Amendment of the Constitution - 1 | Law Optional Notes for UPSC PDF Download

Introduction

• The Indian constitution is a remarkable and extensive document, unlike any other globally. It holds the distinction of being the world's largest constitution. However, what makes it particularly fascinating is its exceptional flexibility. The framers of our constitution intentionally designed it this way, envisioning that it would not only facilitate the country's growth but also evolve alongside it. Consequently, the government possesses the authority to amend the constitution in response to various issues, as granted by Article 368.
• Nevertheless, a pertinent question arises: Doesn't the constitution empower the government? If that is the case, how can the government have the authority to amend a document that confers its power? In this article, we will delve into the extent of the government's amending powers, the amendment process, the crucial legal questions surrounding it, and examine several landmark cases in an effort to address these inquiries.

The Need for Amending Provisions in the Constitution

• The flexibility of the Indian constitution, as crafted by its founding fathers, serves a vital purpose. It ensures that the constitution can adapt and evolve alongside the nation. Consequently, Article 368 grants the Parliament unrestricted powers to amend various sections of the constitution.
• However, granting absolute power to the Parliament for amending the constitution carries inherent dangers. Instead of serving as the bedrock of our democracy, the constitution could be reduced to a tool for establishing parliamentary totalitarianism. The government might exploit its authority to amend provisions, effectively ensuring unchecked power.
• This apprehension is not unfounded. In past amendments, such as the 39th Amendment and the second clause of the 25th Amendment, the government has made attempts to establish a state where the legislature holds supreme authority.
• To counteract this potential abuse of power, the judiciary has introduced The Basic Structure Doctrine of The Indian Constitution.

Understanding the Basic Structure Doctrine

• The Basic Structure Doctrine posits that there exist fundamental structures and foundational principles within the constitution that constitute its backbone. In simpler terms, these are the core ideologies without which the constitution cannot function. Examples include free and fair elections, the federal nature of the nation, judicial review, and the separation of powers. Through amendments, the government is prohibited from tampering with these constitutional cornerstones.
• The Supreme Court has not provided an exhaustive list of these fundamental principles. Instead, it is up to the courts to determine what they are when specific legal questions arise. However, one can describe these principles as elements that, if violated, would lead to the collapse not only of democracy but also of the entire functioning of the country. Such violations could result in either total anarchy or a shift toward totalitarianism. It is due to these safeguards that India continues to be one of the world's largest democracies.
• Therefore, while Parliament enjoys unrestricted powers to amend various sections of the constitution, it is explicitly forbidden from amending, repealing, or adding sections that would affect the constitution's basic structure.

Below, several cases are presented to deepen our understanding of this concept:

Kesavananda Bharati v. State of Kerala, 1973

Facts

• In this case, Swami Kesavananda Bharati, the leader of the Edneer Matt, a Hindu monastic institution in Kerala, challenged the Kerala government's two-state Land Reform Act, which aimed to restrict how his property was managed. He argued that this law violated his fundamental rights under Articles 25, 26, 14, 19(1)(f), and 31 of the Indian Constitution.
• This case was heard by a 13-Judge Bench and became one of India's most significant cases, leading to the establishment of the Basic Structure Doctrine of the Constitution. The case also examined the constitutionality of the 24th, 25th, and 29th amendments to the Constitution.

24th Amendment

• Changes were made to Article 13, which regulates government policymaking and ensures that laws made by Parliament do not infringe on people's rights. The 24th Amendment introduced Clause (4), stating that any amendment made under Article 368 would not be subject to Article 13.
• Changes were made to Article 368 itself, granting Parliament the power to add, repeal, or amend any section of the Constitution as per the procedures outlined in Article 368, regardless of what is mentioned elsewhere in the Constitution. After being passed by a majority, such a bill or act only required the President's assent.

25th Amendment

• Changes were made to Article 31, which states that no one shall be deprived of their property. Clause (2) was inserted, stating that any law allowing the state to take property for a certain amount would not be subject to judicial review.
• Clause 9(b) was inserted, stating that nothing in Article 19(1)(f) would affect such laws. Additionally, Article 31C was introduced, stating that laws aimed at enforcing the Directive Principles of State Policy would not be subject to scrutiny under Articles 14, 19, and 31. However, this exemption only applied to laws passed by state legislatures with the President's assent.

