It was held in the case of Golak Nath v. State of Punjab, AIR 1967 SC 1643, that fundamental rights could not be amended even by way of amendment to the Constitution under Article 368 of the Constitution.
However, on this aspect, Golak Nath case was overruled by a larger bench of the Supreme Court in the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, in which it was held that an amendment under Article 368 could even abridge or take away a fundamental right. However, in this case, a new concept of implied limitations on the amending power was added by the majority decisions. 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.
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.
Thus, the present legal position with regard to the fundamental rights after the Kesavananda Bharati case is that while fundamental rights, in general, could be amended by an amendment to the Constitution under Article 368 of the Constitution, if any particular fundamental right is considered as a basic feature of the Constitution then that particular fundamental right cannot be abridged or taken away. For example, the fundamental right guaranteed under Articles 14, 21 and 32 have been considered to be basic features of the Constitution, so these fundamental rights cannot be abridged or taken away (however, it may be still be possible to further enrich these fundamental rights by further strengthening them).
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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