AMENDMENT TO THE CONSTITUTION

Submitted by

Arsalan Ahmad

3rd Semester (Self Finance)

Roll No. - 9

B.A.LL.B (H)

Of

Faculty of Law

Jamia Millia Islamia

In

November, 2018

Under the guidance of

Dr. Mohammad Asad Malik

Associate Professor

Faculty of Law

Jamia Millia Islamia (Central University)

New Delhi - 110025

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 INDEX

Sr. No. CONTENTS Page No.

1. INTRODUCTION 3

2. CONSTITUTION OF INDIA 4

3. NECESSITY OF AMENDING PROVISIONS IN THE 5

CONSTITUTION
4. TYPES OF AMENDMENT IN THE INDIAN 6
CONSTITUTION
1. By Simple Majority of India.
2. By Special Majority of Parliament
3. By Special Majority of Parliament and Consent of States.
5. AMENDABILITY OF THE CONSTITUITION 8

6. 24th Amendment Act, 1971 9

7. KESHAVANANDA BHARTI v. STATE OF KERALA 10

(FUNDAMENTAL RIGHT’S CASE)
8. 42nd Amendment Act, 1976 10

9. THEORY OF BASIC STRUCTURE 10

10. MINERVA MILLS v. UNION OF INDIA 11

11. CONCLUSION 13

12. BIBLIOGRAPHY 14
1. CASES
2. BOOKS

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INTRODUCTION
No Written Constitution is complete without amending provisions, in some aspects amending
provisions is the most important part of the constitution.1 “An unamendable Constitution is the
worst of time or rather the very tyranny of time”.2 A Constitution is a system of fundamental
laws or principles for the governance of a nation. This Constitution usually states the general
principles and framework of the law and government. A Constitution may be either written or
unwritten. A Written Constitution born at once instance and therefore it is not born but grows by
amendment which themselves become part of it by incorporation.3 The amending provision in
written Constitution assumes great importance because it gives chance to successive generation
to grow it as per their needs. In fact the essence of a written Constitution lies in its mode of
amendment. The amendment process is an opportunity to express democratic conceptions of
basic constitutional values without derogating from the fundamental constitutional principles.4

The Article 368 of Constitution of India talks about The Amendment of the Constitution.
Provisions of amending the Constitution is made with the view that the constitution has to
change with the society and overcome the difficulties which may come in future. In the case of
Keshavananda Bharti v. State of Kerala5 it was said that, “no generation has monopoly of
wisdom nor has it a right to place fetters on future generations to mould the machinery of
government according to their requirements. If no provisions were made for the amendment of
the constitution, the people would have recourse to extra constitutional method like revolution to
change the constitution”.

1
J. W. Garner, Political Science and Government, 528 (New York American Company, New York, 1922).
2
Ashok Dhamija, Need to Amend a Constituion, 12 (Lexis Nexis, Calcutta, 1st edn., 2007).
3
Chaturvedi, Amendment to the Constitution, 29 (Institute for Research and Advanced Studies, 1985).
4
Sudhir Krishna, Democracy and Constitutionalism in India, 12 (Oxford University Press, 2011).
5
AIR 1973 SC 1461.

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CONSTITUTION OF INDIA
A Constitution means a document having a legal sanctity which sets out the frame work and
principal functions of the organs of the Government of a state and declares the principles
governing the operation of those organs.6

The constitution of India was adopted on the 26th of November, in the year 1949. However, it came
to effect on the 26th of January, 1950. It was adopted by the Constitution Assembly. Dr. B. R.
Ambedkar, the chairman of the Drafting Committee and he is widely considered to be the architect
of the Constitution of India. After, the adoption of the constitution, The Union of India became the
contemporary and modern Republic of India. The Constitution of India is the supreme law of India.
It frames fundamental political principles, procedures, practices, rights, powers, and duties of the
government. It imparts constitutional supremacy and not parliamentary supremacy, as it is not
created by the Parliament but, by a constituent assembly, and adopted by its people, with a
declaration in its preamble. Parliament cannot override it. It is the world’s largest constitution.
When it was enacted, it had 395 articles in 22 parts and 8 schedules. It consists of approximately
145,000 words, making it the second largest active constitution in the world. Currently, it has a
preamble, 25 parts with 12 schedules, 5 appendices, 448 articles, and 101 amendments.

