

Broadly speaking Constitutions are of two types:

1. Written Constitution

2. Unwritten Constitution

Depending on above classification a Constitution may be:

-Rigid Constitution-Flexible Constitution

Indian Constitution is a mixture of both Rigidity and Flexibility

George Kousoulas said:

"The alternative to Constitutional change is revolution. An unalterable Constitution is the worst form of Tyranny.”

Sawer, Author of ‘Australian Federalism in Courts’ observed that:

“Constitutionally speaking, Australia is a frozen continent”

Whether the Indian Constitution is a final word or is there any provision for its amendments?

The founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance.

Wisdom of one generation cannot be allowed to dominate/restrict the right to decide about their future by the coming generations.

• The framers of our constitution came up with a written constitution in order to ensure that there was some sort of rigidity in the Constitution.

• Also the power to amend was given in order to ensure that the Constitution does not become repugnant in the course of changing times.

Modes of Constitutional Change

Informal & Formal

1. Informal – Through Judicial Interpretation, Conventions

2. Formal – Through Amendments

Article 368 of Indian Constitution

How the Indian Constitution can be amended?

PART XX - AMENDMENT OF THE CONSTITUTION Article 368. Power of Parliament to amend the Constitution and procedure therefor.— (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in— (a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3) Nothing in article 13 shall apply to any amendment made under this article.

[(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.] --------------------------------------------------------------------------------------------------------- Note: Clause (3) was added in Art. 368 by 24th Amendment Act,1971

Clauses (4) and (5) were inserted in Article 368 by Section 55 of the Constitution (42nd Amendment) Act, 1976. This section has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980 ) 2 S.C.C. 591.

Amendment in Indian Constitution

Article 368: Three methods

1.Amendment by Simple Legislative Procedure Ex. Formation of New States, Citizenship, Parliamentary privileges etc.

2. By Special Majority- by not less than 2/3rd members of House present & voting + majority of its total membership

3. By Special Majority + Ratification by not less than 1/2 of State Legislatures – Ex. manner of President’s election, VII Schedule, jurisdiction of SC & HCs, Article 368 itself.

Whether there is any Limits on amendment? What does Article 13(2) provide?

"The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."

Does this clause limit amendment?

Article 13. Laws inconsistent with or in derogation of the fundamental rights.—

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

Can Fundamental Rights be amended ?

1950-1967

1967-1973

1973- onwards

Stages of Amendments and Position of Supreme Court

Art 13(2)

Now the question is whether a Constitutional Amendment is a

law within the meaning of Article 13(2) of the Constitution?

Here can be two situations:

1. Constitutional Amendment = Law Or

2. Constitutional Amendment # Law

Now if,

Constitutional Amendment = Law

Then, this position will lead us to the conclusion that Article 13(2) prohibits constitutional amendment also, if it violates or abridges the fundamental rights.

If,

Constitutional Amendment # Law

Then, this position will lead us to the conclusion that Article 13(2) does not prohibit constitutional amendment, even if it violates or abridges the fundamental rights.

Supreme Court of India was confronted with this question when Constitution (First Amendment) Act, 1951 was passed affecting the right to property, which was a fundamental right at that point of time.

Article 31-A and Article 31-B including Schedule IX were added by this First Constitutional Amendment Act, 1951.

Constitution (First Amendment) Act, 1951(For agrarian and Land Reforms Laws)

Article 19(2), Article 31-A, 31-B, IX Schedule- 13 Acts were added

This amendment was challenged in Shankari Prasad v Union of Indian, AIR 1951 SC 458

Supreme Court Held in this case that: Patanjali Sastri, CJ

Constitutional Amendment # Law

And therefore Article 13(2) does not provide any restriction for amending the fundament rights.

IXth Schedule inserted by First Constitutional Amendment Act, 1951

is like a BOX

Laws can be put in IXth Schedule (box) in order to provide them immunity/protection from challenge

IXth Schedule inserted by First Constitutional Amendment Act, 1951

has increased over a period of time

It started with 13 Acts Now it has around 284 Acts and RegulationsThe effect of all this is that, these laws became immune from being challenged on the basis of FRs,

Constitution (Fourth Amendment) Act, 1955

This amendment added more laws to IX Schedule providing immunity to these laws- 7 Acts

Constitution (Seventeenth Amendment) Act, 1964

This amendment added more laws to IX Schedule- 44 ActsThis amendment also expanded the scope the word ‘Estate’ in Art. 31-A.

