This article analyses different concepts of amendments in India. Such as how politics influenced the Indian judiciary regarding to amending power under different sections. And also the amending power under article 368 and the scope of parliaments power to amend the constitution. It have researched and included my views in this particular article
Key words- Amendments, Article 368, Parliament.
1. WHAT IS THE POLITICS BEHIND THE CONSTITUTIONAL AMENDMENTS IN INDIA?
One of the darkest periods in Indian history was seen during Indira Gandhi’s government. The walls of democracy were tampered, rights were violated, the government was with an unlimited power and constitution was being exploited, government was overriding the constitution.
The situations around 1971were slipping even though India won over Pakistan in Bangladesh liberation war it had shortcomings from the side of Bangladesh as it has seen influx of millions of refugees in to the country, US stopped all its aids which led to increase in commodity prices India saw a slow growth in industrial sector and the effects of green revolution was nowhere to be seen. 1972 saw less monsoons which delayed in food grains output. In 1975 Gujarat and Bihar saw protests against rising prices of food grains and other essential commodities and corruption in the state government. JP a social activist took this issue to national level protesting to resign the government. At the same time railways protested under the leadership of George Fernandes.
REASONS COVERING GOLAK NATH AND KESHAVANANDA BHARTI CASE ISSUES.
Indira Gandhi’s pursued a socialist agenda. She passed the 25 amendment which was a big blow to India as it took away the supremacy of fundamental rights. Around 124 laws were made part of ninth schedule relating to nationalization, currency controls, land ceiling, rent control, regulate monopolies, and even protect her Lok Sabha seat. The constitution was amended so frequently that in the case of Golak Nath the Supreme Court limited the power of parliament to amend the constitution but in turn the former prime minister amended article 368 to regain the authority.
24th amendment act was passed to nullify the judgment of golakanath but it was challenged in Keshavanada bharti which heard the case over 6months and nullified 24th amendment and held that parliament can amend but cannot change the basic structure of the constitution. The court did recognize basic structure but it never clarified what comes under the doctrine it was to be decided on case to case basis.
DISQUALIFICATION OF INDIRA GANDHI AS MEMBER OF PARLIAMENT .
Indira Gandhi won the Rae Bareli constituency in the 1971 Parliamentary elections, prompting Raj Narain to bring a suit in the Allahabad High Court accusing Indira Gandhi of corruption. The Allahabad High Court held Indira Gandhi of electoral malpractices and the election was held null and void. It alleged that she spent more money than was allowed and further that her campaign was carried out by government officials. On March 19, 1975, Gandhi became the first Indian prime minister to testify in court on March 19, 1975. Gandhi’s election to Parliament was declared null and void on June 12, 1975, by Justice Sinha of the Allahabad High Court, although she was given 20 days to appeal to the Supreme Court. The Supreme Court put a conditional stay on the High Court judgments on June 24, allowing Gandhi to attend Parliament but not vote until the court ruled on her appeal.
DECLARATION OF EMERGENCY
On June 25, 1975 emergency was declared in the nation. It was a unanimous decision by the prime minister herself. President Fakhruddin Ali Ahmed declared a state of internal emergency upon the Prime Minister’s advice on the night of June 25, 1975, just a few minutes before the clock struck midnight. The cabinet members were informed in a meeting at 6 am but the session lasted only for 15min and they weren’t allowed to discuss it. She addressed the nation at 8 am stating the reason as internal disturbances in the country.
Electricity to major newspaper offices were disconnected and were only restored after 2-3 days. Around 1, 10,000 citizens of our country were illegally detained and not even informed about the grounds of their detention. Almost all opposition political figures have been imprisoned. The detention led to the absence of many members in the parliament which gave her a chance to pass laws without much opposition
She passed 39th amendment which among many other provisions withdrew the election of the Prime Minister from judicial review; declared the Allahabad High Court decision invalidating her election, void; and excluded the Supreme Court’s jurisdiction to hear an appeal on the election.
