DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., INDIA

AMENDMENTS TO CONSTITUTION OF INDIA AND THEIR EFFECTS ON

THEIR SOCIETY

Constitutional Law - II

Dr P Subhakar Reddy

\

Rishabh Singh

201290, VIth Semester

1

TABLE OF CASES

Golak Nath v. State of Punjab, AIR (1967) SC 1643

Keshvananda Bharti v. State of Kerala, AIR (1973)SC1461

Minerva Mills lid. v. Union of India, AIR (1980) SC 1789

Gupta S.P. v. Union of India, AIR 1982 SC 149- 672

2

ABSTRACT

After the enactment of our constitution we have witnessed that it has been amended several

times due to a number of reasons. Times are not static they change and therefore the life of a

nation is dynamic, living and organic its political social and economic condition change

continuously social mores and ideals change from time to time creating new problems and

altering the complexion of the old ones. It is therefore, quite possible that a constitution

drafted in one era and in a particular context, may be found inadequate in another era and

another context. The ideas upon which a constitution is based in one generation may be

spurned as old fashioned in the next generation It thus becomes necessary to have some

machinery, some process with contemporary national needs. The amending provision in a

constitution is of great importance as it enables the country to develop peacefully, the

alternative to which may be stagnation and revolution. The modes of adopting the

constitution to new circumstances may either be informal or formal. Informal methods are

judicial interpretation and conventions; the formal method is the constituent process.

We have also witnessed that our constitution has been amended several times by politicians

due to their own political benefit, which may be not right for the democratic country like

India. Practically, every constitution has some formal methods for of constitutional

amendment. This consists of changing the language of a constitutional provision so as to

adapt it to the changed situation context of the social needs. In some process the process may

be easier than in others, and accordingly, the constitutions are sometimes classified into

flexible or rigid. Formal amendment is perhaps the most significant way of adapting the

constitution to changing circumstances.

3

TABLE OF CONTENTS

OBJECTIVES 5

SIGNIFICANCE AND SCOPE OF THE STUDY 5

REVIEW OF THE LITERATURE 5

RESEARCH METHODOLOGY 5

HYPOTHESIS 5

INTRODUCTION 6

METHOD OF AMENDMENT 6

1. FORMAL

2. INFORMAL

AMENDABILITY OF THE INDIAN CONSTITUTION 8

1. CASE BY CASE DEVELOPMENTS

AMENDMENT OF ARTICLE 368 – 24TH AMENDMENT 8

LATER DEVELOPMENT 13

BASIC FEATURE OF THE CONSTITUTION 16

SOME IMPORTANT AMENDMENT 18

1. 43RD AND 44TH AMENDMENT

CONCLUSION 19

BIBLIOGRAPHY 20

4

OBJECTIVES

To analyse the effect of amendments in the Indian constitution..

To compare the Indian provision with the laws of another country.

To analyse applicability of amended laws in the constitutional structure.

To analyse certain decided cases for proper understanding.

To suggest reforms to the existing laws.

SIGNIFICANCE AND SCOPE OF THE STUDY

There are several branches of the science of law. The constitutional Law is an old branch of the

science of law. As we know that Indian constitution is made after taking consideration of various

constitutions around the world. Our constitution is flexible in nature with a lot of amendments made

till date. In this research project many untouched aspects of our constitution is being taken into

consideration and their effect on the society is being properly discussed. With the help of this project

the amendments made in constitution are properly studies and analysed to bring out the untouched

aspect of amendments. The effect of these amendments on the society is properly dealt and analysed.

REVIEW OF THE LITERATURE

The completion of this research paper has required collection of relevant information through

a number of law journals, books by renowned authors on constitutional law and several

websites. Since the amendment of the constitution is not a new concept, a plethora of

information can be found very easily.

RESEARCH METHODOLOGY

This project report is based on analytical and descriptive Research Methodology. Secondary and

Electronic resources have been largely used to gather information and data about the topic. Books

and other reference as guided by Faculty have been primarily helpful in giving this project a firm

structure. Websites, dictionaries and articles have also been referred.

