2013-2018

FINAL DRAFT
AMENDMENT OF THE CONSTITUTION AND FUNDAMENTAL RIGHTS

Taught byDr. Swamy

Assistant Professor (Law)

Name- Shivangi
Roll no. - 968
Sub.- Constitutional LawII

Page |2

I.
OBJECTIVE
The main objective of the researcher is to minutely focus on the different provisions related
to the amendment of Constitution with respect to Fundamental Rights.
II.

HYPOTHESIS

The researcher is of the view that Parliament's power to amend the Constitution is not
absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional
amendments.
III.

METHODOLOGY

The researcher has used doctrinal method of research and has used both primary sources and
secondary sources for the research.

CHAPTERISATION

Page |3

ACKNOWLEDGEMENT............................................................................................................................................IV
I.

INTRODUCTION.................................................................................................................................................5

II.

NEED AND IMPORTANCE OF AMENDING PROVISIONS IN THE CONSTITUTION.....................8

III.

THE SIGNIFICANCE OF THE 24TH AMENDMENT TO THE CONSTITUTION OF INDIA..........11

IV.

42ND CONSTITUTIONAL AMENDMENT: A DRACONION ACT OF PARLIAMENT.....................15

V.

CONCLUSION...............................................................................................................................................18

BIBLIOGRAPHY.........................................................................................................................................................19

Page |4

ACKNOWLEDGEMENT
It's a fact that any research work prepared, compiled or formulated in isolation is inexplicable to
an extent. This research work, although prepared by the researcher, is a culmination of efforts of
a lot of people.
Firstly, I would like to thank our Constitutional Law-II teacher, Dr. Swamy for giving such a
topic to research which assisted me in acquiring knowledge related to the topic jurisprudence:
philosophy about study of law. I would like to thank him for the valuable suggestions that he
gave for the preparation of this making project.
I cannot ignore the contributions made by my classmates and friends towards the completion of
this project work. And I would also like to express my gratitude towards the library staff of my
college who assisted me in acquiring the sources necessary for the compilation of my project.
--SHIVANGI

Page |5

I.

INTRODUCTION

The Constitution of India is the supreme law of the land, which is fundamental in the governance
of India. The Constitution of India was enacted on 26th November, 1949 and was adopted on
26th January, 1950. The Draftsmen of the Indian Constitution took inspiration from Constitutions
all over the world and incorporated their attributes into the Indian Constitution. For example Part
III on Fundamental Rights is partly derived from the American Constitution and Part 1V on
Directive Principles of State Policy from the Irish Constitution.
A Constitution should be a dynamic document. It should be able to adapt itself to the changing
needs of the society. Sometimes under the impact of new powerful social and economic forces,
the pattern of government will require major changes. Keeping this factor in mind the Draftsmen
of the Indian Constitution incorporated Article 368 in the Constitution which dealt with the
procedure of amendment.
George Bernard Shaw in Intelligent Womans Guide to Socialism has said1:
The institutions under which we live are being changed continually by the Parliament, because
we are never satisfied with them. Sometimes they are scrapped for new ones; sometimes they are
altered; sometimes they are done away with as nuisances. The new ones have to be stretched in
the law courts to make them fit, or to prevent them fitting to well if the judges happen to dislike
them.
The life of a state is vibrant and in order to facilitate the ever dynamic developments and needs
of society, its economic, social and political conditions mutate continuously. So, a Constitution
drafted in one context at a particular time may prove inadequate at a later stage. Every
Constitution has some method of amendment whereby a provision is modified by way of
addition, deletion or correction so as to suit the needs of the present.

1 Kapil Raina, Amendability of Indian Constitution with Reference to Fundamental Rights,

http://indiatoday.intoday.in/story/judges-supreme-court-judiciary-lawyers-judges-bill-parliament/1/378482.html, as
seen on 24/04/2016 at 2:20 pm.

