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Analysing Amendability Of Fundamental Rights Under Article 368 Of The Constitution

Recent instances of the Constitution being amended by the Parliament, in relation to fundamental rights and the Preamble, included within its basic structure, indicate the relevance of Article 368 even today. There is a constant need to amend the Constitution, including its fundamental rights because it was first framed in accordance with the socio-political needs deemed essential for that era, which may not be sufficient or suitable for today's fast-growing socio-economic, technological and legal climate.

For instance, the right to education became a fundamental right by virtue of the 86th Constitutional Amendment in 2002. Similarly, the 44th Amendment in 1978 removed Articles 19(f) and 31 from Part III of the Constitution, effectively rendering right to property as not a fundamental right. The higher Indian courts have interpreted the extent of powers to modify fundamental rights under Article 368.

For example, the dissenting opinion in Sajjan Singh v. State of Rajasthan stated that Article 368 did not grant absolute powers to the Parliament and could not be used indiscriminately to usurp the fundamental rights of the citizens. Though there is ample literature available with regards to examining Article 368 through the lenses of amending the basic structure as a whole, but few papers recently on specifically amending fundamental rights from a legal perspective, so the author aims to fill that research gap.

The author aims to trace the journey from the 1st Constitutional Amendment Act, 1951 in relation to Shankari Prasad v. Union of India to the position settled in Waman Rao v. Union of India. The author will attempt to gauge the rationale behind the bench of various judgments challenging or upholding certain amendments made by the Parliament to the fundamental rights and include their own opinion on the same under the analysis component. The author will tackle the legal and constitutional principles as well as offer socio-political context for the decisions made, through the use of doctrinal and methods for conducting in-depth research.

Basic structure encompasses the basic or essential features of the Indian Constitution that permeates throughout the Constitution or something that forms the basis of our Constitution. It links important provisions of our Constitution, without the grundnorm is baseless.

For example, The Constitution (One Hundred and Third Amendment) Act, 2019, introducing reservation for economically backward sections, has applications to Article 14 of the Constitution, the first fundamental right, because of its objective of bringing about equity.

Furthermore, on February 4th, 2022, the Rajya Sabha debated on the issue of BJP Kerala MP K.J. Alphons wanting to introduce a private member's bill therein to amend the Preamble of the Constitution. This was opposed by the RJD MP Manoj Jha and MDMK MP Vaiko in December 2021, on the grounds of violating the rule in the Kesavananda judgement which was that the rule of law is part of the basic structure of the Indian Constitution.

This means that anything within the basic structure of the Constitution could not be amended by the Parliament at all. Within the Constitution, the basic structure includes fundamental rights, which are found under Part III. As laid down by A.V. Dicey, the country is said to follow the rule of law only when it upholds the individual liberties of citizens. Amending powers to alter certain parts of the Constitution, conferred upon the Parliament, are granted and limited by Article 368 of the Constitution.

The Constant Tussle Between Article 13 and Article 368: 1st Constitutional Amendment
Article 13 of the Indian Constitution states that the Parliament cannot make any laws which violate, infringe or abdriges the fundamental rights laid down under Part III of Constitution. On the other hand, Article 368 confers the Parliament with the power to amend certain parts of the Constitution. The question of whether the two articles can exist together in harmony still remains unanswered today.

Many argue that the Constitution is akin to a piece of cloth enveloping the fundamental rights, Preamble, basic structure and other aspects necessary to regulate the three organs of governance as well as the people of India. ​​The scissors used to cut or change the cloth, moulding it to something else, symbolises the extent of Parliament's power under Article 368 to amend the Indian Constitution.

When the 1st Constitutional Amendment Act, 1951 was introduced, the Constitution only contained seven fundamental rights, including the right to property under Article 31A and 31B, which was later removed by the 44th Constitutional Amendment.

The rationale behind introducing this right in the first place around the time of independence was two-fold: firstly, to increase agricultural production; secondly, to secure opportunities, land and job security for farmers, cultivators and rural population who were oppressed by the zamindari system prevalent pre-independence.

They used socialist welfarist techniques and placed a ceiling as to how much land a person can own, such that too much land and power is not concentrated in the hands of a few people; a concept similar to constitutionalism. Apart from this, the State was also allowed to take measures to lawfully seize someone's property in lieu of compensation for rehabilitation after being displaced.

Such an exploitative structure was later established by an revolutionary policy of the Indian National Congress, bridging the gap between rampant inequality in land ownership. Further reforms were set up by the political party through the Agrarian Reforms Committee with the Chairman J.C. Kumarappa, defeating the need to keep right to property as a fundamental right any longer in an independent India.

The 1st Amendment Act also inserted the 9th Schedule and reasonable restrictions under Article 19(1)(g), thus allowing the government to acquire anyone's person whether partially or completely. Many citizens were unhappy about the fact that this Act gave too much power to the Centre to interfere with their lives and reduced the scope of the most crucial aspect of the Constitution, which were the fundamental rights.