MINI-CONSTITUTION OR CONSTITUTION OF INDIRA GANDHI
42nd amendment was introduced, which made the joke of Indian Constitution. This amendment led to the position where people started calling the Constitution as the “Constitution of Indira” instead of “Constitution of India” or “mini-Constitution”. This Amendment Act even changed the provisions of the Preamble of the Constitution. It added the term socialist and integrity in the preamble. Till this date it was not amended again and people using constitution in protest now I.e. in 2019 -2021 is actually Indira’s constitution. It froze the constituencies per state based on the 1971 census and also suspended the revision of seats until after the 2001 Census. Indian Judiciary was unified, but the amendment restricted the power of High Court to only adjudicate upon the validity of State legislation and Supreme Court on Central legislation Article 131A was added as a new provision, giving the Supreme Court sole authority over questions relating to central law. After this modification, the legislature’s constitutional amendments could no longer be challenged in court on any grounds. In addition, MPs and MLAs’ membership could not be disputed in court. In the event of a disagreement The President was given sole authority over his membership in the Parliament, and the Parliament’s term was increased from five to six years.
After an 18-month emergency, which ended in January 1977, the government decided to hold an election in March 1977.
The opposition came together to establish the Janata Party, led by JP Narayan, and the Congress was defeated in the Lok Sabha elections for the first time since independence. Only 154 seats were won by the Congress in the Lok Sabha, whereas 295 seats were won by the Janata Party (330, along with its allies).
Indira Gandhi lost her seat in Rae Bareli, and her son Sanjay Gandhi lost his seat in Amethi.
2. WHETHER FUNDAMENTAL RIGHTS CAN BE AMENDED UNDER ARTICLE- 368?
Fundamental rights can be amended under Art-368 as constitutional amendments but it cannot violate the basic structure doctrine. Arriving to this decision was huge task to Indian judiciary system, many debates were conducted after many cases finally in keshavanda bharti this judgment was held.
Few important cases regarding amendments of fundamental rights are given below.
- Shankari Prasad Singh v. Union of India
The constitutional validity of the First Amendment Act was challenged on the grounds that it claimed to abridge the fundamental rights guaranteed by Part 3 of the Indian Constitution. Article 368 of the Constitution grants the ability to change the Constitution, including Fundamental Rights, according to the Supreme Court. An amendment is not a law in the sense of Article 13 of the Constitution (2). “The State shall not create any law that takes away or abridges the rights conferred by this part, and any law made in contradiction of this section shall, to the extent of the contravention, be void,” declares Article 13(2). Even though it abridges a basic right, an amendment is legitimate.
- Sajjan Singh v. State of Rajasthan, 1965
The constitutionality of the 17th Amendment Act, 1964 was challenged on the grounds that one of the acts introduced by the amendment in the 9th Schedule harmed the petitioner since the amendment was under the jurisdiction of Article 368 and the proviso to Article 368 had not been met. The Supreme Court upheld the judgment in the Shankari Prasad case, ruling that the matter was correctly resolved under Article 13 (2). The term “amendment” refers to any change to the Constitution’s provisions.
- Golaknath Case v state of Punjab
The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend part 3 of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it may be declared void.
- Art. 368 do not contain the substantive ability to change; it merely specifies the method for amending the Constitution.
- A law enacted under Art.368 would be subject to Article 13(2), just like any other legislation; the word “amend” meant only small changes to existing legislation, not major changes;
- Parliament should call a Constituent Assembly to amend the Fundamental Rights.
- Kesavananda Bharti v. State of Kerela
This gave the most comprehensive explanation of the meaning and scope of the term Amendment. It was claimed that a broad definition of the term Amendment would embrace any change or alteration. When used in connection with the Constitution, the term amendment may refer to the insertion of a provision on a new and distinct subject, complete in itself and completely separate from existing provisions, or to a specific article or clause, and is then used to imply an addition to, the striking out of, or a modification in that specific article or sentence.”
Swami Kesavananda Bharti, a mutt leader in Kerala, contested the constitutional legitimacy of both the Twenty-Fourth and Twenty-Fifth Amendments in the Supreme Court through an Art. 32 writ-petitions in Kesavananda Bharti v. State of Kerela. Because a decision by a bench of 11 Judges in the case of Golaknath was under review, this matter was brought before the largest number of Judges, namely 13, in this case. The Judges issued opinions on April 24, 1973, on the wide-ranging arguments that had been presented to the court for over 60 days:
- Article 368 was interpreted in the Golaknath case as a provision that specifies a “procedure to amend” rather than a “power to alter.” In this landmark decision, the court decided that the ability to modify the Constitution is found in Article 368 itself.
- The court also acknowledged that there is a difference between common law and constitutional law.
- The amending power was now bound to one important condition: it could not be used to remove or undermine the Constitution’s core, essential, or fundamental aspects. This gave rise to the idea of basic structure, which states that any constitutional modification that violates the fundamental structure of the country is invalid.