The Constitution of India provides its citizens with six fundamental rights. These rights are the
Right to Freedom, Right to Equality, Cultural and Educational Rights, Right to Constitutional
Remedies, Right against Exploitation and Right against Exploitation. Recently, the Right to Privacy
has also been added to the fundamental rights. In the case of Golak Nath v. State of Punjab7
Supreme Court held that, “the Fundamental Rights were transcendental and inviolable and the
Parliament of India had no power to take away or abridge any of the Fundamental Rights
guaranteed by the Constitution by way of the Constitutional amendments”.

6
Wade and Philips, Constitutional law, 1 (London,4th edn., 1951).
7
AIR 1967 SC 1643.

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NECESSITY OF AMENDING PROVISIONS IN THE CONSTITUTION
Provisions of amending the constitution are made with the view that it can avoid difficulties
which may come in the future. The constitution is for the people of the State and people evolve,
their mid set evolves, their problems grew, if the constitution would not amend, the problems to
govern the State will grow and it would cause other several problems and to avoid this kind of
complications, the amendment is necessary and the rigidity of the constitution may hamper the
amendments.

“It has been the nature of the amending process itself in the
federation which has led political scientist to classify
federal constitution as rigid. A federal constitution is
generally rigid in character as the procedure of amendment
is unduly complicated. The procedure in the American
Constitution is very difficult. So in the case with Australia,
Canada and Switzerland. It is a common criticism of
federal Constitution that is too conservative, too difficult to
alter and that it is consequently behind the times.”8

The framers of the Indian Constitution were keen enough to make it less rigid. They want the
constitution to grow with growing nation, adapt itself and change with the growing people. The
framers knew that if it became too flexible then ruling party can easily change it to their
convenient and constitution will lose its form. “If no provisions for amendment were provided,
there would be constant danger of revolution. If the method of amendment were too easy, there
would be danger of too hastly action all the time. In either case there would be a danger of the
overthrow of our political institutions. Hence the purpose for providing for the amendment of the
Constitution is to make it possible gradually to change the Constitution in an orderly fashion as
the changes in the social condition make it necessary to change the fundamental law to
correspond with such social changes.”9

8
K. C. Wheare, Federal Government, 209 (Oxford university Press, 4th edn., 1963).
9
H. E. Willis, Constitutional Law of the United States, 209 (The Principia Press, 1963).

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The present Constitution is not too rigid to change with difficulties and not too flexible to change
easily, it is the mixture of both. As we say that this type of Constitution is better than any type, it
can provide us with many benefits and a strong hold of law.

TYPES OF AMENDMENT IN THE INDIAN CONSTITUTION

There are three types of amendment in the Indian Constitution.

1. Amendment by simple majority of the Parliament

2. Amendment by special majority of the Parliament
3. Amendment by special majority of the Parliament and the ratification of at least half of
the state legislatures.

A brief description:

1. By Simple Majority of India.

A number of provisions in the Constitution can be amended by a simple majority of the two
houses of Parliament outside the scope of Article 368. These provisions include:

 Admission or establishment of new states.

 Formation of new states and alteration of areas, boundaries or names of existing states.
 Abolition or creation of legislative councils in states.
 Second Schedule-emoluments,
 Allowances, privileges and so on of the president, the governors, the Speakers, judges,
etc.
 Quorum in Parliament.
 Salaries and allowances of the members of Parliament.
 Rules of procedure in Parliament.
 Privileges of the Parliament, its members and its committees.
 Use of the English language in Parliament.
 Number of puisne judges in the Supreme Court.
 Conferment of more jurisdiction on the Supreme Court.

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 Conferment of more jurisdiction on the Supreme Court.
 Citizenship-acquisition and termination.
 Elections to Parliament and state legislatures.
 Delimitation of constituencies.
 Union territories
 Fifth Schedule-administration of scheduled areas and scheduled tribes.
 Sixth Schedule-administration of tribal areas.

2. By Special Majority of Parliament.

 The majority of the provisions in the Constitution need to be amended by a special

majority of the Parliament, that is, a majority (that is, more than 50 percent) of the total
membership of each House and a majority of two-thirds of the members of each House
present and voting. The expression ‘total membership’ means the total number of members
comprising the House irrespective of the fact whether there are vacancies or absentees.
 The special majority is required only for voting at the third reading stage of the bill but
by way of abundant caution, the requirement for the special majority has been provided for in
the rules of the Houses in respect of all the effective stages of the bill.
 The provisions which can be amended by this way includes:
1. Fundamental Rights
2. Directive Principles of State Policy
3. All others provisions which are not covered by first and third categories.