29th Amendment

The Kerala Land Reforms Act, 1963, and other similar land reform Acts were added to the Ninth Schedule of the Constitution.

Petitioners' Arguments

The petitioners argued that the restructuring of Parliament's amending powers is part of the Constitution's Basic Structure. They also claimed that their fundamental right to property was being violated and sought recourse from the court.

Issue

The case revolved around the constitutional validity of the 24th, 25th, and 29th Amendment Acts and the extent of Parliament's powers to amend the Constitution.

Court's Decision

• The court upheld the 24th Amendment but declared the second part of the 25th Amendment ultra vires (beyond the legal power or authority). In this landmark judgment, the court addressed a crucial question that had remained unanswered since Golak Nath v. State of Punjab, namely, the extent of Parliament's power to amend the Constitution.
• The court observed that this power should strike a balance between Parliament's duty to uphold the Constitution and its responsibility to fulfill socio-economic goals. To answer this question, the court introduced the Doctrine of Basic Structure. While acknowledging that Parliament's power to amend the Constitution was not subject to restriction regarding the parts of the Constitution they wished to amend, there were certain core aspects of the Constitution that should remain untouched.
• Justices Hedge and Mukherjee argued that the Indian Constitution was more of a social document based on social philosophy than a political one. Like any philosophy, the Constitution contained fundamental features that should not be altered.
• The court left it to future cases to determine what constituted the basic structure of the Constitution because they believed it was not exhaustive.

Key findings of the court

• There is a distinction between an amendment and ordinary laws.
• Golak Nath v. State of Punjab was overruled by stating that Parliament's power to amend is not unfettered and cannot violate the Basic Structure.
• The court defined the extent of amendment under Article 368 as restrictive, preventing fundamental changes.
• Parliament can amend any provision in the Constitution, including fundamental rights, as long as it does not alter the basic structure.
• The court identified some basic structures, such as "Free and Fair Elections" and the "Federal Structure of the Nation," but noted that the list was not exhaustive.
• The court upheld the 24th Amendment and struck down the second part of the 25th Amendment, subject to conditions.
• By validating the first part of the 25th Amendment, the court recognized Parliament's duty to fulfill socio-economic objectives while safeguarding citizens from parliamentary totalitarianism by rejecting the part that barred legal remedies.
• The court viewed this judgment as an improvement over Golak Nath as it extended protection beyond fundamental rights, making the Constitution more flexible.

Procedure for Amending the Constitution - Article 368

Article 368 outlines the process through which the Indian Parliament can amend the Constitution. The procedure is as follows:

• Step 1: A bill for amending the Constitution is introduced in either house of Parliament.
• Step 2: The bill must be passed by both houses of Parliament by a special majority. This special majority means a majority of the total membership of each house and a majority of not less than two-thirds of the members present and voting. There is no provision for a joint sitting of both houses in case of a disagreement.
• Step 3: After obtaining the required majority in both houses, the bill is presented to the President, who then gives their assent to the bill.

For amendments affecting the provisions mentioned in Article 368 itself, the amendment must also be ratified by not less than half of the states. Ratification is done through a resolution passed by the state legislature. This ratification must occur before the amendment bill is presented to the President for their assent.

Amendment of Fundamental Rights

Fundamental rights, as enshrined in Part III of the Constitution, form the cornerstone of human rights in India. These rights have been given precedence in many cases over other sections of the Constitution, making them an integral part of the Indian legal framework. The question arises: can Parliament amend these fundamental rights, and do they constitute the basic features of the Constitution? To answer these questions, we can analyze the cases of Sajjan Singh v. State of Rajasthan and Golak Nath v. State of Punjab.

Sajjan Singh v. State of Rajasthan, 1965

In this case, it was established that fundamental rights could be amended as long as the amendments were indirect, incidental, or insignificant concerning the powers granted under Article 226, which confers powers on the High Courts.

