*Constitutional Amendment and Fundamental Rights*

*Constitutional Amendment and Fundamental Rights*

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We often commit a tactical blunder while subscribing to the fallacy that the Fundamental Rights enshrined under the Part III of the Constitution of India (hereinafter, "The Constitution") have been vouchsafed (to us) by the State. Our Constitution just reiterates that individuals possess some basic and inherent fundamental rights and the State must facilitate the enjoyment of such fundamental rights. The Constitution does not bequeath fundamental rights to us; however, it does root for the fundamental rights of the individuals.

The Constitution elucidates the beinghood of such rights and goes on to accord them supreme patronage. Since the fundamental rights do not stem from State and its organs, they should not be entitled to take them away or make them of no use. If we pore over major Supreme Court judgments, we would appreciate the fact that the Supreme Court has, through landmark judgments, acknowledged the paramountcy of the fundamental rights time and again.

To be au fait with the importance of fundamental rights, we can summarily peruse the observation of the Supreme Court in some celebrated cases. To name a few, in the case of A. K. Gopalan v. State of Madras ([1950] S.C.R. 88, 198), fundamental rights have been described as "paramount". In State of Madras v. Smt. Champakam Dorairajan 1951 AIR 226, these rights have been called "Sacrosanct". In Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha 1959 AIR 395, these rights have been termed as "rights reserved by the people". Also, in the case of Smt. Ujjam Bai v. State of Uttar Pradesh 1963 SCR (1) 778, these rights have been termed as "inalienable and inviolable". Not to forget that in the case of Keshvanand Bharti v. State of Kerala, AIR 1973 SC 1461, it was said that fundamental rights constitute the ark of the constitution.

The Supreme Court has also played an imperative role in devising some rights (akin to fundamental rights) which are not categorically and objectively mentioned under part III of our Constitution. Supreme Court has been able to formulate these rights on its own after realizing that certain unarticulated rights are implicit in the enumerated guarantees (Part III of the Constitution).

Amenability of fundamental rights and Article 368 to the Constitution

It is worth noting that in the case of Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933, the Supreme Court held that the fundamental rights enshrined under Part III of the Constitution were not intended to be kept beyond the reach of any future amendments. By logical and necessary implication, we can say that it is not the case that the makers of the Constitution had thought of settling and cataloguing fundamental rights once and for all; rather, they wanted these rights to correspond to the changing circumstances.

We must bear this fact in mind that our Constitution is definitely not a religious book and so it can and must be changed with time. However, it is equally true that the amending power given to the Parliament, though wide in its sweep and reaching every provision of the Constitution, does not enable Parliament to alter the basic structure or framework of the Constitution. (as held in Keshvanand Bharti v. State of Kerala, AIR 1973 SC 1461 case).

It is to be noted that the Parliament derives the power to amend the Constitution from Article 368 to the Constitution but the reason why the Parliament cannot, by way of bringing amendment, change the basic structure of Constitution is, that the power to amend the Constitution cannot be equated with the power to frame the Constitution (a task already undertaken by the Constituent Assembly).

Now, let's look at the bare language of Article 368 (1) to the Constitution. It reads,

368. Power of Parliament to amend the Constitution and procedure therefor

(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.

If we read the marginal note of Article 368 to the Constitution, it reads, "Power of Parliament to amend the Constitution and procedure thereof". Before 1971, the marginal note of this Article read, "Procedure for amendment to the constitution". It is to be noted that the Constitution (Twenty-fourth Amendment) Act, 1971 is responsible for this sea change.

In fact, in the Case of I.C. Golak Nath And Ors. vs State Of Punjab And Anr. 1967 2 SCR 762, Subbarao C. J. delivered the leading majority judgment which held that, under Article 368, only the procedure to amend the Constitution has been given, whereas the power to amend the Constitution is derived from Entry 97 of List I read with Article 245. To affirm that the Parliament indeed derives its power from Article 368 (to amend the Constitution) and not from Entry 97 of List I read with Article 245, the Constitution (Twenty-fourth Amendment) Act, 1971 came into being.