Page |6

Provisions for the amendment of the Constitution are made with a view to overcome the
difficulties which may encounter in future in the effective working of the Constitution 2. The
framers of the Constitution were keen to avoid excessive rigidity and wanted it to a bit flexible.
They wanted to have a document that could grow with a growing nation and adapt itself to the
ever changing needs of people.
Definition of Amendment
The term amendment3 derives from the Latin word amendere. The term amend means to
make right, to make correction or to rectify. In common parlance amendment conveys the
sense of slight change. According to the Websters new dictionary and Funk and Wagnalls
standard dictionary the word amendment when used in relation to a Constitution, carries all
meaning such as alterations, revision, repeal, addition, variation or deletion of any provision of
the Constitution.20 Oxford dictionary of law says21 Amendment means changes made to
legislation, for the purpose of adding to, correcting or modifying the operation of the
legislation. Blacks Law Dictionary defines,22 Amendment as A formal revision or addition
proposed or made to a statute, Constitution, pleading, order, or other instrument; a change made
by addition, deletion or correction specially an alteration of wording. And In Parliamentary
law, it means a motion that changes another motions wording by striking out text, inserting or
adding text, or substituting text. Legally speaking amendment denotes adjustment, amelioration,
betterment, change, elaboration, emanation, enhancement, improvement, notification and
refinement etc.23Generally the Constitution provides machinery whereby any of its provision
may be altered following the procedure prescribed therein. The framers of the Indian
Constitution were anxious to have a document which could grow with the growing nation and
enable the Parliament to give effect to the popular will which sometimes tend the people to adopt
extra constitutional method like revolution to change the Constitution. The procedure of
amendment under Art.368 of the Constitution shows the awareness of the framers about the
danger of two extremes i.e. extreme flexibility and extreme rigidity. However, in spite of its own
importance, Art.368 is not free from ambiguity and imperfection. Since 1951 questions have
2 Negi Mohita, Amendment of Fundamental Rights, http://www.yourarticlelibrary.com/essay/amendment-offundamental-rights-constitution-of-india/24876/, as seen on 24/04/2016 at 3:34 pm.
3 http://thelawdictionary.org/amendment/, as seen on 24/04/2016 at 3:50 pm.

Page |7

been raised about the true scope and nature of amending process provided under Art.368 of the
Constitution. A survey of the Indian constitutional amendments till this date reveals that there are
very few provisions that remain untouched. Presently, starting with the preamble of the
Constitution and ending with Art.394-A majority of the provisions have been touched upon by
taking the recourse of amendments for more than ninety times. The meaning of the word
amendment was for the first time sought to be explained in case of Sajjan Singh v. State of
Rajastan4.The court held the amendment provision of Constitution may include the deletion of
any one or more of its provisions and substitution in their place of new provisions. The meaning
given in above case was restricted in Golaknath case the majority of judges in this case held that
In amendment only major changes or improvements can be made and not includes total repeal
of the provisions already existing in this Constitution. But Keshavananda Bharati v. State of
Kerela5 provided the best explanation as to the scope and definition of the word Amendment.
It proposed that A broad definition of the word Amendment will include any alteration or
change. The word amendment when used in connection with the Constitution may refer to the
addition of a provision on a new and independent subject, complete in itself and wholly
disconnected from other provisions, or to some particular article or clause, and is then used to
indicate an addition to, the striking out, or some change in that particular article or clause.
According to Mr. Palkhivala there can be three possible meanings of amendment: (i) to improve
or better; to remove an error, the question of improvement being considered from the standpoint
of the basic philosophy underlying the Constitution but subject to its essential features; (ii) to
make changes which may not fall within (i) but which do not alter or destroy any of the basic
features, essential elements or fundamental principles of the Constitution; (iii) to make any
change whatsoever including changes falling outside (ii). He claims that the preferable meaning
is that which is contained in (i) but what is stated in (ii) is also a possible-- construction.
Category (iii) should be ruled out altogether. Category (i) and (ii) have a common factor, namely
that the essential features cannot be damaged or destroyed.

4 Sajjan Singh vs State Of Rajasthan, 1965 AIR 845.

5 Kesavananda Bharati vs State Of Kerala And Anr, (1973) 4 SCC 225.

Page |8

II.