They challenged this Amendment Act by filing a case in the Supreme Court of India on the grounds that the Parliament did not have the power to amend fundamental rights, which came to be known as the landmark judgement, Shankari Prasad v. Union of India.

The Supreme Court's dictum was that the changes made by the 1st Constitutional Amendment stands and that Article 368 allowed Parliament to amend any of the fundamental rights through Constitutional Amendments. This ratio suppressed the power struggle between the legislature and the judiciary, because they clarified that Article 13 only applied to ordinary rights and not to Constitutional Amendments.

Following this judgement, many State Governments inserted their respective Land Reforms Acts into the 9th Schedule of the Constitution. This had a huge impact because any law in derogation of fundamental rights would usually be struck down as void, but inserting it in the 9th Schedule would make the laws immune to being struck down irrespective of whether they violate fundamental rights.

This loophole as laid down under the 17th Constitutional Amendment was challenged in the case of Sajjan Singh v. State of Rajasthan. The 5-judge bench with a 3:2 majority held that Article 13 doesn't apply to the 17th Constitutional Amendment Act. Chief Justice P.B. Gajendragadkar examined the deeper intent of Constitution framers and interpreted it as them not wanting to give absolute protection to the fundamental rights because they had not laid down an expression provision prohibiting fundamental rights from being amended. Thus, both Shankari and Sajjan seemed to give more power and weightage to Article 368 over Article 13.

The dissenting opinion given by Justice M. Hidayatullah and Justice J. R. Mudholkar put forward the question as to whether changing a basic feature of the Constitution would be considered as an amendment or as a rewriting, and in turn, whether the power to make this change was conferred by Article 368.

This reframing of the framers' intent led the Court to refer the case to a larger bench, shaping it into the Golaknath v. State of Punjab, which challenged the Sajjan decision. The 11-judge bench agreed with the majority opinion in Sajjan and held that parliamentary powers under Article 368 were not absolute and that the Parliament cannot abridge fundamental rights as they are included under Part III, giving them a transcendental position beyond the scope of the Parliament's functioning. It further stated that any amendment taking away, abridging upon or in contravention to a fundamental right conferred by Part III is unconstitutional, thus subjecting the Parliament's powers to limitations and judicial review.

Thus, unlike Shankari and Sajjan, Golaknath gave priority to Article 13 over Article 368 because the Court said that the Parliament uses its power to enact a Constitutional Amendment. This Supreme Court judgement through a larger bench effectively reversed its own previous two decisions and supported those who were not in favour of amending the fundamental rights.

Comeback of the Parliament: 24th Constitutional Amendment
Soon after Golaknath, the courts were burdened with many cases from the public challenging all amendments curtailing fundamental rights, such as the 17th Constitutional Amendment removing the right to property as a fundamental right previously inserted by the 1st Constitutional Amendment. To avoid all this chaos, the Apex Court had to issue a clarification that Golaknath would apply retrospectively to past amendments.

While the 1st Constitutional Amendment reduced the scope of fundamental rights, the Golaknath case reduced the scope of the Parliament's powers. In pursuance of the Parliament intending to strengthen their amending powers, they decided to enact the 24th Constitutional Amendment, effectively amending both Article 13 and Article 368 by inserting a 4th sub-clause to both articles.

To reverse the Golaknath decision, the 24th Amendment stated under Article 368(4) that if Parliament enacts another Constitutional Amendment, it would not be applied to Article 13, while Article 13(4) laid down the vice versa statement. Thus, the position after the 24th Amendment Act was that the Parliament can amend any part of the Constitution including fundamental rights.

Other constitutional amendments came after the 24th one in order to remove past constitutional amendments against the rights of citizens. While the 25th Constitutional Amendment reduced the extent of property rights, the 29th Amendment brought land reforms. The 26th Constitutional Amendment abolished the Privy Purse concept, which was the payment made to ruling families to give up their powers and merge their princely states in 1947 as it had become redundant. Golaknath's position as well as the 24th, 25th, 26th, 29th Constitutional Amendments were challenged in Kesavananda Bharati v. State of Kerala.

The Supreme Court clarified that the Parliament has all the authority to amend the fundamental rights even before the 24th 26th Constitutional Amendment. The Court also upheld the validity of the 24th Constitutional Amendment, which made the parliamentary powers more explicit. The question of the extent of this power of the Parliament regarding the amendability of fundamental rights arose again in this case. The Court did not look into whether Article 13 or Article 368 is more powerful, but decided to take a balanced approach in furtherance of a harmonious interpretation, known as the basic structure doctrine.

Judiciary's Tussle With Erstwhile Prime Minister Indira Gandhi: 39th Constitutional Amendment
On 12th June 1975, Allahabad High Court laid down a historical decision wherein they quashed the electoral victory of Indira Gandhi's government, citing evidence of electoral fraud. As a punishment, they also held that all the members of her cabinet could not take up any electoral office post for 6 years.

Indira Gandhi then filed an appeal before the Supreme Court. She enacted the 39th Constitutional Amendment Act just a day before the hearing and imposed a national emergency within one day after that on the grounds of internal disturbances within the country.