HYPOTHESIS

Constitutional law, though being a Grundnorm of many laws, cannot be said to be serving the

intended purpose due to several reasons. There have been many amendments and the original letters

of the constitution has changed with the changing society.

5

INTRODUCTION

Times are not static they change and therefore the life of a nation is dynamic, living and

organic its political social and economic condition change continuously social mores and

ideals change from time to time creating new problems and altering the complexion of the old

ones. It is therefore, quite possible that a constitution drafted in one era and in a particular

context, may be found inadequate in another era and another context. The ideas upon which a

constitution is based in one generation may be spurned as old fashioned in the next

generation It thus becomes necessary to have some machinery, some process with

contemporary national needs. The amending provision in a constitution is of great importance

as it enables the country to develop peacefully, the alternative to which may be stagnation

and revolution. The modes of adopting the constitution to new circumstances may either be

informal or formal. Informal methods are judicial interpretation and conventions; the formal

method is the constituent process.

METHOD OF AMENDMENT

JUDICIAL INTERPRETATION (INFORMAL METHOD)

In this case, the constitutional text does not change, but its interpretation undergoes a

change.1 The words in the constitution having one meaning in context may be given

somewhat different meaning in another context. ‘ while the language of the constitution does

not change, the changing circumstances of a progressive society for which it was designed

yield new fuller import to its meaning.2

This process of slow and gradual metamorphosis of constitutional principles and is somewhat

invisible for the change has to be deciphered by an analysis of judicial precedents. In this

process the courts plays an important role, for it is their function to interpret the constitution.

The process is slow for it develops from case to case over a length of time and it may take

long for a view to crystallize. It is also somewhat haphazard because the courts do not take

the initiatives; they interpret the only when question is raised before them and the course of

interpretation depends on the nature of the cases and the constitutional controversies which

are presented to the courts for adjudication. The best example where this process has been

1 Constitutional Interpretation, ch.33; Wheare, Modern Constitution, 146-77(1964) 2 Justices Black and Frankfurter, Conflict in the Court, 57.

6

effectively for adaptation of the constitution is the United States where the Supreme Courts

has from time to time given a new meaning to phrases and words in the constitution so as to

make the 18th century, laissez faire era, document subserve the needs of a vast, expanding and

highly industrialized civilization of the twentieth century without many formal amendments

being effectuated in its text. To a limited extent, in Canada and Australia also, the judiciary

has adapted the constitution to changing circumstances.3

This process is in progress in India as well. The Supreme Court by holding that it can

reconsider its decisions from time to time has kept the way open for adjustment in

constitutional interpretation so as to adapt the Indian constitution to new situation.4

Conventions and Constitutional Usages

The operation of constitutional provisions may be modified by the growth of conventions,

practices and observances. This is another process of slow metamorphosis, of imperceptible

change where the constitutional texts retains its original form and phraseology, where there is

no visible modification on the face, but where, underneath the surface, a change has come

about so far as the working and operation of the provisions is concerned. Conventions operate

in different ways. One, a convention may nullify a constitutional provision without formally

abolishing it. Two, a convention may work by transferring powers granted to one authority in

the constitution to another.

The Indian constitution is very detailed and comprehensive. Some of the conventions of the

British Constitution have been expressly incorporated in the text of the constitution. Still

there remains a cope for the growth of conventions.

FORMAL METHOD

Practically, every constitution has some formal methods for of constitutional amendment.

This consists of changing the language of a constitutional provision so as to adapt it to the

changed situation context of the social needs. In some process the process may be easier than

in others, and accordingly, the constitutions are sometimes classified into flexible or rigid.

Formal amendment is perhaps the most significant way of adapting the constitution to

changing circumstances. The judicial interpretation may help to some extent in this respect

but it cannot change the wordings of the basic law and certain desired changes may not be

3 For the working of the judicial process in the area of legislative powers, see supra 287-93.Also see supra, ch.334 Supra,866.