NEED AND IMPORTANCE OF AMENDING

PROVISIONS IN THE CONSTITUTION

The Constitution was designed to be a means to achieve the welfare of the common man and
must respond to the popular needs. In order to fulfill the aspirations of the people, we need
changes in the Constitution whenever necessary. In a democracy neither the Constitution nor the
government is supreme: it is the people who are supreme and they have the right to change the
Constitution partially or completely. Unamendability of a Constitution is the worst tyranny that
can be imposed on any generation and a democratic Constitution without a provision to amend it
would be a contradiction in terms. Therefore, in accordance with liberal-democratic tradition, the
power to amend the Constitution of India has been vested in the Parliament. When this power is
conferred to the Parliament, the very next questions comes in our mind is that, what, if certain
provisions were faulty, unreasonable or inadequate? What, if the future requirements of a State
were not reasonably foreseen by the makers of the Constitution? What, if the future generations
require some readjustments in the working of the Constitution or want to make some changes? Is
it possible to amend a Constitution if there be a need to do so? The need of an amendment to the
Constitution comes into the picture when there is a change in the society6. This happened within
a year from the date of commencement of the Constitution. In 1951, when Bihar Government
passed a law Called Bihar Land Reforms Act, 1950, the same was challenged in the Patna High
Court and declared unconstitutional, since it was violating some of the Fundamental Rights of
the Constitution. But the Allahabad High Court upheld the relevant agrarian legislations passed
in Uttar Pradesh. The persons aggrieved by these decisions filed appeals in the Supreme Court.
At this point, the Union Government, anxious to put an end to such litigation and for facilitating
the implementation of agrarian laws, Prime Minister Nehru introduced the Constitution (First
6http://www.time4education.com/briefcase/Articles-from-MBAMag/National/The%20Constitution%20of%20India
%20-%20Important%20Amendments.pdf, as seen on 26/04/2016 at 1:40 pm.

Page |9

Amendment) Bill in the Loka Sabha (Provisional Parliament) and was passed and received the
assent of the President on 18th June 1951 by which Arts.31-A and 31-B were introduced and
Ninth Schedule was also inserted in the Constitution reducing the power of the Court in the
matter of judicial review of legislative Acts. The Ninth Schedule was born with the purpose of
providing super protection to agrarian and economic reform legislation.32The main object was to
insert provisions fully securing the Constitutional validity of Zamindari Abolition Laws in
general and specified Act in particular33. This was done to establish an egalitarian society in a
country. Because of bringing these land reforms laws, lands were distributed to the landless
people and oppressed class equally to attain and secure economic justice. Imagine without this
amendment provision under Constitution of India, Parliament would not have helped the needy.
There by Parliament in exercise of its amending power, facilitated the farmers to achieve the
economic goal. So this is the best illustration to say, how the provision of amendment under
Constitution is very important and needful to bring some changes which people like. The
importance of the amending clause is explained by John W.Burgess in the following words, A
complete Constitution may be said to consist of three fundamental parts. The first is the
organization of the State for the accomplishment of future changes in the Constitution. This is
usually called the amending clause, and the power which it describes and regulated is called the
amending power. This is the most important part of the Constitution. Upon its existence and
truthfulness, i.e., its correspondence with real and natural conditions, depend the question as to
whether the State shall develop with peaceful continuity or shall suffer alterations of stagnation,
retrogression and revolution. A Constitution, which may be imperfect and erroneous in its other
parts, can be easily supplemented and corrected, if only the State organized in the Constitution,
but if this be not accomplished, error will accumulate until nothing short of revolution can save
the life of State. I dont consider, therefore, that I exaggerate the importance of this topic by
devoting an entire book, in my arrangement, to its consideration. W. Brooke also observed and
stated the importance of the amending clause in a Constitution. The fourth essential of a State
Constitution is a workable method of piecemeal amendment. This item is, in fact so important
that a separate section of this chapter is devoted to its consideration. The amending processes of
many Constitutions furnish striking and indisputable evidence of the fact that unworkable
amending provisions constitute a barrier to the progress of the State. Government is changing,
growing, developing, and dynamic institution, in need of continuous adaptation to changed social

P a g e | 10

and economic conditions7. A Constitution whose amending provisions make it impossible to

make necessary modifications in governmental institutions comes to be a sort of constitutional
straitjacket. We cannot prevent governmental changes by falling to make adequate constitutional
provision for them. The alternative method is likely to be revolutionary upheaval caused by the
accumulation of grievances and social and economic maladjustments. This alternative is not
pleasing to society whose governmental tradition is based upon the orderly processes,
characteristics of Anglo-Saxon institutions. James Wilford Garner makes similar observations
about the importance of the amending clauses. He said, No written Constitution is complete
without such a provision Garner goes on to further state that, In some respects the amending
provision is the most important part of the Constitution. The object of amending clause in a
Constitution is to ensure that the Constitution is preserved. A State cannot be static. It is dynamic
and it changes with the passage of time. The political, social and economic conditions in a State
keep changing with time. Scientific and technological advancements change the life of a State.
The social values and ideals also change with time giving rise to new problems and new
opportunities. Future generations may require change in the provisions of the Constitution in a
proper and peaceful manner to make it suitable to its requirements. A properly drafted amending
clause enables the future generations to adapt the Constitution in accordance with the
contemporary needs and philosophy of a state in a peaceful manner. In the absence of a suitable
amending clause in a Constitution, the only alternative left open for the future generations would
be to either resort to a revolution to change or even overthrow the unamendable Constitution or
to stagnate with such unamendable Constitution. Both these situations are not desirable. The
amending clause in Constitution, which can help in avoiding both these situations, is thus of
great significance. President Wilson aptly observes that a Constitution must of necessity be a
Vehicle of Life. He further observes that its substance is the thought and habit of the nation and
as such it must grow and develop as the life of the nation changes. Living political Constitutions
must be Darwinian in structure and in practice. Sir Jennings observes that the ideas upon
which Constitution is based in one generation may be spurned as old fashioned in the next 8. If
we examine the above observations made by the political thinkers about need and importance of
7 http://www.jaagore.com/articles/simplify/7-important-amendments-of-the-indian-constitution-you-should-knowabout, as seen on 23/04/2016 at 2:30 pm.
8 https://www.archives.gov/federal-register/constitution/, as seen on 25/04/2016 at 3:50 pm.

