SALIK AHMAD

2ND YEAR, SELF FINANCE

CONSTITUTIONAL LAW ASSIGNMENT

TOPIC- AMENDMENT TO THE CONSTITUTION OF INDIA

SUBMITTED TO- DR. ASAD MALLIK SIR

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 TABLE OF CONTENTS

INTRODUCTION 03
ARTICLE 368 04-06
SCOPE OF AMENDING POWER OF PARLIAMENT 06
THE PRE KESHAV NENDA POSITION 07-09
THE POST KESHAV NANDA POSITION 09-10
ARTICLE 368 AS IT STANDS TODAY 10-12
CONCLUSION 13
BIBLIOGRAPHY 14

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 INTRODUCTION

As it becomes necessary with time to have a change in the needs of national development and
strength; to overcome the difficulties which may arise in future in working of the Constitution;
and to realize any popular demand for change in political system e.g. state reorganization,
provision for SC/STs, lowering the age of vote, etc.
Pundit Nehru observed that "there was no permanence in Constitution, as it would stop the
nation's growth". The amendment of Constitution should only be resorted to in cases of serious
repercussions or emergent circumstances or a special contingency.
However, for the political purpose, or to override judicial verdicts, the amendment to the
Constitution has often been misused. Also multifarious Amendments undermine the sanctity of
the Constitution as an organic instrument and create confusion. For example the 42nd
Amendment act, which is also called an ‘Act of Revision’, effected strong changes, e.g.
Fundamental Rights devalued vis-à-vis directive principles. Many provisions of 42nd Amendment
were wiped out by 43rd and 44th Amendments. The procedure for the Amendment to the
Constitution of India is too flexible. Ordinary legislative union performs the action, whereas
there should be a different constituent body for performing such acts.
The Constitution can be amended under Article 368 as well as by ordinary legislations of the
Parliament under Articles 2, 3 and 4. Besides these formal procedures, the constitution gets
amended through constitutional practices, conventions and by judicial interpretations.

Informal method of Amendment: The letter of the law does not change. But, it's meaning and its
import changes.
• By changing a well-established convention:
• Amendment by change in the interpretation of the provisions of the Constitution.

Formal Method of amendment: It is the text of law, i.e. the written provision of the constitution
is amended by way of addition, variation or repeal.

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 ARTICLE 368

POWER OF PARLIAMENT TO AMEND THE CONSTITUTION AND PROCEDURE

THEREFORE:
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.

2. An amendment of this Constitution may be initiated only by the introduction of a Bill for
the purpose in either House of Parliament, and when the Bill is passed in each House by a
majority of the total membership of that House and by a majority of not less than two-
thirds of the members of that House present and voting, it shall be presented to the
President who shall give his assent to the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill;

Provided that if such amendment seeks to make any change in:

(a) article 54, article 55, article 73, article 162 or article 241 , or (b) Chapter IV of Part V,
Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the lists in the Seventh
Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this
article. The amendment shall also require to be ratified by the Legislatures of not less
than one-half of the States.

3. Nothing in article 13 shall apply to amendment made under this article.

4. No amendment of this Constitution (including the provisions of Part II l) 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.

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 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.

There are three categories of Amendment to the Constitution of India;

1. Amendment by simple majority

Amendments contemplated in Articles 5, 169, and 239-A, can be made by simple

majority. These Articles ar-e specifically excluded from the purview of the procedure
prescribed in Article 368.

2. Amendment by special majority

Articles which can be amended by special majority are laid down in Article 368. All
Constitutional Amendments other than those referred to as above, come within this
category and must be effected by a majority of the total membership of each House of the
Parliament, as well as by a majority of not less than two-thirds of the members of that
House present and voting.

