368)

Q. 127. Discuss the scope and

extent of the power of Parliament
to amend the Constitution. Are
there any limitations on the
amending power of Parliament?

Ans. Amendment of the

Constitution.-A Constitution of a
country like another pragmatic
instrument must change with the
changes in the society. The
changes in the Constitution are
brought about by two processes:

(1) De jure or formal

modification. This is made
through the amending process
provided in the Constitution itself,
and

(2) de facto or informal

modification. It can be made
through judicial interpretation for
the purpose of amendment, the
various
articles of the Constitution are
divided into three categories:

(1) Articles that can be amended

by Parliament by simple majority
are 4, 189 and 240. These
articles do not come within the
purview of the procedure
prescribed in Art. 368.

(2) Articles of the Constitution

which can be amended by
special majority.

(3) Articles which require, in

addition to the special majority
mentioned above, ratification by
not less than 1/2 of the State
Legislatures, are as under:
(a) Election of the President.
Articles 54 and 55.

(b) Extent of the executive

powers of the
Union and the States. Articles 73
and 162.

(e) Articles dealing with judiciary

in Union and High Courts in the
States. Articles 214-231, 133-
147.

(d) Distribution of the Legislative

powers between the Centre and
the States. Articles 245-255.
(e) Representation of States in
Parliament, IV Sch.

(f) Article 268 itself.

Procedure for Amendment under

Article 368.-A Bill to amend the
Constitution may be introduced
in either House of Parliament, It
must be passed by each House
by a majority of the total
membership to that House and
by a majority of not less than 2/3
of the
members of that House present
and voting. When a Bill is passed
by both Houses it is presented to
the President for his assent, who
shall give assent to the Bill and
the Constitution shall stand
amended.

The question whether

amendment of fundamental
rights are covered by the proviso
to Article 368 came for the
consideration in Shankari Prasad
v. Union of India, AIR 1951 SC
455. In this case validity of the
First Amendment which inserted
Articles 31-A and 31-B, was
challenged. The Supreme Court
held that powers to amend the
Constitution including the
fundamental rights was con-
tained in Art. 368 and that the
word 'law' in Art. 13 (2) includes
only an ordinary law and not
constitutional amendments.
Therefore a Constitutional
amendment will be valid even if it
abridges or takes away
any of the fundamental rights.

Same line of approach was

followed in Sajjan Singh v. State
of Rajasthan, AIR 1965 S.C. 845
in which the validity of Seven-
teenth Amendment of the
Constitution was challenged. The
Sup- reme Court approved the
majority judgment given in
Shankari Prasad's case that
word "amendment of the
Constitution" means amendment
of all the provisions of the
Constitution.

But, in Golak Nath v. State of

Punjab, AIR 1967 SC 1643, the
Supreme Court overruled
Shankari Prasad's and Sajjan
Singh's case holding that
Parliament had no power to
amend Part III of the Constitution
so as to abridge or take away the
fundamental rights.
The Constitution (24th
Amendment) Act, 1971 was
passed to remove the difficulties
created by Golak Nath's case.
The (24th Amendment) Act,
1971, provides that Art. 13 does
not include the amendment of
the Constitution made under Art.
368. It added a new sub-clause
in Art. 368 which provides that
'notwithstanding anything in this
Constitution, Parliament may, in
the exercise of constitutent
power amend by way of addition,
variation or repeal any provision
of the Constitution'.

The validity of this Amendment

was again challenged in
Kesawanand v. State of Kerala,
AIR 1973 S.C. 1461. In this case
the Supreme Court by majority
overruled the Golak Nath's case
and held that Art. 368, even
before the (24th Amendment)
con- tained the power as well as
the procedure
of the amendment. As regards
the scope of the amending power
contained in Article 368 the court
said that the word 'amendment'
has been used in various places
to mean different things. In Art.
368, it means any addition or
change in any of the provisions
of the Constitution. The
fundamental rights cannot be
abrogated, but they can be
amended reasonably. The court
further said that every part of the
Constitution can be amended
provided in the result the basic
feature of the Constitution
remains the same.

42nd Amendment Act, 1976. To

remove the difficulties created by
the Supreme Courts decision in
Kesavanand Bharti v. State of
Kerala, the Constitution (42nd
Amendment) Act, 1976 has
added two new clauses (4) and
(5) to Art. 368 of the
Constitution. Clause (4) provides
that "no constitutional"
amendment (including the
provision of Part III) or purporting
to have been made under Art.
368 whether before or after the
commencement of the
Constitution (42nd Amendment)
Act, 1976 shall be called in any
court on any ground. Clause (5)
declares 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 the Constitution under this
Article.

In Minerva Mills Ltd. v. Union of

India, AIR 1980 SC 1789, the
Supreme Court held Cl. (4) and
Cl. (5) of Article 368 as void
because through these clauses
all limitations on the amending
power of Parliament were
removed.
The court held that Parliament
cannot have unlimited power to
amend the
Constitution. "Limited amending
power" is the basic feature of the
Constitution. The court, however,
held that the doctrine of basic
structure is to be applied only in
judging the validity of the
amendments to the Constitution
and it does not apply for judging
the validity of ordinary laws made
by Legislature.