P a g e | 11

the amendment, we can say amending clause in the Constitution enables the future generations to
exercise their sovereign power of having a Constitution of their choice and of their changing
needs. It is in the light of this importance that the amending clause in a Constitution needs to be
considered with utmost respect and seriousness that is so properly deserves.

III.

THE SIGNIFICANCE OF THE 24TH AMENDMENT

TO THE CONSTITUTION OF INDIA

The procedure for amending the Indian Constitution is neither flexible nor rigid, but a
combination of both. Article 368 in Part XX of the Constitution deals with the powers of the
Parliament to amend the Constitution and its procedure. The Parliament may in the exercise of its
constituent power amend by way of addition, variation or repeal any provision of the
Constitution in accordance with the procedure laid down.
Prior to the Golak Nath Case, the Supreme Court maintained that Fundamental Rights were also
amendable. The case ruled that the Fundamental Rights were transcendental in nature and the
Parliament cannot abridge or take away any Fundamental Rights9.
Reacting to this Judgement of the Supreme Court the Parliament through the 24th Amendment
Act, 1971 brought certain changes to the amend ability of the Fundamental Rights. The 24th
Amendment Act, 1971 amended Articles 13 and 368. It declared that the Parliament has the
power to abridge or take away any of the Fundamental Rights under Article 368 and such an Act,
will not be a law under the meaning of Article 13.
The Supreme Court upheld the validity of the 24th Amendment Act, and stated that the
Parliament is empowered to abridge or take away any of the Fundamental Rights but at the same
time laid down the new doctrine of the basic structure of the Constitution.
Thus, it may be said that the 24th Amendment enhanced the powers of the Parliament to amend
the Fundamental Rights.
9 http://www.civilserviceindia.com/subject/Law/notes/24th-amendment-act-1971.html, as seen on 24/04/2016 at
4:30 pm.

P a g e | 12

Theory of Basic Structure

The question whether fundamental rights can be amended under article 368 came for
consideration in the Supreme Court in Shankari Prasad case10. In this case validity of constitution
(1st amendment) act, 1951 which inserted inter alia , articles 31-A and 31-B of the constitution
was challenged. The amendment was challenged on the ground that it abridges the rights
conferred by part III and hence was void. The Supreme Court however rejected the above
argument and held that power to amend including the fundamental rights is contained in Article
368and the same view was taken by court in Sajjan Singh case11.
In Golak Nath case12, the validity of 17th Amendment which inserted certain acts in Ninth
Schedule was again challenged. The Supreme Court ruled the parliament had no power to amend
Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh
case. In order to remove difficulties created by the decision of SC in Golak Nath case parliament
enacted the 24th Amendment act.
The Supreme Court recognized BASIC STRUCTURE concept for the first time in the historic
Kesavananda Bharati case 13in 1973. Ever since the Supreme Court has been the interpreter of
the Constitution and the arbiter of all amendments made by parliament. In this case validity of
the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth
Amendments. The court by majority overruled the Golak Nath case which denied parliament the
power to amend fundamental rights of the citizens. The majority held that article 368 even before
the 24th Amendment contained the power as well as the procedure of amendment. The Supreme
Court declared that Article 368 did not enable Parliament to alter the basic structure or
framework of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or
10 Sri Sankari Prasad Singh Deo vs Union Of India And State Of India, 1951 AIR 458.
11 Sajjan Singh vs State Of Rajasthan, 1965 AIR 845.
12 I. C. Golaknath & Ors vs State Of Punjab & Anrs, 1967 AIR 1643.
13 Kesavananda Bharati vs State Of Kerala And Anr, (1973) 4 SCC 225.