These amendments were challenged inSajjan Singh v State of Rajasthan, AIR 1965 SC 845

Supreme Court in this case held that:

Constitutional Amendment # LawAnd therefore, Article 13(2) does not provide any restriction for amending the fundament rights.

Minority view in Sajjan Singh case

In Sajjan Singh v. Rajasthan AIR 1965 SC 845 two dissenting Judges raised their doubts on whether the rights of people should become a plaything in the hands of the majority.

Hidayatullah, J., observed, “the Constitution gives so many assurances in Part III that it would be difficult to think that they were play-things of a special majority”

Mudholkar, J.’s argument was set in a broader frame and according to him, every constitution has certain fundamental features which could not be changed.

1950-1967Constitional Amendment is not law within the meaning of Art. 13(2)

Fundamental rights could be amended.

1967-1973

1973- onwards

Stages of Amendments and Position of Supreme Court

Result of these two decisions of the Supreme Court was that:

Supreme Court upheld the power of Parliament to amend any part of the Constitution including the Fundamental Rights and Article 13(2) does not prohibit Parliament from amending these rights.

Constitution (17th Amendment) Act, 1964

44 new Acts were added to IXth Schedule through this amendment

This amendment also expanded the scope the word ‘Estate’ in Art. 31-A.

Golak Nath v. Punjab, AIR 1967 SC 1643

Challenge to 1st, 4th and 17th Amendment Acts Chief Justice Subba Rao: 11 judges Bench 6 : 5 majority prospectively overruled Shankari

Prasad and Sajjan Singh decisions and held that Article 368 did not give Parliament the power to amend (it only set out the procedure).

An amendment was a law subject to Article 13(2) and could not abrogate any Fundamental Right

Doctrine of Prospective Overruling

Doctrine of Prospective Overruling

The court considered that it has a duty to correct errors in the law.

It, therefore, adopted a doctrine of prospective overruling under which the 3 constitutional amendments concerned (1st , 4th and 17th ) would continue to be valid, and the decision to the effect that Parliament had no power to amend the provisions of Part III would operate for the future only.

Chief Justice Subba Rao observed in Golak Nath case that Article 368 merely laid down the amending procedure and not the power to amendment.

The amending power (constituent power) of Parliament arose from other provisions contained in the Constitution (Articles 245, 246, 248) which gave Parliament the power to make ordinary laws (plenary legislative power).

Constituent power = plenary law making power

Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must deemed to be law as understood in Article 13 (2).

Result of Golak Nath case:

Constitutional Amendment = Law

Observation of judges in Golak Nath case

The judges stated that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of Parliament. Judges invoked the concept of implied limitations on the Power of Parliament to amend the Constitution:- Article 13(2) expresses this implied limitation on the powers of Parliament.

The judges observed that a Constituent Assembly might be summoned by Parliament for the purpose of amending the fundamental rights, if necessary.Note: The phrase 'basic structure' was introduced for the first time in India by M.K. Nambiar and other counsels while arguing for the petitioners in the Golak Nath case, but it was only in 1973 that the concept surfaced in the text of the Supreme Court's verdict.

In nutshell:

The Supreme Court held in Golak Nath case that some features of the Constitution lay at its core and required much more than the usual procedures to change them.

1950-1967

Constitional Amendment is not law within the meaning of Art. 13(2)

Fundamental rights could be amended.

1967-1973

Constitional Amendment is law within the meaning of Art. 13(2)

Fundamental rights could not be amended.

1973- onwards

Stages of Amendments and Position of Supreme Court

Consequence of Golak Nath decision of the Supreme Court was that:

Fundamental Rights could not be amended and Article 13(2) prohibits Parliament to amend these rights.

Now, till now we observed thatShankari Prasad and Sajjan Singh decisions allowed amendment of Fundamental Rights………………………………………………………………………………………………………………...

Golak Nath decision put a blanket ban on amendment of Fundamental Rights ( But I, IV and XVII amendments were held to be valid by Prospective overruling)

Nationalisation of Banks and Abolition of Privy Purses

Within weeks of Golak Nath decision Congress party suffered heavy losses in Parliamentary elections and lost power in several states.

