This article is written by Sujitha S, from the School of Excellence in law, Chennai. This article deals with legal implications of 24th Constitutional Amendment with relevant judgments. Further, it focuses on the aspect of amenability of the Constitution in the light of Articles 368 and 13 of the Constitution.
It has been published by Rachit Garg.
The Constitution defines the powers of the state’s major organs, granting Parliament and state legislatures the authority to legislate in their respective jurisdictions. This power, however, is not absolute and is subject to judicial review by the courts. The judiciary has the authority to determine the Constitutional legality of legislation, and it can even overturn any statute that is in violation of the Constitution. As a result of the courts’ power, the Constitution’s provisions become sacred, undermining the main intention of the Constitution’s writers to make it a flexible and dynamic document rather than a rigid system of government.
This is why the Constitution itself offered the legislatures a counter-weapon in the shape of the power to amend the Constitution (Article 368), to make the Constitution consistent with prevailing realities. This authority, however, is not absolute, and a check was put on legislatures by making the court the watchdogs of the legislature’s altering powers. The 24th Constitutional Amendment traces its own judicial relevance in light of this power. The purpose of this Amendment was to overrule the Supreme Court’s ruling in I. C. Golaknath v. State Of Punjab (1967) which stated that Parliament could not restrict fundamental rights in any way. The Indian press criticised the 24th Amendment as having an extremely broad scope and questionable Constitutionality. Jurists and all of the core members of the Constituent Assembly at the time were also opposed to the Amendment. In 1973, the case of Kesavananda Bharati v. State of Kerala, the Supreme Court confirmed the Constitutionality of the 24th Amendment.
Prior to Golaknath’s case: Shankari Prasad’s case
The power of Parliament to amend the Constitution, notably the chapter on citizens’ fundamental rights, was challenged in the Sri Sankari Prasad Singh Deo v. Union Of India (1951). Many legislations dealing with land reforms and tenancy issues were established after Independence, and their Constitutional legitimacy was disputed. The land reform legislations were declared unconstitutional by the courts because they infringed on the basic right to property granted by the Constitution. Such a decision made a mockery of the legislature’s legislative authority, which they had assumed to be unlimited. In response to the unfavourable verdicts, Parliament included these laws under the Constitution’s Ninth Schedule by the First and Fourth amendments (1951 and 1952, respectively), thus removing them from judicial scrutiny. The prime concern has been whether Part III of the Constitution can be altered to weaken or eliminate any fundamental right. Since 1951, many changes to the Fundamental Rights Act have limited the scope of certain of these rights to some extent. The Supreme Court concluded that a Constitutional amendment will be permissible even if it abridges or takes away any basic rights since it is not a law under Article 13(2).
Sajjan Singh v. State Of Rajasthan case (1964)
The legality of the Constitution (17th Amendment) Act of 1964 was questioned in this case. By including some other land purchase activities in the 9th Schedule, this amendment harmed the right to property under Article 19(1)(f). A question similar to that expressed in Shankari Prasad’s case was also raised in this instance. The Supreme Court upheld the majority decision in Shankari Prasad’s case, holding that the term “amendment of the Constitution” refers to changes to all of the Constitution’s provisions, i.e., Article 368 applies to all portions of the Constitution.
I. C. Golaknath & Ors v. State Of Punjab (1967)
In Golaknath’s case, the subject of legislatures’ amending authority, as defined by Article 368, was questioned once more. The Constitution (Seventeenth Amendment) Act, 1964, which reinserted some state legislation in the Ninth Schedule, was challenged on Constitutional grounds. The majority in the case of Shankari Prasad and Sajjan Singh found that the Parliament had no jurisdiction to change Part III of the Constitution, to take away or abridge basic rights as of the date of this decision, thereby overruling the previous decisions of Shankari Prasad and Sajjan Singh. In this judgement, Chief Justice Subba Rao took the unusual opinion that Article 368, which contains provisions linked to Constitutional revision, only sets out the method for revising the Constitution. The power to amend the Constitution was not granted to Parliament by Article 368. The ability to amend, which is a constituent power of Parliament, emerged from previous provisions in the Constitution (i.e., Articles 245, 246, 248) that granted it the authority to create laws (plenary legislative power). As a result, the Supreme Court decided that Parliament’s amending and legislative powers were substantially the same and that every change to the Constitution must be regarded as a law in the sense of Article 13(2) of the Constitution.
The majority opinion used the concept of implicit constraints on Parliament’s ability to alter the Constitution to support its decision. This viewpoint argued that the Constitution places a high value on basic rights and that the people of India, in giving themselves the Constitution, reserved these rights for themselves, as stated in Article 13(2) of the Constitution. Due to the structure of the Constitution and the nature of the liberties provided under it, Parliament could not amend, restrict, or degrade fundamental freedoms. They pointed out that Parliament might call a Constituent Assembly to modify the fundamental rights if required.