P a g e | 13

framework of the constitution. This decision is not just a landmark in the evolution of
constitutional law, but a turning point in constitutional history.
Basic Features of the Constitution according to the Kesavanada verdict each judge laid out
separately, what he thought were the basic or essential features of the Constitution.
Sikri, C.J. explained that the concept of basic structure included:

Supremacy of the Constitution

Republican and democratic form of government
Secular character of the Constitution
Separation of powers between the legislature, executive and the judiciary
Federal character of the Constitution

Shelat, J. and Grover, J. added three more basic features to this list:

The mandate to build a welfare state contained in the Directive Principles of State Policy
Unity and integrity of the nation
Sovereignty of the country.

Unegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

Sovereignty of India
Democratic character of the polity
Unity of the country
Essential features of the individual freedoms secured to the citizens
Mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble
Of the Constitution and the provisions into which they translated such as:

Sovereign democratic republic

Justice - social, economic and political
Liberty of thought, expression, belief, faith and worship
Equality of status and the opportunity.

He said that the Constitution would not be itself without the fundamental freedoms and the
directive principles.

P a g e | 14

Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and
Kesavananda Bharati, expressed the view:
"The existence of a remote judicial control may only act as a brake against hasty and
unreasonable legislative and executive action and as a form of guarantee to the public against
instability. The stability of the Constitution stabilizes the State."
Basic Structure concept reaffirmed- the Indira Gandhi Election case In Indira Gandhi v. Raj
Narayan14, the Supreme Court applied the theory of basic structure and struck down cl.(4) of
article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was
beyond the amending power of the parliament as it destroyed the " basic feature" of the
constitution. The amendment was made to the jurisdiction of all courts including SC, over
disputes relating to elections involving the Prime Minister of India.
Basic Features of the Constitution according to the Election case verdict Again, each judge
expressed views about what amounts to the basic structure of the Constitution: Justice Y.V.
Chandrachud listed four basic features which he considered unamendable:

Sovereign democratic republic status

Equality of status and opportunity of an individual
Secularism and freedom of conscience and religion
government of laws and not of men' i.e. the rule of law

Justice H.R. Khanna- democracy is a basic feature of the Constitution and includes free and fair
elections.
Basic structure doctrine reaffirmed - the Minerva Mills
In Minerva Mills case15 the Supreme Court by majority by 4 to 1 majority struck down clauses(4)
and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses

14 1975 AIR 1590.

15 Minerva Mills Ltd. & Ors vs Union Of India & Ors, 1980 AIR 1789.

P a g e | 15

destroyed the essential feature of the basic structure of the constitution. It was ruled by court that
a limited amending power itself is a basic feature of the Constitution.
In L. Chandra Kumar case 16a larger Bench of seven Judges unequivocally declared "That the
power of judicial review over legislative action vested in the High Courts under Article 226 and
in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of
the Constitution, constituting part of its basic structure".

IV.

42ND CONSTITUTIONAL AMENDMENT: A

DRACONION ACT OF PARLIAMENT

Government and Judges might come and go but democracy; the basic features of the constitution
should remain eternal". - Justice Y.V Chandrachud.17
The above statement of the Honble judge appears to be an irony in 42nd Constitutional
Amendment in India of democratic mysteries under the rule of the said sovereign; The
Parliament. It is ultra Vires of Parliament to make laws seeking any amendment of the
constitution which would infringe, restrict or diminish rights of individuals.[1] The constitution
was to be amended to strengthen the strands of the seamless web but stretched nearly to the
breaking point. The Constitution (Forty Second Amendment) Act 1976 "is responsive to the
aspirations of the people, and reflects the realities of the present time and the future"[2]
Democracy had been abolished indefinitely, possibly forever. Above all, the importance of
fundamental rights was greatly devalued.
Thus, the whole complexion of the constitution was sought to be changed so as to reduce the
element of constitutionalism therein.[3] 42nd Constitutional Amendment was enacted due to the
recommendations of Swaran Singh Committee [4] It was in fact appointed to study the question
of amendment of the Constitution in the light of "experience".
amendment had four major purposes:
16 L. Chandra Kumar vs Union Of India And Others, (1997) 3 SCC 257.
17Constitutional
Amendments,
http://euler.math.uga.edu/wiki/index.php?title=Fortysecond_Amendment_of_the_Constitution_of_India, as seen on 26/04/2016 at 5:40 pm.

