INTRODUCTION

The Constitution of India was adopted on 26 November 1949 and came into force on 26th
January, 1950. At the time of its adoption, the Constitution contained 395 Articles and 8
Schedules, making it the longest national Constitution to ever be adopted. Every Article in the
Constitution was debated by the members of the Constituent Assembly, who sat for 11 sessions
and 167 days to frame the Constitution, over a period of 2 years and 11 months.

The constitution replaced the Government of India Act 1935 as the country's fundamental
governing document, and the Dominion of India became the Republic of India. To
ensure constitutional autochthony, its framers repealed prior acts of the British parliament in
Article 395.

The Constitution of India is the supreme law of India. The document lays down the framework
that demarcates fundamental political code, structure, procedures, powers, and duties of
government institutions and sets out fundamental rights, directive principles, and the duties of
citizens. It imparts constitutional supremacy and was adopted by its people with a declaration
in its preamble. Parliament cannot override the constitution.

A striking feature of the Indian Constitution is that it’s a unique blend of rigidity and flexibility.
A written constitution is generally said to be rigid. The Indian Constitution though written, is
sufficiently flexible. Sir Ivor Jenning had characterized our constitution as rigid. The fact that our
constitution has been amended more than 100 times, disapproves his view. This feature shall be
dealt in detail in this work.

Judicial review is a prominent feature of a strong democratic republic which has been
incorporated in the Indian Constitution. Judicial review is the power of the courts of a country to
examine the actions of the legislative, executive, and administrative arms of the government and
to determine whether such actions are consistent with the constitution. Actions judged
inconsistent are declared unconstitutional and, therefore, null and void. Judicial review along
with an independent judiciary helps to preserve the originality of the constitution and at the same
time enable the judiciary to interpret the constitution as per the changing needs to the society
thus making it more accommodative. This feature shall also be dealt in detail in this work.
MODIFICATION OF THE CONSTITUTION

Modification of the Constitution refers to the formal change in the text of the written constitution
of a nation or a change in the interpretation or effect of the provisions of the constitution. The
modification of the Constitution is highly required in order to mould and guide the constitution
to reflect the reality of life. Modification of the constitution implies changing certain provisions
or updating few external features to meet the requirement of the day.

NEED FOR CONSTITUTIONAL MODIFICATION

The necessity for the modification of the Constitution can be emphasized as follows:

• If there had been no provision of the modification, the people and the leaders would have
adhered to some extra constitutional mean like revolution, violence and so on there by diluting
the very constitution per se.

• Modification of the constitution is made with a view to overcome the difficulties which may
encounter in future in the working of the constitution.

• It is also necessary in order to fix loop holes at the time of constitution enactment.

• Ideals, priorities and vision of the people vary greatly generation to generation. In order to
incorporate these, modification is desirable.
MODES OF MODIFICATION OF CONSTITUTION
There are two major modes of modifying a constitution. The first mode is amendment provision
given under the constitution. The second method is that of judicial review.
 AMENDMENT UNDER THE INDIAN CONSTITUTION
Article 368 of the Indian Constitution mentions two types of amendments to the Indian
Constitution. One type of amendment is by a special majority of the Parliament (Lok Sabha &
Rajya Sabha) and the second type of the amendment is the by a special majority of the
Parliament with the ratification by half of the total states.
The framers of the Constitution were neither in favor of the traditional theory of federalism,
which entrusts the task of constitutional amendment to a body other than the Legislature, nor did
they favor a rigid special procedure for such amendments. They also never wanted to have a
British-style system where Parliament is supreme. The framers, instead, adopted a combination
of the "theory of fundamental law", which underlies the written Constitution of the United
States with the "theory of parliamentary sovereignty" as existing in the United Kingdom.
Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948, “While we want
this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there
is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid
and permanent, you stop a nation’s growth, the growth of a living, vital, organic people.”
Dr. P.S. Deshmukh believed that the amendment of the Constitution should be made easier as he
felt there were contradictory provisions in some places which would be more and more apparent
when the provisions were interpreted, and that the whole administration would suffer, if the
amendment to the Constitution was not made easy. Brajeshwar Prasad also favored a flexible
Constitution so as to make it survive the test of time. He was of the opinion that rigidity tends to
check progressive legislation or gradual innovation. On the other hand, H.V. Kamath favored
ensuring procedural safeguards to avoid the possibility of hasty amendment to the Constitution.
Importance Of Amendment

TYPES OF AMENDMENT UNDER INDIAN CONSTITUTION

The list of types of amendments can be found below. There are three ways in which the
Constitution can be amended:

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.