7

attainable without verbal changes in the constitutional text. A formal amending process is as

important as the process of constitution- making and so it may rightly be charaterised as the

constituent process. In the ultimate analysis, however, the process of constitutional

amendment should neither be too rigid nor be too flexible. In the formal case, the constitution

may lag behind the societal needs; in the latter case, constitutional safeguards may be

weakened by too frequent amendments.

The formal procedure to amend some foreign federal constitutions is as follows-

(i) U.S.A

(ii) Canada

(iii) Australia

AMENDABILITY OF THE INDIAN CONSTITUTION

Since 1951, questions have been raised about the scope of the constitutional amending

process contained in article 368. The basic question raised has been whether the fundamental

right where amendable so as to dilute or to take away fundamental right through

constitutional amendment? Since 1951 a no. of amendment has been effectuated in the

fundamental right the cumulative effect of these amendments has been to curtail, to some

extent, the scope of some of these rights the worst affected fundamental right has been the

right to property contained in article 31 which has been amended several times, the basic

trends of this amendments has been to immunise to some extent state interference with the

property right from challenge under article 14, 19 and 31 as well as to seek to exclude the

question of compensation for acquisition by the state.

CASE BY CASE DEVELOPMENTS

Shankari Prasad singh

Sajjan singh

golak nath

AMENDMENT OF ARTICLE 368 – 24TH AMENDMENT

A. Until the case of Golak Nath5, the Supreme Court bad been holding that no part of our

Constitution was unamendable and that Parliament might, by passing a Constitution

5 Golak Nath v. State of Punjab, AIR (1967) SC 1643

8

Amendment amendable? Act, in compliance with the requirements of Art. 368 amend any

provision of the Constitution, including the Fundamental Rights and Art 368 itself. It was

held that ‘law’ in Art. 13(2) referred to ordinary legislation made by Parliament as a

legislative body and would not include an amendment of the Constitution which was passed

by the parliament in its constituent capacity.

B. But, in Golak Nath’s case, a majority of six Judges in a special Bench of eleven overruled

the previous decisions and took the view that though there no express exception from the

ambit of Art. 368, the Fundamental Right included in Part III of the Constitution cannot, by

their very nature, be subject of the process of amendment provided for in Art. 368 and that if

any of such rights is to be amended, a new Constituent Assembly must be convened for

making a new Constitution or radically changing it.

The majority, in Golak Nat case, rested its conclusion on the view that Golak Nath. The

power to amend the Constitution was also a legislative power conferred by Art. 245 by the

Constitution, so that a constitution Amendment Act was also a ‘law’ within the purview of

Art 13(2).

C. After the Golak Nath6 decision, Parliament sought to supersede it by mending Art. 368

itself, by the Constitution (24th Amendment) Act, 1971, as result of which an amendment of

the Constitution passed in accordance with rt. 368, will not be ‘law’ within the meaning of

Art. 13 and the validity of a Constitution Amendment Act shall not be open to question on the

ground that t takes away or affects a fundamental right [368(3)]. Even after this specific

amendment of the Constitution, the controversy before the Supreme Court did not cease

because the validity of the 24th Constitution Amendment set itself was challenged in a case

from Kerala, Keshvananda v. State of Kerala which was heard by a Full Bench of 13 Judges.

With differences on various points in the concurring judgments, the majority of the Full court

upheld the validity of the 24th Amendment and) overruled the case of Golak Nath.

The question has thus been settled in favor of the view that a Constitution Amendment Act,

passed by Parliament, is not ‘law’ within the meaning of Art. 13. The majority, in

Kesavananda’s case7, upheld the validity of Cl. (4) of Art. 13, which had been inserted the

Constitution (24th Amendment) Act, 1971, and reads as follows:

6 ibid7 Keshvananda Bharti v. State of Kerala,AIR (1973)SC1461

9

“Nothing in this article (i.e., article 13), shall apply to any amendment made under Article

368.”