Barrister Nath Pai introduced Private Member’s Bill seeking to restore the Supremacy of Parliament’s power to amend the Constitution- this Bill was discussed in the house but could not be passed.

Attempts were made to:a)Nationalise Banksb)Abolition of Privy PursesSupreme Court struck down these initiatives.Supreme Court and Parliament were at loggerheads.

Mrs. Gandhi dissolved the Lok Sabha in 1971- for the first time Constitution itself became the electoral issue. ( 8 of the 10 Manifestos in 1971 talked of restoring Supremacy of Parliament)

A K Gopalan of CPI (M) went to the extent of saying that the Constitution be done away with lock and barrel and be replaced with one that enshrined the real sovereignty of the people.

Congress party returned with two-thirds majority in 1971 elections.

Electorate seemed to have endorsed Mrs. Gandhi’s socialist agenda, which among other things spoke of making basic changes to the Constitution in order to restore Parliament’s Supremacy.

Through various amendments from July, 1971 to June, 1972, Parliament sought to regain lost grounds.

The Constitution (24th Amendment) Act, 1971

It restored to Parliament the absolute power to amend any part of the Constitution including Part III, dealing with fundamental rights.

This amendment added Article 13(4) providing “Nothing in this article shall apply to any amendment of this Constitution made under article 368.”

This amendment also added Article 368 (3) which provided that

“Nothing in article 13 shall apply to any amendment made under this article.” Marginal note of Article 368 was changed from ‘Procedure for Amendment of the Constitution’ to ‘Power of Parliament to amend the Constitution and procedure therefor.’

It was made obligatory through this amendment upon the President to give his assent to the Constitutional amendment. This was done to make it clear that there is difference between ordinary law making power and constituent power of Parliament.

The Constitution (25th Amendment) Act, 1971

This amendment added Article 31-C providing “Saving of laws giving effect to certain directive principles.—

Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing any of the principles laid down in Article 39 (b) and (c), shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 or article 31;

and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy”

Note: So, through this amendment, certain directive principles of state policies were given primacy over fundamental rights contained in Article 14, 19 and 31.

The Constitution (26th Amendment) Act, 1971

This amendment was in response to the Supreme Court’s decision in Madhav Rao Scindia vs. Union of India, AIR 1971 SC 530 ( also known as Privy Purse case).

This amendment abolished the right to privy purse and all rights, liabilities and obligations in respect of privy purses.

Article 291 providing for the payment of privy purses and Article 362 guaranteeing personal rights, privileges and dignities of the princes were omitted.

Article 363A abolishing the institution of rulership was added to the Constitution.

The Constitution (29th Amendment) Act, 1972

This amendment added two Kerala Acts dealing with Land Reforms in the IX Schedule.

These Acts were:

a.Kerala Land Reforms (Amendment) Act, 1969b.Kerala Land Reforms (Amendment) Act, 1971

To get over the decision of the Supreme Court in Golak Nath’s case the Constitution 24th Amendment Act was passed in 1971.

The Constitution (Twenty-fourth Amendment) Act, 1971 made changes to Articles 13 and 368:

1. Amendment made in Article 13: A new clause (4) was added to article 13:

“(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.”

2. Amendments were made to Article 368:

a)The article was given a new marginal heading: "Power of Parliament to amend the Constitution and procedure therefore.”

b) A new clause was added as clause (I): "(I) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.”

c) Another clause was added as clause (3): "(3) Nothing in article 13 shall apply to any amendment under this article.”

d) Another amendment to the old article 368 (now article 368(2)) made it obligatory rather than discretionary for the President to give his assent to any Bill duly passed under the article.

Other amendments were also passed after Golak Nath CaseThese were:

1.25th Amendment Act, 1971 adding Article 31-C giving primacy to Article 39 (b) and (c) over fundamental rights guaranteed by Articles 14 , 19 and 31 of the Constitution.

2. 26th Amendment Act, 1971 – this amendment was in response to the SC decision in Madhav Rao Scindia vs. Union of India, AIR 1971 SC 530 ( also known as Privy Purse case).

This amendment abolished the right to privy purse and all rights, liabilities and obligations in respect of privy purses.