Facts

To support various legislations related to agrarian reforms in different states, Parliament had amended certain sections of the Constitution through acts like the Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, and Constitution (Seventeenth Amendment) Act, 1964. The Constitution (Seventeenth Amendment) Act 1964, which was questioned, amended Article 31A (acquisition of the estate by the state) and added 44 Acts to the Ninth Schedule.

Petitioners' Arguments

The petitioners contended that the Seventeenth Amendment Act was unconstitutional for several reasons:

• It affected the powers prescribed by Article 226, and thus the Act should have followed the special provisions laid down by Article 368.
• The decision in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar should be reconsidered.
• The Act dealt with land, which Parliament had no right to make laws about, rendering the Act invalid.
• The Act went against decisions of competent courts and was therefore unconstitutional.

Issues

The main issues were whether the Acts violated Article 226, whether the decision in Sri Sankari Prasad Singh Deo should be reconsidered, whether the Acts dealt with land, and whether Parliament could validate laws ruled invalid by the courts.

Court's Decision

The court ruled as follows:

• The Acts did not affect Article 226, as their impact on the powers of Article 226 was indirect, incidental, and insignificant. Therefore, the provisions of Article 336 did not apply.
• The court decided not to reopen the decision in Sri Sankari Prasad Singh Deo, as it was not absolutely necessary and could gravely endanger laws passed under the amendment Act.
• The Acts did not make any laws regarding land; they merely validated land-related legislations that were previously passed.
• Parliament had the power to validate laws that had been ruled invalid by the courts, as Article 368 allowed for both prospective and retrospective amendments.

Importance

• Justice J.R. Mudholkar's dissenting opinion in this case introduced the concept of the 'basic features' of the Indian Constitution for the first time. This dissenting view later played a crucial role in the landmark Kesavananda Bharati case.
• Justice Mudholkar questioned whether changing a basic feature of the Constitution could be considered merely an amendment or if it amounted to rewriting a part of the Constitution. He also raised concerns about the ease with which fundamental rights, considered fundamental to individuals and organizations, could be amended. He argued that while Article 368 provided the process for amending the Constitution, it did not necessarily grant the power or right to do so.
• Furthermore, he emphasized that the Preamble was the most significant indicator of the Constitution's basic features and questioned whether Article 368 conferred the power to amend any of these basic features.

I. C. Golaknath & Ors vs State Of Punjab & Anrs., 1971

This case reversed the judgment of Sajjan Singh v. the State of Rajasthan and declared that the Parliament does not have the power to amend fundamental rights.

Facts

The petitioners challenged the Constitution (Seventeenth Amendment) Act, 1964, which included several Acts, including the Punjab Security of Land Tenures Act, 1953, and the Mysore Land Reforms Act, as amended by Act 14 of 1965, in the Ninth Schedule.

Issue

The main issue was whether fundamental rights could be amended.

Held

• Articles 245, Article 246, and Article 248 of the Constitution deal with the power of Parliament to amend, while Article 368 focuses on the procedure for amendment. An amendment can only become law if it complies with Article 13, which means that if an amendment abridges any rights in Part III (fundamental rights), it is considered void.
• However, the challenge the court faced was that the Acts in question may have abridged fundamental rights, but they were considered valid by previous judgments. The court used the doctrine of prospective overruling, stating that for those laws, the amendment would still be considered. Nevertheless, it explicitly stated that from the date of the judgment onwards, Parliament would not have the power to amend any provisions of Part III of the Constitution.

Importance

Although the ratio of this case was later reversed in the Kesavananda Bharati case, some of Golak Nath’s arguments were used in the latter. It was ruled that there were no limitations on amending under Article 368, with the restriction that "Parliament cannot do indirectly what it cannot do directly." Amending is strictly a legislative power, not a constitutional one.

Is the Theory of Basic Structure a Limitation on Amending Power? 

The government has a duty to fulfill certain socio-economic goals, sometimes requiring amendments to the Constitution. However, what happens when these amendments interfere with the basic structure? The following cases address this question.