Now, if we observe the language of Article 368, we would get to know its mandate. In plain terms, this Article deals with the powers of Parliament to amend the Constitution and the procedure to do the same. It states that the Parliament may, in the exercise of its Constituent power, add/remove an article, repeal any provision of the Constitution. Since the present article doesn't deal with the types of amendment envisaged in Article 368 [Article 368 (2), to be precise] and the procedure to amend the Constitution, so we will not go into the related details.

Moving on, we know that as per Article 13 (2) to the Constitution, The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. The question is, whether a 'Constitution Amendment Act' can be termed as 'Law' or not. The present article is essentially an inquiry into this question (and many others) and in this article we would examine various phases through which this question has got its principal answer.

It won't be an erroneous observation to make if we say that the Parliament's power to amend part III of the Constitution has witnessed a transformative journey. In my opinion, this journey could very well be categorised into four episodes. Further, these four episodes would attempt to canvass the journey through which this debate flourished and a definitive conclusion was achieved at the end.

First Episode

With a lot of aspirations our Constitution came into operation in 1950, however, the first test which was faced by the Constitution and specifically by the Part III of the Constitution (consisting of fundamental rights) was in the year 1951. It is noteworthy that in the year 1951, Parliament had enacted the Constitution (First Amendment) Act, 1951 which aimed at curtailing the then fundamental right i.e., right to property. Soon thereafter, the validity of this amendment was challenged in the case of Sri Shankari Prasad Singh Deo vs. Union of India 1952 SCR 89.

In this case, it was argued by the petitioners that Article 13 (2) to the Constitution prohibited the State to come up with any law which takes away or abridges any fundamental right. Not just that, it was also contended that the word 'State' as appears in Article 12 would include 'Parliament' and the word 'Law' in Article 13 (2) therefore, must include an amendment to the Constitution and so by necessary implication, the Constitution (First Amendment) Act, 1951 should be struck down as it goes against the fundamental right enshrined under Article 31.

Before testing the validity of this Amendment Act, Court had to validate the contention of the petitioners that a Constitution Amendment would fall within the meaning of word 'Law' as it appears in Article 13 (2). The Supreme Court was not impressed with the arguments of the petitioners and held that deriving the power from Article 368; the Parliament can very well amend fundamental rights by way of bringing a Constitution Amendment Act.

Court further held that the word 'Law' as appears in Article 13 (2) doesn't include a Constitution Amendment Act, which is passed by the Parliament in exercise of the Constituent power, unlike an ordinary law which is made in exercise of its Legislative power.

The Supreme Court did not find it appropriate to equate a Constitution Amendment Act with ordinary laws made by the Parliament and held that when the Constitution is amended, the Parliament exercises its Constituent power. The Supreme Court was satisfied that ordinary laws may not, but Constituent laws can very well amend fundamental rights enshrined under part III of the Constitution.

Again, in the year 1964-65 Supreme Court got another chance to have a re-look at this powerful verdict in the case of Sajjan Singh. While approving the verdict of Shankari Prasad, the Supreme Court held that "Amendment of the Constitution" would mean that the Parliament, by passing a Constitution Amendment Act under Article 368 can amend any provision of the Constitution (including the Fundamental Rights and even Article 368).

Second Episode

In a surprising turn of events, in the year 1967 Supreme Court almost upset the apple-cart by overruling the two judgments (Shankari Prasad & Sajjan Singh) and thereby breaking the status-quo on this point. Essentially, the Supreme Court in the case of I.C. Golak Nath overruled the then settled law that fundamental rights can be amended by the Parliament.

In this case, the Constitution (Seventeenth Amendment) Act, 1964 faced the test of validity. This Act had inserted certain state acts in the Ninth schedule. Supreme Court ruled that the Constitution in its actual form proposes to give fundamental rights a 'transcendental and immutable' position and hence, the Parliament cannot abridge or take away any of these rights. Hence, this Constitution Amendment Act was held to be invalid.

