CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA

THE FINAL PROJECT PROJECT TOPIC AMENDMENT OF THE CONSTITUTION OF INDIA AND THE POLITICS BEHIND IT

SUBJECT- CONSTITUTIONAL LAW-II

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA

TABLE OF CONTENTS SERIAL NUMBER

1. 2. ACKNOWLEDGEMENT INTRODUCTION

CONTENTS IN DETAILS

3.

METHODS OF AMENDMENT

4.

ROLE OF CONVENTIONS AND USAGES

5.

INDIAN CONTEXT

6.

CASE BY CASE DEVELOPMENT

7.

MOST IMPOTANT CASES

8.

THE CONCEPT OF BASIC STRUCTURE

9.

IMPORTANT AMENDMENTS

10.

BASIC STRUCTURE.ILLUSTRATIVE EXAMPLES

11.

CONCLUSION

12.

BIBLIOGRAPHY

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA ACKNOWLEDGEMENT-

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA

INTRODUCTIONTimes 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. Judicial interpretationIn 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
1 2

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

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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 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 _

For the working of the judicial process in the area of legislative powers, see supra 287-93.Also see supra, ch.33 4 Supra,866.

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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 attainable without verbal changes in the constitutional text. A formal amending process is as

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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) (ii) (iii) U.S.A Canada Australia

INDIAN CONTEXT_
Nature of the amending process. The nature of the amending process envisaged by the makers of our Constitution can be best explained by referring to the observation of Pundit Nehru, that the constitution should not be so rigid that it cannot be adapted to the changing needs of national development and strength. There was also a political significance in adopting a facile procedure for amendment, namely, that any popular demand for changing the political system could be capable of realization, if it assented a considerable volume. In the words of Dr. Ambedkar, explaining the

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA proposals for amendment introduced by him in the Constituent Assembly. Those who are dissatisfied with the Constitution have only to obtain a two-thirds majority, and if they cannot obtain even a two-thirds majority in the Parliament elected on adult franchise in their favor, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.5 The framers of our Constitution were also inspired by the need for the sovereignty of the Parliament elected by universal suffrage to enable it to achieve a dynamic national progress. They, there fore, prescribed an easier mode for changing those provisions of the Constitution which did not primarily affect the federal system. This was done in two ways (a) By providing that the alteration of certain provisions of the constitution were not to be deemed to be amendment of the Constitution. The result is that such provisions can be altered by the Union Parliament in the ordinary process of legislation, that is, by a simple majority. (b) Procedure for Amendment. Other provisions of the Constitution can be changed only by the process of amendment which is prescribed in Art. 368. But a differentiation has been again made in the procedure for amendment, according to the nature of the provisions sought to be amended. There has been a historical controversy as to whether an amendment of the Constitution, made in the manner provided for under Art. 368 must have to conform to the requirements of Art. 13(2), as a law as
5

C.A.D., DATED 25-11-1949, PP. 225-26.

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA defined in Cl. (3) of Art. 13; or, in other words, whether a Constitution Amendment Act would he void if it seeks to take away or is inconsistent with a fundamental right enumerated in Part III of the Constitution.

368

[ Power of the Parliament to amend the Constitution and

7

procedure therefore] -

[(1) Notwithstanding anything in this

Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this constitution in accordance with the procedure laid down in this article.]
8

[(2)] An amendment of this constitution may be initiated only by the

introduction of the bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House of and by a majority of not less than twothirds of the members of that House present and voting, 9 [ it shall be presented to the Present who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill; Provided that if such amendment seeks to make any change in __ (a) article 54, article55, article 73, article 162 or article 241, or (b)Chapter IV of Part V, Chapter V of part IV, or Chapter I of Part IX,or (c) Any of this lists in the Seventh Schedule, or
6

Subs. by the constitution(Twenty- fourth Amendment) Act, 1971,sec.3, for Procedure for amendment of the constitution 7 Ins. by the Constitution (Twenty- fourth Amendment) Act, 1971,sec.3 8 Article 368 renumbered as clause (2) thereof by the Constitution (Twenty- fourth Amendment) Act, 1971,sec.3 9 Subs. by the Constitution (Twenty- fourth Amendment) Act, 1971, sec.3 for certain words.