The effect of the 39th CAA was that it inserted Article 329A and removed Article 71. At this time, the election dispute was still pending before the Court. Article 329A stated that the Supreme Court had no power to try electoral disputes regarding the President, Vice President, Prime Minister (then, Indira Gandhi) and the Speaker of the Lok Sabha, and instead, all these would be dealt with by an independent body.

Due to the passing of this CAA, the pending court case against her could no longer be in effect. Thus, the intention of the 39th CAA was clear - to let Indira Gandhi continue serving her term as the Prime Minister of India without any interference. The electoral results ironically showed that Janata Dal Party won the election by a great margin, making Morarji Desai the new Prime Minister.

Thus, Indira Gandhi had to reluctantly resign from her post. The ruling party now decided to reverse all wrongdoings done by the previous government,including 39th CAA and the unsolicited national emergency, by removing Article 329A. Article 329A was thus declared unconstitutional in the case of Indira Gandhi v. Raj Narain, applying the principles of the Kesavananda case. Article 71 was also brought back, which gave back the powers to try electoral disputes to the Supreme Court.

The Mini Constitution: 42nd Constitutional Amendment
The 42nd Constitutional Amendment brought in a huge amount of alterations after the emergency period under the Indira Gandhi rule in 1975 to prevent such a misuse of power from happening again. There were two major changes it made; firstly, it added sub-clause 4 to Article 31C, which talks about the right to property; secondly, it inserted Article 368(4) and (5).

Article 31C (4) stated that any law can be put in Part IV under Directive Principles of State Policy (DPSP), even if it violates fundamental rights under Part III, making it immune to even someone challenging it before the courts, while Article 368 (4) stated that Parliament can amend, alter or remove any fundamental rights under Part III and cannot be subjected to judicial review like Article 31C(4).

Thus, Parliament can insert or remove any provision from Part III and IV. Article 368 (5) gave absolute amending powers to the Parliament. Because the judicial powers were reduced and the balanced approach in Keshavananda, the 42nd Constitutional Amendment was challenged in Minerva Mills v. Union of India & Ors.

The petitioners in Minerva were owners of the Bombay Minerva Mills company, a property that the government occupied in the garb of nationalisation. The 42nd Amendment and all its changes were declared unconstitutional in this case, because of the three basic features laid down by the Supreme Court:
Firstly, judicial review, where rights as conferred by courts of law are considered basic features and thus cannot be suppressed by Parliament through amendment;

Secondly, limited amending power of the Parliament, which meant that Parliament has limited amending powers and cannot use those limited powers to expand its powers; thirdly, balance has to maintained between Part III and IV so that fundamental rights and DPSPs do not clash with each other.

All the Constitutional Amendment Acts after the Kesavananda basic doctrine case was challenged in Waman Rao v. Union of India, where the most pertinent issue that arose before the court was whether these amendments undermined the basic structure or not.

The Court solved this peculiar proposition by stating that the test of basic structure as laid down in Kesavananda will follow prospective application in respect of future amendments/laws. Thus, the Court clarified that any Constitutional Amendment after 24th April 1973 can be challenged if they do not follow the basic structure doctrine.

Thus, this case brought back the relevance of Kesavananda rule, allowing the Parliament to cut and alter parts of the cloth (symbolising the Constitution), but not throw away or rip up the entire cloth altogether. No part of the Constitution, including Fundamental Rights, was beyond the Parliament's amending power, but that does not mean that the basic structure of the Constitution could be abrogated even by a Constitutional Amendment, indicating the strength of the Constitution even in today's socio-political context.

  1. India Const. art. 368.
  2. MP Jain, The Constitution Of India 2319 (8th ed., LexisNexis 2018).
  3. Sajjan Singh v. State of Rajasthan, AIR 1964 SC 845.
  4. Rishabh Guha, The Scope of Article 368 under Article 13: A Timeline, 2 Jus Corpus L.J. 157 (2021).
  5. Shankari Prasad v. Union of India, 1951 SCR 89.
  6. Waman Rao v. Union of India, (1981) 2 SCC 362.
  7. Private Member's Bill to amend the Preamble to the Constitution: An Explainer, The Leaflet (Feb. 20, 2022, 6:46 PM),
  8. Rajya Sabha debates use of private bills to amend Preamble to Constitution, The Hindu (Feb. 15, 2022, 5:00 PM),
  9. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225..
  10. R.S. Gae, Amendment of Fundamental Rights, 9 J.I.L.I. 475-520 (1967
  11. India Const. art. 13.
  12. India Const. art. 31A, 31B.
  13. India Const. art. 19(1)(g).
  14. Supra note 5.
  15. Supra note 3.
  16. Golaknath v. State of Punjab, 1967 AIR 1643.
  17. Supra note 9.
  18. India Const. art. 329A.
  19. India Const. Art. 71.
  20. Indira Gandhi v. Raj Narain, 1975 AIR 865.
  21. Minerva Mills v. Union of India & Ors., AIR 1980 SC 1789.
  22. Supra note 6.

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