Amendment of Constitution as laid down in Article 368 of the Constitution of India has been discussed in this Part 2 of the two-video series and the Doctrine of Basic Features of the Constitution is also discussed here (see: Part 1) (also freely subscribe to our YouTube Education channel with about 100 free videos on UPSC IAS and other competitive examinations):
Amending clause – scope and extent of power to amend – main cases
- Shankari Prasad v. Union of India, AIR 1951 SC 458.
- Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
- Golak Nath v. State of Punjab, AIR 1967 SC 1643.
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
- Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
- Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
Golak Nath v. State of Punjab, AIR 1967 SC 1643 (11-judges)
- Constitutional validity of 1st, 4th and 17th Amendments was challenged.
- A special bench of 11 judges was constituted to decide this matter. The decision in the matter was again divided, this time by 6 to 5.
- However, the majority of 6 judges (Subba Rao, C.J., Sikri, Shah, Shelat, Vaidialingam and Hidaytullah, JJ.) in this case reversed the judgments of the earlier two cases and now it was held that fundamental rights were not amendable under Article 368.
- The minority of 5 judges (Wanchoo, Bhargava, Mitter, Bachawat and Ramaswamy, JJ.) upheld the judgments of the Supreme Court in the said earlier two cases.
The reasoning of majority decision was as under:
- Article 368 of the Constitution only prescribes the procedure to amend and NOT the power to amend the Constitution.
- Whether in the field of constitutional law or statutory law, amendment can be only brought by law.
- The residuary power of Parliament under Item 97 of List I of the Seventh Schedule takes in the power to amend the Constitution.
- Article 13 for the purpose of that article gives an inclusive definition of “law”. It does not exclude constitutional law.
- An amendment is a legislative process and an amendment of the Constitution is made only by legislative process with ordinary majority or with special majority, as the case may be.
- A constitutional amendment made under Article 368 was very much a law. Accordingly, a constitutional amendment, being a law, was subject to the prohibition contained in Article 13.
- Fundamental rights are given a transcendental position under the Constitution and are kept beyond the reach of Parliament.
- While articles of less significance would require consent of the majority of the states, fundamental rights can be dropped without such consent.
- Accordingly, the majority decision held that a constitutional amendment under Article 368, being covered within the meaning of the word law as defined in Article 13, and thereby being subject to the prohibition contained in Article 13, cannot amend the fundamental rights in a manner so as to take away or abridge the fundamental rights. The fundamental rights are thus non-amendable.
- Thus, by a majority of 6 to 5, the Special Bench of 11 judges of the Supreme Court overruled the said earlier two cases, and held that the fundamental rights cannot be amended even by following the procedure laid down under Article 368.
- Thus, for the first time, it was held that the amending power under Article 368 was not absolute and that there were at least some provisions (i.e., the fundamental rights) of the Constitution which could not be amended so as to abridge them or to take them away.
24th Amendment Restores the Amending Power
- To undo the effect of the Supreme Court judgment in the Golak Nath’s case, the Parliament amended the Constitution vide the Constitution (24th Amendment) Act, 1971.
- Articles 13 and 368 of the Constitution were amended to re-assert the power of the Parliament to amend any provision of the Constitution, including the fundamental rights.
- Marginal heading of Article 368 was amended as follows:
“Power of Parliament to amend the Constitution and procedure therefor”.
- A new clause (1) was inserted in Article 368, namely:
“(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.”
- A a new clause (3) was added at the end of Article 368, as under:
“(3) Nothing in article 13 shall apply to any amendment made under this article.”
- A new clause (4) was inserted in Article 13 as under:
“(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”
- Therefore, by way of the Constitution (24th Amendment) Act, 1971, the effect of the judgment of the Supreme Court in the said case of Golak Nath v. State of Punjab was completely undone – point by point.
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (13-judges)
- Constitutional validity of the aforementioned 24th Amendment and the 25th Amendment (which made changes to Article 31 and inserted a new Article 31C) was challenged.
- This case was heard by a bench consisting of all the then 13 judges of the Supreme Court and was decided by a narrow majority of 7 to 6 judges.
