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Amend Consti

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Amend Consti
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  Electronic copy available at: http://ssrn.com/abstract=1688864 Introduction: Constitution determines the powers of its different organs, providing for powers to Parliament as well as State Legislatures to legislate in their respective jurisdiction. However, this power is not absolute in nature but is subject to judicial scrutiny of the Courts. Judiciary has power to adjudicate the constitutional validity of laws and for that purpose it can even strike down any law which is inconsistent with constitutional provision. This power of the courts thus makes the provisions in the constitution sacrosanct and thus defeats the real intention of the makers of the constitution to make it an adaptable and dynamic document rather than a rigid framework of governance.  This was the reason a counter weapon in form of power to amend constitution vide Art. 368 was given to the legislatures by the constitution itself so as to make the constitution adaptable to the contemporary circumstances. However, this power is not absolute and a counter-check was imposed on the legislatures by making judiciary the watch-dogs of the amending powers of the legislature. The Supreme Court with intentions to protect the basic and srcinal ideals of the makers has acted as a check over the legislative enthusiasm of Parliament ever since independence. The apex court has 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 recognised this concept for the first time in the historic Keshavanad B harti’s  1   case in 1973. For the purpose of studying the history of Indian constitutional amendments and how judiciary has countermanded the legislative actions of amending constitution, the history can be divided in Four Periods:    Period starting from 1951 with Sankari Parasad ‟s 2  judgement and ending with I.C. Golaknath ‟s 3  judgement in 1971.    Period starting with post Golaknath scenario and ending in 1973 with Keshawanand bharti ‟s  judgement. 1   His Holiness Kesavananda Bharati Sripadagalavaru v. State Of Kerala And Another:   1973 (4) SCC 225 2  (1952) S.C.R. 89 3  AIR 1971 SC 1643  Electronic copy available at: http://ssrn.com/abstract=1688864    Period Starting with post Keshavanand Bharti ‟s senario  and ending with Indira Nehru Gandhi ‟s 4  case.     The Fourth period is still continuing with us. This period has witnessed judgement like Minerva Mill ‟ s case 5  and Vaman Rao ‟s 6  case which discussed consequences of Keshavanad Bharti ‟s  case and modified the result of Keshavanad Bharti. 1 st  Period - Sankari Prasad ’s Case  to Golknath ’s Judgement   Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951 7 . After Independence many laws relating to land reforms and tenancy matters were enacted and their constitutional validity was challenged. The land reforms introduced as per the electoral promise of the ruling congress party of implementing the socialistic goals. At that time the Zamindari system was in vogue and congress party in pretext of giving effect to the Constitutional provisions contained in Article 39 (b) and (c) of the Directive Principles of State Policy, which envisaged equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few, introduced land reform acts which adversely affected the right to property of the property owners 8 .  The courts struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the Constitution. Such a judgement was a direct mockery of the legislative power of the legislature which they had perceived to be absolute. Aggrieved by the unfavorable judgements, Parliament placed these laws in the Ninth Schedule of the Constitution through the First and Fourth amendment (1951 and 1952 respectively), thereby effectively removing them from the scope of judicial review  9  .  The basic question raised has been whether the Part III of constitution can be amended so as to dilute or take away any fundamental right? Since 1951 there have been several 4  (1976) 2 S.C.R. 347 5  (1980) A.SC. 1789 6  (1983) A.SC. 239 7  1 st   constitutional Amendment was challenged in Shankari Prasad‟s case 8  That time a fundamental right under article 19(1)(f) later removed by Constitutional 44 th  amendment.  amendments in the Fundamental rights which have curtailed, to some extent, the scope of some of these rights. Shankari Prasad Singh v. Union of India Shankari Prasad v. Union of India  10    was the first case on amenability of constitution, the  validity of the Constitution (First Amendment) Act, 1951, curtailing the right to property guaranteed by Art. 31 was challenged.  The amendment was challenged on the ground that it takes away or abridges the rights conferred by Part III which is prohibited under Article 13(2) and hence was void. Article 13(2) provides that any law passed by state contravening the provisions under Part III i.e. Fundamental Rights would be considered void to the extent of contravention. It was argued that   „State‟ in Article 12 included Parliament and the word „ Law  ‟  in Article 13(2) therefore must include Constitutional Amendment. Hence it was contended that amendments are „ Law passed by state ‟  as for the purpose of article 13(2).   Supreme Court rejected the above argument and held that   power to amend the Constitution including the fundamental rights is contained in Article 368 and though constitutional amendment is a „Law‟  there is a clear distinction between legislative and constituent power. The word „Law‟  in Article 13(2) includes only an ordinary law made in exercise of the Legislative powers and does not include constitutional amendment which is made in exercise of constitutional power.    The Supreme Court ruled that a constitutional amendment, not being law under article 13(2), will be valid even if it abridges or takes any of the fundamental rights.   SAJJAN SINGH V. STATE OF RAJASTHAN 11   In this case the validity of the Constitution (17 th  Amendment) Act, 1964 was challenged.  This amendment again adversely affected the right to property under Art. 19(f) by inserting certain other land acquisition acts in the 9 th  schedule. Similar question as that in Shankari Prasad ‟s  case was raised in this case also. Supreme Court   approved the majority 10  AIR 1951 SC 458 11  AIR 1965 SC 845  judgement given in Shankari Prasad ‟s  Case and h eld that the words “amendment of the Constitution” means amendment of all th e provision of the Constitution i.e. Article 368 extends to all the parts of the constitution. GOLAKNATH v. STATE OF PUNJAB 12    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 Constitution (Seventeenth Amendment) Act which inserted certain state acts in Ninth Schedule again,  was challenged.  The majority in 6:5 ratio, prospectively overruling the earlier judgements of   Shankari Prasad and 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. Chief Justice Subba Rao, in this case   put forth the curious position that  Article 368 , containing the provisions related to the amendment of the Constitution, merely lays down the amending procedure.  Article 368 did not confer upon Parliament the power to amend the Constitution. The amending power which is a constituent power of Parliament arose from other provisions contained in the Constitution (i.e. Articles 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same and therefore, any amendment of the Constitution must be deemed to be a law as understood in Article 13 (2).    The majority judgement invoked the concept of implied limitations on Parliament's  power to amend the Constitution . This view held that the Constitution gives a very sacrosanct place to the fundamental rights and while giving to themselves the constitution, the people of India, have reserved these rights for themselves which is clearly expressed in the words of Art 13(2). Parliament could not modify, restrict or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it. They observed that a Constituent Assembly might be 12  (1967) 2 S.C.R. 762
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