Indira Nehru Gandhi vs Shri Raj Narain & Anr, 1975

In this case, Indira Gandhi was accused of electoral malpractices, and she called an emergency to pass certain amendment Acts, including Article 329-A, which barred judicial review. The court had to determine whether judicial review was part of the Basic Structure of the Indian Constitution.

Facts

Raj Narain contested against Indira Gandhi in the 1971 general election and accused her of using unfair means to win. The Allahabad High Court declared her guilty of election malpractices, nullified the election in her constituency, and barred her from standing in elections there for six years. Indira Gandhi called an emergency, and Article 329-A was added to the Constitution through the 39th Amendment, making such matters non-justiciable.

Issues

The main issue was the constitutional validity of the 39th Constitutional (Amendment) Act, 1975.

Held

The court upheld the Kesavananda Bharati case's ratio and declared Clause 4 of Article 329-A unconstitutional. The majority bench found that this clause violated the basic structure of democracy and other constitutional principles, including the rule of law and principles of natural justice.

Opinion of Justice Chandrachud J.

Justice Chandrachud J. added that the Act violated the separation of powers and Article 14, creating unequal advantages for certain individuals holding powerful offices despite not being subject to free and fair elections.
These cases highlight the significance of the basic structure doctrine as a limitation on the amending power of Parliament, ensuring the preservation of fundamental principles of the Constitution.

Minerva Mills Ltd. & Ors vs Union Of India & Ors, 1980

In this case, the court examined the implications of the government's power to amend articles in the constitution that gave them the authority to amend. They also explored the relationship between Directive Principles and fundamental rights. The bench ruled Clause 5 of Article 368 (which expanded their powers of amendment), Clause 4 of Article 368 (which removed judicial review), and Section 4 of the Amendment Act of 1976 (which also removed judicial review) to be unconstitutional.

Facts

The government enacted the Sick Textile Undertakings (Nationalisation) Act, 1974, to take over the management of textile mills that were operating to the detriment of public interests. Minerva Mills, a textile company, was declared a 'sick industry' by the government, and its management was taken over under Section 18A of The Industries (Development and Regulation) Act, 1951. Minerva Mills challenged the constitutionality of this Act, which was made possible by the Constitution (Forty Second Amendment) Act, 1976.

Issue

The main issue was the constitutionality of the Constitution (Forty Second Amendment) Act, 1976.

Held

1. Clause 5 of Article 368: The amendment introduced Clause 5 to Article 368, stating that Parliament had no limitations on which part of the constitution they could amend. The court declared this amendment unconstitutional. It was seen as an expansion of government power from limited to absolute, undermining social, political, and economic justice. Parliament could not expand its powers to the detriment of the Basic Structure of the Constitution.
2. Clause 4 of Article 368: The amendment also introduced Clause 4 of Article 368, which stated that no amendment made under Article 368 could be reviewed by the court. The court ruled this clause unconstitutional as well. It upset the balance between the three branches of government – legislature, executive, and judiciary. Allowing the legislature to determine the validity of its laws, even if they violated the Basic Structure, undermined the separation of powers and denied the common person a source of redressal.
3. Section 4 of the Amendment Act of 1976: This section attempted to isolate Article 14 (equality before law) and Article 19 (freedom of speech) from Article 31(C). After the amendment, Article 31(C) stated that any law implementing certain Directive Principles would not be invalidated if it violated Article 14 and 19. The court declared this amendment unconstitutional. These violated rights were not only essential to the Universal Declaration of Human Rights but also to the Basic Structure of the Constitution. The court held that by the precedent set in the Kesavananda Bharati case, these rights could not be undermined by these amendments.

The court also explained the relationship between Part III (fundamental rights) and Part IV (Directive Principles) of the Constitution. Both were considered foundational, and neither could be given preference over the other without weakening the Constitution's foundation.

Dissent

Justice Bhagwati dissented concerning the amendment to Article 31(C). He argued against immediately ruling a law unconstitutional, suggesting that its substance should be analyzed first.

Waman Rao And Ors vs Union Of India (UOI) And Ors., 1981

This case reversed the ratio of Minerva Mills Ltd. v. Union of India and addressed doubts from the Kesavananda Bharati case regarding the validity of Acts passed before the judgment.