Few basic structure features are
· Supremacy of the Constitution;
· Republican and democratic form of government;
· Secular character of the Constitution;
· Separation of Powers;
· Federal character of the Constitution.
Hence fundamental rights can be amended under article 368 but without violating basic features of the constitution. If a law is unconstitutional it can be held the same with the power ascertained through art-13 if an amendment is violating fundamental rights or any basic structure feature it can be held invalid with art-368.
3.WHAT IS THE SCOPE OF AMENDING POWER?
The scope of the amending power can be simply understood as to what extent does the parliament has power to amend the constitution.
Indian constitution is neither rigid nor flexible. It’s difficult to change, but it’s practical. An amendment to the Indian Constitution can be introduced in either house and then passed by a special majority or a simple majority, according to Article 368. If the measure receives a majority vote, it will be delivered to the president for his signature.
103 Amendments have been made to the Constitution in its 69 years of existence. The 42nd Amendment is known for including the keywords socialist, secular, and integrity. In fact, the First Amendment was enacted in 1950.
Procedure for Amendment
- A bill for the Amendment can be introduced in any house of the Parliament.
- That bill can be introduced as a Government Bill or a Private Member Bill.
- Prior recommendation of the President not needed.
- Bill must be passed from both the houses by Absolute + Special majority i.e. more than 50% and 2/3 Special majority.
- And some time required the majority from the state legislature also like in case of G.S.T.
Indira Nehru Gandhi v. Raj Narain  the essential structure concept was once again reaffirmed in this example. The Supreme Court used the same logic to strike down the 4th clause of Article 329 a, claiming that the Amendment exceeded parliament’s authority and damaged the Constitution’s fundamental structure. The amendment was designed to clarify that all courts, including the Supreme Court, have jurisdiction over a dispute over the Prime Minister of India’s election.
The Supreme Court endeavored to impose an implied limitation on parliament’s amending powers in Golaknath, Kesavanada Bharti, Indira Gandhi, and other instances. If we summaries the judgments of all the instances addressed in this article, the court always seek to pressurize on a few things:
- The authority to modify the Constitution is limited in Parliament.
- The core framework of the Constitution cannot be harmed by the legislature.
- Article 368 of the Constitution does not provide parliament the authority to amend Part III of the Constitution.
- The Parliament cannot enhance its Amendment powers by modifying Article 368.
4. WRITE DOWN THE FOLLOWING AMENDMENTS THAT HAS DONE IN BY WAYOFADDITION?
- 42nd Amendment Act, 1976 was passed by the Parliament by the way of addition. Amendment added clause 4 and clause 5 to Article 368. Article 368(4) provided that no Constitutional Amendment shall be called in any court on any ground. Article 368(5) provided that there shall be no limitation whatsoever on the constituent power of the Parliament.
- 25th Amendment Act, 1971. This Act inserted Article 31-C to confer immunity on laws pursuant to Directive Principles from being held void on the ground of inconsistency with Articles 14, 19 and 31.
- 52nd Amendment Act, 1985: Paragraph 7 of the 10th Schedule to the Constitution, inserted by this Act, to disqualify elected members of Parliament and state legislatures on the ground of defection
5. WHAT ARE THE AMENDMENTS DONE IN BY WAY OF VARIATION AND REPEAL?
- 2nd amendment act amended article 81(1) (b) which removed the upper population limit for a parliamentary constituency by amending Article 81(1) (b).
- 8th amendment act amended article 334Extended the period of reservation of seats for the Scheduled Castes and Scheduled Tribes and Anglo-Indians in the Lok Sabha and the State Legislative Assemblies till 1970.
- 9th amendment act amended schedule 1 Minor adjustments to territory of Indian Union consequent to agreement with Pakistan for settlement of disputes by demarcation of border villages, etc.
- 28th amendment act Inserted article 312A and removed article 314 to Rationalize Civil Service rules to make it uniform across those appointed prior to Independence and post independence.
Credits: Amrutha Bawgi, Presidency University, Bangalore
 Shankari Prasad Singh v. Union of India AIR 1951 SC 458
 Sajjan Singh v. State of Rajasthan AIR 1965 SC 845
 Golaknath Case v state of Punjab AIR 1967 SC 1643
 Kesavananda Bharti v. State of Kerela AIR 1973 SC 1461
 Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299