1. By Simple Majority of Parliament

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.
 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 include (i) Fundamental Rights;
(ii) Directive Principles of State Policy; and (iii) All other provisions which are not
covered by the 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:

 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 (Article 368 itself).

Constitutional Amendment Process

The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:

 An amendment of the Constitution can be initiated only by the introduction of a bill for
the purpose in either House of Parliament (Lok Sabha & Rajya Sabha) and not in the state
legislatures.
 The bill can be introduced either by a minister or by a private member and does not
require prior permission of the president.
 The bill must be passed in each House by a special majority, that is, a majority (that is,
more than 50 per cent) of the total membership of the House and a majority of two-thirds
of the members of the House present and voting.
  Each House must pass the bill separately.
 In case of a disagreement between the two Houses, there is no provision for holding a
joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
 If the bill seeks to amend the federal provisions of the Constitution, it must also be
ratified by the legislatures of half of the states by a simple majority, that is, a majority of
the members of the House present and voting.
 After duly passed by both the Houses of Parliament and ratified by the state legislatures,
where necessary, the bill is presented to the president for assent.
 The president must give his assent to the bill. He can neither withhold his assent to the
bill nor return the bill for reconsideration of the Parliament
 After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act)
and the Constitution stands amended in accordance with the terms of the Act.

Limitations Of Amendment Provision

MAJOR AMENDMENTS OF THE INDIAN CONSTITUITON

First Amendment Act, 1951
 The state was empowered to make special provisions for the advancement of socially
and backward classes
 The Ninth Schedule was added
 Three more grounds of restrictions on Article 19 (1) [Freedom of speech and expression]
were added:
1. Public order
2. Friendly relations with foreign states
3. Incitement to an offence

Twenty Fourth Amendment Act, 1971

The President’s assent to Constitutional Amendment Bill was made compulsory.

Twenty Fifth Amendment Act, 1971

Fundamental Right to Property was curtailed

Forty Second Amendment Act, 1976

 Added three new words (i.e., socialist, secular and integrity) in the Preamble.
 Added Fundamental Duties by the citizens (new Part IV A).
 Made the president bound by the advice of the cabinet.
 Provided for administrative tribunals and tribunals for other matters (Added Part XIV A).
 Froze the seats in the Lok Sabha and state legislative assemblies on the basis of 1971 census
till 2001 - Population Controlling Measure
 Made the constitutional amendments beyond judicial scrutiny.
 Curtailed the power of judicial review and writ jurisdiction of the Supreme Court and high
courts.
 Raised the tenure of Lok Sabha and state legislative assemblies from 5 to 6 years.
 Provided that the laws made for the implementation of Directive Principles cannot be
declared invalid by the courts on the ground of violation of some Fundamental Rights.
 Empowered the Parliament to make laws to deal with anti-national activities and such laws
are to take precedence over Fundamental Rights.
 Added three new Directive Principles viz., equal justice and free legal aid, the participation of
workers in the management of industries and protection of the environment, forests, and
wildlife.
 Facilitated the proclamation of national emergency in a part of the territory of India.
 Extended the one-time duration of the President’s rule in a state from 6 months to one year.
 Empowered the Centre to deploy its armed forces in any state to deal with a grave situation of
law and order.
 Shifted five subjects from the state list to the concurrent list, viz, education, forests, protection
of wild animals and birds, weights and measures and administration of justice, constitution
and organisation of all courts except the Supreme Court and the high courts.
 Did away with the requirement of quorum in the Parliament and the state legislatures.
 Empowered the Parliament to decide from time to time the rights and privileges of its
members and committees.
 Provided for the creation of the All-India Judicial Service.
 Shortened the procedure for disciplinary action by taking away the right of a civil servant to
make representation at the second stage after the inquiry (i.e., on the penalty proposed).