Consequences of the verdict
The judgement in Golaknath’s case resulted in a direct power struggle between the legislature and the judiciary. The ruling regime lost a lot of support in the legislative elections since it didn’t keep its promises. Due to the power struggle, the administration introduced a bill to restore parliament’s primacy, but it was eventually dropped due to political pressures. But, eager to demonstrate its supremacy, Parliament presented two significant lines of legislation, one relating to bank nationalisation and the other to the de-recognition of Privy Purses, both under the guise of ensuring equal distribution of wealth and resources. Both of the Parliament’s actions were overturned by the Supreme Court. The core issue had now switched to the relative importance of directive principles and fundamental rights. This resulted in a political position unprecedented in Indian history. In showing their dominance, the judiciary and Parliament were at odds. For the first time in India’s history, the Constitution was used as a campaign topic. Many amendments were passed in 1971 and 1972 to establish parliament’s sovereignty over the Constitution.
24th Constitutional Amendment (1971)
The principle of implicit restrictions on parliament’s power was recognised, and legislative supremacy was reduced to some extent. Parliament enacted a slew of Constitutional revisions in order to demonstrate its supremacy. On November 5, 1971, the Constitution (Twenty-Fourth Amendment) Act was approved. The purpose of this Amendment was to overrule the Supreme Court’s ruling in I.C. Golak Nath v. State of Punjab, which stated that Parliament could not restrict Fundamental Rights in any way. Parliament does not have the authority to abolish or limit Constitutional privileges, according to a Special Bench of 11 justices. The government argued that this ruling would prevent it from successfully implementing the Directive Principles of State Policy, which in some situations amounted to an infringement of fundamental rights. Articles 13 and 368 of the Constitution were amended by the 24th Amendment, allowing Parliament to freely amend the Fundamental Rights.
Any law that was incompatible with the Fundamental Rights was declared unConstitutional under Article 13. The Supreme Court concluded in Golak Nath that the term “law” covered Constitutional amendments; as a result, any Constitutional modification that infringed the Fundamental Rights was declared unConstitutional. As a result, Parliament would be unable to limit Fundamental Rights by Constitutional modifications. The mechanism for amending the Constitution is outlined in Article 368. Any Constitutional modification could only take effect under the original Constitution if two requirements were met: first, two-thirds of the members of each House of Parliament voted in favour of it; and second, it obtained the President’s consent, which he might withhold.
The following modifications were made as a result of the amendment:
- ‘Nothing in this Article shall apply to any amendment of this Constitution made under Article 368,‘ according to a new clause (4) inserted to Article 13.
- Article 368’s marginal header was changed from ‘Procedure for amendment of the Constitution’ to ‘Power of Parliament to amend the Constitution and Procedure, consequently.’
- ‘Notwithstanding anything in this Constitution, Parliament may, in the exercise of its Constituent Power, amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure established forth in this Article,’ was added to Article 368.
- By changing the words ‘it shall be presented to the President who shall give his assent to the Bill and thereupon’ to ‘it shall be presented to the President for his assent and upon such assent being given to the Bill,‘ the President was made obligated to give assent to any Bill amending the Constitution.
- Article 368 was also given a reassuring clause (3), which said that “nothing in Article 13 shall apply to any amendment made under this Article.”
Need and importance of the 24th Constitutional Amendment Act
As explained previously, the Supreme Court overruled, by a small majority, its own prior judgements affirming Parliament’s authority to change all components of the Constitution, including Part III related to basic rights, in the Golak Nath case. As a result of the ruling, Parliament is deemed to lack the authority to revoke or limit any of the fundamental rights guaranteed by Part III of the Constitution, even if it becomes necessary to do so in order to carry out the Directive Principles of State Policy and achieve the goals set forth in the Constitution’s Preamble. As a result, it is deemed essential to specifically state that Parliament has the power to amend any provision of the Constitution so that the provisions of Part III are included in the amending power. The legislation attempted to adequately revise article 368 for the purpose, making it explicit that article 368 provides for Constitutional amendment as well as procedures for doing so. The Act further stipulates that when a Constitution Amendment Bill is offered to the President for his assent after being passed by both Houses of Parliament, he should do so. It also proposes changing Article 13 of the Constitution to make it inapplicable to any constitutional modification made under Article 368.
The 24th Constitutional Amendment holds considerable importance in
- Citizens’ rights, freedoms, and immunities;
- the scope of judicial power that can assist citizens in asserting their inherent and basic rights against state action;
- the Constitution of India’s absolute authority over the three organs of the government; and,
- the scope of legislative power envisioned in the Constitution of India.
