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AMENDMENT OF THE CONSTITUTION[1]

Table of Contents

(Part XX Art. 368)

QUESTION BANK.

Q.1 Explain the procedure for amending the Constitution of India.

Q.2.What is the procedure for the amendment of the Constitution? And what is the limitation on the amending power of the Parliament.

Q.3 What is the nature and scope of the power of the Parliament to amend Constitution? Critically examine in the light of the Supreme Court Judgement in Keshvananda Bharati’s Case.

Q.4. Explain in detail, the development of the doctrine of basic structure.

Q.5 Explain in detail, the methods of constitutional amendment. Nov.04

Q.6 What is Constitutional Amendment? Explain categories of Amendment and the procedure for Amendment.

Q.7 Discuss the basic structure theory evolved by Supreme Court in fundamental rights case. Apr.07

SHORT NOTES.

1) Amendment to the Constitution. Apr.2000 Apr02

2) Golak Nath v. State of Punjab.

SYNOPSIS.

Introduction-

II. Methods of Amendment-

Informal methods-
Judicial interpretation;
Conventions and Constitution usages.
Formal methods [Art. 368].

– Amendment of fundamental rights; –

Parliament has right to amend fundamental rights.
Parliament has no-power to amend fundamental rights.
The theory of Basic Structure.

I. INTRODUCTION:-

No State or society can be static[2]. Its social, economic, and political conditions are dynamic and change from time to time. Therefore, the Constitution’s ideas may become old-fashioned in the next generation. Therefore, our Constitution framers under Art. 368 have made the provision for amendment of the Constitution.

II. METHODS OF AMENDMENT[3]:-

Methods of amendment of the Constitution are either formal or informal.

A. Informal Methods[4]:-

1) Judicial Interpretation[5]:-

By judicial interpretation, the Constitutional text does not change. Still, its interpretation changes, e.g., the interpretation given to the word ‘personal liberty’ under Art. 21 in A. K. Gopalan’s case was restricted. Still, in Maneka Gandhi’s case,[6] the court gave a liberal interpretation to the word personal liberty. Thus, under Art. 21, a number of new rights took birth and were nourished due to liberal interpretation. On several occasions, the court has changed its views about the significance and meanings of several Constitutional provisions.

2) Conventions and Constitutional Usages[7]:-

The growth of conventions, practices, and observations may modify the operation of Constitutional provisions. Though the Indian Constitution is the most detailed[8] and comprehensive[9] Conventions have also developed in some areas. For example, relations between the Council of Ministers and the Prime Minister, the relationship of the President with the Council of Ministers, the concept of Cabinet, and the emergence of the Planning Commission and National Development Council are non-constitutional bodies, having a good deal of control over Central State policies.

B) Formal Methods[10] (Art. 368):-

The method of Constitutional amendment, provided under Art.368, is formal. Art. 368 empowers Parliament to amend the Constitution. The amendment procedure may be rigid or flexible. Indian Constitution provides a unique blend of flexibility as well as rigidity. Some provisions of the Indian Constitution are amendable by a simple majority (i.e., more than fifty percent of the members present and voting), e.g., Art. 5, 169, and 239-A, etc. The remaining provisions are amendable by a special Majority (i.e., a majority of 2/3 of the members of each House present and voting). Some Articles for its amendment require, in addition to a special majority, the ratification by not less than 1/2 of the state Legislatures, e.g., amendment relating to Art. 54 and 55 (i.e., the election of the President), Arts, 73 and 162 (i.e., the extent of executive powers of the Union and states), Arts,124, to 147, 214 to 231, 241(i.e., dealing with Judiciary). Till 2020, the Constitution has been amended 104 times.

Amendment of Fundamental Rights[11]:-

1) Fundamental rights are amendable by the Parliament (Primary View)[12]:-

The question is whether the fundamental rights can be amended under Art. 368 or not, came first time for consideration before the Supreme Court,

Shankari Prasad v. Union of India[13]

Facts:- In this case, the validity of the Constitution (1st Amendment) Act,1951, was challenged because it abridges fundamental rights.

SC held:- that the power to amend the Constitution, including the fundamental rights, is contained in Art. 368, and the word ‘law’ under Art. 13 (2), includes ‘Constitutional amendment’, which is made in exercising Constitutional power.

In Sajian Singh v. the State of Rajasthan[14]

Facts: In this case, the validity of the Constitution (15th Amendment) Act of 1964 was challenged on the grounds that it violated fundamental rights.

SC held that Parliament’s amending power under Art.368 is unlimited and may extend to amending fundamental rights.

2. Parliament has no power to amend fundamental rights (Subsequent View)[15]:-

In Golak Nath v. the State of Punjab[16]

Facts: The validity of the Constitution (17th Amendment) Act, 1964, which inserted certain State Acts in the Ninth Schedule to remove them from the court’s jurisdiction, was challenged on the grounds that it violated fundamental rights.

The SC overruled its decision in two earlier cases and held that Parliament has no power from the date of this decision to amend part III of the Constitution or to take away or abridge fundamental rights.

3) The theory of Basic Structure (Recent View)[17]:-

In Keshavananda Bharati v. the State of Kerala[18]

Facts: The petitioners challenged the validity of the Constitution’s 24th, 25th, and 29th amendments. The question involved was the extent of the amending power conferred by Art. 368 of the Parliament.

SC held that the Parliament can amend any part of the Constitution so long as it does not destroy its basic features or structure.

Following are some of the basic features of the Constitution[19]:-

The Supreme Court, in its different judgments, has held the following as the basic structure of the Constitution:-

Republican and Democratic forms of Government.
Secular character of the Constitution.
Separation of powers between the legislature, executive, and judiciary.
Supremacy of the Constitution.
Federal character of the Constitution.
Freedom and fundamental rights in part III.
Justice- social, economic and political, etc.

M.Nagraj V Union of India[20]

Held: – The amendment should not destroy the constitution’s identity. The theory of basic structure is the only theory to judge the validity of the constitutional amendment.

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[1] राज्यघटनेत दुरुस्ती

[2] स्थिर

[3] घटना दुरुस्तीच्या पध्दती

[4] अनौपचारिक पध्दत

[5] न्यायिक स्पष्टीकरण

[6] AIR 1978 SC 597

[7] चालीरिती

[8] सविस्तर

[9] विस्तृत

[10] औपचारिक पध्दत

[11] मुलभूत अधिकारात दुरुस्ती

[12] संसदेमार्फत मुलभूत अधिकारात दुरुस्ती करता येईल (प्राथमिक दृष्टीकोन)

[13] AIR 1951 SC 458.

[14] AIR 1965 SC 848.

[15] संसदेमार्फत मुलभूत अधिकार बदल करण्याचा अधिकार नाही (नंतरचा दृश्टीकोन)

[16] AIR 1971 SC 1643.

[17] मुळ चैकट, सिद्धांत/घटनेचा मुळ ढाचा

[18] AIR 1973 SC 1461.

[19] मुळ ढाचा संकल्पनेत समाविष्ट केलेली वैशिष्ट

[20] AIR 2007 SC 71