3. 29th Amendment Act, 1972- This Amendment inserted two Kerala Land Reforms Acts in the IXth Schedule to the Constitution.

Consequence of 24th Amendment Act, 1971 and other amendments was:

Parliament asserted its power to amend any provision of the Constitution including the fundamental rights.

Kesavanand Bharati vs. State of Kerala, AIR 1973 SC 1461 (Fundamental

Rights case) In this case 24th, 25th, 26th and 29th Amendments were challenged

Overruled Golak Nath decision, which denied the Parliament the power to amend fundamental rights – Held Article 368 contained power (even before 24th Amendment) to amend as well as procedure for amendment

SC held 24th Amendment valid Court enunciates Basic Structure Doctrine Special bench of 13 judges- 7 : 6 Decision Delivered on April 24, 1973

A summary statement was circulated by CJ Sikri

The nine of the thirteen judges in the Kesavananda Bharati case, including Chief Justice Sikri, who signed the summary statement, declared that Parliament's constituent power is subject to inherent limitations.

Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the ‘basic structure or framework of the Constitution’.

Origins of the Doctrine of Basic Structure

The phrase 'basic structure' is not found in the Constitution.

In Sajjan Singh v. Rajasthan AIR 1965 SC 845 two dissenting Judges raised their doubts on whether the rights of people should become a plaything in the hands of the majority.

Hidayatullah, J., observed, “the constitution gives so many assurances in Part III that it would be difficult to think that they were play-things of a special majority”

Mudholkar, J.’s argument was set in a broader frame and according to him, every constitution has certain fundamental features which could not be changed.

Origins….

Pakistan Supreme Court used this word in 1963. Then Chief Justice of Pakistan Justice Cornelius had held in one case that the President of Pakistan could not alter the “fundamental features” of the Constitution.

Justice Mudolkar in Sajjan Singh case in 1965 made reference to this decision of Pakistan Supreme Court.

The phrase 'basic structure' was introduced for the first time in India by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case in 1967.

The Supreme Court of India recognised this concept for the first time in the Kesavananda Bharati case in 1973.

Origin….

This doctrine also seems to have been borrowed from the observation of US Supreme Court in 1919:

State of Rhode Island vs. A. Mitchel Palmer

“the decision of the Congress on this question as to whether a particular amendment should be ratified by the State Legislatures or by the State Conventions is final.

The constitution makers must have proceeded on the basis that the Congress is likely to require the amendment of basic elements or fundamental features of the Constitution to be ratified by State conventions”.

In this observation the terms “basic elements or fundamental features" purport to have been used to connote the set of provisions, which may require ratification by states.

What is Basic Structure Doctrine ? Implied limit on amendment (held by 7:6

majority)

Under Article 368, Parliament is not empowered to amend the basic structure or framework of the Constitution.

Therefore, part of 25th Constitutiional Amendment,1971 which says the following is invalid:

“no such law, containing the declaration that it is for giving effect to such policy shall be called into question in any Court on the ground that it does not give effect to such policy.”

Sikri, CJ in Kesavanand Bharati case

According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest.

There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, the expression "amendment of this Constitution" in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution.

Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Hegde and Mukherjea, JJ. in Kesavanand Bharati

Held that the Constitution of India which is essentially a social rather than a political document is founded on a social philosophy and as such has two main features- basic and circumstantial. The basic constituent remained constant; the circumstantial was subject to change. The broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements of fundamental features.

Jaganmohan Reddy, J.

Held that the word 'amendment' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed.

In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution.

Subject to these limitations, Parliament has the right to amend any and every provision of the Constitution.

H. R. Khanna, J. in Kesavananda Bharati case

He broadly agreed with the views of the six learned Judges and held that the word 'amendment' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. He observed that it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, but it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.

Basic Structure?

The list is illustrative and not exhaustive!

Examples of Basic Structures given in Kesavanand Bharati by Sikri CJ

1. supremacy of the Constitution 2. republican and democratic government 3. secular character of the Constitution 4. separation of powers 4. federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

• the mandate to build a welfare state contained in the Directive Principles of State Policy• unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate list of basic features:

• sovereignty of India• democratic character of the polity• unity of the country• essential features of the individual freedoms secured to the citizens• mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:

• sovereign democratic republic• parliamentary democracy• three organs of the State

Note: Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of the citizen belonged to the basic structure and Parliament could not amend it.