3. By special majority and Ratification by States

Articles which require in addition to the special majority and ratification by not less than
one-half of the State Legislatures come under this category. These are fundamental
matter where States have important power under the Constitution and any unilateral
amendment by Parliament may vitally affect the fundamental basis of the system built up
by the Constitution. This class of articles consists of amendments which seek to make
any change in the provisions mentioned in Article 368. The following provisions require
such ratification by States:

i. Election of President- Articles 54 and 55.

ii. Extent of Executive power of the Union and States-Articles 73 and 162.
iii. Articles dealing with Judiciary-Supreme Court and the High Court's-Articles 124
to 147 and 214 to 231, and 241 .
iv. Distribution of legislative powers between the Centre and the States.
v. Any of the Lists of VII Schedule.

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 vi. Representation of States in Parliament IV Schedule.
vii. Article 368 itself.

SCOPE OF THE AMENDING POWER OF THE PARLIAMENT

Are Fundamental Rights Amendable?

According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. This power is not absolute in nature. The
Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all
laws. If a law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This
check notwithstanding, the founding fathers wanted the Constitution to be an adaptable
document rather than a rigid framework for governance. Hence Parliament was invested with the
power to amend the Constitution. Article 368 of the Constitution gives the impression that
Parliament's amending powers are absolute and encompass all parts of the document. But the
Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since
independence. With the intention of preserving the original ideals envisioned by the constitution-
makers, the apex court pronounced that Parliament could not distort damage or alter the basic
features of the Constitution under the pretext of amending it. The phrase 'basic structure' itself
cannot be found in the Constitution. The Supreme Court recognized this concept for the first time
in the historic Kesavananda Bharati1 case in 1973. Ever since then Supreme Court has been the
interpreter of the Constitution and the arbiter of all Amendments made by Parliament.

1
Keshav Nanda Bharti v. State Of Kerala, AIR 1973 SC 1461

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 THE PRE KESHAV NANDA POSITION

Parliament's authority to amend the Constitution, particularly the chapter on the fundamental
rights of citizens, was challenged as early as in 1951. After independence, several laws were
enacted in the states with the aim of reforming land ownership and tenancy structures. This was
in keeping with the ruling Congress Party's electoral promise of implementing the socialistic
goals of the Constitution (contained in Article 39 (b) and (c) of the Directive Principles of State
Policy] that required equitable distribution of resources of production among all citizens and
prevention of concentration of wealth in the hands of a few.
Soon after the commencement of the Constitution in 1950, some Stale Government initiated
proposals for incorporation of laws relating to Agrarian reforms .These laws contained
provisions for the abolition of Zamindari system, as well ,for the compulsory acquisition of
property for public purpose .One such measure was The Bihar lad Reforms Act, 1950, enacted
by the Bihar Legislature. The Act provided for the Acquisition by the State of the estates and
tenures of three leading Zamindars of Bihar Province .The Act was challenged in Kameshwar
Singh v State of Bihar (AIR 1951SC pat 91) before Patna High Court. The High Court struck
down the Act, as unconstitutional and void as it contravened the provisions of Article 14. The
courts struck down the land reforms laws saying that they transgressed the fundamental right to
property guaranteed by the Constitution. Piqued by the unfavorable judgements a new provision,
Article 31A was added by the Constitution (1" Amendment} Act 1951. Parliament placed these
laws in the Ninth Schedule of the Constitution through the First and Fourth Amendments (1951
and 1952 respectively}, thereby effectively removing them from the scope of judicial review.
Parliament added the Ninth Schedule to the Constitution through the very first amendment in
1951 as a means of immunising certain laws against judicial review. Under the provisions of
Article 31, which themselves were amended several limes later, laws placed in the Ninth
Schedule -- pertaining to acquisition of private property and compensation payable for such
acquisition -- cannot be challenged in a court of law on the ground that they violated the
fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by
state legislatures with the aim of regulating the size of land holdings and abolishing various
tenancy systems. The Ninth Schedule was created with the primary objective of preventing the
judiciary - which upheld the citizens' right to property on several occasions - from derailing the
Congress party led government's agenda for a social revolution.
Property owners again challenged the constitutional amendments which placed land reforms
laws in the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of
the Constitution.
Article 13 (2) provides for the protection of the fundamental rights of the citizen. Parliament and
the state legislatures are clearly prohibited from making laws that may take away or abridge the
fundamental rights guaranteed to the citizen. They argued that any amendment to the
Constitution had the status of a law as understood by Article 13 (2).

