Amendment to the Constitution

1. Introduction
The time is not static, it goes on changing. With it, the life of a nation also changes.
The social, economic and political conditions of the people go on changing. The
social, economic and political conditions of the people go on changing. It therefore
requires some mechanism for the law to serve the contemporary needs of the people.
Such a mechanism is known as the amendment of the law, the amendment of the
Constitution of the country.

The procedure for amendment of the Constitution is contained under Part XX of the
Constitution of India which is composed of Article 368, the primary provision
detailing the procedure. Through this article the Parliament of India has been given
the power to amend the Constitution.

2. Meaning
Black’s Law Dictionary defines, ‘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 motion’s
wording by striking out text, inserting or adding text, or substituting text.”

But Keshavananda Bharati v. State of Kerala (1973) 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.”

3. Procedure to Amend the Constitution (Article 368)

Broadly speaking there are two main methods of amendment of the Indian
Constitution:
a) Informal Method of Amendment:
i. The informal method does not mean changing the actual text of the law,
but only changing the understanding and the interpretation of the law.
This method includes amendment by
a. Changing a well-established Convention
b. Amendment by change in the interpretation of the provisions of
the Constitution.
ii. For example, Art 124(2) of the Indian Constitution deals with the
appointment of the Chief Justice of India. According to accepted
custom the senior most judge of the Supreme Court was appointed as
the Chief Justice. However, in 1973, Chief Justice A.N. Ray was
appointed who was not the senior most Judge. This implied a change in
the accepted custom and therefore could be said to be an informal
change to the understanding of Article 124.
 b) Formal Method of Amendment:

The Constitution of India provides for the amendment through Amendment

Acts in a formal manner. For the purpose of amendment, the various Articles of
the Constitution are divided into three categories. It enables Indian Parliament
to amend any provisions of Constitution without disturbing its Basic Structure.
The amendments described in Article 368 are of three types:
i. Amendment by simple majority vote of the Parliament
ii. Amendment by special majority vote of the Parliament.
iii. Amendment by special majority vote with half number of States'
legislative Assemblies ratification.

4. Scope of Amending Power of the Parliament

Supreme Court has given various interpretations regarding the amending power of
the Parliament, these are as follows:-

1. Amendment of Fundamental Rights: The elementary question in controversy

has been whether Fundamental Rights are amendable so as to take away the basic
rights guaranteed by the Constitution. Another controversy deals with the extent,
scope and authority of Parliament to amend Constitution. The answer has been given
by the Supreme Court from time to time, sometimes under immense pressure and can
be understood in the light of the following cases

a) Shankari Prasad Case (1951)

The question whether amendment of Fundamental Rights are covered by the
proviso to Article 368 came for the consideration in Shankari Prasad v Union
of India,1. In this case, validity of the First Amendment which inserted Article
31-A and Article 31-B was challenged. The Supreme Court has held that
powers to amend the Constitution including the Fundamental Rights was
contained under Article 368 and that the word ‘law’ in Article 13(2) includes
only an ordinary law and not Constitutional amendments. Therefore, a
Constitutional amendment will be valid even if it abridges or takes away any of
the Fundamental Rights.

b) Sajjan Singh Case (1965)

In Sajjan Singh v State of Rajasthan,2 the validity of the 17th Amendment was
challenged. The Supreme Court approved the majority judgement given in
Shankari Prasad’s case and held that words ‘amendment of the Constitution’
means amendment of all the provisions of the Constitution.

c) Golak Nath Case (1967)

1
AIR 1951 SC 455
2
AIR 1965 SC 845
But in Golak Nath v State of Punjab,3 the Supreme Court overruled Shankari Prasad’s case
and Sajjan Singh’s case holding that Parliament had no power to amend Part III of the
Constitution so as to abridge or take away the Fundamental Rights. 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.

2. The Constitution (24th Amendment) Act, 1971

The Constitution (24th Amendment) Act, 1971 was passed to remove the difficulties created
by Golak Nath’s case. The 24th (Amendment) Act, 1971, provides that Article 13 does not
include the amendment of the Constitution made under Article 368. It added a new sub-
clause in Article 368 which provides that ‘Notwithstanding anything in the Constitution,
Parliament may, in the exercise of the constituent power amend by way of addition, variation
or repeal any provision of the Constitution.
KESHVANANDA BHARTI – DOCTRINE OF BASIC STRUCTURE

d) Kesavananda Bharati Case (1973)

The validity of this Amendment was challenged again in Kesavananda Bharti
v State of Kerala,4. In this case, the Supreme Court by majority overruled the
Golak Nath’s case and held that Article 368, even before the 24 th Amendment
contained the power as well as the procedure of the amendment. As regards, the
scope of the amending power contained in Article 368, even before the 24 th
Amendment contained the power as well as the procedure of the amendment,
As regards the scope of the amending power as well as the procedure contained
in Article 368 the Court said that the word “amendment” has been used in
various places to mean different things. In Article 368, it means any addition or
change in any of the provisions of the Constitution. The Fundamental Rights
cannot be abrogated, but they can be amended reasonably. The Court further
said that every part of the Constitution can be amended provided in the result
the basic feature of the Constitution remains the same.

Doctrine of Basic Structure:

The case of Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461) is
perhaps the most well-known constitutional decision of the Supreme Court of
India. While ruling that there is no implied limitation on the powers of
Parliament to amend the Constitution, it held that no amendment can do
violence to its basic structure (the “Basic Structure Doctrine”). Further, it

3
AIR 1967 SC 1643
4
AIR 1973 SC 1461
 established the Supreme Court’s right of review and, therefore, established its
supremacy on constitutional matters

e) Indira Nehru Gandhi v Raj Narain Case (1975)

In Indira Nehru Gandhi v Raj Narain Case,5 the SC applied the theory of
basic structure and struck down Clause (4) of Article 329-A, which was
inserted by the 39th Amendment in 1975 on the grounds that it was beyond the
Parliament’s amending power as it destroyed the Constitution’s basic features.
This Act placed the election of the President, the Vice President, the Prime
Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
This was done by the government in order to suppress Indira Gandhi’s
prosecution by the Allahabad High Court for corrupt electoral practices.

3. The 42nd Amendment Act, 1976

The 42nd Amendment Act, 1976 removed the difficulties created by the Supreme Court’s
decision in Kesavananda Bharti v State of Kerala. It added two new clauses to Article 368.
Clause 4 provides that no constitutional amendment or purporting to have been made under
Article 368 whether before or after the commencement of the Constitution 42 nd (Amendment)
Act, 1976 shall be called in question in any Court or any ground. Clause (5) declares that
there shall be no limitation whatever on the constituent power of Parliament to amend by way
of addition, variation, or repeal the provisions of the Constitution under this Article.

f) Minerva Mills Ltd. v Union of India

In Minerva Mills Ltd. v Union of India,6 the Supreme Court has held Clause
(4) and Clause (5) of Article 368 as void because these clauses removed all
limitations on the amending power of Parliament. The Court held that
Parliament cannot have unlimited power to amend the Constitution. The
Supreme Court also held that the exclusion of judicial review is destructive of
the basic feature of the Constitution. The Court also held that the exclusion of
judicial review is destructive of the basic features of the Indian Constitution.

4. Conclusion
Today there is no dispute regarding the existence of the doctrine, the only problem
that arises time and again is the contents of the same. Certain contents have been
reaffirmed again and again by the Courts whereas some of them are still in the
process of deliberations. The basic structure doctrine grants the fine balance between
flexibility and rigidity that should be present in the amending powers of any
Constitution.

5
AIR 1975 SC 2299
6
AIR 1980 SC 1789