In the result, fundamental rights in India can be amended by an Act passed under Art. 368

and the validity of a Constitution Amending Act cannot be questioned on the ground that that

Act invades or encroaches upon any Fundamental Right.

D. Another question which has been mooted since the case of Golak Nath is, whether, outside

Part III (Fundamental Rights8), there is any other provision of the constitution of India which

is immune from the process of amendment in Art. 368. Though the majority in

Kesavananda’s case has overturned the majority view in Golak Nath that Fundamental Rights

cannot be amended under Art. 368, it has affirmed another proposition asserted by the

majority in Golak Nath’s case, namely, that—

(i) There are certain basic features of the Constitution of India, which cannot be altered in

exercise of the power to amend it, ‘Basic Features’ of under Art. 368. If, therefore, a

Constitution Amendment the Constitution not amendable Act seeks to alter the basic structure

or framework of the Constitution, the Court would be entitled to annul it on the ground of

ultra vires, because the word ‘amend’, in Art. 368, means only changes other than altering the

very structure of the Constitution, which would be tantamount to making a new Constitution.

(ii) These basic features, without being exhaustive, are—sovereignty and territorial integrity

of India, the federal system, judicial review, Parliamentary system of government.

(iii) Applying this doctrine that judicial review is a basic feature of the Constitution of India,

the majority in Keshvananda held the second part of s. 3 of the Constitution (25th

Amendment) Act, 1971, relating to Mt. 31C, as invalid. The portion so invalidated read—

“and no law containing a declaration that it is for giving effect to such policy shall be called

in question in any Court on the ground that it does not give effect to such policy”. Article

31C, which was introduced by s. 3 of the 25th Amendment Act (pp. 119—20, ante), provided

—(a) that if any law seeks to implement the Directive Principle contained in Art. 39(b)-(c),

i.e., regarding socialistic control and distribution of the material resources of the country,

such law shall not be void on the ground of contravention of Art. 14, 19 or 31; (b) it further

provided that if anybody challenges the constitutionality of any such law, the Court would be

precluded from entering even into the preliminary question, namely, whether such law is, in

8 Part III of the Indian Constitution of India

10

fact, a law, ‘giving effect to’ Art. 39(b) or (c), if on the face of the Act, there was a

declaration of the Legislature that it is for giving effect to such Directive policy. In other

words, by adding a declaration to an Act, the Legislature was empowered by the 25th

Constitution Amendment Act, to deprive the Courts of their power to determine the validity

of the Act on the ground that it contravened some provision of the Constitution. The majority

held that Art. 368 did not confer any such power to take away judicial review, in the name of

‘amending’ the Constitution.

The foregoing view of the majority in Keshvananda ‘s case9 as to ‘basic features’ is debatable

inasmuch as there is no express limitation upon the amending power conferred by Art. 368

(1). If it is supposed that there are some implied limitations, it is difficult to appreciate how

the Court, after holding that the Fundamental Rights did not constitute such inviolable part of

the Constitution,

Could come to the conclusion that judicial review, which is an adjunct of Fundamental

Rights, could be so considered. It would, therefore, be no wonder if another Full Bench of the

Supreme Court comes to overturn this view in Keshvananda case, on the grounds.

(i) That Art. 368(1), as it stands amended in 1971, makes it clear that not only the procedure,

but also the ‘power’ to amend the Constitution is conferred by Art. 368 itself and cannot be

derived from somewhere else, such as Art. 245. Hence, the limitations, if any, upon the

amending power must be found from Art. 368 itself and not from any theory of in limitations;

(ii) That the word ‘repeal’ in Art. 368(1) also makes it clear that ‘amendment’, under Art.

