Today we hear opposition leader Shri. Rahul Gandhi that there is fear that if ruling party retains power in upcoming election than they will amend the constitution.

First, we will see views of Jawaharlal Nehru, then we will discuss method of amendment and how many times Constitution is amended.

Jawaharlal Nehru in constituent Assembly said, “During the discussion in the Constituent Assembly on this aspect, some members were in favour of adopting an easier mode of amending procedure for the initial five to ten years. Explaining why it was necessary to introduce an element of flexibility in the Constitution,” Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948, “While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible … while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I think it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote – man and woman – the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so – under this Constitution of course it will have the right to do anything – should have an easy opportunity to make such changes as it wants to. But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible …”

So Nehru ji  was in favour of flexible Constitution.

How many amendments till date:

As of September 2023, there have been 106 amendments of the Constitution of India since it was first enacted in 1950.

There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by Article 368.

Article 368 reads as under :

  1. Power of Parliament to amend the Constitution and procedure therefor

(1) 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.

(2) 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 and by a majority of not less than two-thirds of the members 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–

(a)article 54, article 55, article 73, article 162 or article 241, or

Notes: What is Article  54, Article 55, Article 73, Article 162 Or Article 241

Article 54 is election of President, Article 55  Manner of election of President, Article 73  Extent of executive power of the Union , Article 162. Extent of executive power of State; Article 241 High Courts for Union territories

(b)Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

Notes: Chapter IV The Union Judiciary, Chapter V of Part VI is High Courts in States or Chapter I of Part XI deals  Legislative Relations

(c)any of the Lists in the Seventh Schedule, or

(d)the representation of States in Parliament, or

(e)the provisions of this article.

the amendment shall also require to be ratified by the Legislatures 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.

(3) Nothing in article 13 shall apply to any amendment made under this article.

Note: Law in derogation or inconsistent with fundamental rights

(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.

(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

  • The first type of amendments includes that can be passed by “simple majority” in each house of the Parliament of India.
  • The second type of amendments includes that can be effected by the parliament by a prescribed “special majority” in each house; and
  • The third type of amendments includes those that require, in addition to such “special majority” in each house of the parliament, ratification by at least one half of the State Legislatures.

The third type amendments that are made to the constitution are amendments No. 3, 6, 7, 8, 13, 14, 15, 16, 22, 23, 24, 25, 28, 30, 31, 32, 35, 36, 38, 39, 42, 43, 44, 45, 46, 51, 54, 61, 62, 70, 73, 74, 75, 79, 84, 88, 95, 99, 101 and 104.

Although constitutional amendments require the support of a two-thirds majority in both houses of Parliament (with some amendments requiring ratification by a majority of state legislatures), the Indian Constitution is the most amended national constitution in the world The Constitution spells out governmental powers with so much detail that many matters addressed by statute in other democracies must be addressed via constitutional amendment in India. As a result, the Constitution is amended roughly twice a year. The main purpose of the amendments is to become more relevant.

Now let us see how many amendments made by his own grand mother, which are critical too.

Critical Amendments are 24th Amendment:

  1. Golaknath & Ors vs State Of Punjab & Anrs 27 February, 1967 in this it was held that , It is not that Fundamental Rights are not subject to any change or modification. The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. It permits the Fundamental Rights to be controlled but prohibits their erasure.
  2. In 1970, the Supreme Court, in its judgement on Rustom Cavasjee Cooper v. Union of India, filed by R. C. Cooper, popularly known as the Bank Nationalization case, held that the Constitution guarantees the right to compensation, that is, the equivalent money of the property compulsorily acquired. The Court also held that a law which seeks to acquire or requisition property for public purposes must satisfy the requirement of Article19(1)(f). The 25th Amendment sought to overcome the restrictions imposed on the government by this ruling.
  • Consequences of judgment:

After this judgment it was followed by 24th Amendment.

The Twenty-fifth Amendment of the Constitution of India, officially known as The Constitution (Twenty-fifth Amendment) Act, 1971, curtailed the fundamental right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts. The amendment also exempted any law giving effect to the article 39(b) and (c) of Directive Principles of State Policy from judicial review, even if it violated the Fundamental Rights.

So, what is the Amendment?

BE it enacted by Parliament in the Twenty-second Year of the Republic of India as follows: —

  1. Short title This Act may be called the Constitution (Twenty-fifth Amendment) Act, 1971.
  2. Amendment of article 31 In article 31 of the Constitution—

(a) for clause (2), the following clause shall be substituted, namely:—

“(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:

Provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1) of article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause”;

(b) after clause (2A), the following clause shall be inserted, namely:—

“(2B) Nothing in sub-clause (f) of clause (1) of article 19 shall affect any such law as is referred to in clause (2)”.

