Parliament’s power to amend Fundamental Rights

There is huge case law on how the judiciary finally interpreted article 13 to make sure the constitution and rights of citizens were protected and the parliament was also not stripped away of the power to make laws. This blog is not only important historically but also politically and legally. Read more!

First, let us consider the importance of fundamental rights. “Fundamental rights can be named as basic privileges of the person.” Fundamental Rights produce a sentiment of security among the minorities in the nation. They build up the structure of ‘vote based authenticity’ for the control of the dominant part. Let us discuss the power to amend.

Article 13 (2) and (3)[1] of the Constitution of India Provides that:

(2) 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 be, to the extent of contravention, be void

(3) (a) “Law” includes any ordinance, order, bye law, rule, regulation, notification, custom usage having in territory of India the force of law.

The parliament which can reduce one fundamental right today may in future take away all the fundamental rights ensured under Part III. Time may come when the parliament in exercise of its capacity under Art. 368 expel the part of fundamental right.

Shankari Prasad v. Union of India, 1951[2]:

The constitutional validity of first amendment (1951), which reduced the right to property, was tested in Shakari Prasad vs. Union of India on the ground that Article 13(2) restricted authorization of a law encroaching or revoking a fundamental right. The word ‘law’ in Article 13(2), it was contended, incorporated any law, even a law amending the Constitution.

Supreme Court held that the power to amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law within the meaning of Article 13(2). Article 13(2) states that – “The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention to this clause shall, to the extent of the contravention, be void”. An amendment is valid even if it abridges any fundamental Right.

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Sajjan Singh v. State of Rajasthan, 1964[3]:

In 1955, by the Constitution (Fourth Amendment) Act, Article 31A was amended. Notwithstanding those amendments some authoritative measures adopted by different States for giving impact to the policy were adequately challenged.  In request to spare the legitimacy of those Acts  as well  as of different Acts which were probably going to be struck  down, Parliament instituted the Constitution (Seventeenth Amendment), Act  1964, by which Art. 31A was again corrected and 44  Acts, were  added to the Ninth Schedule. The petitioners contended that   the Constitution (Seventeenth Amendment) Act was naturally invalid.

SC held that the power given by Art. 368, incorporates the power to take away the essential rights ensured by Part III.  In the  context  of the constitution it incorporates the  power  of modification,  or  changing  the  provisions,  or  even   an amendment  which makes the said provisions in applicable in certain cases. The expression “amendment of the Constitution” plainly and unambiguously implies amendment of all the arrangements of the Constitution. The word ‘law’ in Article 13(2) does exclude a law passed by Parliament by prudence of its constituent power to amend the Constitution.

Golaknath v. State of Punjab ,1967[4]:

The validity of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act was tested under Art. 32 of the Constitution.  Since these  Acts  were  included  in the  9th  Schedule  to the Constitution  by  the Constitution  (Seventeenth)  Amendment Act,  1964, the authenticity of the said Amendment Act was also challenged.   In this affiliation it was urged  that  Sankari Prasad’s  case in which the validity  of  the constitution (First) Amendment  Act,  1951 had been kept up and  Sajjan Singh’s case  in  which the validity  of  the Constitution (Seventeenth)  Amendment Act, 1964, had been kept up by this Court, had  been wrongly decided. It was contended that Parliament had no   power to amend fundamental rights in Part III of the Constitution.

Supreme court pivoted its before decision in Shankari prasad and Sajjan singh case and held that

  1. Fundamental Rights cannot be abridged or taken away by the amending procedure in Art 368 of the Constitution.
  • The Supreme Court tentatively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no capacity to amend Part III of the Constitution in order to abridge or take away any of the Fundamental Rights. It additionally included that Article 368 merely lays down the procedure for the purpose of amendment. Further, The Court said that amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it might be pronounced void.
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24th Amendment Act, 1971:

Golaknath’s case made a ton of challenges and accordingly the Parliament instituted 24th Amendment act, 1971 whereby it changed the old heading of Article 368– “Procedure for Amendment of the Constitution” to another heading – “Power of the Parliament to Amend the Constitution and Procedure Therefor.” To the advantage of the Legislators, the 24th Amendment Act, 1971 reestablished and expanded the extent of power of Parliament to amend the Constitution by including the words “amend by way of addition or variation or repeal any provision in accordance with the provisions laid down in this Article”. Further, the alteration gave that “Nothing in Article 13 shall apply to any amendment made under this article” by method for an addition of Clause 3 to Article 368.

Kesavananda Bharti v. State Of Kerela , 1973[5]:

Keshvananda Bharti’s case tested the legitimacy of the Kerala Land Reforms Act, 1963 and the legitimacy of the 24th, 25th and 29th Amendment to the constitution moreover.

The Court held, by an edge of 7-6,“that although no part of the constitution, including central rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the “basic structure” of the Constitution couldn’t be revoked even by a constitutional amendment”.

  1. 24th, 25th and 29th Amendments Acts are legitimate.
  • Golak Nath’s case was wrongly chosen and that an amendment to the Constitution was not a “law” for the purpose of Article 13. The power of amendment is entire and can be utilized to revise every one of the articles of the constitution (including the Fundamental Rights).
  • “the power to amend does exclude the ability to amend the basic structure of the Constitution in order to change its personality”.

The decision hence settled the rule that the basic structure can’t be amended in light of the fact that a power to amend isn’t a power to pulverize.

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The last word on the issue of Amendability can be identified with Basic Structure’ characterized in Kesavananda Bharti’s case. To give some examples Minerva Mills’ case, S. P. Sampath Kumar’s case and L. Chandra Kumar’s case are all around dependent on the rule of Basic Structure’ and this circumstance is probably not going to change sooner rather than later. Unmistakably all laws and constitutional amendments are currently subject to legal survey and laws that transgress the fundamental structure are probably going to be struck down by the Supreme Court. Basically Parliament’s capacity to amend the Constitution (counting fundamental rights) isn’t absolute and the Supreme Court is the last mediator over and translator of every constitution amendment.

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[1]Article 13 (2) & (3) of The Constitution of India, 1949

[2]Shankari Prasad Singh Deo vsUnion of India, AIR. 1951, SC 458

[3]Sajjan Singh vsState of Rajasthan1965, AIR 845, 1965 SCR (1) 933

[4]Golaknath and Ors. vs. State Of Punjab 1967, AIR 1643, 1967 SCR (2) 762

[5]Kesavananda Bharati Sripadagalvaru and Ors. vs. State of Kerala and Anr.(1973) 4 SCC 225