368, includes a repeal of any of its provisions, including any supposed ‘basic’ or ‘essential’

provision;

(iii) that the Constitution of India makes no distinction between ‘amendment’ and ‘total

revision’, as do some other Constitutions, such as the Swiss. Hence, there is no bar to change

the whole Constitution, in exercise of the amending power, which is described as the

‘constituent power’ [368(1)] and that, accordingly, it would not be necessary to convene a

Constituent Assembly to revise the Constitution in toto. The Indira Government sought to

arrest these implications of Keshvananda the 42nd Amendment. Keshvananda, and cut the

fetters sought to be imposed on the Sovereignty of Parliament (as a constituent body), by

inserting two Cls. (4)—(5) in Art. 368, by the 42nd Amendment Act, 1976.6 Clause (5)

9 Keshvananda Bharti v. State of Kerala,AIR (1973)SC1461

11

declares that “there shall be no limitation” “on the constituent power of Parliament to amend”

the provisions of this Constitution and that at any rate, the validity of no Constitution

Amendment Act “shall be called in question in any court on any ground” [ (4)].

The foregoing attempt to preclude judicial review of Constitution Amending Acts has,

however, been nullified by the Supreme Court, by striking down Cls. (4)— (5) As inserted in

Art. 368 by the 42nd Amendment Act, by its decision in the Minerva Mills case, on the

ground that judicial review is a ‘basic feature’ of the Indian Constitutional system which

cannot be taken away even by amending the Constitution.

So far, the decision in Keshvananda has been followed in subsequent cases by the Supreme

Court. As a result, Art. 368, as so interpreted by the highest Court, would lead to the

following propositions:

(i) Any part of the Constitution may be amended after complying with the procedure laid

down in Art. 368.

(ii) No referendum or reference to Constituent Art. 368 as interpreted by the Supreme Court.

Assembly would be required to amend any provision of the Constitution.

(iii) But no provision of the constitution or any part thereof can be amended if it takes away

or destroys any of the ‘basic features’ of the Constitution. Thus, apart from the procedural

limitation expressly lay down in Art. 368, substantive limitation founded on the doctrine of

‘basic features’, has been introduced into our Constitution, by judicial innovation.

The Supreme Court has refused to foreclose its list of ‘basic features’. List of basic features.

From the various decisions so far, the following list may be drawn up

(a) Supremacy of the Constitution.

(b) Rule of law.

(c) The principle of Separation of Powers.

(d) The objectives specified in the Preamble to the Constitution.

(e) Judicial review; Art. 32.

(f) Federalism,Secularism.

12

(g) The sovereign, democratic, republican structure.

(h) Freedom and dignity of the individual.

(i) Unity and integrity of the Nation.

(j) The principle of equality.

(k) The ‘essence’ of other Fundamental Rights in Part III

(l) The concept of social and economic justice—to build a welfare State; Part IV in toto.

(m) The balance between Fundamental Rights and Directive Principles.

(n) The Parliamentary system of government

(o) The principle of free and fair elections.

(p) Limitations upon the amending power conferred by Art. 368.

(q) Independence of the Judiciary and effective access to justice.

LATER DEVELOPMENTS

(a) MINERVA MILLS

In Minerva Mills v. Union of India10, the scope and extent of the doctrine of basic structure

was again considered by the Supreme Court. The Court again reiterated the doctrine that

under Art. 368, Parliament cannot so amend the Constitution as to damage the basic or

essential features of the Constitution and destroy its basic structure.

In the instant case, the petition was filed in the Supreme Court challenging the taking over of

the management of the mill under the Sick Textile Undertaking (Nationalization) Act, 1974,

and an order made under s. 18-A of the Industrial (Development and Regulation) Act, 1951.

The petition challenged the constitutional validity of clauses (4) and (5) of Art. 368,

introduced by Section 55 of the 42nd Amendment. If these clauses were held valid then the

petitioners could not challenge the validity of the 39th Amendment which had placed the

Nationalization Act, 1974, in the Schedule.