The minority view in Kesavanand Bharati case

The minority view delivered by Justice A.N. Ray (whose appointment to the position of Chief Justice over and above the heads of three senior judges, soon after the pronunciation of the Kesavananda verdict, was

widely considered to be politically motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly.

They upheld the validity of amendments challenged before the court.

Ray, J. held that all parts of the Constitution were essential and no distinction could be made between its essential and non-essential parts.

All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its power under Article 368.

In summary the majority verdict in Kesavananda Bharati recognised :

The power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure. But there was no unanimity of opinion about what constitutes the basic structure.

Though the Supreme Court very nearly returned to the position of Shankari Prasad (1951) by restoring the supremacy of Parliament's amending power, in effect it strengthened the power of judicial review much more.

1950-1967

Constitional Amendment is not law within the meaning of Art. 13(2)

Fundamental rights could be amended.

1967-1973

Constitional Amendment is law within the meaning of Art. 13(2)

Fundamental rights could not be amended.

1973- onwards

Parliament has all powers to amend Constitution but could not amend the Basic Structures or features of the Constitution

Stages of Amendments and Position of Supreme Court

Constitution (39th Amendment) Act, 1975

Article 329-A was added by this amendment. Passed for validating the election of Mrs. Indira Gandhi, which was declared invalid by the Allahabad High Court for indulging in corrupt practices.Article 329-A provided that the election of a person who holds the office of a Prime Minister at the time of such election or is appointed as Prime Minister after such election to the House of the People can be challenged only before such a body or forum as may be established by Parliament by law. The validity of any such law creating a forum and the decision of any authority or body under such law shall not be called in question in any Court. It also provided that where any person is appointed a Prime Minister while election petition in respect of his election is pending, such petition shall abate upon such person being appointed as Prime Minister. The provision of this Article shall have effect notwithstanding anything contained in the Constitution.

Government was in too hurry to pass this 39th Amendment

The mala fide intention of the government was proved by the haste in which the Thirty-ninth amendment was passed.

The bill was introduced on August 7, 1975 and passed by the Lok Sabha the same day. The Rajya Sabha (Upper House or House of Elders) passed it the next day and the President gave his assent two days later.

The amendment was ratified by the state legislatures in special Saturday sessions. It was gazetted on August 10. When the Supreme Court opened the case for hearing on 11th August, 1975, the Attorney General asked the Court to throw out the case in the light of the new amendment.

Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws (Amendment) Act, 1975 in order to save the Prime Minister from embarassment if the apex court delivered an unfavourable verdict.

Indira Nehru Gandhi v. Raj Narain AIR 1976 SC 2299 (popularly known as Election case)

39th Amendment Act 1975 was challenged in this case

Emergency was declared by Mrs. Indira Gandhi under Art. 352

Supreme Court avoided direct confrontation with government

In 1975, the Supreme Court again had the opportunity to pronounce on the basic structure of the Constitution.

A challenge to Prime Minister Indira Gandhi's election victory was upheld by the Allahabad High Court on grounds of electoral malpractice in 1975.

Pending appeal, the vacation judge- Justice Krishna Iyer, granted a stay that allowed Smt. Indira Gandhi to function as Prime Minister on the condition that she should not draw a salary and speak or vote in Parliament until the case was decided.

Counsel for Raj Narain who was the political opponent challenging Mrs. Gandhi's election argued that the amendment was against the basic structure of the Constitution as it affected the conduct of free and fair elections and the power of judicial review. Counsel also argued that Parliament was not competent to use its constituent power for validating an election that was declared void by the High Court.

4 out 5 judges on the bench upheld the Thirty-ninth amendment, but only after striking down that part which sought to curb the power of the judiciary to adjudicate in the current election dispute.

Justice M.M. Beg, J. upheld the amendment in its entirety.

Mrs. Gandhi's election was declared valid on the basis of the amended election laws. The judges grudgingly accepted Parliament's power to pass laws that have a retrospective effect.

Basic Features of the Constitution according to the Indira Nehru Gandhi (Election case) verdict

Justice H.R. Khanna, democracy is a basic feature of the Constitution and includes free and fair elections.