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA (d)The representation of states in the States in Parliament ,or (e) The provisions of this article, the amendment shall also require to be ratified by the legislatures of not less than one half of the states
10

[***] resolution to that effect

passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent.
11

[(3) Nothing in article 13 shall apply to any amendment made under [(4) No amendment of this Constitution (including the provisions of

this article.]
12

the Part III) made or purporting to have been made under this article[whether before or after the commencement of section 55 of the Constitution (Forty Second Amendment) Act,1976 shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of the parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.] The phraseology of Article 368 has been amended twice since inauguration of the constitution of the constitution. However the basic features of the amending procedure have remained intact in spite of these changes. These are as follows13__ (a) An amendment of the constitution can be initiated only by introducing a bill for the purpose in either House of the parliament.
10

The words and letters specified in parts A and B of the first schedule omitted by the Constitution (Seventh Amendment) Act, 1971, sec.3 11 Ins. by the constitution(Twenty- fourth Amendment) Act, 1971,sec.3 12 Clause (4) and (5) ins. By the Constitution (Forty Second) Act, 1976, sec 55. 13 Indian Constitutional Law, M.P.Jain, Fourth Edition,Wadhwa Nagpur,

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA (b)After the Bill is passed by each House by a majority of its total membership, and majority of not less than two-thirds of the members of that House present and voting, and after receiving the assent of the president, the constitution stands amended in accordance with the terms of the Bill. (c) To amend certain constitutional provisions relating to its federal character, characterized as entrenched provisions, after the Bill to amend the constitution is p[assed by the house of Parliament as mentioned above, but before presented to the President for his assent, it has also to be ratified by the legislatures of not less than one-half of the states by resolutions. The entrenched provision which are given this additional safeguard are: (i) (ii) (iii) (iv) (v) (vi) The manner of the election of the presidentArt.54,55 Extent of the executive powers of union and states Art.73 and 162 The Supreme Court and High Courts Art.124-147 and 214231 The scheme of the distribution of legislative powers between the union and states Art. 245-2555 Representation of the states ion the Parliament Art. 368 itself.

CASE BY CASE DEVELOPMENTSA. Until the case of Golak Nath14, the Supreme Court bad been holding that no part of our Constitution was unamendable and that Parliament might, by passing a Constitution Amendment amendable? Act, in compliance with the requirements of Art. 368 amend any provision of
14

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

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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 Naths 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 Nath15 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
15

ibid

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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 Kesavanandas case 16, upheld the validity of Cl. (4) of Art. 13, which had been inserted the Constitution (24th Amendment) Act, 1971, and reads as follows: 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 Rights 17), 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 Kesavanandas 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 Naths 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
16 17

Keshvananda Bharti v. State of Kerala,AIR (1973)SC1461 Part III of the Indian Constitution of India

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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, Constitution. (ii) These basic features, without being exhaustive, aresovereignty 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. 11920, 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 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 which would be tantamount to making a new

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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 case 18 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,
18

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

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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) 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.

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA (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. (t) Federalism. (g) Secularism, (h) The sovereign, democratic, republican structure. (1) Freedom and dignity of the individual. (j) Unity and integrity of the Nation. (k) The principle of equality. (1) The essence of other Fundamental Rights in Part III (m) The concept of social and economic justiceto build a welfare State; Part IV in toto. (n) The balance between Fundamental Rights and Directive Principles. (o) The Parliamentary system of government

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA (p) The principle of free and fair elections. (q) Limitations upon the amending power conferred by Art. 368. (r) Independence of the Judiciary. (s) Effective access to justice.

LATER DEVELOPMENTS (a) MINERVA MILLS In Minerva Mills v. Union of India 19, 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 s. 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. As already noted, S. 55 of the Constitution (Forty-second Amendment) Act, 1976, inserted sub-sections (4) and (5) in Art. 368. In Minerva,
19

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

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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 Parliaments 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,

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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. The 42nd Amendment the also amended democratic the Preamble. By this a Amendment, sovereign republic becomes

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

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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. 3 IC, 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. The following observation of BHAGWATI, J., is worth taking note of: It is possible that in a given case, even an abridgement of a fundamental right may involve violation of the basic structure. It would all depend on the nature of the fundamental right to the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic Value of the Constitution. Take for ex ample, right to life and personal liberty enshrined in Article 21. This stands on an al together different footing from other fundamental rights. I do not wish to express any definite opinion, but I may point

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA out that if this fundamental right is violated by any legislation, it may be difficult to sustain a Constitutional amendment which seeks to protect such legislation against challenge under Act. 21. (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 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).

