Amendment OF Fundamental Rights Under Indian Constitution PDF

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Amendment OF Fundamental Rights Under Indian Constitution With Case Laws...

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AMENDMENT OF FUNDAMENTAL RIGHTS RISHMA BAL B.A LL.B, LL.M ASSISTANT PROFESSOR With the change of time people changes, society changes in same way with a changing need of society law changes. Provision for amendment of the law is made to get rid of difficulties which may arise in future in working of law. Article 368 of the Indian Constitution provides for the Amendment of the Constitution. Concept of the Amendment in Indian Constitution is borrowed from South Africa. Amendment of various Articles of Constitution is divided into three categories:1. AMENDEMNT BY SIPMLE MAJORITY- can be initiated in the either house of parliament and amendment can be made by number of members present and voting. The amendments contemplated in Article 5,169 and 239A can be made by simple majority. 2. AMENDEMNT BY SPECIAL MAJORITY- except the above mentioned Articles, all other Articles can be amended by the special majority. Article 368 says all constitutional amendments must be affected by the majority of the total membership of each House of Parliament as well as by a majority of not less than 2/3 of the members of that House present and voting. 3. AMENDEMNT BY SPECIAL MAJORITY AND RATIFICATION- for amending below mentioned Articles, after the amendment bill have been passed by special majority it shall be ratified by the Legislature of not less than one-half of the States. Then it shall present to the President for his assent.(Article368(2)) o Article 54 and 55 o Article 73 and 162 o Article 124 to 147 o Article 214 to 231 o Article 241 o Article 245 to 255 o Article 368 o Representation of States in Parliament 4th Schedule

o Seventh Schedule

Now the question arises whether Fundamental Rights (PART- III) of the Indian Constitution can amend or not? This question comes into consideration for the first time in Shankari Prasad v. Union of Indiai- in this case validity of Constitution (1 st Amendment) Act,1951 was challenged, by which Article 31-A and 31-B were inserted. It was argued that this amendment purported to take away the rights conferred by the Part-III of the Constitution, which is against the provision of Article 13(2) hence void. It was also argued that word law under Article 13 also include Constitution Amendment. But Supreme Court upheld the Amendment and held that the word law under Article 13 must be taken to mean rules and regulation made in the exercise of ordinary legislative power and not the amendments to the constitutions made in the exercise of constituent power. Thus the parliament in exercise of its constituent power can amend the Fundamental Rights. Again in Sajjan Singh v. State of Rajasthan ii, the validity of Constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court relying on its earlier judgment of Shankari Prasad, held the amendment of the constitution includes amendment of all parts of the constitution including Fundamental Rights. Golak Nath v. State of Punjabiii (Prospective Overruling Case)- In this case validity of Constitution (17th Amendment) Act,1964 was challenged which inserted certain State Act in Ninth schedule. The Supreme Court by the majority of 6 to 5 prospectively overruled its earlier decision of Shankari Prasad and Sajjan Singh cases and held that Parliament has no power to amend the Part-III of the Constitution. Word amendment is ‘law’ within the meaning of Article13 and therefore if any amendment violates the Fundamental Rights, it may declare as void. The Supreme Court also held that parliament derived the power to amend the constitution from Article 245 read with Entry 97 of List-1 and not from Article 368. 24th Amendments Act, 1971- To overcome the difficulties created by the Golak Nath’s case Constitution (24th Amendment) Act, 1971 take place.  Clause (4) was inserted to Article 13 which says “nothing in this Article shall apply to any amendment of this Constitution made under Article 368.

 Heading of Article 368 substituted, after amendment it was read as “Power of the Parliament to amend the Constitution and Procedure thereof.  Article 368(1) was inserted  It made obligatory for the President to give his assent to the Bill amending the Constitution.  Article 368(4) was inserted which provides that nothing in Article 13 shall apply to any amendment made under this Article.” Thus 24th Amendment conferred on Parliament absolute, unlimited and uncontrolled amending power. THEORY OF BASIC STRUCTURE: The validity of 24 th Amendment was challenged in Kesavananda Bharati v. State of Keralaiv (Fundamental Case). During the pendency of the petition, Kerala Act was placed under 9 th Schedule by the way of Constitution (29 th Amendment) Act, 1972. Thus the petitioner was allowed to challenge the validity of 25 th Amendment and 29 th Amendment along with 24 th Amendment. The Apex Court by the majority overruled its earlier decision of Golak Nath case and held that Parliament has power to amend the Constitution. The Supreme Court in regard to

