Constitutional Amendments Part2

Summary

In this lecture, the focus is on the amendment process of the Indian Constitution, specifically Article 368, and its relevance to fundamental rights. The script explores key cases, including Shankari Prasad and Golak Nath, where the Supreme Court debated the extent of Parliament’s power to amend fundamental rights. It discusses the limitations imposed by the Constitution and how amendments must adhere to the basic structure doctrine. The lecture also highlights the legal reasoning behind the judiciary's decisions and the process for constitutional amendments in India.

Takeaways

• 📜 The lecture focuses on the amendment of the Constitution, with a specific discussion on Article 368.
• 📘 The term 'constituent power' in Article 368 means Parliament holds amending power but is not equivalent to the original constituent assembly.
• ⚖️ The basic structure doctrine limits Parliament's power to amend the Constitution.
• 🛡️ Fundamental rights, guaranteed under Part III of the Constitution, can be amended through Article 368.
• 👩‍⚖️ In the Shankari Prasad case, it was held that Parliament could amend fundamental rights under Article 368, as amendments were not considered 'law' under Article 13(2).
• 📝 The Golaknath case overturned this view, ruling that fundamental rights were outside the scope of Parliament's amendatory powers.
• ⚔️ The Golaknath judgment argued that the Constitution implied a limitation on Parliament's power to amend fundamental rights.
• ⚖️ The ruling stated that the power to amend the Constitution lies within the plenary legislative powers of Parliament, as outlined in Articles 245, 246, and 248.
• 📜 Article 368 provides the procedure for amending the Constitution, but the actual power to amend comes from Parliament's legislative authority.
• 🗳️ If fundamental rights are to be significantly altered, this can only be done by convening a new constituent assembly, not merely by Parliament's amending power.

Q & A

What is the significance of Article 368 in the Indian Constitution?

Article 368 grants the Parliament the power to amend the Constitution. However, this power is not unlimited, as it must operate within the framework of the Constitution, ensuring that the basic structure remains intact.

What is the term 'constituent power' mentioned in Article 368?

The term 'constituent power' refers to the authority given to the Parliament to amend the Constitution. However, this power does not transform Parliament into a constituent assembly; it remains a legislative body governed by constitutional limitations.

How did the Supreme Court rule in the case of Shankari Prasad Singh versus Union of India regarding Article 13 and Article 368?

In Shankari Prasad Singh vs. Union of India, the Supreme Court ruled that amendments to the Constitution, including those affecting fundamental rights, are within the scope of Article 368. The Court held that Article 13, which prohibits laws infringing on fundamental rights, does not apply to constitutional amendments.

What was the main argument in the Golak Nath vs. State of Punjab case?

In Golak Nath vs. State of Punjab, the Supreme Court ruled that fundamental rights are outside the scope of Parliament's amending power. The Court argued that any amendment abridging or taking away fundamental rights would be unconstitutional, as it conflicts with the Constitution's scheme of reserving fundamental freedoms for the people.

How did the Supreme Court reconcile Article 13 and Article 368 in the Golak Nath case?

The Court in Golak Nath held that Article 13 protects fundamental rights from being amended by Parliament. It stated that Article 13 is not just a declaration but a reservation of these rights, making them immune to the amendatory process under Article 368.

What was the impact of the Supreme Court’s decision in the Golak Nath case?

The Golak Nath decision introduced an implied limitation on Parliament's amending power, stating that fundamental rights are beyond the reach of amendments. However, the decision was given a prospective effect, meaning it did not invalidate past amendments.

Does Article 368 provide the power to amend the Constitution directly?

No, Article 368 provides the procedure for amending the Constitution, but the power to amend is considered part of the Parliament’s plenary legislative power, derived from other provisions of the Constitution, such as Articles 245, 246, and 248.

What was the key issue regarding fundamental rights in the First and Fourth Constitutional Amendments?

The First and Fourth Constitutional Amendments were challenged for abridging fundamental rights. The petitioners argued that these amendments violated Article 13, which protects fundamental rights from laws that infringe upon them.

How did the Court address the issue of Parliament’s power to amend the Constitution?

The Court acknowledged that Parliament has the power to amend the Constitution but emphasized that this power is limited by the Constitution itself. Any amendment affecting fundamental rights must be carefully scrutinized to ensure it does not violate the basic structure of the Constitution.

What is the relationship between the legislative process and the amending process according to the script?