  1. 3. Insertion of new article 31C After article 31B of the Constitution, the following article shall be inserted, namely:—
    Saving of laws giving effect to certain directive principle.     Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”

Then came 25th Constitutional Amendment:

BACKGROUND

On 19 July 1969, Acting President V. V. Giri gave assent to the ordinance prepared by Indira Gandhi’s government to nationalize fourteen banks, which held the deposits of more than fifty crores’ rupees. On 20 July 1969, Cooper who was one of the shareholders in Central Bank of India, Bank of Baroda, Union Bank of India and Bank of India filed petition in Supreme Court of India challenging the ordinance and claiming violation of their rights under Article 14, Article 19 and Article 31 of Indian Constitution.

On 21 July 1969, Indira Gandhi’s government brought Banking Companies (Acquisition and Transfer of Undertakings) Act on the floor of Parliament of India. On 22 July 1969, an eight-judge bench of Supreme Court gave interim order restraining the government to remove banks chairmen and giving the direction to the banks under Banking Companies Act 1968, despite Attorney-General Niren De’s argument that nationalization is a policy decision and not subject to court scrutiny. On 4 August 1969, Parliament of India passed Banking Companies (Acquisition and Transfer of Undertakings) Act 1969.

The Twenty-fifth Amendment of the Constitution of India:

Officially known as The Constitution (Twenty-fifth Amendment) Act, 1971, curtailed the fundamental right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts. The amendment also exempted any law giving effect to the article 39(b) and (c) of Directive Principles of State Policy from judicial review, even if it violated the Fundamental Rights.

Landmark Judgment:

This amendment came after Bank nationalisation case in the matter of R.C.Cooper vs Union of India

The petitioner challenged the validity of the Ordinance and the Act on the following principal grounds :

 (i) The Ordinance promulgated in exercise of the power under Art. 123 of the Constitution was invalid, because the condition precedent to the exercise of the power did not exist;

  (ii) That in enacting the Act the Parliament encroached upon the State List in the Seventh Schedule of the Constitution, and to that extent the Act is outside the legislative competence of the Parliament;

  (iii) That by enactment of the Act, fundamental rights of the petitioner guaranteed by the Constitution- under Arts. 14, 19 (1) (f) & (g) and 31(2) are impaired;

 (iv) That by the Act the guarantee of freedom of trade under Art. 301 is violated; and

 (v) That in any event retrospective operation given to Act 22 of 1969 is ineffective, since there was no valid Ordinance in existence. The provision in the Act retrospectively validating infringement of the fundamental rights of citizens was not within the competence of the Parliament. That sub-sections (1) & (2) of s. 11 and s. 26 are invalid.

Final Judgment

“Under cl. (2) of Explanation 2, it. is provided that buildings which are partly occupied, the valuation shall be made on the basis of the “plinth area” occupied and multiplying it by the proportion which that area bears to the total plinth area of the buildings. The use of the expression “plinth area” appears to be unfortunate. What was intended is “floor area”. If the expression “plinth area” is understood to mean “floor area”, no fault may be found with the principle underlying cl. (2) of Explanation;

We are, therefore, unable to hold that item (e) specifies a relevant principle for determination of compensation for lands and buildings. It is not disputed that the major Banks occupy their own buildings in important towns, and investments in buildings constitute a part of the assets of the Bank which cannot be treated as negligible. By providing a method of valuation of buildings which is not relevant the amount determined cannot be regarded as compensation.

We are of the view that by the method adopted for valuation of the undertaking, important items of assets have been excluded, and principles some of which are irrelevant, and some not recognised are adopted. What is determined by the adoption of the method adopted in Sch. 11 does not award to the named banks compensation for loss of their undertaking. The ultimate result substantially impairs the guarantee of compensation, and on that account the Act is liable to be struck down.

Accordingly, we hold that-

Petitions Nos. 300 and 298 of 1969 are therefore allowed, and it is declared that the Banking Companies (Acquisition and Transfer of Undertakings) Act 22 of 1969 is invalid and the action taken or deemed to be taken in exercise of the powers under the Act is declared unauthorised. Petition No. 222 of 1969 is dismissed. There will be no order as to costs in these three petitions.”

29th Amendment

The Constitution (Twenty-ninth Amendment) Act, 1972

Statement of Objects and Reasons appended to the Constitution (Thirty-second Amendment) Bill, 1972 which was enacted as the Constitution (Twenty-ninth Amendment) Act, 1972