10 Minerva Mills lid. v. Union of India AIR (1980) SC 1789

13

As already noted, S. 55 of the Constitution (Forty-second Amendment) Act, 1976, inserted

sub-sections (4) and (5) in Art. 368. In Minerva, this section was held to be beyond the

amending power of the Parliament and void since it sought to remove all limitations on the

power of Parliament to amend the Constitution and confer a power on Parliament to amend

the Constitution so as to damage or destroy its basic or essential features or its basic

structures. The true object of these clauses was to remove the limitations imp on Parliament’s

power to amend the Constitution through the Keshvananda case.

The newly introduced clause 4 in Art 368 sought to deprive the courts of their power to call

in question any amendment of the Constitution.” The Court stated in this connection:

Our Constitution is founded on a nice balance of power among the three wings of the state,

namely, the Executive, the Legislature and the Judiciary. It is the function of the Judges, nay

their duty, to pronounce upon the validity of laws.

Depriving the courts of the power of judicial review will mean making Fundamental Rights

“a mere adornment,” as they will be rights without remedies. A ‘con trolled Constitution will

become ‘uncontrolled’.

The newly added Cl. 5 of Art. 368 sought to demolish the v pillars on which the preamble

rests by empowering the Parliament to exercise its constituent power with out any limitation

whatever. The clause even empowered Parliament to “repeal the provisions of the

Constitution.” Parliament can thus abrogate democracy and substitute for it a totally

antithetical form of government. That can most effectively be achieved, without calling a

democracy by any other name, by a total denial of social, economic and politic justice to the

people, by emasculating liberty of thought, expression, belief, faith and worship and by

abjuring commitment to the magnificent ideal of a society of equals.

“The power to destroy is not a power to amend.” The Constitution confers only a limited

power on Parliament to amend the Constitution; Parliament cannot therefore by exercising

that limited power enlarge that very power into an absolute power. “The donee of a limited

power cannot by the exercise of that power convert the limited power into an unlimited one.”

A limited amending power is indeed one of the basic features of the Constitution. Therefore,

the limitations on that power cannot be destroyed. In other words, Parliament cannot, under

Art. 368 expand its amending power so as to acquire for itself the right to repeal or abrogate

the Constitution or to destroy its basic and essential features.

14

The 42nd Amendment also amended the Preamble. By this Amendment, the ‘sovereign

democratic republic’ becomes a ‘sovereign socialist secular democratic re public’ and the

resolution to promote the ‘unity of the nation was elevated into a promise to promote the

‘unity and integrity of the nation’. ‘No exception could be taken to this Amendment, as it

furnishes “the most eloquent example of how the amending power can be exercised

consistently with the creed of the Constitution”. This amendment offers “promise of more”; it

does not “scuttle a precious heritage.”

S. 4 of the 42nd Amendment amended Art. 31C as well. As stated, the unamended Art. 31C

was upheld in Keshvananda up to an extent. To that extent, Art. 31C would remain valid. But

the new amendment vastly expanded the scope of Art. 31CM, and this extension was now

declared to be invalid as being beyond the amending power of Parliament since it destroyed

the basic or essential features of the Constitution, insofar as it totally excluded a challenge in

a court to any law on the ground that it was inconsistent with, or took away or abridged any

of the rights conferred by, Art. 14 or 19, if the law was for effectuating any of the Directive

Principles.

Under the amended Art. 31C, the court would first determine whether there is a “real and

substantial connection” between the law and a Directive Principle and that the predominant

object of the law is to give effect to such Directive Principle. If the an swear to this question

turns out to be ‘yes’, the court would then consider which pro visions of the law are basically

and essentially necessary for effectuating the directive principles and only such provisions

would be protected under Art. 31C. If the court finds that a particular provision is subsidiary

or incidental or not essentially and integrally connected with the implementation of the

Directive Principle or is of such a nature that though seemingly a part of the general design of

the main provisions of the statute, its dominant objective is to achieve an unauthorized

purpose, it would not be protected under Art. 31C. In this formulation, the court would have

discharged a much more overt policy-making role which the courts do not usually relish.

