Amendment (A coin with two phases)

Ankit Kumar[1]

Indian Constitution is a living as well as growing document which increases itself and now it has reached 101 amendments. Basically, interpretation or amendment in constitution   means alteration or modification in the constitution. The Constitution of India had been written in finest detail by the framers of the constitution with lots and lots of debate. Our constitution is neither too rigid as per U.S.A nor too flexible as per Britain. The framers were aware of the fact that some sort of process, mechanism or instrument should be there to provide flexibility to the constitution so that it can be modify according to the situation prevailing in India. While referring to the need to amend the constitution to the changing socio, economic and political condition, Pandit Jawahrlal Nehru said-

“It is the one of the utmost importance that the people should realize that this great constitution of ours, over which we laboured so much, is not final and rigid thing. A constitution  which is responsive to the people’s will, which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it”.[2]                             

Amendment of constitution can be correlated with coin as the coin has two phases same goes with Amendment. It has also two phases one is its positive side and another is its negative side. It is upon us how we deal with it. This essay of amendment boon or ban will deal with three parts firstly, this essay will deal with past experiences how the parliament uses its limited amending power to absolute amending power to maintain its superiority over constitution and how the Parliament flawed the mechanism of check and balances inscribed by the Constitution of India and at last Keshvananda Bharti Sripadagalvaru and Ors.v. State of Kerala how it saves the world largest Democracy. Secondly, this essay will move on to the power of judicial review and it maintains coordination between other pillars of constitution.

Thirdly, if there would not be the provision of amendment or directly if the constitution of India would have been rigid then what would be the case and at last, there will be the conclusion of the essay.

Also Read  Why Marital Rape Should Not Be Criminalised

In order to implement the agrarian reforms, abolish the earlier zamindari system as this reform violates the fundamental right (i.e. right to property).

This was added in ninth schedule which excludes the judicial review thereby limiting the power of judiciary. Although it was against the constitutional spirit, it was done in the best of justice, equity and good conscience. At first the ninth schedule was justifiable but afterwards it just became a constitutional dustbin. This step was felt necessary to carry out the land reform in accordance with economic philosophy of the state to distribute the lands among the land workers, after taking land from the land owners. The first amendment was challenge in Shankari Prasad case this case was basically for insertion of ninth schedule to insulate agrarian reform being tested in court. The argument against the validity of the first amendment was that Art.13 prohibiting enactment of law infringing or abrogating the fundamental rights that the word “law” would include any law, a law amending the constitution and, therefore the validity of such law could be judged and scrutinised with reference to the fundamental right which it could not infringe. The Court held that the terms of Art.368 are perfectly general and empower Parliament to amend the Constitution without any exception. The Fundamental Rights are not excluded or immunized from the process of constitutional amendment under Art.368. These rights could not be invaded by legislative organs by means of laws and rules made in exercise of legislative powers, but they could certainly be curtailed, abridged or even nullified by alterations in the Constitution itself in exercise of the constituent power.

In the Golak Nath v. state of Punjab[3] the Supreme Court overruled the earlier judgement which allows parliament to amend any part of constitution including the part III of the constitution. The SC on a thin majority of 6:5 curtail down the parliament power to amend the part III of the constitution. The majority does not make any difference between the amending power and legislative power. The court also upheld that the fundamental rights are “sacrosanct and transcendental” and hence parliament cannot abridge or take away any of these right.

Also Read  Marital rape: rape culture in India

Keshvananda Bharti v state of Kerala[4]: In this SC overruled the Golak Nath case (1967).IT also upheld the validity of 24th amendment act (1971) and stated that parliament is empowered to abridge or take away any of the fundamental right. The SC also laid the concept of or doctrine of “basic structure”.

Held that the power provided in article 368 are not sufficient to alter the basic structure of the constitution.

The parliament reacted to this doctrine of “basic structure “by enacting the 42nd amendment act 1976 added clause (4) and (5). This act declared that there is no limitation to amending power of parliament and this would not subject to judicial review. but SC in Minerva Mills v. Union of India[5] held that  clause (4) and (5) as unconstitutional and SC also added to this and said that parliament has limited powers and using his limited powers it cannot convert it to absolute powers.

Judicial Review is the power of judiciary to examine the amendments passed by legislative are not violating the constitution, if they do so it could be declared as void, invalid or simply unconstitutional. CJ Chandrachud in Minerva mills v. Union of India defines judicial review as follows.

“It is the function of the judges, may their duty, to pronounce upon the validity of laws. If the courts are totally deprived of that power, the fundamental right conferred on people will become a mere adornment because rights without remedies are ad writ in water. A controlled constitution will become uncontrolled”.

Justice Khanna in Keshvananda Bharti v. state of Kerala (1973)

“As long as some fundamental right exist and are a part of constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afford by this rights are not contravened”.

If the great constitution of ours doesn’t have process of amendment, if it would have been rigid one, if the framers of our constitution doesn’t give the provision of amendment, if the constitution of us doesn’t changes with the change in economic, political and social change existing in India. Then the people of India would not have that much of faith that exists now. And this may also possible that laborious job of our framers of Indian constitution have done in this constitution may have gone to vain and the people of India may have started a rebellion against the great constitution of India and for the change of the constitution.

Also Read  Where Do We Draw the Line- An Analysis of Prisoners' Rights

At last to conclude my essay, I would kindly summarise the whole essay. Amendment is simply the modification in constitution according to the social, economic and political situations prevailing at particular situation. Excess of anything is dangerous same goes with amendment if the constitution is too rigid its also dangerous and if the constitution is too flexible it’s also dangerous.  Indian constitution provided legislative, executive and judiciary with equal powers and above all is the supremacy of the constitution. However, parliament tries to maintain its supremacy by addition of ninth schedule in the constitution which excluded the judicial review. There was a long fight between parliament and judiciary which was settled in the case of Keshvananda Bharti v. State of Kerala in which doctrine of “basic structure” was found and this case is so important because it saved the Indian democracy.

However, parliament opposed it by the 42nd amendment which added clause (4) and (5) in article 368 but the SC said this was unconstitutional in the Minerva mills case and even added that the parliament cannot use is limited power to attain absolute power. Excess of anything is dangerous. If the excess of power would have been in the hand of parliament, then Indian democracy would be in danger. And if the framers of Indian constitution would not have added the provision of amendment then there would be chances of rebellion and change of constitution. That’s what everything should in proportion.

[1] Student, Aligarh Muslim University, Faculty of Law.

[2] Parliamentary debates, XII-XIII, II 1951, 9616-17.

[3] Golak Nath v. state of Punjab, (1967) 2 SCR 762.

[4] Keshvananda Bharti v. state of Kerala, AIR 1973, SC 1463

[5] Minerva Mills v. Union of India, AIR 1980 SC (1789).

Leave a comment