24th Amendment- held that even prior to the amendment, Article 368 deals with amendment and procedure thereof. Earlier it was implicit but by amendment it was made explicit. All the 13 judges upheld the constitutional validity of 24th Amendment and held that Parliament has power to amend the Constitution but while amending they can’t exercise their power arbitrarily. They can’t amend the Basic Structure of the Constitution and if it was amended then that amendment will be null and void. The Basic Structure was held to be limitation on amending power of Parliament. But what was the Basic Structure it was not defined.

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25th Amendment- By this Amendment firstly the word “compensation” was replaced by term “amount” in Article 31(2). Secondly Article 31C was inserted to the Constitution which provides supremacy to Article 39(b) and (c) which are directive principles over all Fundamental Rights. The Supreme Court upheld the Constitution validity of 25th Amendment.

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29th Amendment- By which Kerala Act was inserted to Ninth Schedule. The Supreme Court held that law so added to Ninth Schedule are subject to judicial

review if it destroy the Basic Structure of the Constitution and will not be protected by Article 31B.

39th AMENDEMENT, 1975 AND DOCTRINE OF BASIC STRUCTURE OF THE CONSTITUTION- By Constitution (39th Amendment) Act 1975 Article 329A was inserted to the Constitution to withdraw the jurisdiction of all courts including jurisdiction of the Supreme Court, over the disputes relating to elections of Speaker and Prime Minister and give retrospective effect to the Article. In Indira Nehru Gandhi v. Raj Narain v, the Supreme Court unanimously struck down the Article 329(4) as unconstitutional and destroying the Basic Structure of the Constitution. Judicial Review, Free and Fair election, Rule of Law and Right to Equality are features of Basic Structure of Indian Constitution. 42nd AMENDMENT, 1976 AND DOCTRINE OF BASIC STRUCTURE- By Constitution (42nd Amendment) Act 1976 Parliament made two changes1. Clause (4) and (5) were inserted to Article 368 by which there will be no limitation on amending power of Parliament and there can be no question on amendment in Court on any ground. 2. Article 31C was amended which provides supremacy to all Directive Principles over Fundamental Rights. This Amendment was challenged in Minerva Mills Ltd v. Union of India vi, The Supreme Court unanimously struck held that Clause (4) and (5) so inserted to Article 368, unconstitutional as beyond the amending power of Parliament. Power of Judicial Review was one of the features of Basic structure of the Constitution which can’t be amended. Secondly, the Court struck down the changes incorporated by the amendment in regard to Article 31C and restored Article 31C to its original position. From the various judgments of the Supreme Court of India, the following features have been declared to constitute basic structure of the Constitution so as to beyond the amending power of the Parliament under Article 368 but this list is not exhaustive. o Supremacy of the Constitution o Free and Fair Election

o Democracy o Rule of Law o Judicial Review o Right to Equality o Sovereignty of India o Independent Judiciary o Multi-party democracy o Parliamentary form of democracy o Secular character of the Constitution o Federal character of the Constitution o Limited amending power of the Parliament o Republican and democratic form of Government o Separation of powers between Legislature, Executive and Judiciary o The harmony and balance between fundamental Rights and Directive Principles of State Policy o Jurisdiction of the High Court under Article 226 and Jurisdiction of the Supreme Court under Article 32 CONCLUSION- Parliament has power to amend any part of Indian Constitution including Part-III Fundamental Right but they can’t their arbitrarily and while amending they have no power to amend the Basic Structure of the Indian Constitution. If any amendment results into abrogation of basic structure of the Constitution then that amendment can be declared as null and void. Latest amendment in regard to Fundamental Rights was made in year 2019. The President of the India on 12Dec 2019 gives his assent to the Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019. It was passed by the Council of the State on 9Dec 2019 as The Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019. The Amendment makes the provision for 10% reservation for economically weaker section of the society.

i AIR 1951 SC 458 ii AIR 1965 SC 845 iii AIR 1967 SC 1643 iv AIR 1973 SC 1461 v AIR 1975 SC 2299 vi AIR 1980 SC 1789...