Some may profess that Article 368 of COI gives unchecked amending power to Parliament, but it is not so!
- Should not those who call for protection of COI unitedly work for undoing amendments made in 1976 & 1978 to Art -74 ?
- Congress Government in 1976 & Morarji lead Janta Govt in 1978 constitutionally weakened Institution of President of INDIA
- Will Block NDA and Block INDIA unitedly work to bring Art-74 back to its original form?
DAYA SAGAR
Article 368 of the Constitution of India (COI) may give to some the impression that Parliament’s amending powers are absolute and encompass all parts of the document but the position is not like that . The Supreme Court can go for checks through reviews and has at occasions acted for suitable checks on legislative enthusiasm since independence for serving the original spirits enshrined there in Supreme Court of India has laid down the ”doctrine of basic structure of the Constitution of India’ in 1973 ( through the Judgment of 13 judge Constitution Bench in The Kesavananda Bharati case ( Kesavananda Bharati Sripadagalavaru etc. v. State of Kerala and another etc. Writ Petitions Nos.135/70, 351-52i~73-74 and L±UO of 1972 , delivered on 24 April 1973 ) that Article 368 cannot be used by Parliament to amend the constitution so as to distort, damage or alter the basic spirits /features of the Constitution under the pretext of amending it using Art 368. Although the phrase ‘basic structure’ itself” is not found in the Constitution but The Supreme Court had placed before the citizens this concept in black & white for the first time in the Kesavananda Bharati case in as something like commonly understood as Doctrine of Basic Structure . Supreme Court has been the interpreter of the Constitution and the arbiter for any amendments made by Parliament. Supreme court has in a way reserved the jurisdiction to ‘self’ to name the elements of basic structure as and when a case for review comes. Some of the amendments have been made to explicitly project the spirits/principles enshrined in the ‘hearts’ of constitution like the insertions made in the text of the Preamble { using/substituting “Sovereign Socialist Secular Democratic Republic” by Forty-second Amendment Act, 1976, s.2, for “Sovereign Democratic Republic” (w.e.f. 3-1-1977); and using expression/ substituting “unity and integrity of the Nation ” by s.2, ibid., for “Unity of the Nation” (w.e.f. 3-1-1977) by making insertions } and some of the amendments have been made keeping in view implementation of welfare intentions laid down in some articles of the constitution/ directive principles / fundamental rights / like as through The Constitution (First Amendment) Act, 1951 June 18 1951 where under Art 15,Art 19, Art 31, Articles 85, 87, 174, 176,341, 342, 372 ,376 were amended and Ninth Schedule was added after 8th Schedule ) and 4rth Amendment Act (The Constitution (Fourth Amendment) Act, 1955 17 April 1954 where under articles 31, 31A & 305 of, and the Ninth Schedule to the Constitution were amended ) . The substitutions made in the text of Preamble of Constitution of India have been very much within the powers of Parliament as laid in Art 368 of COI since the concerned section of the 42nd amendment Act of 1976 have very much within the doctrine of basic structure of COI as professed in The 13 Judge – Bench ( Chief Justice S. M. Sikri, Justice J.M.Shelat, Justice K.S. Hegde, Justice A.N.Grover, Justices A.N. Ray, Justice P. Jaganmohan Reddy, Justice D.G. Palekar, Justice H.R. Khanna, Justice K.K. Mathew, Justice M.H. Beg, Justice S.N. Dwivedi, Justice A.K. Mukherjee and Justice Y.V. Chandrachud ) Judgment of Supreme Court of India delivered on 24 April 1973 in Kesavananda Bharati Vs State of Kerala ( His Holiness Kesavananda Bharati Sripadagalavaru etc. v. State of Kerala and another etc. Writ Petitions Nos.135/70, 351-52i~73-74) which had held that Parliament has powers to amend the Constitution using Art- 368 but the Parliament cannot go beyond disturbing the basic structure of the Constitution of India and all amendments made to constitution are subject to judicial review. Although the Kesavananda Bharti case 13 Judge Constitution Bench Judgment had not provided direct relief in favour of the petitioner but had unfolded the Doctrine of Basic Structure of Constitution of India. Even Art 368 has been amended , First <Constitution (Twenty-fourth Amendment) Act, 1971 s3 where under “Procedure for amendment of the Constitution” was substituted with the text Power of Parliament to amend the Constitution and procedure therefor, (w.e.f. 5-11-1971); Clause- 1 inserted bys3 ; Art. 368 re-numbered as cl. (2) thereof by s. 3, ibid. (w.e.f. 5-11-1971; Clause -3 was added ” Nothing in article 13 shall apply to any amendment made under this Article ” inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 3 (w.e.f. 5-11-1971). Second vide s 55 of the Constitution (Forty-second Amendment) Act, 1976, s. 55 (w.e.f. 3-1-1977) were . added Section 4 { 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} and Section-5 (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.) but Section-4 has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others 1980 interms of doctrine of basic structure of Constitution.
To be continued
(The writer is a Sr Journalist & analyst of J&K Affairs)