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 i. Shankarj Prasad v Union of India2 : The Supreme Court held that the power to amend
the Constitution including the fundamental rights is contained in the article 368 and
that the word 'Law', in Art. 13 include only an ordinary law and does not include
constitutional amendment which is made in exercise of constituent power. The Court
thus distinguished between the ordi1ary legislative power and constituent power.
In Sajjan Singh v. State of Rajasthan3: it held that the words 'amendment of
Constitution means amendment of all the provisions of the constitution.

ii. Gofak Nath v State of Punjab4: In 1967 an eleven-judge bench of the Supreme Court
reversed its position. Deliveri1g its 6:5 majority judgement in the Golak Nath v. State
of Punjab case, Chief Justice Subba Rao put forth the curious position that Article
368, that contained provisions related to the amendment of the Constitution , merely
laid down the amending procedure. Article 368 did not confer upon Parliament the
power to amend the Constitution. The amending power (constituent power) of
Parliament arose from other provisions contained in the Constitution (Articles 245,
246, 248) which gave it the power to make laws (plenary legislative power). Thus, the
apex court held that the amending power and legislative powers of Parliament were
essentially the same. Therefore, any am endment of the Constitution must be deemed
law as understood in Article 13 (2).

The majority judgement invoked the concept of implied limitations on Parliament's

power to amend the Constitution. This view held that the Constitution gives a place of
permanence to the fundamental freedoms of the citizen. In giving the Constitution to
themselves, the people had reserved the fundamental rights for themselves. Article
13, according to the majority view, expressed this limitation on the powers of
Parliament. Par1iament could not modify, restrict or impair fundamental freedoms
due to this very scheme of the Constitution and the nature of the freedoms granted
under ii. The judges stated that the fundamental rights were so sacrosanct and
transcendental in importance that they could not be restricted even if such a move
were to receive unanimous approval of both houses of Parliament. They observed that
a Constituent Assembly might be summoned by Parliament for the purpose of
amending the fundamental rights if necessary.

The majority were, however, faced with the problem that, if the 1st, 4th and 17'"
Amendments were at a late stage to be invalidated, the impact on social and economic
affairs would be chaotic. On the other hand, the court considered that it had a duty to
correct errors in the law. It, therefore, adopted a doctrine of prospective overruling
under which the three constitutional amendments concerned would continue to be

2
(AIB 1951 SC455):
3
(AIR 1965 SC845)
4
( Air 1967 SC 164,ll

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 valid, and the decision to the effect that Parliament had no power to amend the
provisions of Part Ill would operate for the future only.

THE POST KESHAV NANDA POSITION

The validity of a Constitution Amendment Act shall not be open to question on the ground that it
takes away or affects a fundamental right. The 24th Amendment has been held to be valid in
Keshavanand case (though subject to some qualifications).

His Holiness Kesavanaoda Bharati Srinadagalavaru v State of Kerala and Another (AIB 1973
SCI461)· Also known as 'Fundamental Rights case', Inevitably, the constitutional validity of
these amendments was challenged before a full bench of the Supreme Court (thirteen judges).
Their verdict can be found in eleven separate judgements. Nine judges signed a summary
statement which records the most important conclusions reached by them in this case. Granville
Austin notes that there are several discrepancies between the points contained in the summary
signed by the judges and the opinions expressed by them in their separate judgements.
Nevertheless, the seminal concept of 'basic structure' of the Constitution gained recognition in
the majority verdict.
All judges upheld the validity of 24th amendment saying that Parliament had the power to amend
any or all provisions of the Constitution. All signatories to the summary held that the Golaknath
case had been decided wrongly and that Article 368 contained both the power and the procedure
for amending the Constitution.
However they were clear that an amendment to the Constitution was not the same as a law as
understood by Article 13 (2).
It is necessary to point out the subtle difference that exists between two kinds of functions
performed by the Indian Parliament:
a. it can make laws for the country by exercising its legislative power and
b. it can amend the Constitution by exercising its constituent power.

