Amendment to the Indian Constitution And Fundamental Rights-How its Done?

Synopsis

1. Introduction
2. Procedure for amendment

III. Amenability of Fundamental Rights

1. Introduction

The Constitution of India (hereinafter referred to as “Constitution“) is the country’s fundamental governing document which specifies the framework according to which Indian polity has to operate. It came into effect on January 26, 1950. It is the longest written constitution of an independent nation. It is superior to all other laws of India and any law enacted by the Indian government has to be in conformity with the Constitution.

Since the constitution of any country has to be dynamic to adopt to the changing needs of the society, the draftsmen of the Constitution made provision for amendment of the Constitution by the legislature, as and when needed. The Central and State legislature of India must follow the procedure prescribed in the Constitution for its amendment else the amendment shall be considered as invalid.

This article briefly discusses the procedure for the amendment to the Indian Constitution and also discusses the position of law on the amenability of fundamental rights guaranteed under the Constitution to Indian citizens.

1. Procedure for amendment

The methods of the amendment to the Constitution can be classified as formal and informal methods of amendment. The informal method does not involve any change in the letter of the law but only its meaning or interpretation changes. The informal method involves amendment by changing a well-established convention or changing the interpretation of the provisions of the Constitution.

For instance, Article 124(2) of the Constitution deals with the appointment of Chief Justice of India to the Supreme Court. From 1950 till 1973, as a matter of practice, the senior most judge of the Supreme Court was appointed as the Chief Justice of India but on April 25, 1973, for the first time, Justice A.N. Ray was appointed as the Chief Justice in supersession to three-senior most judges. Thus, the well-established convention of appointing the senior-most judge as Chief Justice was not followed in this case. In 1977 also, the convention was breached when Justice M.H. Beg was appointed as Chief Justice by superseding Justice H.R. Khanna.

On the other hand, the formal method of the amendment involves a change in the written provisions of the Constitution by way of addition, modification or deletion. Article 368 of the Constitution prescribes the process for amendment of the provisions contained in the Constitution. Article 368(2) prescribes the general procedure for amendment as follows:

• the amendment has to be initiated by the introduction of a Bill, for affecting the amendment, in either House of the Parliament (i.e. either in Lok Sabha or Rajya Sabha);
• After step (1), the Bill must be passed in each House by a simple majority of total membership of the House and by atleast two-third majority of the members of the House who are present and voting;
• After being passed by each House of the Parliament as per step (2), the Bill has to be presented to the President of India for his/her assent; and,
• Once the Bill has been assented by the President, the Constitution shall stand amended in accordance with the terms of the Bill.

While Article 368(2) prescribes the general procedure for amendment, certain provisions of the Constitution require ratification by State legislature of atleast half of the total number of States in India in addition to being passed by the Parliament as per step (2) above. Such ratification must be obtained before the concerned Bill is presented to the President for his/her assent. These provisions pertain to the federal structure of the Constitution and the powers and authorities of the Indian States. The proviso to Article 368(2) of the Constitution specifies the following provisions as requiring such ratification by the States:

• Articles 54 and 55 which relate to election of the President;
• Articles 73 and 162 which deal with the executive power of the Union and the States respectively;
• Articles 124 to 147, contained in Chapter IV of Part V of the Constitution, which deal with constitution, power and jurisdiction of the Supreme Court of India;
• Articles 214 to 231, contained in Chapter V of Part VI of the Constitution, which deal with constitution, power and jurisdiction of High Courts situated in the various Indian States;
• Article 241 dealing with High Courts constituted in different union territories of India;
• any of the lists contained in Seventh Schedule to the Constitution which prescribe the legislative power of the Parliament and the State legislatures;
• provisions relating to representation of States in the Parliament; and,
• Article 368 itself.

It is noteworthy that amendment of the prescribed procedure for amendment i.e. Article 368 can also be carried out only with the approval of the specified majority of each House of the Parliament and ratification by legislature of atleast half of the Indian States.

III. Amenability of Fundamental Rights

Under Part III of the Constitution, certain basic rights have been provided to Indian citizens which are called fundamental rights. These rights include right to equal treatment before the law, right to life and personal liberty, right to education etc. and have been recognized as extremely essential for development of personality of every individual and preserving human dignity. Violation of these rights entitles the aggrieved citizen to approach the High Court or Supreme Court of India under Articles 226 and 32 respectively of the Constitution for enforcement of fundamental rights.

The question as to whether fundamental rights provided under the Constitution can be amended under Article 368 has been a topic of debate for the Indian courts. Article 13(2) of the Constitution prohibits the enactment of any law which takes away or abridges the fundamental rights guaranteed under Part III of the Constitution.

The question whether an amendment to the Constitution can be considered as a “law” within the meaning of Article 13(2) was considered by the Supreme Court of India in the case of Shankari Prasad vs. Union of India, AIR 1951 SC 458 wherein the Court held that an amendment affected under Article 368 of the Constitution is not a “‘law” within the meaning of Article 13(2) and therefore cannot be challenged on the ground of violation of Article 13(2). On this basis, insertion of Articles 31A and 31B in the Constitution, by the first amendment to the Constitution, was held as valid even though it adversely affected the fundamental rights guaranteed under Articles 14, 15 and 19.

In Sajjan Singh vs. State of Rajasthan, AIR 1965 SC 845, the validity of the 17th Constitutional Amendment Act, 1964 had been challenged on the ground that it curtailed the jurisdictional power of High Courts under Article 226 but had not been ratified by legislatures of half of Indian States in terms of proviso to Article 368(2). By a 3:2 majority, the Supreme Court held that the impugned amendment was valid as it did not purport to affect Article 226 of the Constitution and hence did not attract the requirement of being ratified by the Indian States in terms of proviso to Article 368(2).

Later in Golaknath vs. State of Punjab, AIR 1967 SC 1643, the Supreme Court overruled its earlier decisions in the cases of Shankari Prasad and Sajjan Singh, discussed above, while holding that an amendment under Article 368 of the Constitution would be treated as a law under Article 13(2) so no such amendment could be allowed to take away the fundamental rights guaranteed under the Constitution.

In order to nullify the effect of the Golaknath case, the Parliament sought to insert Article 13(4) in the Constitution, by the Constitution (Twenty-fourth) Amendment Act, 1971, providing that “Nothing in this article shall apply to any amendment of this Constitution made under Article 368“. The 24th amendment was challenged in the case of Keshavananda Bharti vs. State of Kerala, AIR 1973 SC 1461. While overruling its earlier judgment in the Golaknath case, the Supreme Court held that though the Parliament had the power to amend fundamental rights under Article 368, the amending power could not be used to take away those fundamental rights which form the basic structure of the Constitution.

In Minerva Mills vs. Union of India, AIR 1980 SC 1789, the constitutionality of the Constitution (forty-second) Amendment Act, 1976 had been challenged before the Supreme Court on the ground that it destroyed the basic structure of the Constitution. The Supreme Court held that amendment to be unconstitutional as it gave unbridled powers to the Parliament to amend the provisions of the Constitution and took away the power of courts to judicially review any amendment to the Constitution including an amendment to the fundamental rights provided therein. The power of judicial review was recognized to be a part of the basic structure of the Constitution.

In conclusion, it can be stated that the Parliament has a limited power to amend the Constitution and cannot take away, by a constitutional amendment, any fundamental right which forms part of the basic structure of the Constitution.