STATEMENT OF OBJECTS AND REASONS

The Kerala Land Reforms Act, 1963 (Act 1 of 1964), in the principal land reform law in the State of Kerala and was included in the Ninth Schedule to the Constitution. In the course of implementation, the State Government faced serious practical difficulties and to overcome them, that Act was extensively amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) and by the Kerala and Reforms (Amendment) Act, 1971 (Act 25 of 1971). Certain crucial provisions of the principal Act as amended were challenged in the High Court of Kerala and in the Supreme Court, creating a climate of uncertainty in the effective implementation of land reforms. Although the High Court of Kerala has generally upheld the scheme of land reforms envisaged in the principal Act as amended, a few vital provisions have been struck down by the High Court. Even in regard to the provisions upheld by the High Court, the affected parties had moved the Supreme Court in appeal. Some persons also moved the Supreme Court in original petitions challenging certain provisions of the Act. The Supreme Court in its judgments delivered on 26th and 28th April, 1972, have generally uphold the scheme of land reforms as envisaged in the principal Act as amended but agreed with the High Court invalidating certain crucial provisions. It is feared that this will have far-reaching adverse affects on the implementation of the programme of land reforms in the State and thousands of tenants will be adversely affected by some of the provisions which have been either struck down or rendered ineffective. It is also apprehended that certain observations of the Supreme Court in the judgments might open the flood-gates of litigation much to the detriment of thousands of Kudikidappukars in the State who will not be able to defend themselves in protracted legal proceedings. Further, appeals have been preferred against the judgment of the Kerala High Court invalidating certain important provisions of the principal Act as amended [e.g. sections 4A (1)(a) and (b), 7, 7D(1) and 103] and they are pending in the Supreme Court.

  1. It is, therefore, proposed to include the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 in the Ninth Schedule to the Constitution so that they may have the protection under article 31B and any uncertainty or doubt that may arise in regard to the validity of those Acts is removed. The Bill seeks to achieve this object.

NEW DELHI; H. R. GOKHALE.

The 24th May, 1972.

THE CONSTITUTION (TWENTY-NINTH AMENDMENT) ACT, 1972

[9th June, 1972.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Twenty-third Year of the Republic of India as follows:-

  1. Short title.-This Act may be called the Constitution (Twenty-ninth Amendment) Act, 1972.
  2. Amendment of Ninth Schedule.-In the Ninth Schedule to the Constitution, after entry 64 and before the Explanation the following entries shall be inserted, namely:-

“65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).

  1. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971.”

What happened thereafter?

The case was filed by Sri Kesavananda Bharati, the head of a Hindu religious mutt in Kerala, challenging the constitutional validity of the 24th, 25th and 29th Amendments to the Indian Constitution, which sought to curtail the powers of the judiciary and the fundamental rights of citizens.

It was held that:

Article 368, manifestly, does not impose any express limitations. The reason for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limitations of language and experience, so as to adjust the intention as originally expressed to meet new challenges. As a nation works out its destiny, new horizons unfold themselves, new challenges arise and therefore new answers have to be found. It is impossible to meet the new and unforeseen demands on the enervated strength of a document evolved in a context which may have largely lost its relevance. The power of amendment is a safety valve and having regard to its true nature and purpose, it must be construed as being equal to the need for amendment. The power must rise to the occasion. According to Friedrich Constitutional Government & Democracy, 4th Ed. p. 139, “The constituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the Constitutional document to altered needs, revolution may result.” That is why, the rule of strict construction which applies to a penal or taxing statute is out of place in a Constitutional Act and a ‘construction most beneficial to the widest possible amplitude” of its powers must be adopted British Coal Corporation v. Rex 1935 (A.C.) 500, 518. 2158. If, on the terms of Article 368 the power of amendment is wide and unfettered, does Article 13(2) impose any restraint on that power? Hereby hangs a tale. A majority of Judges held in the Golak Nath case that the power of amendment was to be traced to Article 368. But a majority, differently composed, held that amendment of the Constitution was ‘law’ within the meaning of Article 13(2) and, therefore, the Parliament had no power to take away or abridge the rights conferred by Part III of the Constitution. This finding contained in the judgment of the leading majority and of Hidayatullah J. is the nerve of the decision in the Golak Nath case. It is therefore necessary to consider that question closely.

Comments:

Now this Judgment itself is under scrutiny of intellectual class. The basic structure of the Constitution was changed during Emergency. The Preamble to the Constitution was amended without due process. The words     “ Secular and Socialist” was inserted in Original Constitution without ratification of States and both the houses of Parliament.

Subsequently Constitution is amended by way of Judgment and Order of the Court. Example is Collegium. Appointment of Judges to higher Judiciary was within the domain of President of India. But in following Judgments

Following are the three cases:

  1. P. Gupta v. Union of India – 1981 (also known as the Judges’ Transfer case)
  2. Supreme Court Advocates-on Record Association vs Union of India – 1993
  3. In re Special Reference 1 of 1998

Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state, including the legislature and the executive, would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case was issued in 1993.

By a majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the constitutional amendment and the NJAC Act restoring the two-decade-old collegium system of judges appointing judges in higher judiciary. Supreme Court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering with the basic structure of the constitution where parliament is not empowered to change the basic structure. However, the Supreme Court also acknowledged that the collegium system of judges appointing judges is lacking transparency and credibility which would be rectified/ or improved by the Judiciary.

Question raised in the upper house of Parliament  theory of Basic Structure applies selectively?

Retired CJI and now Rajya Sabha Member Mr. Gogoi’s maiden speech in the Upper House. He was participating in the discussion on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023. He said, “The law may not be to be my liking but that does not make it arbitrary. Does it violate the basic feature of the Constitution? I have to say something about the basic structure. There is a book by [former Solicitor-General of India] Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis. I would not say anything more than this,”

 

Shruti Desai

21st May 2024