Facts

The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1962, violated fundamental rights. The amendment Act not only validated this Act but also introduced Articles 31A and 31B. The 42nd Amendment Act was challenged in the Bombay High Court but dismissed. In this case, the same issues were presented, leading to a review of the Dattatraya Govind Mahajan & Ors. vs State Of Maharashtra & Anr. case.

Articles in question:

• Article 31(A): Protected laws violating Articles 14 and 19 with regard to estate acquisition. The laws had to be formulated by the state legislature and receive the President's assent.
• Article 31(B): Stated that Acts in the Ninth Schedule were immune from being void, regardless of court orders.
• Article 31(C): Protected laws furthering Directive Principles, even if they violated Articles 14 and 19, provided they were formulated by the state legislature and received the President's assent.

S.P. Sampath Kumar Etc vs Union Of India & Ors, 1987

In this case, the court addressed the issue of whether judicial review, which is considered a Basic Structure of the Constitution, can be sacrificed to achieve essential democratic goals like speedy justice. The court held that while tribunals were exempt from the jurisdiction of the High Court, this was necessary to ensure swift justice.

Facts

The petitioners challenged Section 6 & 28 of the Administrative Tribunals Act, 1985. This Act established tribunals to handle matters related to servicemen and the appointment of tribunal members.

Sections in question:

• Article 323-A: This section allowed Parliament to create laws for the adjudication of disputes and complaints regarding recruitment and conditions of public servants by administrative tribunals. Clause 2(d) stated that these matters would be outside the jurisdiction of all courts except the Supreme Court under Article 136.
• Section 28 of the Administrative Tribunals Act, 1985: This section placed jurisdiction over these matters under Article 32 (original jurisdiction) and Article 136 (appeals).
• Section 6 of the Administrative Tribunals Act, 1985: This section defined the qualifications required for tribunal members.

Contentions of the Parties

The petitioners argued that excluding the High Court's jurisdiction in service matters under Article 226 and Article 227 was unconstitutional. They also questioned the validity of the prescribed mode of appointment, as it appointed non-jurists.

Issue

The constitutional validity of the Administrative Tribunals Act 1985.

Held

The court ruled that such tribunals were necessary to ensure principles like speedy justice, decision uniformity, and predictability. Even if it meant keeping these tribunals beyond the jurisdiction of the High Court, these goals were essential.

The appointment of esteemed members with specialized knowledge of the subject was also important, even if they were non-jurists. They could provide valuable insights and perspectives that the judiciary might not have. Therefore, the indiscriminate appointment of such members would not significantly affect the functioning of the tribunals.

L. Chandra Kumar vs Union Of India And Others, 1997

This case is a continuation of the S.P. Sampath Kumar case.

Facts

Before the administrative tribunal was established, several writ petitions had been filed. This case addresses the issues raised in the S.P. Sampath Kumar case.

Articles in Question:

• Article 323B: This article set up tribunals for various matters, including taxation, industrial disputes, land reforms, and more.

Issues

The doubts and arguments regarding the Administrative Tribunal were grouped under three major issues:

• Whether the power granted to Parliament under Article 323-A and to the State under Article 323-B to exclude the jurisdiction of all courts other than the Supreme Court contradicts the power of judicial review of the High Court.
• Can these tribunals competently test the constitutional validity of a statute or a rule?
• Can the tribunals be considered effective substitutes for the High Court for judicial review, and what changes should be made to them to make them suitable substitutes?

Held

• Issue 1 - Article 323 (A) and 323 (B): In this case, the court did not address the issue of whether Article 323A (2) needed a similar amendment as Article 32. But they made it clear that the main intention of the Act was to provide for speedy justice, and tribunals played a substitution role, not a supplementary one. They emphasized that judicial review is a basic feature of the constitution.
• Issue 2 - Constitutional Competence of Tribunals: The court ruled that tribunals have the constitutional competence to determine the constitutionality of a statute or rule.
• Issue 3 - Tribunals as Complementaries to the High Court: Tribunals are not substitutes but complements to the High Court, according to the court. They suggested changes, including that tribunal decisions should be subject to review before a division bench of the High Court and that a mix of jurists and experts should be appointed to tribunals. Tribunals should also be subject to the supervisory jurisdiction of the High Court.

