|
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. Due to Article 368 the
Indian Constitution can neither be called rigid nor flexible but in fact
it is partly rigid and partly flexible. Articles of the Indian
Constitution can be amended by a simple majority in the Parliament
(Second Schedule, Article 100(3), 105, 11, 124, 135, 81, 137), or by
special majority that is majority of the total membership of each house
and by majority of not less than two thirds of the members of each house
present and voting , or by Ratification by the State Legislatures after
special majority (Article 57, 73, 162, Chapter 1V of Part V, Chapter V
of P!
art V1, Seventh Schedule, representation of the State in Parliament and
provisions dealing with amendment of the Constitution).
During the 50 years of the
Constitution, more than 80 amendments have taken place. The founding
fathers of the Indian constitution who granted more rights to the people
without balancing them with their duties, perhaps did not foresee the
emergence of present political environment, wherein the political
players of various segments in the country are more interested in
fulfilling their individual aspirations than the aspirations of the
people. There is an element of truth in this
criticism. The fact is that the ease in the amending process of the
Indian Constitution is due to the one party dominance both at the Centre
and the State .Yet, on close examination it will be seen that there were
compelling circumstances which led to the constitutional amendments.
While some amendments were a natural product of the eventual evolution
of the new political system established under the Constitution in 1950,
there were others necessitated by practical difficulties. The first
amendment! took place in June, 1950.
The question whether Fundamental
Rights can be amended under Article 368 came for consideration of the
Supreme Court in Shankari Prasad v. Union of India
. It challenged the validity of the 1st amendent to the Constitution. In
this case it was held that a constitution amendment will also be held
valid even it abridges or takes away any of the fundamental rights. A
similar decision was given my the honble Supreme Court in
Sajjan Singh v. State of Rajasthan which
challenged the validity of the 17th amendent. In
Golaknath v. State of Punjab , the validity of the Constitution
(17th Amendment) Act, 1964 was again challenged, which inserted certain
State Acts in Ninth Schedule. The Supreme Court in its landmark decision
overruled the decision given in the Shankari
Prasads and Sajjan Singhs
case. It 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. Eleven judges participated in this
decision with the ratio being 6 : 5. The judges were worried about the
numerous amendments made to abridge the fundamental rights since 1950.
It apprehended that if the courts were to hold that the Parliament had
power to take away fundamental rights, a time might come when these
rights are completely eroded. The Chief Justice applied the doctrine of
Prospective Overruling and held that this decision will have only
prospective operation and, therefore, the 1st, 4th and 17th amendment
will conti!nue to be valid.
It means that all cases decided
before the Golaknaths case shall remain
valid. In order to remove difficulties created by Golaknaths decision
parliament enacted the 24th Amendment.
The amendment has made the
following amendments :
(1) it added a new clause (4) to Article 13 which provides that
nothing in this Article shall apply to any amendment of this
constitution made under Article 368 .
(2) it submitted a new heading to Article 368 power of Parliament
to amend the Constitution and Procedure therefore. Instead of Procedure
for amendment of the Constitution.
(3) It inserted a new sub section (1) in Article 368 which
provides that notwithstanding anything in the Constitution, Parliament
may, in exercise of its constituent power may amend by way of addition,
variation, or repeal any provision of this Constitution in accordance
with the procedure laid down in the Article. Thus the 24th amendment
restored the amending power of the Parliament. The validity of the 24th
amendment was challenged in the case of Keshavnand
Bharati v. State of Kerala . It challenged the validity of the
Kerala Reforms Act, 1963. but during the
pendency of the petition the Kerala Act was placed in the Ninth Schedule
by the 29th Amendment. The question involved was the extent of the
amending power conferred by Article 368 of the Constitution. A Special
bench of 13 judges was constituted to hear the case. The Court by
majority overruled the Golaknaths case
which denied Parliament the power to amend fundamental rights of
citizens. It held that the 24th amendment merely made explicit which was
implicit in the unamended Article 368. The Court held that under the
Article 368 Parliament is not empowered to amend the basic structure or
framework of the Constitution. After the decisions of the Supreme Court
in Keshavnand Bharati and Indira Gandhi
cases the Constitution (42nd Amendment) Act, 1976, was passed
which added two new clauses , namely, clauses
(4) provided that no constitutional amendment (including the
provision of Part III) or purporting to have been made under Article 368
whether before or after the commencement of the Constitution (42nd
Amendment) Act, 1976 shall be called in any court on any ground. Clause
(5) removed any doubts about the scope of the amending power. It
declared that there shall be no limitation whatever on the constituent
power of Parliament to amend by way of addition ,variation or repeal of
the provisions of the Constitution under this Article. Thus by inserting
this clause it was made clear that the basic structure of the
Constitution could be amended. In Minerva Mills v. Union of India the
Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of
Article 368 inserted by the 42nd amendment, on the ground that these
clauses destroyed the essential feature of the basic structure of the
Constitution. Since these clauses removed all limitations on the
amending power and thereby! conferred an unlimited amending power, it
was destructive of the basic structure of the Constitution. The judgment
of the Supreme Court thus makes it clear that the Constitution not the
Parliament is supreme in India. The Parliament owes its existence to the
Constitution and it cannot take priority over the Constitution.
Therefore this landmark decision ended the long controversy between the
Courts and the Executive.
The amendment process was
incorporated in the Constitution by the Draftsmen of the Constitution to
help India adapt itself to the changing circumstances. Society is never
stagnant. It is ever- changing. Therefore the amending procedure was
made partly flexible so as to make it easy for the Legislature. But the
Parliament started thinking that it has unlimited amending power. It
assumed itself to be the supreme law when the Constitution is the
supreme law of the land. The Parliament started making amendments which
were destroying the basic structure of the Indian Constitution. But
after the landmark decisions of Keshavnand Bharati
and Minerva Mills the Court by its power of judicial review has
curtailed the amending power of the Parliament. The amendments made by
the Parliament can no more affect the basic structure of the
Constitution. But, looking at the ease with amendments can take place
depending on the whims and fancies of the ruling government and the
POLITICS IN THE POLITICS OF INDIA we cannot say how long the rights of
the citizens are safe and unobstructed.
|
