Constitutional Law: Amendability of Constitution

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Reading time: 8-10 minutes.

A brief study into political societies throughout the human civilization will bring forth the existence of an order based on the shared values of the society. Such cherished values have been presented in various forms, the modern avatar being a written piece of text called Constitution. India, after centuries of struggle, gained independence from the tyrannical British Empire in 1947 and started on its journey of being an independent nation.

Early on the journey was fraught with disturbances and uncertainties and doomsday predictions were the norm of the day. Amidst this chaos, the Indian population (albeit indirectly) chose for itself an eminent group of individuals and tasked them with the humongous task of bringing in force a Constitution for a country as diverse and fragmented as India. This group of individuals were collectively called the Constituent Assembly and after a long-drawn process which continued for almost three years they had put in place the lengthiest Constitution of the world.

While the eminence and brilliance of the Constitution makers is undeniable, they couldn’t have been entrusted with the responsibility to make an instrument which can serve through aeons of time. Thus, to realize the goals and aspirations of the republic through transient times, it was necessary to provide for an amendment mechanism, which could be used to effect changes to the supreme text itself.

The amendment mechanism was provided for by the Constitution makers by way of Article 368, which laid down the procedure to be undertaken by the Union Parliament to effect changes in the Constitution’s text. However, right from its genesis, the amending power bestowed upon the Legislature has been subjected to debates and has become an ongoing tussle between the two organs of the government- The Legislature and The Judiciary.

Pre-Kesavananda Bharati

In just a brief period of our Constitutional history of 70 years, the Constitution has been amended over 100 times. While India still didn’t have an elected government, a Constitutional Amendment was passed in 1951 as a response to the challenges emerging from the government’s socialist policies of land ceiling and redistribution so as to secure public welfare. The other major issues with which the first amendment dealt were freedom of speech and reservations. The first Constitutional amendment found its way to the Supreme Court where insertion of Article 31A and 31B were challenged. Both the Articles coupled with the entry of the Ninth Schedule, made certain laws inscrutable with respect to the Fundamental Rights. The Apex Court was called upon to decide the status and Constitutionality of these Constitutional Amendments. The Court, basing its reasoning on the distinction between legislative and constituent power held that Constitutional Amendments are an exercise of constituent power and is thus not covered by the definition of law under Article 13(2). By holding Constitutional Amendments distinct from law, the Court made them uncriticizable to any of the ‘sacred’ fundamental rights. By not subjecting amendments to the most sanctimonious part of the Constitution, the Court opened the floodgates of providing the parliament with unbridled and unrestricted amending powers.

The next major Constitutional amendment challenge in the Supreme Court came up in the case of Sajjan Singh which challenged the 17th Amendment. Though the case didn’t change the legal landscape in relation to amendments, it brought up some important points for consideration in the minority opinions of Hidayatullah J. and Mudholkar J. Interestingly, the first reference to a basic structure of the Indian Constitution came in the opinion of Mudholkar J., much ahead of the landmark case of Kesavananda Bharti. The reservation and discomforts posed as interesting questions by the minority judges, were answered by an 11-judge bench decision of the Supreme Court in Golak Nath, where a narrow majority removed the distinction between constituent and legislative power and subjected all the Constitutional amendments to the test prescribed under Article 13(2). However, the solution in Golak Nath was simple, but unconvincing. The obvious result of the judgement was a counter-amendment by the Indian Parliament which effectively overruled the courts’ opinion. The 24th and 25th Amendments were challenged in the case of Kesavananda Bharti, which ushered in a new era of Indian Constitutional Jurisprudence.

Post-Kesavananda Bharati

The largest bench of the Supreme Court to have ever existed, decided the fate of Constitutional Amendment in a 7:6 majority. HR Khanna J’s opinion made the ultimate difference and changed the Constitutional landscape forever. The longest Indian judicial decision to have ever been authored put in place substantial limitations to Parliament’s amending powers. It re-recognised the difference between Constitutional law and ordinary legislation and rejected the reasoning of Supreme Court in Golak Nath. The court placed reliance on Article 368 itself and found inherent limitation to amending powers. The court distinguished between ‘to what extent an Act can be called an amended Act’ and ‘at what stage it traversed into the realm of enacting a new Constitution in itself’. The judges realizing the limitations in previously decided cases opted for an open-ended solution and birthed a giant in the form of “The Basic Structure Doctrine”. The Basic Structure was merely an illustrative list which listed certain ‘sacred’ areas, ideas or themes of the Indian Constitution which were meant to be unamendable throughout the life of the Constitution. Thus, the court provided the parliament with the power to amend each and every part of the Constitution including the Fundamental Rights, it made broad restrictions to the exercise of its power.

The Journey Forward

The Constitutional journey of Independent India has been an interesting one and is still unfolding every day in the halls of parliament and chambers of justice. From an initial over-emphasis on textual interpretations and positivist pronouncements the Apex Court has made a long journey by deciding cases on overtly naturalist principles. A recent example of such a liberal approach could be seen in the 9-judge bench decision holding right to privacy as a fundamental right under the text of Article 21. The Puttaswamy judgement would have been unthinkable to the eminent judges of the yester-years, which is a tale of how far the Indian jurisprudence has evolved. Many a times, Constitutional Amendments have come up to challenge in the Supreme Court after the momentous ruling in Kesavananda Bharati. But the Basic Structure Doctrine has stood the test of time and has ensured safeguarding of the Constitution and the people which “gave to themselves” the Constitution in hope of undoing the pains and injustices of centuries of tyrannical oppression.

An emerging and ever-developing challenge in the realm of Constitutional law has been to protect the Constitution from the very institutions it has legitimised. The practice of seeing an elected government as an oppressor has been a long-standing practice and it has invited severe criticism and scrutiny over the year, and rightly so. However, the attitude of seeing the judiciary form rose-tinted glasses should also undergo necessary adjustments and its powers should also be constrained and checked, for an overambitious judiciary can be as detrimental to the people’s Constitution as an elected body of representatives. In the end, the Constitution, which was given by the people to themselves, should remain so, and any attempts of co-opting it by governmental institutions should be resisted.

Author: Anshum Agarwal from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India

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