- These are the findings of the majority opinion in this case:
- The power to amend the Constitution was to be found in Article 368 itself. It was found unbelievable that the makers of the Constitution left such an important power to amend the Constitution hidden in the residuary legislative powers of the Parliament, especially when provisions relating to the amendment of a Constitution are some of the most important features of any modern Constitution. To this extent, the decision of the Golak Nath v. State of Punjab was overruled.
- It was held that there was a distinction between an ordinary law and a constitutional law. It was further held that the word “law” used in Article 13 did not include constitutional law, thereby meaning that an amendment under Article 368 could even abridge or take away a fundamental right. To this extent again, the decision of the Golak Nath v. State of Punjab was overruled.
- However, a new concept of implied limitations on the amending power was added by the majority now. It was now held that there are certain basic features of the Constitution, which cannot be destroyed or damaged while amending the Constitution. Thus, it meant that while any provision of the Constitution could be amended by following the procedure prescribed under Article 368, such a power to amend was not absolute in as much as the basic features of the Constitution could not be destroyed or emasculated during such an amendment.
- What are the basic features of the Constitution? The court refused to give an exhaustive list of all the basic features of the Constitution, saying that this question was to be decided by the court on a case to case basis to see if a particular amendment of the Constitution affects a basic feature of the Constitution. It was not possible to lay down a list of all the basic features of the Constitution. However, some of the features of the Constitution considered basic features by the court in this case are:
- Supremacy of the Constitution.
- Republican and democratic form of the government.
- Principle of secularism in the Constitution.
- Separation of powers among legislature, executive and judiciary.
- Federal character of the Constitution.
- The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.
- The unity and the integrity of the nation.
- But, this list was only to be an illustrative list and not an exhaustive list of all the basic features of the Constitution.
- The said theory of implied limitations on the amending power or the non-amendability of the basic features of the Constitution was based on the view that the word “amend” used in Article 368 has a restrictive connotation and could not comprise a fundamental change in the Constitution. The words “amendment of the Constitution” in Article 368 could not have the effect of destroying or damaging the basic features of the Constitution.
- The Constitution (24th Amendment) Act, 1971, which has been noted above, was held to be valid. In fact, some judges pointed out that the said Amendment Act by amending Article 368 made explicit what was already implicit in the unamended Article 368.
- This decision changed the complete nature of the amending power in the Indian Constitution.
- The fundamental rights could now be said to be amendable, except, of course, those fundamental rights which could be considered by the court to be part of the basic features of the Constitution.
- Moreover, all provisions of the Constitution were now again within the reach of the amending power, but subject to the condition that the basic features of the Constitution could not be amended.
- And, the question as to what are these basic features of the Constitution is left to the court to decide as and when a particular amendment is challenged before the court.
- This, of course, led to a lot of uncertainties, as the Parliament would now not know before amending the Constitution as to whether the amended provisions were going to survive the test of the basic features theory when challenged in the court.
Effort to get Kesavananda Bharati case reconsidered by larger Bench failed
- The Union of India made an attempt to secure a reconsideration of the Kesavananda Bharati case by a larger Bench of the Supreme Court inter alia to consider whether the power of amendment was restricted by the theory of basic structure and framework.
- A Bench of 13 Judges of the Supreme Court was constituted which considered the matter for two days from 10 November 1975. However, on 12 November 1975 the said Bench was dissolved.
- While no official record of the arguments was made available, it may be noted that the questions raised by Khanna and Chandrachud, JJ., as to whether the theory of basic structure had impeded or come in the way of any socio-economic measure, were replied by the Attorney General in the negative, who added that “…that is not the only question. You don’t require the power for amending the non-essential parts of the Constitution.” The Attorney General further stated that the question was how Parliament was to amend the Constitution “tomorrow”.
- It may be submitted that the said larger Bench was dissolved probably because in the instant matter before the Supreme Court, no case was made out for reconsidering the said doctrine in as much as a future or imaginary question could not have been made the subject-matter for reconsideration.
- But, in any case, the fact remains that the Supreme Court refused to reconsider the said Kesavananda Bharati case in the manner mentioned above.
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
- Constitutional validity of the Constitution (39th Amendment) Act, 1975 was challenged. This Amendment changed Article 71 and inserted a new Article 329A providing for specialised treatment to the election to Parliament in the case of the Prime Minister and the Speaker.