3. By Special Majority of Parliament and Consent of States.

Those provisions of the Constitution which are related to the federal structure of the polity can be
amended by a special majority of the Parliament and also with the consent of half of the state
legislatures by a simple majority. If one or some or all the remaining states take no action on the
bill, it does not matter; the moment half of the states give their consent, the formality is
completed. There is no time limit within which the states should give their consent to the bill.
The following provisions can be amended in this way:

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 Election of the President and its manner.
 Extent of the executive power of the Union and the states.
 Supreme Court and High Courts.
 Distribution of legislative powers between the Union and the States.
 Any of the lists in the Seventh Schedule.
 Representation of states in Parliament.
 Power of Parliament to amend the Constitution and its procedure.

AMENDABILITY OF THE CONSTITUITION

Since 1951, questions have been raised regarding the scope of Constitutional Amending
Provisions contained in the Article 368. Constitutional Amendments have been challenged a
number of times before the Supreme Court.
1. Shankari Prasad Singh v. Union of India10
This is the first of the cases that came up before Court regarding amending provisions of the
Constitution. The validity of the First Amendment to the Constitution was challenged on the
ground that it purported to abridge the Fundamental Rights under Part III of the Constitution of
India. The Supreme Court held that the power to amend the Constitution, including Fundamental
Rights is contained in Article 368. It was also held that 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 bridges the rights conferred by this Part and any law made in contravention to this
clause shall, to the extent of the contravention be void.” The Supreme Court ruled that a
Constitutional Amendment, not being law under Article 13(2), will be valid even if it abridges
or takes away any of the Fundamental Rights.

2. Sajjan Singh v. State of Rjasathan11

The validity of the 17th Constitutional Amendment was challenged on the ground that one of the
acts inserted by the amendment in the Ninth Schedule affected the petitioner on the basis that the
amendment fell in the purview of Article 368 and the requirements in the proviso to Article 368

10
AIR 1951 SC 458.
11
AIR 1965 SC 845.

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had not been complied with. Supreme Court approved the Judgment in the Shankari Prasad case
and held that Article 368 extends to all the parts of the Constitution.

3. Golaknath v. State of Punjab12

The question to the amending power of the legislatures as envisaged under Article 368 was again
raised in Golaknath’s case. The constitutional validity of the 17th Amendment Act which inserted certain
State acts in the Ninth Schedule again, was challenged. The majority in 6:5 ratio, prospectively
overruling the earlier Judgements of Shankari Prasad’s an Sajjan singh’s case, held that the
“Parliament had no power from the date of this decision to amend Part III of the constitution so
as to take away or abridge the Fundamental Rights.”

Key elements on the decision are :

1. Substantive power to amend is not to be found under Article 368. It is only a residuary power.
It only has Procedure to Amend Constitution.

2. A law made under article 368 is subjected to article 13 (2) like any other law.

3. The word “Amend” envisages only minor modifications in existing provisions but not any
major alterations there in.

4. To amend Fundamental Right, a Constitution Assembly ought to be conveyed (call upon) by

parliament.

24th Amendment Act, 1971

Golaknath’s case created a lot of difficulties and as a result the Parliament enacted the 24th
Amendment Act,1971 whereby it changed old heading of article 368 ,“Procedure for Amendment of the
Constitution” to the new one-

 “Power of the Parliament to amend that Constitution and procedure thereof.”

12
AIR 1967 SC 1643.

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To the benefit of the Legislators, the 24th Amendment Act, 1971restored and extended the scope of power of
Parliament to amend the Constitution by adding 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 amendment
provided that “Nothing in Article 13shall apply to any amendment made under this Article” by way of
addition of Clause 3 to Article 368.

KESHAVANANDA BHARTI v. STATE OF KERALA13 (FUNDAMENTAL

RIGHT’S CASE)

One of the various questions raised in this case was the extent of the power of the Parliament to
amend under Article 368. A 13Judge Constitutional Bench was formulated under Chief Justice
Sikri in order to evaluate the intricacies of the Golaknath’s case. The Supreme Court
overruled its decision in Golaknath’s case and held that even before the 24th Amendment,
Article 368 contained power as well as procedure for Amendment. The majority held that there
are in herent limitations on the amending power of the Parliament and Article 368 does not
confer power so as to destroy the “Basic Structure” of the Constitution.