Constitutional validity with reference to Kesavananda Bharati case
This is a watershed moment in India’s Constitutional amendment history. All of the judges agreed that the 24th amendment is Constitutional since Article 368 grants the ability to change all or any of the Constitution’s provisions. The majority of judges found that the ruling in Golaknath’s case was erroneous and that Article 368 provided enough opportunity for amendment. Seven judges were of the opinion that the basic framework could not be changed. M.K. Nambiar and other counsels used the word ‘basic structure’ for the first time when arguing for the petitioners in the Golaknath case, but it wasn’t until 1973 that the notion appeared in the language of the Supreme Court’s ruling.
The basic structure principle was articulated, and the ability to alter was deemed to be channelled and constrained. This theory was supported by Khanna J. and the other six judges. The remaining six judges were of the opinion that parliament had absolute authority. So, with a 7:6 majority, the Supreme Court concluded that those portions of the Constitution that give it meaning cannot be modified or amended. Out of 13 judges, only six judges agreed that fundamental rights are part of the Constitution’s basic structure and so cannot be amended. So, by a 7:6 majority, the Supreme Court ruled that basic rights are amendable in general.
In regard to the Constitution’s amendability, it was determined that the Constitution is amenable to the degree that it does not impair the document’s basic structure. However, this decision did not specify what constitutes the Constitution’s basic structure. The judges provided their own examples and listed a number of them, although this list was not considered comprehensive. The case of Keshavananda demonstrated that the Indian Parliament is not sovereign and that its authority is channelled and restricted rather than absolute.
Impact of the 24th Constitutional Amendment
In 1971, legal expert V. G. Ramachandran wrote in the Supreme Court Cases Journal that “the 24th and 25th Amendments were “not ‘tinkering’ with the Constitution. It is a veritable slaughter of the Constitution”.The general public paid little attention to the 24th Amendment at the time of its implementation as they were preoccupied with heated relations between India and Pakistan as a result of the ongoing Bangladesh Liberation War, which subsequently led to the Indo-Pakistani War of 1971. Indira Gandhi brought the 24th Amendment as the first of a series of measures to consolidate her authority and establish one-party rule. It was followed by a series of Constitutional amendments aimed at weakening the judiciary and strengthening Parliament’s authority. The 25th, 38th, and 39th Amendments were the most prominent, culminating in the 42nd Amendment in 1976 during the Emergency, which made the most substantial changes to the Constitution in history. The Act was enacted in line with Article 368 of the Constitution, and it was approved by more than half of the state legislatures, as required by Clause (2) of that article.
The 24th Amendment was largely reversed in 1973 when the Supreme Court ruled in Kesavananda Bharati v. The State of Kerala that Congress could not modify the Constitution’s “basic structure.” In this decision, 11 justices ruled that Parliament’s amending powers did not extend to some basic or important provisions of the Constitution. The question of what forms the basic structure was not fully resolved since each judge had a different perspective on which Articles are included in the ‘basic framework.’ The Supreme Court cases of Indira Gandhi v. Raj Narain (1975) and Minerva Mills v. Union of India (1980) have added to the ‘basic structure,’ although neither judgement comprehensively explains or sets forth the doctrine’s tenets. Both Articles 13 and 368 have been amended and are still in effect. However, the Courts have worked hard to ensure that these Articles do not compromise the Constitution’s basic structure.
Following the verdict in the Election Case(1975), the Supreme Court emphasised that the Constitution contains a few aspects that are so fundamental to it that it cannot exist in its original sense without them. Such traits cannot be changed. Appalled by this judgement, Parliament enacted the 42nd Constitutional Amendment, which amended Article 368, thereby giving the president near-absolute power. The legality of the 42nd Constitutional amendment was contested in Minerva Mill’s petition. The amendment was ruled unConstitutional by all five judges. This judgement also found that the revised Article 31 is null and unConstitutional and that fundamental rights and directive principles are in harmony and cannot be in contradiction with one another. Waman Rao’s case (1981) also affirmed Minerva Mill’s verdict that the changes to Article 368 adding Cls. 4 and 5 are null and void. In this judgement, it was also decided that any legislation added to the 9th Schedule after the Keshavanand Bharti decision is subject to judicial review.
The balance of legislative power among the constituents is extremely significant in a federal Constitution, and the parliament has been granted the authority to modify such a vital component. The power of amendment is widely seen as a pertinent one granted to parliament. It is, in a way, the foundation of the Constitution. Subsequently, the Supreme Court confirmed the 24th Amendment Act’s Constitutionality, stating that Parliament has the authority to limit or eliminate any of the Fundamental Rights, while also establishing the new notion of the “basic structure of the Constitution. As a result, the 24th Amendment strengthened Parliament’s capacity to amend the Fundamental Rights.
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