Justice K.K. Thomas held that the power of judicial review is an essential feature.

Justice Y.V. Chandrachud listed four basic features which he considered unamendable:

• sovereign democratic republic status• equality of status and opportunity of an individual• secularism and freedom of conscience and religion• 'government of laws and not of men' i.e. the rule of law

According to Chief Justice A.N. Ray, the constituent power of Parliament was above the Constitution itself and therefore not bound by the principle of separation of powers. Parliament could therefore exclude laws relating to election disputes from judicial review. He opined, strangely, that democracy was a basic feature but not free and fair elections.

Ray, C.J. held that ordinary legislation was not within the scope of basic features.

Justice K.K. Mathew agreed with Ray, C.J. that ordinary laws did not fall within the purview of basic structure. But he held that democracy was an essential feature and that election disputes must be decided on the basis of law and facts by the judiciary.

Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it would be unnecessary to have a Constitution if Parliament's constituent power were said to be above it. Judicial powers were vested in the Supreme Court and the High Courts and Parliament could not perform them.

He contended that supremacy of the Constitution and separation of powers were basic features as understood by the majority in the Kesavananda Bharati case. Beg, J. emphasised that the doctrine of basic structure included within its scope ordinary legislation also.………………………………………………………………………Note: Despite the disagreement between the judges on what constituted the basic structure of the Constitution, the idea that the Constitution had a core content which was sacrosanct was upheld by the majority view.

The Kesavananda Review Bench Within three days of the decision on the Election case Ray, C.J. convened a thirteen judge bench to review the Kesavanada verdict on the pretext of hearing a number of petitions relating to land ceiling laws which had been languishing in high courts. The petitions contended that the application of land ceiling laws violated the basic structure of the Constitution.

In effect the Review bench was to decide whether or not the basic structure doctrine restricted Parliament's power to amend the Constitution. The decision in the Bank Nationalisation case was also up for review.

Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to accept the dogma of basic structure.

It must be remembered that no specific petition seeking a review of the Kesavananda verdict was filed before the apex court- a fact noted with much chagrin by several members of the bench. N.A. Palkhivala appearing for on behalf of a coal mining company eloquently argued against the move to review the Kesavananda decision. Ultimately, Ray, C.J. dissolved the bench after two days of hearings. Many people have suspected the government's indirect involvement in this episode seeking to undo an unfavourable judicial precedent set by the Kesavananda decision.

Sardar Swaran Singh Committee and the 42nd Amendment

Soon after the declaration of National Emergency, the Congress party constituted a committee under the Chairmanship of Sardar Swaran Singh to study the question of amending the Constitution in the light of past experiences. Based on its recommendations, the government incorporated several changes to the Constitution:

Among other things the 42nd Amendment Act, 1976

a)gave all the Directive Principles of State Policy primacy over the Fundamental Rights contained in Article 14, Article 19.

Article 31-C was amended to prohibit any challenge to laws made under any of the Directive Principles of State Policy.

b) laid down that amendments to the Constitution made in the past or those likely to be made in future could not be questioned in any court on any ground

c) provided immunity to all amendments to fundamental rights from the scope of judicial review

d) removed all limits on Parliament's power to amend the Constitution under Article 368

e) Amended Article 31-C stating that laws passed to implement the Directive Principles of State Policy could not be challenged in courts on the ground that they violated any fundamental right.

Note: Prior to the 42nd Amendment Act, 1976 Article 31-C was applicable only to Article 39 (b) & (c) of the Directive Principles which dealt with equitable distribution of wealth and resources of production. ( 25th Amendment Act, 1971)

42nd Amendment Act, 1976(Mini Constitution)

This amendment inserted two new Parts IV-A and XIV-A and 14 Articles - 39-A, 43-A, 48-A, 51-A 131-A, 114-C, 226-A, 228-A and 257-A and also amended 40 Articles of the Constitution. It made amendment to the Preamble also.

This amendment also amended Article 31-C giving primacy to all Directive Principles of State Policies over fundamental rights.

42nd Amendment Act, 1976(Mini Constitution)

This amendment also added new clauses (4) and (5) to the Article 368.

Article 368 (4) provided that: “ no constitutional amendment made under Article 368 shall be called in question in any court on any ground”.