Forty-Fourth Amendment Act, 1978

 Restored the original term of the Lok Sabha and the state legislative assemblies (i.e., 5
years).
 Restored the provisions with regard to the quorum in the Parliament and state legislatures.
 Omitted the reference to the British House of Commons in the provisions pertaining to the
parliamentary privileges.
 Gave constitutional protection to publication in a newspaper of true reports of the
proceedings of the Parliament and the state legislatures.
 Empowered the president to send back once the advice of the cabinet for reconsideration.
But, the reconsidered advice is to be binding on the president.
 Deleted the provision which made the satisfaction of the president, governor, and
administrators final in issuing ordinances.
 Restored some of the powers of the Supreme Court and high courts.
 Replaced the term ‘internal disturbance’ by ‘armed rebellion’ in respect of national
emergency.
 Made the President to declare a national emergency only on the written recommendation
of the cabinet.
 Made certain procedural safeguards with respect to a national emergency and President’s
rule.
 Deleted the right to property from the list of Fundamental Rights and made it only a legal
right.
 Provided that the fundamental rights guaranteed by Articles 20 and 21 cannot be
suspended during a national emergency.
 Omitted the provisions which took away the power of the court to decide the election
disputes of the president, the vice-president, the prime minister and the Speaker of the Lok
Sabha.
Seventy Third Amendment Act, 1992
Granted constitutional status and protection to the Panchayati Raj institutions. For this purpose,
the Amendment has added a new Part-IX entitled as ‘the panchayats’ and a new Eleventh
Schedule containing 29 functional items of the panchayats
Seventy Fourth Amendment Act, 1992
Granted constitutional status and protection to the urban local bodies. For this purpose, the
Amendment has added a new Part IX-A entitled as ‘the municipalities’ and a new Twelfth
Schedule containing 18 functional items of the municipalities.

Ninety Ninth Amendment Act, 2014

o Replaced the collegium system of appointing judges to the Supreme Court and High
Courts with a new body called the National Judicial Appointments Commission (NJAC).
o However, in 2015, the Supreme Court declared this Amendment Act as unconstitutional
and void. Consequently, the earlier collegium system became operative again
One Hundred and First Amendment Act, 2017
o Introduction of the Goods and Services Tax
o Goods and Services Tax (GST) is an indirect tax (or consumption tax) used in India on the
supply of goods and services. It is a comprehensive, multistage, destination-based tax:
comprehensive because it has subsumed almost all the indirect taxes except a few state
taxes.
One Hundred and Second Amendment Act, 2018
 Constitutional status was provided to the National Commission for Backward Classes
under India's Ministry of Social Justice and Empowerment.
 Article 338B into the Constitution after Articles 338 and 338A which deal with the
National Commission for Scheduled Castes (SC) and National Commission for Scheduled
Tribes (ST) respectively.
One Hundred Third Amendment Act, 2019
 It introduced reservations for Economic Weaker Section for the first time in independent
India
 Amendment in Article 16 allows a 10% reservation to EWS in public employment.

 MODIFICTION OF CONSTITUTION THROUGH JUDICIAL REVIEW

Judicial review is defined as the doctrine under which executive and legislative actions are
reviewed by the judiciary. Even though we have in India the principle of separation of powers of
the three arms of the State, namely, the executive, the legislative and the judiciary, the judiciary
is vested with the power of review over actions of the other two arms.

1. Judicial review is considered a basic structure of the constitution (Indira Gandhi vs Raj
Narain Case).
2. Judicial review is the power of the courts to consider the constitutionality of acts of
organs of Government and declare it unconstitutional if it violates or is inconsistent with
the basic principles of the Constitution.
3. This means that the power of the legislature to make laws is not absolute and that the
validity and constitutionality of such laws are subject to review by the courts.
4. Judicial review is also called the interpretational and observer roles of the Indian
judiciary.
5. The Indian Constitution adopted the Judicial Review on lines of the American
Constitution.
6. Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the
principle of Locus Standi, have allowed the judiciary to intervene in many public issues,
even when there is no complaint from the aggrieved party.

Judicial Review and Constitution

According to Article 13(2), the Union or the States shall not make any law that takes away or
abridges any of the fundamental rights, and any law made in contravention of the
aforementioned mandate shall, to the extent of the contravention, be void.

1. Judicial review is called upon to ensure and protect Fundamental Rights which are
guaranteed in Part III of the Constitution.
2. The power of the Supreme Court of India to enforce these Rights is derived from Article
32 of the Constitution. This provides citizens the right to directly approach the SC to seek
remedies against the violation of Fundamental Rights.