The 11 Judges bench held by majority (6:5) that Constituent power and Legislative power of the Parliament cannot be distinguished and hence the Parliament does not have that power under Article 368 to abridge or take away any fundamental right, just as it could not do so by enacting an ordinary legislation (this view was against the view taken in the Shankari Prasad and Sajjan Singh case).

Also, the Supreme Court held that an amendment to the Constitution would come under the purview of word 'Law' as it appears in Article 13 (2) and therefore if it violates any of the fundamental rights, it may be declared void. The Court didn't stop there, it further opined that if any such rights provided under part III of the Constitution has to be amended, a new Constituent assembly must be convened for making a new constitution or radically changing it.

The parliament had to overturn this decision, so in the year 1971, it came up with the Constitution (Twenty-fourth Amendment) Act, 1971. The said act added novel wings to the amending power of the parliament and it nullified the effect of I. C. Golaknath judgment.

This Constitution Amendment Act amended Article 13 [clause (4) added] and Article 368 [clause (1) & (3) added and new marginal heading to Article 368 was placed] and it was made obvious that the Parliament (in exercise of power provided under Article 368) has the power to abridge or take away any of the fundamental rights enshrined under part III of the Constitution.

This Constitution Amendment Act created a regime where an amendment to the Constitution (made in accordance with Article 368) was no more considered to be a 'Law' as per Article 13 (2) [see clause (4) to Article 13 and clause (3) to Article 368].

Third Episode

The game of claiming supremacy over one another was nearing to an end. The year 1973 was significant in many ways. This year saw the culmination of a prevailing conflict between Judiciary and Parliament over guardianship of the Constitution. This was the year when the Supreme Court pronounced the judgment in the celebrated case of Keshvanand Bharti v. State of Kerala, AIR 1973 SC 1461 (13 Judges bench). The verdict of this case changed the way Judiciary, Parliament and a common citizen saw our Constitution and the fundamental rights enshrined thereunder.

Essentially, the Constitution (Twenty-fourth Amendment) Act, 1971 along with 25th and 29th Constitution Amendment Act was challenged in this case. Court had to answer the question as to what was the extent of the amending power conferred by Article 368 of the Constitution.

The Court overruled I. C. Golaknath judgment and held that Parliament can very well amend fundamental rights and that Constitution (24th Amendment) Act, 1971 is valid. However, in this case Supreme Court envisaged the 'Doctrine of Basic Structure/Feature' and held that while deriving power from Article 368, the Parliament is not empowered to amend the Basic structure/feature or framework of the Constitution.

In other words, the majority opinion did not accept the unlimited power of the Parliament to amend the Constitution and instead held that Article 368 has implied limitations. Overruling I. C. Golaknath, it was held that Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution and if Courts declare that a certain fundamental right forms part of the Basic Structure, then the same cannot be abridged or taken away by the Parliament by way of bringing an Amendment Act.

The Court was satisfied that there are inherent or implied limitations on the amending power of the Parliament and Article 368 does not confer unlimited power on the Parliament to amend the Constitution to damage or destroy the essential elements or basic features of the Constitution. Now, the settled position is that while the parliament has the power to amend the Constitution, it cannot abrogate the Constitution in disguise of amending in.

This case turned out to be a kind of proclamation where Supreme Court emphatically laid down that no limitation can be imposed on the powers of Parliament to amend the Constitution (including the part III of the Constitution), but no such amendment can disrupt the basic structure of the Constitution. As of today, many of our fundamental rights have been included under the basic structure doctrine and so if any Constitution Amendment Act abridges or takes away any of such rights then the Amendment Act could be successfully challenged in the Court of law.