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA Parliament can insert a State Law in Schedule IX by passing a constitutional amendment under Art. 368. THE CONCEPT OF BASIC STRUCTUREArt. 368 Part XXAmendment of the Constitution laced in the Ninth Schedule by the 29th Amendment. The land reform were initially challenged in 1970 and after the 29th Amendment, a fresh petition was filed challenge the 24th, 25th and. 29th Amendments. A five judge bench initially heard the matter in August, 1972 and since the decision in Golaknaths case consisted of 11 judges, the case was posted before a bench of 13 judges. The decision in this case would completely alter the constitution landscape of India for enerations to come. It is reported that the case was heard from 31St October, 972 till mid March I97 was argued for 70 working days and Mr. Palkhivala lone argued for 33 days. This decision const the longest reported judgment and covers 594 pages fall India Reporter. The 13 judges gave elaborate reasons and analyzing them ritically is extremely strenuous. Several propositions have been repeated again and again. The decision could have been substantially shorter without loss of substance. As far as Article 368 is concerned the Supreme Court held that
20

Parliament could amend the

Constitution but it could not alter its basic structure or framework It also upheld the validity of the 24th. 25th and 29th Amendments: The 26th Amendment, regarding privy purses, was directed to be posted before the Constitution Bench. The Supreme Co issued a summary of its views which as signed by nine of the thirteen judges.

20

Kesavananda Bharazi i. Stage of Kerala, AIR l973 1461: (1973)4 SCC 225 : 1973 Supp

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA Basic structuremeaning 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 Indias 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 Conrads view that such extreme cases of conflict were much more than a ere hypothesis for an academic debate, could perhaps be attributed to the experiment for a fascinating account of this case21, The final result of Keshvananda Bharatjs case22 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
21

see Working a Democratic ConstitutionThe Indian Experience. 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. 22 ibid

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 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. In the majority judgments, different views have been taken on the scope of what constitutes basic structure with some points overlapping. For example, the views taken by different judges are as follows: I. Views of Sarkaria C.J. (i) Supremacy of the Constitution; (ii) Republican and Democratic forms of Government; (iii) Secular character of the Constitution;

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA (iv) Separation of powers between the legislature, the executive and the Judiciary; (v)Federal Character of the Constitution

II. Views taken by SHELAT & GROVER JJ.These are only illustrative: (1) The supremacy of the Constitution; (ii) The Republican and Democratic form of Government and sovereignty of the country; (iii) Secular and federal character of the Constitution; (iv) Demarcation of power between the legislature, the executive and the judiciary; (v) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part (vi) The unity and the integrity of the nation.

III. Views taken by HEGDE & MUKHERJE4 JJ. (i) Sovereignty of India; (ii) The democratic character of our policy; (iii) The unity of the country; (iv) The essential features of the individual freedoms secured to the citizens; (v) Welfare state and egalitarian society. IV Views taken by JAGANMOHANREDDY, J. (i) Sovereign Democratic Republic; (ii) Justice social, economic and political;

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA (iii) Liberty of thought, expression, belief, faith and worship; (iv) Equality of status and of opportunity.

Basic structure.illustrative examples Over the years, the scope of this expression has been considered in numerous cases. The expression has now become a shop-worn, hackneyed phrase and like a galaxy, it keeps expanding day by day. In order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and, as such, binding on the legislature. Only then, can it be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution, A working test evolved by Chandrachud J. in the Election Case
23

in which the

learned judge has rightly enunciated that for determining whether a particular feature of the Constitution is a part of its basic structure, one has to examine, in each individual case, the place of the particular feature in the scheme of the Constitution. its object and purpose and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the countrys governance, With regard to testing a constitutional amendment on the anvil of the basic structure, the Supreme Court recently held that twin tests had to be satisfied, namely, the width test and the test of identity. It is submitted that there is no explanation as to what these two tests are and how they are to be applied in testing the validity of these or any other amendments. Independence of the judiciary
23

Indira Nehru Gandhi v. Raj Narain, AIR 1975 Sc 2299: 1975 Supp 5CC I : 1976 (2) SCR 347- affirmed in ,Vagaraj 41. v. Union of India. WP(C) tlos.6 62, etc. of 2002, Order dated 19.10.06: (2006)8 SCC 212,247: 2006 (8) Supreme 89 . (9)JT 191

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA (within the limits of the judicial revised under Articles 226/227 and 32 of the Constitution, Preamble, secularism, , federalism, separation of powers and independence of judiciary , free, fair and periodic e are all part of the basic structure. The power of the High Court to examine judicial Superintendence over the decision of courts within their respective jurisdiction is also part of the basic structure.