Constituent power is superior to ordinary legislative power: Unlike the British Parliament which
is a sovereign body (in the absence of a written constitution). The powers and functions of the

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Indian Parliament and State legislatures are subject to limitations laid down in the Constitution.
The Constitution does not contain all the laws that govern the country. Parliament and the state
legislatures make laws from time to time on various subjects, within their respective
jurisdictions. The general framework for making these laws is provided by the Constitution.
Parliament alone is given the power to make changes to this framev.ork under Article 368.
Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in
Parliament.
Another illustration is useful to demonstrate the difference between Parliament's constituent
power and law making powers. According to Article 21 of the Constitution, no person in the
country may be deprived of his life or personal liberty except according to procedure established
by law. The Constitution does not lay down the details of the procedure as that responsibility is
vested with the legislatures and the executive. Parliament and the state legislatures make the
necessary laws identifying offensive activities for which a person may be imprisoned or
sentenced to death. The executive lays down the procedure of implementing these laws and the
accused person is tried in a court of law. Changes to these laws may be incorporated by a simple
majority vote in the concerned state legislature. There is no need to amend the Constitution in
order to incorporate changes to these laws.
However, if there is a demand to convert Article 21 into the fundamental right to life by
abolishing death penalty, the Constitution may have to be suitably amended by Parliament using
its constituent power.
Most importantly seven of the thirteen judges in the Kesavananda Bharati5 case, including Chief
Justice Sikri who signed the summary statement, declared that Parliament's constituent power
was subject to inherent limitations. Parliament could not use its amending powers under Article
368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or
framework of the Constitution.

ARTICLE 368 AS IT STANDS TODAY

The Constitution, though expressly confers amending power on the Parliament, but it is the
Supreme Court, which is to finally interpret the scope of such power and to spell out the
limitations, if any, on such amending power. At present, any part of the Constitution can be
amended under Article 368, the only limitations being the procedural limitations (as in Art. 368
itself) and the substantive limitations ('basic features'}.

5
Keshav Nanda Bharti v. State Of Kerala, AIR 1973 SC 1461

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 i. Procedural Limitation - The power conferred by Art 368 is subject to the procedure
laid down in the Article [Art 368(1)]. The court would be competent to strike down
an Amendment Act which did not comply with the procedural requirements of Art.
368.

In Kihota Hollohon v Zachillu (AIR 1993 SC 412), Para 7 of the Tenth Schedule to
the Constitution inserted by the Constitution (52nd Amendment) Act, 1985, excluding
the jurisdiction of all courts on the question of disqualification on the ground of
defection, was struck down as unconstitutional since it was not enacted complying
requirement of Proviso to Article 368 (2), which required ratification of the
Amendment by at least half of the State Legislatures.

It may be noted that while exercising the power under Art. 368, parliament would not
be subject to the limitations which curb its legislative power to make laws under Arts
245-246, because the amending power conferred by Art. 368 is 'constituent power'.

ii. Substantive limitation - In Keshavanand's case, the Supreme Court, for the first
time, exercised the power of judicial review on the following substantive grounds:

A) 'Basic structure' or fundamental features· of the Constitution.

B) The power to amend is vested by Art. 368 in Parliament (except where

ratification by State Legislatures is required}. Hence, Parliament cannot, directly
or indirectly, abdicate or delegate that power to some other body; if it does, the
court would strike down that Constitution Amendment Act as invalid.