42nd Amendment Act, 1976

The 42nd Amendment Act added clause 4 and clause 5 to Article368. Article 368(4) provides
that no Constitutional Amendment shall be called in any court on any ground. Article 368(5)
provides that there shall be no limitation whatsoever on the constituent power of the Parliament
to make laws. This amendment literally almost vested the parliament to amend anything in the
Constitution as per their whims and fancies. The comes the Minerva Mills case to the limelight.

THEORY OF BASIC STRUCTURE

13
AIR 1973 (4) SCC 225.

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According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. This power is not absolute in nature. The
Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all
laws. If a law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This
check notwithstanding, the founding fathers wanted the Constitution to be an adaptable
document rather than a rigid framework for governance. Hence Parliament was invested with the
power to amend the Constitution.

Article 368 of the Constitution gives the impression that Parliament's amending powers are
absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to
the legislative enthusiasm of Parliament ever since independence. With the intention of
preserving the original ideals envisioned by the constitution-makers, the apex court pronounced
that Parliament could not distort damage or alter the basic features of the Constitution under the
pretext of amending it. The phrase 'basic structure' itself cannot be found in the Constitution. The
Supreme Court recognized this concept for the first time in the historic Keshavananda Bharati
case in 1973.

Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all
amendments made by Parliament.

From various judgments each judge laid out separately, what he thought were the basic or
essential features of the Constitution. There was no unanimity of opinion within the majority
view either.

MINERVA MILLS v. UNION OF INDIA14

The Supreme Court struck down clauses 4 and 5 of Article 368 inserted by the 42nd Amendment
Act as unconstitutional. Justification for the deletion of the said clause is based on the destruction
of ‘Basic Structure’. The court was satisfied that the Article 368(4) and 3689(5) clearly

14
AIR 1980 SC 1789.

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destroyed the ‘Basic Structure’ as it gave the Parliament absolute Power to amend the
Constitution.

Waman Rao’s case15 unanimously upheld the view of Minerva Mills Case. In the case of S. P.
Sampath Kumar v. Union of India16, the constitutional validity of Article 323 A and the
provisions of the Administrative Tribunals Act was challenged on the ground that it excluded the
jurisdiction of High Court under Article 226 and 227. It was not proved beyond reasonable doubt
that Article 323 A and the Administrative Tribunals Act destroyed the Basic Structure and the
court held their validity.

In L. Chandra Kumar v. Union of India17, the Supreme Court struck down clause 2(d) of
Article 323 A and clause 3(d) of Article 323 B as they excluded the jurisdiction of High Court
under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 as they
damage the power of Judicial Review which is a basic feature of the Constitution.

15
Waman Rao v. Union of India AIR 1981 SCC 362.
16
AIR 1987 SC 386.
17
AIR 1997 SC 1125.

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 CONCLUSION

The framers of the Constitution were keen to bring about socio-economic revolution in free India
through constitutional means, and Constitution was to serve as a vehicle for social change. By
the overview of that mentioned above, it is clear that all laws and Constitutional Amendments
are now subject to Judicial Review and the laws that transgress the basic structure are likely to be
struck down by the Supreme Court. In essence of Parliament’s power to amend the Constitution
is not absolute but amends are necessary to adapt to the changing needs of National
Development and strength and to overcome difficulties which may encounter in the future
working of the constitution.

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 BIBLIOGRAPHY

CASES

1. Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461.

2. Golak Nath v. State of Punjab AIR 1967 SC 1643.

3. Shankari Prasad Singh v. Union of India AIR 1951 SC 458.

4. Sajjan Singh v. State of Rjasathan AIR 1965 SC 845.

5. Minerva Mills v. Union of India AIR 1980 SC 1789.

6. Waman Rao v. Union of India AIR 1981 SCC 362.

7. S. P. Sampath Kumar v. Union of India AIR 1987 SC 386.

8. L. Chandra Kumar v. Union of India AIR 1997 SC 1125.

BOOKS

1. J. W. Garner, Political Science and Government, 528 (New York American Company, New
York, 1922).

2. Ashok Dhamija, Need to Amend a Constituion, 12 (Lexis Nexis, Calcutta, 1st edn., 2007).

3. Chaturvedi, Amendment to the Constitution, 29 (Institute for Research and Advanced Studies,
1985).

4. Sudhir Krishna, Democracy and Constitutionalism in India, 12 (Oxford University Press,

2011).

5. Wade and Philips, Constitutional law, 1 (London,4th edn., 1951).

6. K. C. Wheare, Federal Government, 209 (Oxford university Press, 4th edn., 1963).

7. H. E. Willis, Constitutional Law of the United States, 209 (The Principia Press, 1963).

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