Amendments Keeping the Constitution Alive

Nandita[1]

Amendment: a sina qua non for a working democracy

“There is no permanence in constitutions… so as not to stop the nation’s growth… Constitution must be able to adapt to changing conditions when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly capable tomorrow. – Jawahar Lal Nehru[2]

Times are not static. While framing the constitution, the forefathers knew that they were forming the fundamental and the paramount law of the land which must adapt itself to the changes in the society.It is quite obvious that a Constitution made in one era would not be adequate in other eras without any changes and amendments. Constitutions are product of time and are made of thinking of existing people and too much rigidity is harmful to Constitutional Democracy. The amendments reflect the evolution and maturity of constitutional democracy as social mores and ideas keep on changing with time. A democratic society lives and swears with certain ideals and values like liberty, rule of law etc., which the court must upheld.

India was privileged to have exposure to varieties of legal documents and experiences of the world while drafting its Constitution.The Founding Fathers were given a gargantuan task of drafting the Constitution which provides for afacile procedure for amendment, as an unamendable Constitution was doomed to fail. While the American Constitution laid too much stress on Judicial Supremacy, the unwritten constitution of Britain rendered unfettered powers to the legislature. Nevertheless, India figured out the middle way. Proper care and caution was applied to ensure that the constitution was not left too rigid for a change or too flexible to be like playing cards in the hands of ruling party. Thus, the middle way chosen with the wisdom of forefathers can also be termed as the best way out which is away from the all-powerful and unquestionable Legislature or Judiciary.

Thereby, the fledgling independent country gave itself a dynamic, extensive and a progressive constitution.

The erudite members while drafting the Constitution left no stones unturned to avoid any impediments to a progressive democracy. Though with time, many lacunas were brought to light which were ultimately rectified by the Judiciary to preserve the core of the Constitution. Amendments effectuated in the Fundamental Rights gave rise to many questions over scope of amenability of Part III of the Constitution which has been hereby discussed in detail.

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The first time this question came in Supreme Court was in the case of Shankari Prasad vs. Union of India[3]. It was contended that the any amendment to Fundamental Rights must be tested in the light of the provisions contained in Art.13 (2) of the Constitution. The judges articulated that the ‘law’ in context with Article 13 must mean any rules and regulations made in exercise of ordinary legislative power and not amendments to the constitution made under Article 368 in the exercise of the constituent power.

For next thirteen years, the amenability of the Fundamental Rights remained dormant. In Sajjan Singh v. State of Rajasthan[4], the validity of the Seventeenth Amendment was challenged. The main contention was that the Amendment limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of the States under the provisions of Article 368. With no hesitation, it was held that the words “amendment of this constitution” in Article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution.

Dissent: a harbinger of a living constitution

The question was raised again with more vigour and determination in I.C. GolakNath vs. State of Punjab.[5] The Constitutional validity of 17th Amendment was challenged once again and the majority now overruled the judgement of Shankari Prasad and Sajjan Singh. The majority in this judgement said that Fundamental Rights hold a “transcendental position” in the Indian Constitution andwere declared to be non-amendable through the procedure that had been led under Article 368. Thus, the amendment under Article 368 is ‘law’ and is subject to Article 13. The opinion emanated from the fear of possible erosion of fundamental rights if the amendment process continued unabated and unrestricted.

Backlash by Parliament: Another roadblock

The Congress government tried to undo the effect of the GolakNath judgement by effectuating the 24th Amendment to the Constitution in 1971. With abundant caution, a clause was added to Article 368 that Article 13 shall not apply to any Constitutional amendments. The change in the name by the marginal note was to clarify that Article 368 not merely stated the procedure but also defined the powers of the Parliament. It was also made obligatory for the President to give his assent to a Bill for a Constitutional amendment.

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With the wind, the whirlwind was also sowed through the25th Amendment by which Article 19(1) was delinked from Article 31(2) and Directive Principles were treated to be subservient to the Fundamental right. The effect of this amendment was seen to be far reaching.

Fixing the amiss: the case that saved democracy

“Different parts of the Constitution will act and react on each other and the court will have to decide questions arising from such a situation.” – Chief Justice, HarilalKania

In the landmark judgement of KesavnandaBhartivs. State of Kerala,[6] the appellant challenged the Constitutional validity of both the amendments in the Supreme Court by a writ petition. The amending power in this judgement was now subjected to very significant qualification that this power to amend could not be exercised in a manner as to alter or destroy the basic Fundamental Features of the Constitution. Any amendment that would now abridge or offend the basic structure of the Constitution was hereby made ultra vires. Now, the power of the Parliament to amend the Constitution was not absolute or unlimited.

This judgment illustrates the high water mark of judicial creativity and policy making role of the Supreme Court.

The death of democracy

The government could not reconcile to any limitations in their constituent amending powers and held these to be impediments in the growth of Constitution which must be removed. With these considerations, the Parliament enacted the Constitution (42nd Amendment) Act, 1976. This amendment inserted clause (4) and clause (5) in Article 368 to the effect that an amendment to the Constitution could not be called in question on any ground and there shall be no limitation on the constituent powers of the Parliament. Article 31C was amended to provide precedence to Directive Principles over Fundamental Rights.

Nevertheless in Minerva Mills Ltd. vs. Union of India[7], Supreme Court unanimously held that the power of judicial review was one of the basic structures of the Constitution which cannot be destroyed and held clauses (4) and (5) to be unconstitutional.

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An amendment to an amendment: lesson from the infirmities

To undo most of the aberrations and distortions included in the Constitution by 42nd Amendment, the Constitution (Forty Fourth Amendment) Act was passed in 1977. The term of lower house was again reduced to five years, a proviso was added to Article 74 enabling the President to require reconsideration of its advice rendered by the Council of ministers and Article 352 was amended to replace the expression ‘internal disturbance’ by expression ‘armed rebellion. Considerable changes were made in Article 358 and Article 359 for safeguarding the Fundamental rights even during operation of emergency.

Some important amendments that shaped the course of history

  • The reorganisation of states by language in 1956 was one of the first significant reforms to systematically organise the people by their language.
  • Reduction of voting age from 21 to 18 years in 1989 was an expression of the government’s faith in the youth by providing them an opportunity to vent out their feelings.
  • Remedy was again sought in amending the constitution to provide free and compulsory education to children between 6 to 14 years in 2002 to educate and enlighten the future of the nation.
  • Recently, Goods and Services Tax was implemented by which consumers will not be subjected to double or multiple taxations.  The slogan rightly serves the aim “One Nation, One Tax”

Denouement

Judiciary in our society has been given the role to expound the provisions of the Constitution and the power of declaring any law or administrative action that is inconsistent with the Constitution as void and unconstitutional. This doctrine of judicial review stems from the feeling that the written document needs an impartial, authoritative and independent arbiter to restrain any misuse of powers. Throughout this journey of 68 years, the Indian Constitution has stood the test of time and has made a significant progress in quality of democracy and all this is possible because of its flexible nature.


[1] Student, UILS, Panjab University, Chandigarh.

[2] Constituent Assembly Debate, 8 November 1948.

[3] Sajjan Singh v. State of Rajasthan, 1951 AIR 458.

[4] Shankari Prasad v. Union of India, 1965 AIR 845.

[5] I.C. GolakNath v. State of Punjab, AIR 1967 SC 1643.

[6] Kesavnanda Bhartivs. State of Kerala, (1973) 4 SCC 225.

[7] Minerva Mills Ltd. vs. Union of India, AIR 1980 SC 1789.