P a g e | 16

i. Exclude the courts entirely from election disputes;

ii. To strengthen the central government vis--vis the state governments and its Compatibility to
rule the country as a unitary, not a federal, system;
iii. To give maximum protection from judicial challenge to social revolutionary legislation;
iv. To trim the judiciary, so as to make it difficult for the court to upset parliaments policy in
regard to many matters.[5]

It said that amendments could not be questioned in any court on any ground; and there shall be
no limitation on Parliaments power to amend the Constitution by way of addition, variation or
repeal. Constitutional Amendment is the most controversial and debatable piece of
constitutional amendment ever undertaken in India since 1950.[6] The amendment was so
extensive in nature and character that it may be Constitutional Amendment the longest
amendment act of the constitution or even mini constitution.[7] This amendment amended the
Preamble to the Constitution, 40 Articles and the Seventh Schedule, and added 14 new Articles
and two new parts to the Constitution.
42nd Constitutional Amendment made two changes in the Preamble:
Firstly, it changed the characterization of India to sovereign, socialist secular democratic
republic from sovereign democratic republic.18 An eminent authority on Constitution H.M
Seervai has severely criticized the above resolutions these words are ambiguous and should not
have been inserted in the Preamble without a reason.
Secondly, the words unity of the nation was changed to unity and integrity of the nation. 42nd
Constitutional Amendment froze the readjustment in constituencies for election to Lok Sabha,
and State Legislative Assemblies, after every census held after an interval of ten years at the
point of 1971 census till the holding of the first census after the year 2000. The fixation of the
number of seats for the Schedule Constitutional Amendments and the Schedule tribes in Lok
Sabha and State Legislative Assemblies was also frozen. The quorum in a House of Parliament
18 http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=5622, as seen on 26/04/2016 at 7:35 pm.

P a g e | 17

or a State Legislature was left to be fixed by the rules of each house. It extended the term of Lok
Sabha and State Legislative Assemblies from five to six years. A person holding an office of
profit is disqualified from the membership of parliament or a State Legislature and have courts
power to declare what was an office of profit was ceased. Similarly, disqualification
Constitutional Amendment of the members of the State Legislature was to be decided by the
President in consultation with the Election Commission as in Constitutional Amendments of
Parliament, till then the power vested in the Governor.
42nd Constitutional Amendment amended Art. 74 and explicitly laid that the President shall act
in accordance with the advice of the Council of Ministers. But no such provision was made by
42nd constitutional amendment as regards the State Governors. Thus the Governor has certain
discretionary functions to discharge in respect of which he is not bound by ministerial advice.
Art.352 was amended to authorize the President to vary proclamation of emergency but earlier he
could not. For this some necessary changes were made in Article 353, 358 and 359.
Earlier the proclamation of emergency under Art.356 needed parliamentary approval to operate
at the end of every six years but now this period was extended to one year. Amendment of Article
357 ensured that laws made for a State when it was under Art.356 emergency was not to come to
an end automatically Constitutional Amendment after the expiry of the emergency but would
continue in operation until the State Legislature made changes19.
42nd Constitutional Amendment added few more Directive Principles, viz Art.39A, Art.43A, Art.
48A.
Art. 31C was amended to give primacy to all Directive Principles over the Fundamental Rights
irrespective of their being inconsistent with any of the rights conferred by Article 14, 19 or 31.

19
http://zeenews.india.com/news/nation/basic-structure-of-constitution-can-be-amended-not-destroyed-madrashc_670811.html, as seen on 27/04/2016 at 3:20 pm.

P a g e | 18

V.

CONCLUSION

The final word on the issue of Amendability can be related to Basic Structure defined
in Kesavananda Bhartis case. To name a few Minerva Mills case, S. P. Sampath Kumars case
and L. Chandra Kumars case are well based on the principle of Basic Structure and this
situation is unlikely to change in the near future. It is clear that all laws and constitutional
amendments are now subject to judicial review and laws that transgress the basic structure are
likely to be struck down by the Supreme Court. In essence Parliament's power to amend the
Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all
constitutional amendments.
Hence, it can be said that the hypothesis made by the researcher that Parliament's power to
amend the Constitution is not absolute and the Supreme Court is the final arbiter over and
interpreter of all constitutional amendments, stands to be correct.

P a g e | 19

BIBLIOGRAPHY
Books
1. Constitution of India, VN Shukla.
2. Constitutional Law of India, Cr. J.N. Pandey.
Important Sites
1. www.bis.org/index.htm.
2. www.manupatra.com
3. www.thehindu.com