In the Mandal case24, the need for excluding creamy layer has been emphasized. The failure to exclude the creamy layer or the inclusion of forward castes in the list of backward class is totally illegal and would violate the principle of equality enshrined in Articles 14 and 16 which is part of the basic features of tile Constitution. The equality clauses contained in Articles 14, 15 and 16 may in certain circumstances have to be considered as part of basic structure of the Constitution. This would mean that every violation of these articles would not tantamount to being a violation of the basic structure of the Constitution. But if a law is patently arbitrary infringing the equality clause of Article 14, such illegality would have to be violative of the basic structure doctrine. The 26th Amendment abolished privy purses of the erstwhile Indian princes. The deletion of Articles 291 and 362 did not make any change in the personality of the Constitution, either in its scheme or in its basic features. The change of identity will arise only when there is a change in the form, character and content of the Constitution. The court is not concerned with the issue of morality while dealing with the validity of an amendment. (This was in response to the plea that there was a solemn assurance to the former rulers that privy purses
24

. Indra Sawhnevi v. Union of India, (2000) SCC 168: AIR 2000 SC 498.

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA would be paid and which also were charged to the Consolidated Fund of India. It is submitted that the withdrawal of the privy purses was a reprehensible act. The amount paid to them was relatively inconsequential. But, while abolishing privy purses, Parliament forgot the assurances given to the erstwhile rulers by Sardar Patel. The take over of textile mills under the Sick. Textile Undertakings (Taking over of Management) Act, 1972 (which was included in the Ninth Schedule) does not damage the basic structure of the Constitution. In an interesting case before the Bombay High Court, the Court held that the inclusion of the Monopolies and Restrictive Trade Practices Act 1969 in Schedule IX would not save Sections 21 and 22. These sections imposed a restriction on the functioning of newspaper under takings and were violative of the basic structure, as the freedom of speech and expression was part of the basic structure. The 50th Amendment substituted Article 3 and this was not violative of the basic structure. The withdrawal of the protection of any of the fundamental rights would not necessarily affect the basic structure of the Constitution. Each amendment must be examined on its own merits. The court upheld the 1st and 4th Amendments which introduced Articles 31A and 31D respectively. Section 4 of the Constitution (Fourteenth Amendment) Act is not beyond the amending powers of the Parliament under Art. 368 of the Constitution. Similarly clause 10 of Article 371(1) is not violative of the basic structure. The de in Kesavananda Bharaii was followed in the famous Indira Gandhi case. The election of Mrs. Indira Gandhi was set aside by the Allahabad High Court on grounds of corrupt practices. Instead of gracefully waiting for the outcome of her appeal before the Supreme Court, Parliament passed the 39 Amendment Act, 1975 on 10th August, 1975, taking the election of President, Vice President, Prime

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA Minister outside the pale of judicial review. The amendment was tailor made to nullify the decision of the Allahabad High Court. The constitutional validity of this amendment came up for consideration in therefore said Indira Gandhis case. Article 329A (4) was held to be constitutionally invalid. Several observations regarding the law relating to elections are not relevant here. As regards basic structure, CHANDRACHIJD I. who was part of the majority, referred to five aspects that would constitute the basic structure: (i) sovereign democratic republic status; (ii) equality of status in opportunity of an individual; (iii) rule of law; (iv) Secularism and freedom of conscience and religion; (v) judicial review. This judgment has an extensive discussion on the basic structure theory and to what extent it would apply to the ordinary law making powers of Parliament. Minerva Mills case, the validity of clauses (4) and (5) of Article 368 came up for consideration in the Minerva Mills case. The court held that clauses (4) and (5) were unconstitutional, as they transgressed the limits of the amending power, damaging and/or destroying the basic structure. No amendment has perhaps been more brazen than the 42nd amendment which inserted these two clauses. It simply made any constitutional amendment immune from judicial review and Clause (5) would have been the last nail in the coffin of the Indian Constitution, if the Supreme Court had upheld its validity. Nagaraj25s case The Supreme Court upheld the validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, inserting Article l6(4A) that provided for reservation in promotion for Scheduled Castes and Scheduled Tribes; the Constitution (EightyFirst Amendment) Act, 2000, inserting Article 16(4B) that provided for carrying forward the vacant reserved posts; the Constitution (EightySecond Amendment) Act, 2000, which inserted a proviso to Article
25

Nagaraj M. v. Union of India, WP(C) Nos.6 I. 62. etc. of 2002. Order dated 19.10.06: (2006) 8 SCC 212: 2006 (8) Supreme 89: 2006 (9) rr 191. 269

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA 335 enabling relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State and the Constitution (EightyFifth Amendment) Act, 2001 which amended Article I 6(4A) retrospectively from 17.06.1995 enabling reservation in matters of promotion with consequential seniority. CONCLUSIONIt 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 Sikkimby the 35th and 36th Amendments), there fore, 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.

CONSTITUTIONAL LAW - II PROJECT WORK ON THE AMENDMENT PROCEDURE IN INDIA