Article 368 (5) provided that for the removal of doubts, it is declared that there shall be no limitation whatever on the constitution power of Parliament to amend by way of addition, variation or repeal the provisions of the Constitution under this Article.

This amendment, it was claimed, was made to establish the supremacy of Parliament which represents the will of the people. It removed all the limitations imposed on the amending power of Parliament by Supreme Court in Kesavanand Bharati case.

Minerva Mills vs. Union of India

AIR 1980 SC 1789 In this case constitutional validity of 42nd Amendment Act , 1976 was challenged.

Amendment in Article 368 : (4) “no amendment of the Constitution . . . shall be

called in question in any court on any ground.”

(5) “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution.”

Amendment in Article 31-C :

This 42nd Amendment of 1976 gave primacy to all DPSPs over Fundamental Rights.

Note: Before this amendment the primacy was only given to Article 39 (b) and (c) over Fundamental Rights……….this was limited primacy. ( By 25th Amendment Act, 1971)

Supreme Court in Minerva Mills held:

Struck down (4) and (5) to Artilce 368 as contrary to power of amendment as interpreted in Kesavanand Bharati

The amended Article 31-C was struck down by the Court- disturbing the balance b/w FRs & DPSPs

The historical Judgment of Supreme Court in Minerva Mills laid down that:

The amendment made to Article 31-C by the 42nd Amendment is invalid because it damaged the essential features of the Constitution.

Clauses (4) and (5) are invalid on the ground that they violate two basic features of the Constitution viz. limited nature of the power to amend and judicial review.

The courts cannot be deprived of their power of judicial review. The procedure prescribed by Cl.(2) is mandatory. If the amendment is passed without complying with the procedure it would be invalid.

The Judgment of the Supreme Court thus makes it clear that the Constitution is Supreme not the Parliament. Parliament cannot have unlimited amending power so as to damage or destroy the Constitution to which it owes its existence and also derives its power.

Some cases where Doctrine of Basic Structure was reiterated

Waman Rao vs. Union of India, AIR 1981 SC 271

This case involves the dispute involving agricultural property. The apex court, held that all constitutional amendments made after the date of the Kesavananda Bharati judgement (24th April, 1973) were open to judicial review.

All laws placed in the Ninth Schedule after the date of the Kesavananda Bharati judgment were also open to review in the courts. They can be challenged on the ground that they are beyond Parliament's constituent power or that they have damaged the basic structure of the Constitution.

In essence, the Supreme Court struck a balance between its authority to interpret the Constitution and Parliament's power to amend it.

S.P. Sampath Kumar vs. Union of India (1987) 1 SCC 124 and P. Sambamurthy vs. State of Andhra Pradesh (1987) SCC 362

The judges in these cases laid down that the rule of law and judicial review were integral to the Basic Structure.

Central Coal Fields Ltd. vs. Jaiswal Coal co. 1980 Supp SCC 471

Effective access to Justice is part of the basic structure

Kihoto Hollohon, AIR 1993 SC 412

The Supreme Court has declared, “Democracy is a basic feature of the Constitution and election conducted at regular prescribed intervals is essential to the democratic system envisaged in the constitution.”

L. Chandra Kumar v. Union of India AIR 1997 SC 1125:

Article 323-A and 323-B, both dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d) of Art.323-A and Clause 3(d) of 323-B provided for exclusion of the jurisdiction of the High Court under Art.226 and 227 and the Supreme Court under Art.32.

The Supreme Court in this case held these provisions as unconstitutional because they deny judicial review which is basic feature of the Constitution. It held that the power of judicial review vested in the High court under Art.226 and right to move the Supreme Court under Art.32 is an integral and essential feature of the Constitution.

S.R. Bommai vs. India (1994)

President’s Rule (art. 356) in four BJP ruled states

Supreme Court in this case held Secularism as the basic structure of the Constitution

Criticism: The word ‘secular’ was added to

Preamble by 1976 amendment, so how could it be part of basic structure of Constitution?

State of Bihar v. Bal Mukund Sah and Ors. AIR 2000 SC 1296

The Supreme Court observed that the concepts of “Separation of Powers between the legislature, executive and Judiciary” as well as “the fundamental concept of independent judiciary have been now elevated to the level of basic structure of the constitution and are the very heart of the constitutional scheme.”