M. Nagaraj & Others vs Union Of India & Others, 2007

Facts

Several writ petitions were filed against The Constitution (Eighty-fifth Amendment) Act, 2001.

Arguments of the Petitioners

• The petitioners sought to quash the amendment Act with regards to Article 16(4A) (reservation in promotion with consequential seniority), arguing that it violates the basic structure and is unconstitutional.
• They contended that the Article reverses the decisions of various previous cases, which amounts to acting like a judiciary body, violating the Basic Structure.
• The amendment alters the fundamental right of equality by attaching "consequential senior" to "accelerated promotion" under Article 16(1), violating Article 14 (equality before the law).
• Adding the clause "consequential senior" impairs efficiency.
• The petitioners also questioned The Constitution (Seventy-Seventh Amendment) Act, 1995, arguing that it gives unprecedented advantages to roster point promotees.

Issue

The issue was the constitutionality of the Constitution (Eighty-fifth Amendment) Act, 2001.

Held

The amendments to Article 16 were considered valid and did not alter the structure of Article 16.

I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors, 2007

Facts

• The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari), Act, 1969, and Section 2(c) of the West Bengal Land Holding Revenue Act, 1979, were struck down by the court as they were not considered forms of agrarian reform protected by Article 31-A.
• Subsequently, these Acts were inserted into the ninth schedule of the Constitution through amendments: The Constitution (Thirty-Fourth Amendment) Act and The Constitution (Sixty-Sixth Amendment) Act.

Contentions of the Petitioners

• The petitioners argued that inserting provisions ruled unconstitutional into the ninth schedule is against the principle of judicial review, a basic feature of the constitution.
• Inserting an Act that violates an individual's fundamental rights into the ninth schedule is also against the Basic Structure of the Constitution.

Issues

• Can the Ninth Schedule be immune to judicial review by the Supreme Court?
• Does judicial review of Ninth Schedule laws include applying the basic structure test based on fundamental rights?

Held

Issue 1 - Judicial Review:

• The court ruled that the Ninth Schedule cannot be immune to judicial review, and every Act inserted in it must pass the test of fundamental rights. If an Act in the Ninth Schedule is found to violate fundamental rights, it will be considered invalid.
• The court cited the Kesavananda Bharati case, which emphasized that Parliament does not have the power to make laws that transgress fundamental rights as it would violate the Basic Structure of the Constitution.
• Amendments to Article 368 cannot allow Acts violating the Basic Structure to be included in the Ninth Schedule.

Issue 2 - Judicial Review as a Basic Structure:

• The court held that judicial review of the Ninth Schedule, along with the fundamental rights, is part of the Basic Structure of the Constitution.
• Citing the Kesavananda Bharati case, the court stated that all sections of the constitution are open to amendment except the contours of the Basic Structure, which includes judicial review.
• Including an Act in the Ninth Schedule does not exempt it from the court's scrutiny. If an Act in the Ninth Schedule fails the Basic Structure test, it will be declared void to prevent Parliamentary Totalitarianism.
• The test evaluates the impact and effect of the law (pith and substance) rather than the law itself.
• The court stressed that principles of fundamental rights should not be violated by laws in the Ninth Schedule, as these rights hold a special place in the constitution.

Constitutional Amendments in 2019:

• 103rd Amendment: Added Clause (6) to Article 15 and Clause (6) to Article 16, allowing individuals from economically weaker sections to seek reservation in educational institutions, including private institutions, notwithstanding minority institutions. Also established reservation for economically weaker sections in government posts.
• 104th Amendment: Amended Article 334, abolished Legislative councils in certain states, introduced dual citizenship for Indian origin individuals outside the country, provided quotas for educationally backward classes, and established quotas for religious minorities in government service.

Conclusion

The article highlights the importance of the Basic Structure of the Constitution and its protection from undue amendments.
It acknowledges that while the constitution allows for amendments, they should not be misused, as this could result in an excessive concentration of power in the legislative or executive branches, which would harm the democratic fabric of the country.