In a landmark judgement in I.R. Coelho (Dead) by LRs v. State of Tamil Nadu6, a 9-Judge
Constitution Bench headed by Chief Justice Y K Sabharwal, held that any law placed in the
Ninth Schedule of the Constitution after April 24, 1973 (when Keshavanand Bharti's judgment
was delivered) will be open to challenge. The court observed that even though an Act is put in
the Ninth Schedule by a constitutional amendment, its provisions would be open to challenge on
the ground that they destroy or damage the basic feature or structure of the Constitution, for
instance, if the fundamental rights are taken away or abrogated. The constitutional validity of the
Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying
the direct impact and effect test, i.e., rights test, which means the form of an amendment is not
the relevant factor, but the consequence thereof would be determinative factor. Further, the
power of judicial review which forms integral part of basic structure cannot be abrogated by any
Act.

6
(AIR 2007 SC 861)

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The Ninth Schedule, which was introduced through Art. 31-B by the First Constitution
(Amendment) Act, 1951, aimed to save land reform laws enacted by various States from being
challenged in the court. Later on, however, it became an omnibus and every kind of law whether
it related to elections, mines and minerals, industrial relations, requisition of property,
monopolies, etc. were included in it. No principle underlies this selection of laws under the Ninth
Schedule. In the present case, the petitioners had challenged the validity of various Central and
State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The T.N. Act
provided for the reservation of 69% of seats in government jobs for the OBCs. The said Act was
added in the Ninth Schedule because of the Supreme Court's ruling in the Mandal case that
overall reservation cannot exceed 50%.
The Apex Court said that the validity of any Ninth Schedule law has been upheld by this court
and it would not be open to challenge it again. But if a law is held to be violative of fundamental
rights, incorporated in Ninth Schedule after the date of judgment in Keshavanand Bharti case,
such a violation would be open to challenge on the ground that it destroys or damages the basic
structure of Constitution. The court further said that this court is duty bound to uphold
constitutional values and enforce constitutional limitation. A constitutional amendment is
permissible subject to the limitation of the doctrine of basic structure.

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 CONCLUSION

It may be said that the final word on the issue of the basic structure of the Constitution, there is
no hard and fast rule for basic feature of the Constitution. Different judge keep different views
regarding to theory of basis structure. But at one point they have similar view that parliament has
no power to destroy, alter, or emasculate the 'basic structure' or framework of the constitution.
Nevertheless the sovereign, democratic and secular character of the polity, rule of law,
independence of the judiciary, fundamental rights of citizens etc. are some of the essential
features of the Constitution that haw appeared time and again in the Apex Court's
pronouncements. One certainty that emerged out of this tussle between Parliament and the
judiciary is 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. In I.R.Coelho (Dead) By
Lrs vs State Of Tamil Nadu &. Ors delivered on January 11. 2007, by nine judges of the Court
on the Ninth Schedule to-the Constitution, the basic structure limitation has been stated to be "an
axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its
origins, the basic structure theory plays a useful part in our constitutional jurisprudence.
Parliament does not and should not have an unlimited power to amend the Constitution.
However, in the glorification of the basic structure theory, it is important to bear in mind its
infirm roots and how predilections and prejudices of judges, chance, and accidental
circumstances have played a greater part rather than any logic or conscious formulation of it.

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 BIBLIOGRAPHY

BOOKS:
I. Jain, M.P. , Indian Constitutional Law Vol- 1, 2
II. Bakshi, P.M., The Constitution of India- Delhi: Universal Law Publishing Co., 2013
III. Pandey, J.N., The Constitutional Law of India ,Central Law Agency,2013
IV. Durga Das Basu's Commentary on the Constitution of India, 2014, Vol. 2.

WEBSITES:
I. http ://www.1ega1serviceindia.com/article/170-Article368.html
II. https://www.casemine.com/search/in?q=amendment+to+the+constitution

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