Subjectivity in the theory of basic structure

Doctrine of basic structure is a subjective one and largely relies upon the values of the judges, who influenced by inherited instincts, traditional beliefs, acquired convictions, and conceptions of social need, formulate their own peculiar yardsticks and values and the same vary from person to person and time to time.

The biggest shortcoming in the Basic Structure theory is the ambiguity about what is basic and what is not.

There is an absence of a definite test to conclude whether a constitutional right or a part thereof forms a part of the basic structure.

In other words, there is no hypothesis against which the theory could be tested. The result was that instead of the Constitution drawing authority from within itself, it became dependent upon judicial interpretation i.e. the Judge made the Law. Thus the Judiciary which was a creation of the Constitution became more powerful than its creator.

Subjective nature of the doctrine

Supreme Court has held that the list of Basic Structures is illustrative and not exhaustive

This list will vary depending on the values of the judges, who influenced by inherited instincts, traditional beliefs, acquired convictions, and conceptions of social need, formulate their own peculiar yardsticks and values and the same vary from person to person and time to time.

Doctrine of Basic Structure

Basic StructureBasic Structure

Whole Constitution

Subjective Theory

Basic Structure

Effect of Kesavanand Bharati case

Kesavanand overruled Golaknath but did not re-establish parliamentary supremacy. It stated that fundamental rights may be amended by the parliament, but not all of them. Those fundamental rights which constitute the basic structure of the Constitution cannot be abridged. Golaknath gave primacy to all fundamental rights. Kesavanand recognizes that some other provisions in the Constitution may be equally important. If they form the basic structure they are unamendable. Under Art. 368 the parliament cannot rewrite the entire Constitution and bring in a new one.

By invalidating part of Art.31-C Kesavanand prevented the state legislature from exercising power to virtually amend the constitution. Art.31-C lays down that if a state legislature makes a law which contains a declaration that it is to giving effect to the policy contained in Art.39(b)and(c) then no court may scrutinize it. Thus a state legislature could make review proof law. Keshvanand denied them such power. Power of judicial review shall remain with the court, legislative declaration cannot destroy it.Kesavavand is an example of judicial creativity of the first order. It protected the nation from the attacks on the Constitution by a 2/3 majority which may be motivated by narrow party or personal interests. The basic feature cannot be mauled.

The effects of the various decisions of the Supreme Court may be thus summarized as:

Parliament has limited powers to amend the constitution.

Parliament cannot damage or destroy the basic features of the Constitution.

The Procedure prescribed for the amendment is mandatory. Non-compliance with it will result in invalidity of the amendment.

Clauses (4) and (5) inserted in Art. 368 by the 42nd Amendment Act,1976 are invalid because they take away the power of judicial review.

Parliament cannot increase its amending power by amending Art. 368.

Adoption of this doctrine by Courts of other Countries:

The Supreme Court of Bangladesh adopted the doctrine of basic structure relying on Kesavanada Bharati case.

In Pakistan the Lahore High Court and the Baluchistan High Court took the same view.

The judgment also had an effect on the Nepal Constitution.

Conclusion:

One certainty that emerged out of this tussle between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court.

In essence, Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter and interpreter of all constitutional amendments.

The validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic features of the constitution.

The decision given in Kesavananda case maintained balance between the rigidity and the flexibility of the Constitution.

The Doctrine of Basic Structure is of prime importance as it prevents the parliament from having unconditional power and becoming the master of Law itself.

It also makes sure that the primordial rights necessary for the development of human personality are not compromised with.

Final analysisNone is above the Constitution; not even the parliament and judiciary.

But judiciary has power of judicial review.

The constitution places an embargo on the erosion of basic features, but a Constitutional Amendment seeking to promote, strengthen and enlarge a basic feature would be most welcome.

The Constitution is not a party manifesto which can be amended by the party at its will to suit political expediency, but a national heritage which ought to be amended only when there is broad national consensus favouring a specific amendment.

Power to amend does not include power to destroy. Therefore, Parliament has limited power of Amendment under Article 368.

Controlled Constitution and not Uncontrolled Constitution

Constitution is the Supreme Law of the land and executive, legislature and judiciary derive their powers and authority from the Constitution.

Thanks !