(b) WAMAN RAO

In the instant case, the Supreme Court considered the constitutional validity of the

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The Act imposed ceiling or

agricultural holdings in the State. As the Act had been placed in the IX Schedule, 2 the

constitutional validity of Arts. 31A, 31B and the unamended Art. 31C (as it existed before the

15

42nd Amendment) was also challenged on the ground of damaging the “basic structure” of

the Constitution.

The First and the Fourth Amendments, according to the Court, “were made so closely on the

heels of the Constitution thus they ought indeed to be considered as a part and of the

Constitution These Amendments were passed to effectuate. Art. 39 clauses (b) and (c). The

Court concluded that the First and Fourth Amendments strengthened rather than weakened

the basic structure of the Constitution. They made the ideal of equal justice a living truth. The

First Amendment aimed at removing social and economic disparities and it therefore did not

damage or destroy the basic structure of the Constitution.

Art. 31B contains a device for saving laws from challenge on the ground of violation of

Fundamental Rights. Art. 31B is to be read along with the Ninth Schedule. Art. 13(2) of the

Constitution invalidate a law inconsistent with a Fundamental Right. Art. 31B extends a

protective umbrella to such a law if it is included in the IX Schedule. Art. 31B is, in

substance and reality, a constitutional device employed to protect State laws from being

declared void under Art. 13(2). Parliament can insert a State Law in Schedule IX by passing a

constitutional amendment under Art. 368.

BASIC STRUCTURE—MEANING

The theory of basic structure is based on the principle that changes in a thing does not involve

its destruction and destruction of a thing is a matter of substance d not of form. The concept

of a basic structure giving coherence and durability a Constitution has a certain intrinsic

force. This doctrine has essentially developed from the German Constitution. This

development is the emergence of constitutional principles in their own right. It is not based

on literal wordings.

The basic structure doctrine can be traced to a distinguished German jurist professor Dieter

Conrad. A paper based on a lecture delivered by him on “tin- led Limitations of the

Amending Power” to the Law Faculty of the Banaras Hindu University in 1965, first inspired

M.K. Nambiyar, one of India’s leading )Institutional lawyers, to advance an argument on the

subject at the Bar. Professor Conrad, in his lecture in 1965, observed that the position of the

Supreme Court in India was perhaps influenced by the fact that it had not, at that point of

new, been confronted with any extreme type of constitutional amendments. Professor

Conrad’s view that such extreme cases of conflict were much more than a ere hypothesis for

16

an academic debate, could perhaps be attributed to the experiment for a fascinating account

of this case11,

The final result of Keshvananda Bharatj’s case12 was that the Constitution could be amended

without altering its basic structure, The Court did not precisely de fine this term; indeed, it

would have been impossible to do so. Thus, there is no uniform indication of the scope of this

expression even in the majority verdict. Mr. N.A. Palkhivaja, arguing for the petitioners,

submitted that the Constitution had twelve essential features and these have been reproduced

in the judgment of Justice A.N. Ray:—

(I) The supremacy of the Constitution;

(2) The sovereignty of India;

(3) The integrity of the country;

(4) The democratic way of life;

(5) The republican form of Government;

(6) The guarantee of basic human rights elaborated in Part 111 of the Constitution;

(7) A secular State;

(8) A free and independent judiciary

(9) The dual structure of the Union and the States;

(10) The balance between the legislature, the executive and the judiciary;

(11) A Parliamentary form of Government as distinct from the presidential form of

Government;

(12) Article 368 can be amended but cannot be amended to empower Parliament to alter or

destroy any of the essential features of the Constitution.