- This amendment was passed with the only objective of helping the then Prime Minister Mrs. Indira Gandhi, in the matter of an appeal filed by her before the Supreme Court, which was still pending, against the decision of a judge of the Allahabad High Court holding that she had committed certain electoral malpractices.
- Manner in which this Amendment Act came to be passed speaks volumes:
- The hearing of the appeal in the Supreme Court was fixed for 11 August, 1975.
- Parliament passed the Election Laws (Amendment) Act, 40 of 1975, which came into force on 6 August, 1975. The effect of this Act would have been to directly benefit Mrs. Gandhi in the said appeal.
- On 7 August, 1975, a Bill to amend the Constitution, inter alia, by changing Article 71 and by inserting a new Article 329A providing for specialised treatment to the election to Parliament in the case of the Prime Minister and the Speaker, was gazetted.
- On the same day, i.e., 7 August, 1975, this Amendment Bill was introduced and passed in the Lok Sabha.
- On the next day, i.e., 8 August, 1975, this Amendment Bill was passed in the Rajya Sabha.
- On the very next day, i.e., 9 August, 1975, this Amendment Bill was ratified by the legislatures of several states.
- And, finally on the next day, i.e., 10 August, 1975, this Amendment Bill was notified and gazetted as the Constitution (39th Amendment) Act, 1975, and thus this amendment came into force on that day.
- As the hearing of the said appeal was fixed in the Supreme Court for 11 August, 1975, there was still one day left for that and the whole exercise of the said constitutional amendment was completed dot on time, nay, one day before!
- And, all this happened when most of the opposition members of the Parliament had been detained in the preventive detention and they could not take part in the aforesaid proceedings of the Parliament!!!
- The effect of this amendment was to render the said decision of the Allahabad High Court void and the said appeal in the Supreme Court a redundant one.
- In the said case, Clause (4) of this amendment was challenged on the ground that it was a gross interference with the judicial process; that it wiped out the said Allahabad High Court judgment; and that it also wiped out the said election petition and law relating thereto; and that therefore, it destroyed the basic features of the Constitution.
- Upholding these contentions, the Supreme Court declared the Clause (4) as unconstitutional as it violated basic features of the Constitution. It was held that it destroyed the following basic features of the Constitution:
- Democratic feature of the Constitution in as much as the mechanism of determining the real representatives of the people in an election by way of the election petition as per the provisions of the Constitution had been destroyed. Democracy cannot survive if there are no fair and free elections.
- Separation of powers in as much as a purely judicial function was being exercised by the legislature.
- The essential feature of equality of status and opportunity as there was no rational reason for creating a privileged system for the election to the Parliament of the Prime Minister.
Forty-second Amendment attempts to put amending power beyond judicial review
- Article 368 of the Constitution was again amended by the Constitution (42nd Amendment) Act, 1976, which had the dubious distinction of being called a mini Constitution, as it sought to rewrite the Constitution by amending a large number of provisions of the Constitution.
- Two new clauses (4) and (5) were inserted in Article 368 as under:
“(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.”
- Thus, now the newly amended Article 368 provided that an amendment to the Constitution under that article cannot be challenged in any court on any ground, whatsoever. It also provided that the amending power was unfettered and any provision of the Constitution could be amended in any manner. It also re-asserted that the power to amend was a constituent power.
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
- The constitutional validity of clauses (4) and (5) of Article 368, which were inserted therein by S. 55 of the Constitution (42nd Amendment) Act, 1976, came to be questioned.
- A Constitution Bench of the Supreme Court heard this matter.
- By a unanimous decision of 5 judges, delivered in two separate opinions , the Supreme Court held both these clauses (4) and (5) of Article 368 as unconstitutional and invalid for being in violation of the basic features of the Constitution.
- Main reasons for the said decision were as under:
- Clause (5) of Article 368 confers upon the Parliament a vast and undefined power to amend the Constitution, even so as to distort it out of recognition. Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of the Indian Constitution and therefore, the limitations on that power cannot be destroyed. The Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that limited power convert the limited power into an unlimited one. Clause (5) of Article 368 was accordingly held unconstitutional and void.
