Controversies Regarding Amendment To The Constitution

Article 368 says that Parliament can amend the Constitution according to the procedure contained in that Article (special majority, no joint sitting etc). Do The First Amendment (1951) modified certain Fundamental Rights. When this was challenged in the Supreme Court, the Court held that any part of the Constitution is amendable. The Seventh Amendment (1956) was also challenged and the Supreme Court repeated its earlier stand. – When the 17th Amendment (1964) was similarly challenged, in the famous Golak Nath case, the Supreme Court held that Article 368 gives only the procedure for amendment and does not especially give unlimited power to Parliament to amend the Constitution. . The 24th Amendment (1971) which was then brought provided that Article 13 (which says that any law inconsistent with the Fundamental Rights will be void) will not apply to Amendments. It suitably amended Article 13 and Article 368 to give full CONSTITUENT power to Parliament to amend any provision of the Constitution. The 25th Amendment enacted in 1971 inserted Article 31(c) in Part III (Fundamental Rights). It further diluted the scope of Article 13 by stating that a law giving effect to the Directive Principles will not attract the provisions of Article 13. It also said that 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. It thus took laws giving effect to Directive Principles out of the scope of judicial review. This Amendment was challenged in the Supreme Court (Kesavananda Bharati case, 1973). The Court ruled that an amendment cannot take away the BASIC FEATURES of the Constitution, and subject to this limitation, Parliament can amend any part of the Constitution.

The 42nd Amendment (1976) added clauses 4 and 5 to Article 368 saying that (1) no amendment can be called in question in any court and (2) Parliament has unlimited powers to amend the Constitution.

In the Minerva Mills Case (1980), the Supreme Court struck down these clauses and held that the courts cannot be deprived of limited judicial review which is an essential feature of the Constituent Assembly.

In the Waman case (1981), the Supreme Court held that all amendments made till April 24, 1973 (date of the decision in the Kesavananda case) were valid and constitutional, while amendments made after that date are open to challenge on the ground that they are beyond the constituent power of Parliament as they damage the basic features of the Constitution.

Going by the Supreme Court judgements delivered so far, some of the basic features of the Constitution are judicial review, federalism and secularism, the sovereign, democratic and republic structure, unity and integrity of the Nation, equal justice, the balance between Fundamental Rights and Directive Principles, free and fair elections, and the limitations on Parliament’s power to amend the Constitution as conferred by Article 368.

Thus, the present status as regards the amenability of the Constitution is

a) All parts of the Constitution can be amended.
b) Parliament’s constituent power is limited to amending the Constitution and not replacing it.
c)The basic structure of the Constitution cannot be destroyed by Amendments, nor can its

As no further action has been taken by Parliament after the Minerva Mills Case, the clauses E in Article 31(c) and Article 368(4,5) debarring limited judicial review, though still part of the. constitutional text, have no legal validity.

The amendment is, thus, open to review by the Supreme Court about basic features, adoption of the correct procedure for the Amendment. Matters for which an Amendment Bill must be ratified by States i) Election of the President, extent of executive powers of the Union and the States, High Courts for Union Territories (Articles 54 and 55, 73 and 162, 241). The Supreme Court and the High Courts, legislative relations between the Union and the States (Chapter IV of Part V, V of Part VI, I of Part XI). 3) Any of the lists in the Seventh Schedule. Representation of States in Parliament and 5) Provisions of Article 368 itself.