Parliament’s Constituent Power Vs. Judicial Veto with Special Reference to Amendment of the Indian  Constitution

Part 20 (Article 368) deals with the amendment of the Constitution.[1] Amendment of any enactment including Constitution reflects the public opinion and dynamism of the society. Wendell Phillips has rightly observed that law is nothing unless close behind it stands a warm living public opinion. Consequently, in consonance with the continuous changing needs of the society at large provisions have been made for amendment of the Constitution as per procedure given under Article 368. The Constitution may be amended in the following two modes-

• Formal amendments by the Parliament;
• Informal modification by judicial interpretation.

Power of Parliament to amend Constitution—[Article 368(1)]

Originally, Article 368 did not expressly provide for power of Parliament to amend the Constitution. However, there was express provision for procedure for the amendment of the Constitution. After 24^th Amendment Act, 1978, Article 368 (1) expressly conferred power upon the Parliament to amend Constitution by way of addition, variation or repeal in accordance with the procedure laid down in Article 368 itself.

Procedure for amendment of Constitution—[Article 368(2)]

The Constitution may be formally amended by the Parliament in the following three modes—

By simple majority—An Ordinary Bill is passed by simple majority of more than 50% of the members of the members present and voting. Articles 4, 5, 189, 240 etc. can be amended by simple majority. These Articles do not come within the purview of the procedure prescribed in Article 368.

By special majority—A Bill passed by majority of total membership in each House of Parliament + 2/3^rd majority of the members present and voting.

By special majority and ratification of ½ States—In addition to the special majority, ratification by ½ of the State Legislature is required in the following matters—

• Election of the President—Articles 54 and 55.
• Extent of the executive powers of the Union and the States—Articles 73 and 162 respectively.
• Union Judiciary (Part V—Chapter IV—Articles 124-147), High Courts (Part VI—Chapter V—Articles 214-231) and High Court for UTs (Art. 241).
• Legislative relation between Union and States (Part XI—Chapter 1—Arts.245-255).
• Any of the lists of the Seventh Schedule.
• Representation of States in Parliament.
• Article 368 itself.

Article 368(2) provides that a Bill for amendment of the Constitution may be introduced in either House of Parliament. The Bill must be passed by a majority of the total membership of both Houses and by a majority of not less than 2/3^rd of the members of each House present and voting. When the Bill is passed by both Houses it is presented to the President for his assent, who shall give his assent to the Bill and thereupon the Constitution stands amended accordingly.  

Non-applicability of Article 13—

Article 368(3) r/w Article 13(4) provides that Article 13 shall not be applicable on any Constitutional Amendment. These clauses were added by 24^th Constitution Amendment Act, 1971. This amendment was upheld in Keshavananda Bharati’s case (1973) with the qualification that basic feature of the Constitution can not be amended.

As the Supreme Court in Bharati’s case denied giving unbridled powers to Parliament to amend the Constitution, the Parliament through 42^nd Amendment inserted Clauses (4) and (5) to Article 368.

Clause (4) to Article 368 provides that any amendment made under Article 368 shall not be called in question in any court on any ground. Further, Clause (5) to Article 368 expressly provides that the Parliament has unlimited powers to amend the Constitution. However, both these clauses were declared invalid by the Supreme Court in Minerva Mills’s case (1980) on the ground that these clauses excludes/ curtails the Court’s power of judicial review which is the basic feature of the Indian Constitution.

Whether fundamental rights can be amended?—

• Shankari Prasad vs. Union of India (AIR:1951:SC:458)—This question came before the Supreme Court in this case for the first time. In the instant case, validity of First Amendment that inserted Articles 31-A and 31-B was challenged. The court held that fundamental rights can be amended under Article 368. The court further held that the word ‘law’ in Article 13(2) includes only ordinary law and not constitutional amendments.
• Sajjan Singh vs. Rajasthan (AIR:1965:SC:845)—In Sajjan’s case validity of Seventeenth Amendment was challenged. The court followed Shankari’s approach and held that fundamental rights can be amended.
• Golaknath vs. State of Punjab (AIR:1971:SC:1643)—In the instant case the Supreme Court overruled Shankari’s and Sajjan’s case and held that the Parliament has no power to amend to the extent of taking away fundamental rights enshrined under Part III can not be amended.

As the Golaknath’s case created a hurdle in ensuring the dynamism of law, 24^th Constitutional Amendment Act, 1971 was passed to remove the barrier put in Golaknath’s case. The 24^th Amendment provides that Article 13 does not include amendment of the Constitution under Article 368.   

• Keshavananda Bharati Sripadgalvaru vs. State of Kerala (AIR:1973:SC:1461)— Bharati’s cas id also known as ‘Fundamental Rights Case’. In this case the validity of 24^th Amendment was challenged. The Court overruled the Golaknath’s case and held that Article 368 contains the power and procedure to amend the Constitution including fundamental rights. However, basic structure/ feature of the Constitution can not be abridged or taken away by amendment.

With intention to have sweeping power to amend the Constitution and to remove the hurdle created in Keshavanada Bharati’s case that basic features can not be abridged, two new clauses (4) and (5) to Article 368 were added in the Constitution through 42^nd Amendment, 1976. Clause (4) provides that any amendment made under Article 368 shall not be called in question in any court on any ground. Clause (5) expressly provides that the Parliament has unlimited powers to amend the Constitution. 

However, in Minerva Mill vs. Union of India (AIR:1980:SC:1789)—In the instant case the Supreme Court struck down Clause (4) and (5) of Article 368 on the ground that court’s power of judicial review is a basic feature of Indian Constitution and can not be taken away by amendment. In Waman Rao vs. Union of India (AIR:1981:SC:271)—The Supreme Court reaffirmed the view given in Minerva Mill’s case.

From the above, we find that there has been harmony between the Parliament’s constituent power as well as judicial veto in the form of judicial review for protection of basic structures doctrine (BSD) under Indian Constitution.

______________________________________________

[1] . Discuss the power of Parliament to amend the Constitution. Is this power to amend is absolute or subject to certain limitations?

__________________________________________

The copyright as to contents and the style are with the team LegalMines.