Amending Powers Under The Constitution

Amending Powers Under The Constitution

cons“A Constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.Its course cannot always be tranquil.” –┬áChief Justice John Marshall ( The first CJ of US Supreme Court )

The US Constitution has 7 Articles divided into several sections and 14 Amendments were added later on.In all there had been 26 amendments so far since 1787.

The Constitution of India was adopted on November 26,1949 and came into force on January 26,1950. The first amendment to Constitution came immediately in 1951. There after more than hundred amendments have come into force in the last 64 yrs.

The Supreme Court of India was constituted with 7 Judges on January 26, 1950. At the inauguration, the first Chief Justice of India Harilal Kania after taking oath from Dr.Rajendra Prasad, the first President of India, said :- “The Court should interpret the constitution with an enlightened liberality and administer the law with goodwill and sympathy for all. The court should be quite untouchable by the legislature or the executive authority in the performance of its duties.”

Article!e 368 of our Constitution provides amending powers to the Parliament. In a case Keshwanand Bharti Vs.State of Kerala ( AIR 1973 SC 1461 ) a question arose regarding the amending powers of the Constitution by the Parliament. Whether the Parliament have unlimited power to amend the Constitution or it can amend with some limitations on it. The Supreme Court constituted a 13 Judge Bench presided over by the Chief Justice of India S.M.Sikri. This is the largest bench so far which have decided a case. Next larger benches are 9 Judge bench.

The case was heard for six months and was argued by eminent counsel such as N.A.Palkhiwala for the petitioner H.H.Keshwanand Bharti. The State of Kerala was represented by a Constitutional authority H.M.Seervai. The Government of India was represented by its Attorney General Niren Dey.

By Out of the 13 Judges, 11 separate opinions were expressed by the Judges. Six Judges namely CJ Sikri, Justices Shelat and Grover, Hegde and Mukhrjea and Jagannath Reddy by four separate Judgments held that the amending power was limited by various inherent and implied limitations in the Constitution including fundamental rights.

Six other Judges namely Justices A.N.Ray (Who was later on appointed as Chief Justice of India superseding three senior Judges by Mrs. Indira Gandhi in 1973), Palekar,Mathew, Dwivedi, Beg and Chandrachud delivered six separate judgments holding that there were no limitations on the amending powers of Parliament.

One Judge Justice H.R.Khanna ( who was later on also superseded and was not allowed to become CJI by Mrs.Indira Gandhi ) held that the amending power was plenary in every sense, but the word “amendment” in Art.368 by its limited connotation did not lend itself to abrogating the Constitution. Any amendment to the Constitution had necessarily to retain “the basic structure and framework of the Constitution after the amendment.”

Justice Khanna said:- “Although it is permissible under the power of amendment to effect changes, howsoever important and to adapt the system to the requirements of the changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the Constitution” with all their wide sweep and amplitude can not have the effect of destroying or abrogating the basic structure or framework of the Constitution”

In view of 11 separate Judgments, a Courts order was passed by 9 Judges which inter alia read as follows:-

2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

The outcome of this Judgment had clearly upset Mrs.Indira Gandhi who wanted review of the Keshwanand Bharti’s case. A.N.Ray became the Chief Justice of India superseding three senior most Judges. He constituted a Bench of 13 Judges again to reconsider Keshwanand Bharti’s case. The Bench sat for two days. N.A.Palkhiwala raised serious objections to the reconsideration of Bhari’s case. Eventually, the Bench did not resume sittings on the third day and a message was sent by the Chief Justice through the Registrar that the 13 Judge Bench is broken and no further hearing will take place now. As a junior counsel I was also sitting in the Court Hall when the message came.

Therefore, now the law of the land is that basic structure or framework of the Constitution can not be altered. The fundamental rights, democratic framework of Indian republic, Secular character etc.of the nation can not be tinkered by any government howsoever powerful it may be.

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AK Srivastava

The author Sh. A.K. Srivastava (@aksrivastava232) is Senior Advocate in Supreme Court of India, New Delhi where he is practicing since last 40 yrs. He had been Advocate General of Govt. of Sikkim & was Hon.Secretary of Supreme Court Bar Association for two years( 1991-92,1992-93).
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  • I was there when these judges were superseded and grand public meeting was held.
    However I have few questions to ask-
    1. If the basic structure is unchangeable the how Mrs Gandhi add a new word “Secular” in the preamble of Constitution.
    2. Even if this constitution is unamendable at given place, Can parliament cancell the constitution in toto & adopt a new constitution duly approved by parliament….say Presidential form of govt?

    • These are all debatable questions.No straight can be given.As and when question arises,Supreme Court by its inherent power will interpret the Constitution.However, Supreme Court have been clarifying whether certain features are basic features or not.

      • ok…but it does not satisfy me. Specially if “Secular” word can be inserted then WHY it can’t be removed?? How court can define whether India is secular State or not?