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The life of a state is vibrant and in order to facilitate the ever dynamic developments and needs
of society, its economic, social and political conditions mutate continuously. So, a Constitution
drafted in one context at a particular time may prove inadequate at a later stage. Every
Constitution has some method of amendment whereby a provision is modified by way of
addition, deletion or correction so as to suit the needs of the present.
Provisions for the amendment of the Constitution are made with a view to overcome the
difficulties which may encounter in future in the effective working of the Constitution. The
framers of the Constitution were keen to avoid excessive rigidity and wanted it to a bit flexible.
They wanted to have a document that could grow with a growing nation and adapt itself to the
ever changing needs of people.
Oxford’s Dictionary of Law says “Amendment means changes made to legislation, for the
purpose of adding to, correcting or modifying the operation of the legislation.”
Black’s Law Dictionary defines ‘Amendment’ as “A formal revision or addition proposed or made
to a statute, Constitution, pleading, order, or other instrument” AND “In Parliamentary law, it
means a ‘motion that changes another motion’s wording by striking out text, inserting or adding
text, or substituting text”.
But Keshavananda Bharti V. State of Kerela provided the best explanation as to the scope and
definition of the word ‘Amendment’. It purported that “A broad definition of the word
‘Amendment’ will include any alteration or change. The word ‘amendment’ when used in
connection with the Constitution may refer to the addition of a provision on a new and
independent subject, complete in itself and wholly disconnected from other provisions, or to
some particular article or clause, and is then used to indicate an addition to, the striking out, or
some change in that particular article or clause”.
The Constitution of India provides for amendment mainly in Article 368 and in some other parts
as specified therein.
The elementary question in controversy has been whether Fundamental Rights are amendable
so as to take away the basic rights guaranteed by the Constitution. Another controversy deals
with the extent, scope and authority of Parliament to amend Constitution. The answer has been
given by the Supreme Court from time to time, sometimes under immense pressure and can be
understood in the light of the following cases:
Shankari Prasad V. Union Of India (AIR 1951 SC 458)
The validity of the First Amendment Act to the Constitution was challenged on the ground that it
purported to abridge the fundamental Rights under Part 3 of the Constitution of India. Supreme
Court held that the power to amend the Constitution, including Fundamental Rights is contained
in Article 368. An amendment is not a law within the meaning of Article 13(2). Article 13(2)
states that – “The State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention to this clause shall, to the extent of the
contravention, be void”. An amendment is valid even if it abridges any fundamental Right.
To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and extended the
scope of power of Parliament to amend the Constitution by adding the words “amend by way of
addition or variation or repeal any provision in accordance with the provisions laid down in this
Article” Further, the amendment provided that “Nothing in Article 13 shall apply to any
amendment made under this article” by way of an addition of Clause 3 to Article 368.
Basic Structure:
The Theory of basic structure very effectively proved to be a limitation on the amending power
of the Parliament. The Basic Structure doctrine applies only to the Constitutionality of
amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the
Constitution and not just its basic structure.
Conclusion
The final word on the issue of Amendability can be related to ‘Basic Structure’ defined
in Kesavananda Bharti’s case. To name a few Minerva Mills’ case, S. P. Sampath Kumar’s
case and L. Chandra Kumar’s case are well based on the principle of ‘Basic Structure’ and this
situation is unlikely to change in the near future. It is clear 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 over and interpreter of all
constitutional amendments
Books referred:
• H. M. Seervai, “Constitutional Law of India”
• D. D. Basu, “Shorter Constitution of India”
• M. P. Jain, “Indian Constitutional Law”
• Vepa P. Sarathi, “Interpretation of Statutes”
• Oxford Dictionary of Law
• Mitra’s Legal and commercial Dictionary