This case promptly established the Supreme Court's right to review and, therefore, the Supreme Court got the supremacy on constitutional matters. It could be noted that the power of judicial review is now an integral and essential feature of the Constitution constituting the basic part as per the judgment in the case of L. Chandra Kumar v. Union of India & Ors. (1997) 3 SCC 261]

While the Supreme Court overruled I.C. Golakanth in the case of Keshvanand Bharti, it did not re-establish the supremacy of Parliament. While I. C. Golaknath gave primacy to fundamental rights, Keshvanand Bharti recognised that some other provisions in the Constitution may be equally crucial and if they form the basic feature, they are un-amendable. After Keshvanand Bharti was decided, it became clear that power to amend the Constitution is subject to the doctrine of the basic structure.

Fourth Episode

The Parliament was not satisfied with the verdict of Supreme Court in Keshvanand Bharti case and the doctrine held therein. Also, it was obvious that this doctrine will be practised more in the breach than in compliance. Parliament, in an attempt to steal the thunder of Supreme Court and to nullify the Keshvanand Bharti verdict, enacted the Constitution (Forty-second Amendment) Act, 1976 and clause (4) & (5) were added to Article 368.

It is to be noted that while Clause (5) to Article 368 purported to remove all limitations on the amending power of the Parliament, Clause (4) deprived the courts of their power to call in question any amendment to the Constitution. Most importantly, Clause (4) to Article 368 deprived the citizens of one of the most valuable modes of redress which is guaranteed by Article 32.

As was destined to happen, in the case of Minerva Mills Ltd. & Ors vs Union Of India & Ors 1981 SCR (1) 206 both the clauses were struck down by the Supreme court. Not just that, in this case it was held that a limited amending power itself is a basic feature of the Constitution. Further, Supreme Court in the case of Waman Rao And Ors vs Union Of India (Uoi) And Ors. (1981) 2 SCC 362 clarified that the doctrine of basic structure will apply to amendments (to the Constitution) only if they an Act to that effect is passed after 24-4-1973 (the day when Kehsvanand Bharti case was decided) i.e. it will apply prospectively and not retrospectively to earlier legislations.

Basic Structure Doctrine: The Decider

We have now understood that the Parliament indeed has the power to amend the Constitution (including the power to amend Part III of the Constitution), but if such an amendment attempts to attack the basic structure of the Constitution, then such an amendment shall be held void to that extent. This means that the Court can, in each case check if an Amendment Act to the Constitution abrogates the basic structure of the Constitution, and if it does it could be held void to that extent.

Now, a question which may arise is, if an Act is included in the Ninth schedule, is it open for the Court to check if it attacks the basic feature of the Constitution? Supreme court answered this question in the case of I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors (2007) 2 SCC 1. Supreme Court held that even after a law is placed in the Ninth Schedule, its validity could be tested on the touchstone of basic structure doctrine. In this case the Supreme Court stated that Waman Rao rightly held that the Acts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection from judicial review.

In the end, it is crucial to note that while it is true that the phrase 'Basic Structure' is not explicitly mentioned anywhere in the Constitution, but this doctrine is legally valid because it was recognised in the case of Kesavananda Bharati. It is a doctrine which has evolved through judicial interpretations.

To name a few, Freedom and dignity of an individual, liberty and republic nature of Indian polity, Judicial review, Federal character, Free and fair elections, Supremacy of the constitution, Rule of law, Powers of SC under Article 32, 136, 142, 147, Power of HC under Article 226 and 227, Sovereignty,. Harmony and Balance between fundamental rights and directive principles, Limited power of parliament to amend the constitution etc. have been included under the umbrella of basic structure of the Constitution by the Courts through various celebrated judgments.

Apart from that, in the case of In Smt. Indira Nehru Gandhi v. Raj Narain [1975 Supp. (1) SCC 1], Chief Justice Chandrachud stated that for determining whether a particular feature or Fundamental Right of the Constitution is part of its basic structure, one has to examine in each individual case the place of that particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country's governance.