SOME IMPORTANT AMENDMENT11 see “Working a Democratic Constitution—The IndianExperience”. Oranville Austin, Oxford University Press, pp. 258-277; see also “Supreme Court in Quest of Identity’, Gobind Das. Eastern Boqk Company, 2nd Edn.. pp. 66-75. SCC I: The judgment ends at p.2055. The second longest reported judgment is Gupta S.P. v. Union of India. AIR 1982 SC 149- 672 : 1981 Supp SCC 87 (covering 523 pages). Kesawinanda Bharati : State of Kerala. AIR 1973 SC 1461, 1462 : ( 225 : 1973 )suppSCC I. 12 ibid

17

43RD AMENDMENT 1977

It received the Presidential assent on April 13, 1978. This Act repeals the obnoxious

provisions of the Constitution (42nd Amendment) Act passed during the Emergency. It

restores civil liberties by deleting Article 3ID which gave powers to Parliament to curtail

even legitimate TRADE union activity under the guise of legislation for the prevention of

anti-national activities. The new law, which was ratified by more than half of the States in

accordance with the Constitution, also restores legislative powers to the States to make

appropriate provision for anti-national activities consistent with the Fundamental Rights.

Under the Act, the judiciary has also been restored to its rightful place. The Supreme Court

will now have power to invalidate State laws, a power taken away by the 42nd Amendment

Act. The High Courts will also be able to go into the question of constitutional validity of

Central laws thereby enabling persons living in distant places to obtain speedy justice without

having to come to the Supreme Court.

44TH AMENDMENT 1978

The Constitution (45 th Amendment) Bill, re-numbered as the 44th Amendment came into

force on April 30, 1979, when the President gave his assent. The Act removes major

distortions in the Constitution introduced during the Emergency. The duration of the Lok

Sabha and State Legislative Assemblies has been reduced from six to five years—the normal

term which was extended during the Emergency under the 42nd Amendment to achieve some

political purposes. The Right to Property ceases to be a Fundamental Right and becomes only

a legal right according to the Constitution 44th Amendment. The Act also extends, for the

first time since independence, constitutional protection for publication of the proceedings of

Parliament and State Legislatures, except in cases where it is proved to be “malicious”.

Another important feature of the Act is that any proclamation of Emergency need

henceforward, be issued by the President only after receiving the advice of the Cabinet as a

whole in writing. The President will not be called upon to act on the basis of advice by the

Prime Minister on his own without consulting his Cabinet. Other safeguards provide that the

proclamation will have to be adopted by a two-thirds majority of the members of both Houses

of Parliament within a month. It contains provisions which are designed to make it

impossible to impose the kind of emergency the country had experienced for 19 months.

CONCLUSION

18

It is evident that, instead of being rigid, as some critics supposed during the early days of the

Constitution,” the procedure for amendment has rather proved to be too flexible in view of

the ease with which as many as 77 amendments have been made during the first 45 years of

the working of the Constitution. So long as the Party in power at the Centre an has a solid

majority in Parliament and in more than half of the State Legislatures, the apprehension of

impartial observers should be not as to the difficulty of amendment but as to the possibility of

its being used too often either to achieve political purposes or to get rid of judicial decisions’

which may appear to be unwholesome to the party in power. Judges may, of course, err but,

as has already been demonstrated, even the highest tribunal is likely to change its views in the

light of further experience.’ In the absence of serious repercussions or emergent

circumstances or a special contingency (e.g., to admit Sikkim—by the 35th and 36th

Amendments), therefore, the process of constitutional amendment should not be resorted to

for the purpose of overriding unwelcome judicial verdicts so often as would generate in the

minds of the lay public an irreverence for the Judiciary,—thus shaking the very foundation of

constitutional government.

BIBLIOGRAPHY

19

Books referred

M P Jain, Indian Constitutional Law, Lexis Nexis, 6th Edition.

Dr. J.N.Pandey, Constitutional Law of India, Central Law Agency, 51st Edition.

Bare act

The Constitution of India, Universal Law Publishing co. Pvt.Ltd

Websites referred

http://pgil.pk/wp-content, accessed on 13th October,2014

http://www.lawteacher.net/constitutional-law/essays, accessed on 14th October

http://www.importantindia.com, accessed on 15th October, 2014

20