Importance of Judicial Review

  It is essential for maintaining the supremacy of the Constitution.
 It prevents the tyranny of the executives and the legislature.
 It maintains the federal balance.
 It is essential for checking the possible misuse of power by the legislature and executive.
 It is essential for securing the independence of the judiciary.
 It protects the rights of the people.
Limitations of Judicial Review
There are some limitations on the judiciary on exercising its power of judicial review. In fact,
when the judiciary crosses its threshold and interferes in the executive’s mandate, it can be called
judicial activism, which when furthered can lead to judicial overreach. Some of the limitations of
judicial review are mentioned below.

1. Judicial Review limits the functioning of the government. It is only permissible to the
extent of finding if the procedure in reaching the decision has been correctly followed but
not the decision itself.
2. The judicial opinions of the judges once taken for any case become the standard for
ruling other cases.
3. It is designated only to the higher courts like the Supreme Court and the High Courts.
4. Repeated interventions of courts can diminish the faith of the people in the integrity,
quality, and efficiency of the government.
5. The judiciary cannot interfere in political questions and policy matters unless absolutely
necessary.
6. The judgments can be influenced by personal or selfish motives, hence, Judicial review
can harm the public at large.
7. It violates the limit of power set to be exercised by the constitution when it overrides any
existing law.

SOME CONSTITUTIONAL MODIFICATION THROUGH JUDICIAL REVIEW

Keshvananda Bharati v State of Kerala, (1973)

FACTS

Keshvananda Bharati was the chief of Edneer Mutt which is a religious sect in Kasaragod district
of Kerala. Keshvananda Bharti had certain pieces of land in the sect which were owned by him
in his name. The state government of Kerala introduced the Land Reforms Amendment Act,
1969. According to the act, the government was entitled to acquire some of the sect’s land of
which Keshvananda Bharti was the chief.

On 21st March 1970, Keshvananda Bharti moved to Supreme Court under Article 32 of the
Indian Constitution for enforcement of his rights which guaranteed under Article 25 (Right to
practice and propagate religion), Article 26 (Right to manage religious affairs), Article 14 (Right
to equality), Article 19(1)(f) (freedom to acquire property), Article 31 (Compulsory Acquisition
of Property). When the petition was still under consideration by the court, the Kerala
Government another act i.e. Kerala Land Reforms (Amendment) Act, 1971.
After the landmark case of Golaknath v. State of Punjab, the Parliament passed a series of
Amendments in order to overrule the judgment of the Golaknath case. In 1971, the 24th
Amendment was passed, In 1972, 25th and 29th Amendment were passed subsequently.

ISSUES BEFORE THE COURT

 Whether the 24th Constitutional (Amendment), Act 1971 is Constitutionally valid or not?
 Whether the 25th Constitutional (Amendment), Act 1972 is Constitutionally valid or not?
 The extent to which the Parliament can exercise its power to amend the Constitution.

VERDICT

It was held by the apex court by a majority of 7:6 that Parliament can amend any provision of the
Constitution to fulfill its socio-economic obligations guaranteed to the citizens under the
Preamble subject to the condition that such amendment won’t change the basic structure of the
Indian Constitution. The court upheld the 24th Constitutional Amendment entirely but the 1st
and 2nd part of the 25th Constitutional Amendment Act was found to be intra vires and ultra
vires respectively.

Minerva Mills vs Union of India

FACTS
Minerva mills is a textile mill located near the Bengaluru city. The Central Government
considering the substantial fall in the production of Minerva mills appointed a committee
under Section 15 of the Industries Development Act,1951 this was done in the year 1970. The
committee submitted its report to the Central Government in October 1971. The Central
Government authorized the National textile Corporation Limited which was a body formed under
the Industries Development Act,1951 to take over the management of Minerva mills. In the 39th
amendment, nationalization was included in the ninth schedule which was outside the purview of
judicial review. After a huge setback in Indira Gandhi vs Raj Narain to have supreme power, a
42nd amendment was passed in the parliament which amended Article 31C through Section 4 of
the Constitutional amendment Act, 1976. Further Section 55 of the 42nd Constitutional
Amendment Act, 1976 made amendments in Article 368.

ISSUE