- The newly introduced clause (4) of Article 368 must suffer the same fate as Clause (5) because the two clauses are inter-linked. Clause (5) purports to remove all limitations on the amending power while Clause (4) deprives the courts of their power to call in question any amendment of the Constitution.
- The Indian Constitution is founded on a nice balance of power among the three wings of the state. It is the function and duty of the judges to pronounce upon the validity of laws. If courts are totally deprived of that power the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled.
- The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction seems to be a transparent case of transgression of the limitations on the amending power. If there is one feature of the Indian Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, part of the basic features of the Constitution.
- If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the states and render the fundamental rights meaningless and futile. Clause (4) of Article 368 was also thus held to be unconstitutional and void.
- Thus, once again the Supreme Court re-iterated that the power of the Parliament to amend the Constitution under Article 368 was limited and that the basic features of the Constitution cannot be amended.
The doctrine of Basic Features of the Constitution has been upheld in many subsequent decisions:
- Waman Rao v. Union of India, AIR 1981 SC 271 [Basic features – not retrospective].
- Shri Kumar v. Union of India, (1992) 2 SCC 428 [Article 32 – a basic feature].
- Supreme Court Advocates v. Union of India, (1993) 4 SCC 441 [independence of the judiciary].
- Poudyal v. Union of India, (1994) Supp. 1 SCC 324 [secularism – a basic feature].
- Kihota v. Zachilhu, AIR 1993 SC 412 [democratic structure and principle of free and fair elections – basic features].
- R Coelho v. State of T.N , (2007) 2 SCC 1 : AIR 2007 SC 861 [IX Schedule].
- Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 [creamy layers in OBC].
- Madras Bar Assn. v. Union of India, (2014) 10 SCC 1 [judicial review].
- Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 [independence of the judiciary].
List of Basic Features declared so far (in various cases decided by SC):
- Supremacy of the Constitution.
- Republican form of government.
- Democratic form of government.
- Sovereign form of the government.
- Separation of powers between the legislature, the executive and the judiciary.
- Justice social, economic and political.
- Rule of law.
- Judicial review.
- Objectives mentioned in the Preamble to the Constitution.
- Unity and integrity of the nation.
- Freedom and dignity of the individual.
- Principle of equality.
- Equality of status.
- The essence of other fundamental rights in Part III.
- The harmony and balance between fundamental rights and directive principles.
- Parliamentary system of government.
- Principle of free and fair elections.
- Limited amending power under Article 368.
- Independence of judiciary.
- Powers of the Supreme Court under articles 32, 136, 141, 142.
- Powers of High Courts of judicial superintendence over all Tribunals and courts within their respective jurisdictions.
- Concept of social and economic justice to build a welfare state.
- Directive principles.
- Multi-party system.
- Establishment of the egalitarian social order.
Present position about Amending Power
- The doctrine of the non-amendability of the basic features of the Constitution, as propounded in the case of Kesavananda Bharati v. State of Kerala still holds the ground as on today, till date.
- Thus, the position as on today is that while any provision of the Constitution can be amended by following the procedure laid down in Article 368, such amendment cannot destroy or damage the basic features of the Constitution.
- Whether a basic feature of the Constitution has been destroyed or damaged in a particular amendment, will have to be decided by the court if and when that amendment is questioned in the court.
- There is no ready-made or exhaustive list of all the basic features of the Constitution available before-hand.
- Secondly, the clauses (4) and (5) of Article 368, inserted vide S. 55 of the Constitution (42nd Amendment) Act, 1955, have been held to be unconstitutional and void and thus of no legal effect, even though these clauses continue to be shown in Article 368 of the Constitution.
- This is, in brief, the position and status of the amending power under Article 368 of the Constitution as on today.
Watch the YouTube video with full explanation:
In this video (Part 2 of the two-video series), Amendment of Constitution as laid down in Article 368 of the Constitution of India has been discussed and the Doctrine of Basic Features of the Constitution is also discussed here. (see: Part 1)
This video is useful for the aspirants of the UPSC Civil Services Examination (for IAS, IPS, IFS, and Group-A Central Services) for the General Studies, Paper 2, for Indian Polity. This lecture is also useful for those appearing for Judicial Service Examinations in India, as also for law students, and also for aspirants of other competitive examinations.
This video has been prepared by Dr. Ashok Dhamija, a former IPS.
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