When discussing the basic structure of our Indian Constitution two very important articles come up in our minds, article 13 and article 368 of the Indian Constitution. Now, article 13 serves as the protector of the fundamental rights whereas article 368 holds the power to amend the constitution.
Article 13 states,
Laws inconsistent with or in derogation of the fundamental rights.
- All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
- The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
- In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
- Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality
Article 368 states,
Power of Parliament to amend the Constitution and procedure therefor.
- Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
- An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
- Article 54, Article 55, Article 73, Article 162 or Article 241, or
- Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
- any of the Lists in the Seventh Schedule, or
- the representation of States in Parliament, or
- the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
- Nothing in Article 13 shall apply to any amendment made under this article.
- No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground.
- For the removal of doubts, it is hereby declared 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 this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS
When we compare both the articles some very important questions arise such as:
- can the constitution be amended by the parliament?
- Can the preamble be amended?
- Can the fundamental rights be amended?
- And the most important one of them all is that whether the amending power of the parliament exercised under article 368 absolute or are there any restrictions on it?
In the end, the whole discussion is a tussle for power. Ever since the nation got independence, we had been having the debate over the basic structure of our constitution. It all started with the infamous Shankari Prasad Case of 1951 which talked about the right to property and our fundamental rights. In this case, it was said by the learned court that article 368 has the power to amend the fundamental rights.
Then, there was the Golak Nath Case of 1967, 11 judges bench was instituted by which the court reversed everything they had said before in the above-mentioned case.
The issue in the case was:
- whether an amendment is a ‘law’ under the meaning provided by Article 13(3)(a) and;
- whether Fundamental Rights can be amended or not?
The court held that:
- the constitutional amendment under Article 368 comes under the meaning of ‘law’ under Article 13(3)(a) and
the power to amend the constitution is not an unlimited power and it is subject to judicial review. (Judicial review is a process under which any legislative or executive actions are reviewed by the judiciary.) This case is a landmark in the Indian Legal History as it was the first time it was mentioned after the Shankari Prasad and Sajjan Singh Case in the Golak Nath Case that Judiciary has more power than the Parliament but this was all about to seem ineffective after the 24th Amendment Act.
The 24th Amendment basically excluded the applicability of article 13 onto article 368 and therefore, everything that was held in the Golak Nath Case held no value after this amendment.
The Basic Structure Doctrine
Now after all this, the Kesavananda Bharti Case of 1973 came into being, and in this again the 24th Amendment Act was challenged and the question arose ‘what is the scope of the amendment?’ that the parliament reserves. And a very balanced judgment was provided by the learned bench which stated that “the whole constitution can be amended but it should never amend the basic features of our constitution”. This is the Basic Structure doctrine.
Finally, in the Minerva Mills case, the validity of the 42nd Amendment Act was questioned and it was stated by the court that Clauses 4 & 5 which were added by the aforementioned amendment violated the basic features of the constitution and therefore, it was held unconstitutional.
In the end, it was said that the constitution is supreme and the Constitution of India provides it’s people a voice and therefore, making the people of the nation supreme.
- Yes, the constitution can be amended.
- The court stated that “Preamble is part of the Constitution and is subject to the amending power of the parliament as are any other provisions of the Constitution, provided the basic structure of the Constitution is not destroyed”.
- The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights, can be amended, but that Parliament cannot alter the basic structure of the constitution. Furthermore, the court stated that “Fundamental Rights included in Part III of the Constitution are given a “transcendental position” and are beyond the reach of Parliament. Implying that any amendment that “takes away or abridges” a Fundamental Right conferred by Part III as unconstitutional.
“Law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered.”– B R Ambedkar