Extent Of Power Of The Parliament To Amend The Constitution

Article 368 provides for power of the Parliament to amend the Constitution.

Article 368 (1) provides that Parliament may in exercise of its constituent power amend by way of addition, variation or repeal of any provision of the constitution in accordance with the procedure laid down under Article 368.

Article 368 (2) provides for two types of procedures for amendment of the Constitution . A bill for amendment of the Constitution can be introduced in either house of the Parliament. Most of amendments to the Constitution can be done by majority of the total membership of either house and by majority of two-third of present and voting.

More  stricter procedure has been provided for amendment of following articles.

• Article 54, Article 55, Article 73, Article 162, Article 241, or Article 279 A
• Chapter IV of Part V, Chapter V of   Chapter VI,  Chapter I of Part XI, or
• Any of the Lists in the Seventh Schedule
• The representation of States in Parliament
• The provisions of this Article

For amendment of aforesaid provisions, additionally  ratification by legislatures of not less than one half of the states by resolution to that effect is required.

Every bill for amendment has to be presented to the President for assent, who has to give the assent.   

Article 368 (3) has been introduced by 24^th Amendment which provides that noting in Article 13 shall apply to any amendment made under this article.

Article 368 (4) has been introduced vide 42^nd Amendment. It provides that no amendment of this Constitution (including the provisions of 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.  This amendment has been held void by the Supreme Court in Minerva Mills Ltd. Vs. Union of India (AIR 1980 SC 1789).

Article 368 (5) has also been introduced vide 42^nd Amendment. It provides that there shall be no limitation whatever on the constituent power of the Parliament to amend by way of additional, variation, or repeal the provisions of this Constitution under this article. This amendment has also been held void by the Supreme Court in Minerva Mills Ltd. Vs. Union of India (AIR 1980 SC 1789).

Whether Fundamental Rights can be amended ?

Whether Fundamental Rights can be amended or not has been subject matter of extensive judicial interpretation.

In Sankari Prasad Singh Deo Vs. Union of India, 1951 AIR 458, 1^st Amendment of the Constitution was being challenged whereby Article 31 B had been incorporated under Fundamental Rights, which provided that Acts and Regulations under 9^th Schedule will not be invalid for being inconsistent with Fundamental Rights. Supreme Court held that amendment of Fundamental Rights is also included under Article 368 of the Constitution.   “Law” defined under Article 13 does not include amendment   provisions which is not legislative power but constituent power of the  Parliament.

In Sajjan Singh Vs. State of Rajasthan (1965 AIR 845) again inclusion of certain acts in the 9^th schedule vide 17^th amendment was challenged before the Supreme Court. Supreme Court approved the ratio of Sankri Prasad.

In Golaknath Vs. State of Punjab, 1967 AIR 1643 the Supreme Court reversed the judgments of Sankri Prasad and  Sajjan Singh.  In Golaknath also inclusion of certain act in the 9^th Schedule was questioned. The Supreme Court held that Fundamental Rights can not be amended.  A Constituent Assembly has to called for amendment in Fundamental Rights.

24^th Amendment was passed by Parliament  to nullify Golaknath.  Clause (4) to Article 13 was introduced which provided that Nothing in Article 13 will apply to any amendment made to the Constitution under Article 368. Clause (4) of Article 368 was also introduced which provided that noting in Article 13 shall apply to an amendment made under Article 368.

What is Doctrine of Basic Structure ?

In Keshavanand Bharati Vs. State of Kerala (1973) 4 SCC 225 validity of 24^th , 25^th and 29^th Amendment were challenged. The Supreme Court overruled Golaknath Judgement but held that Article 368 did not empower the Parliament to alter basic structure of the Constitution. The majority also invalidated 2^nd part of 31C which has been introduced by 25^th Amendment and barred judicial review of laws to give effect to directives under Article 39 (b) and (c).

Doctrine of basic structure was applied in various subsequent judgments by the Supreme Court.

In Minerva Mills Ltd. Vs. Union of India (AIR 1980 SC 1789), amendment in Article 31C and  368 were challenged vide 42^nd Amendment. Article 31 C has been amended to the extent that laws implementing directive principles of state policy cannot be invalidated on the ground that it violates Article 14, 19 and 31. Clause (4) and (5) of Article 368  validated all amendments and removed all limitations on the amending powers under Article 368.  These amendments were invalided by the Supreme Court. The Supreme Court observed  that Parliament cannot convert limited amending power to absolute power.  The Supreme Court observed in respect of amendment to Article 31 C that giving primacy of Directive Principles of State Policy over   Fundamental Rights destroys the balance between Fundamental Rights and Directive Principles of State Policy and as such violates basic structure of the Constitution.

The Supreme Court in Indira Gandhi Nehru Vs. Raj Narayan  (1975 SCC (2) 159)  invalidated 39^th Amendment on the basis of basic structure.  The Allahabad High Court has invalidated the election of Indira Gandhi on the ground of corrupt practices. To  nullify the same the Parliament enacted 39^th amendment by withdrawing jurisdiction of all courts over election disputes of the Prime Minister. The same was challenged before the Supreme Court. The Supreme Court held that bar to judicial review in election disputes violates basic structure.

In Waman Rao Vs. Union of India (1981) 2 SCC 362 , the Supreme Court considered Article 31 A and 31B and Ninth Schedule in light of doctrine of basic structure and held them valid. It was held that all amendments prior to passing of judgment in Keshvanand were valid. Amendments made after Keshavanand Judgement can be challenged on the ground of violation of basic structure.  In I. R Coelho Vs. State of Tamil Nadu ( AIR 2007 SC 861 )  the Supreme Courtreaffirmed the law laid down in Waman Rao.

In L. Chandra Kumar Vs. Union of India (1995 SCC (1) 400) , the issue  before the Supreme Court was whether exclusion of jurisdiction of Supreme Court under Article 32 and of High Court under Article 226 is permissible under 323 A and 323 B of the Constitution. It was held that judicial review is part of basis structure and cannot excluded.

What is scope of Basic Structure ?

Scope of basis structure has not been exhaustibly defined by the Judiciary.

In L. Chandra Kumar Vs. Union of India (1995 SCC (1) 400) Judicial Review was held to be part of Basic Structure. In Kihoto Hollohan vs Zachillhu (1992 SCC Supl. (2) 651) democracy was held to be part of basis structure.  In S. R, Bommai  Vs Union of India (994 SCC (3)) secularism was held to be part of basis structure. In Indira Gandhi Nehru Vs. Raj Narayan  (1975 SCC (2) 159)   free and fair election was held to be part of basic structure.

One of the fundamental issue which emerges is  what is test that when an amendment will violate basic structure. In M. Nagaraj  Vs. Union of India (2006) 8 SCC 212 the Supreme Court developed twin tests- width test and identity test. Under “width test” it has to be seen whether the amendment is so wide that it obliterates the constitutional limitations. Under identity test it has to be seen that whether identity of constitution has been changed.

In I. R Coelho Vs. State of Tamil Nadu ( AIR 2007 SC 861 ) the Supreme Court developed rights test  in respect of amendment of Fundamental Rights. Rights test meant that the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor. If the impact of amendment will disturb the basis structure amendment will be invalid.

It can be inferred from the above that whether any amendment violates basic structure of the Constitution or not is highly dependent on facts and circumstances of each amendment  and its interpretation by judiciary.

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