The script explains that both the legislative and amending processes are forms of lawmaking. While the process of amending the Constitution requires a special majority and, in some cases, ratification by state legislatures, it is still considered a legislative process.

Outlines

00:00

📜 Understanding Article 368 and Constituent Power

In this introduction to the amendment process, the focus is on the term 'constituent power' as mentioned in Article 368 of the Indian Constitution. The parliament, while exercising this power, does not transform into the original Constituent Assembly, but remains under constitutional limitations. The concept of basic structure doctrine limits Parliament's authority, ensuring amendments remain within the constitutional framework. The paragraph highlights how fundamental rights, as guaranteed by Part III of the Constitution, can be amended under Article 368, and references significant legal cases such as Shankari Prasad Deo Singh vs Union of India, which explored the relationship between Article 13(2) and the amending power.

05:01

📚 Golaknath Case and the Limits of Amendment Power

This section delves into the landmark Golaknath vs State of Punjab case, where the Supreme Court ruled that fundamental rights are beyond the scope of Parliament's amendment power if such amendments seek to take away or abridge these rights. The judgment overturned previous rulings from Shankari Prasad and Sajjan Singh, which had allowed amendments to Part III (fundamental rights) of the Constitution. The Court reasoned that the Constitution implies a limitation on the Parliament's authority over fundamental rights, thus safeguarding them from alteration, regardless of the majority in Parliament. The Golaknath case underscored the idea that fundamental freedoms have a permanent place within the constitutional structure.

Keywords

💡Article 368

Article 368 of the Indian Constitution grants Parliament the power to amend the Constitution. It plays a key role in the video's discussion, as it is central to the debate on whether amendments can affect fundamental rights. The video explores the scope and limitations of this article, especially in relation to the doctrine of the 'basic structure'.

💡Constituent Power

The term 'Constituent Power' refers to the authority to create or amend the Constitution. In the context of Article 368, it signifies that the Parliament, while having this power, is not the same as the original Constituent Assembly. The video emphasizes that Parliament's power to amend is limited and controlled by the Constitution.

💡Fundamental Rights

Fundamental rights are the basic freedoms guaranteed to all citizens under Part III of the Indian Constitution. The video explores the question of whether Parliament can amend these rights under Article 368. Cases like Golaknath vs. State of Punjab and Shankari Prasad vs. Union of India focus on whether amendments can abridge or remove fundamental rights.

💡Basic Structure Doctrine

The Basic Structure Doctrine limits Parliament's power to amend the Constitution, asserting that certain core principles cannot be altered. The video references this doctrine to explain how the Parliament’s constituent power is constrained, ensuring the integrity of the Constitution.

💡Shankari Prasad vs. Union of India

This 1951 case challenged the First Amendment Act and examined whether amendments could abridge fundamental rights. The Supreme Court upheld Parliament’s power to amend fundamental rights under Article 368, rejecting the argument that such amendments were laws under Article 13. The video uses this case to illustrate early interpretations of amendment powers.

💡Golaknath vs. State of Punjab

In this landmark 1967 case, the Supreme Court ruled that Parliament could not amend fundamental rights, contradicting earlier decisions like Shankari Prasad. The case involved multiple petitions, and the video uses it to demonstrate the shift in judicial thinking regarding the amendability of fundamental rights.

💡Article 13

Article 13 of the Indian Constitution states that any law that contravenes fundamental rights is void. In the video, this article is at the heart of the debate over whether constitutional amendments are considered 'laws' and thus subject to Article 13’s limitations. The courts’ interpretation of this article impacts how amendments are viewed.

💡Ninth Schedule

The Ninth Schedule was introduced by the First Amendment to protect certain laws from being challenged in courts for violating fundamental rights. The video references it in the context of cases like Golaknath, where amendments placed in the Ninth Schedule were challenged for their effect on fundamental rights.

💡Residuary Powers

Residuary powers refer to the authority vested in Parliament to legislate on matters not listed in the Union, State, or Concurrent Lists under the Seventh Schedule. The video mentions that these powers include the ability to amend the Constitution, implying that Parliament has broad legislative authority.

💡Legislative Process

The legislative process is the procedure by which laws, including constitutional amendments, are passed by Parliament. The video emphasizes that amendments under Article 368 are part of this legislative process, but with additional safeguards like special majorities and state ratifications for certain provisions.

Highlights

Introduction to Article 368 and the concept of 'constituent power', which allows Parliament to amend the Constitution but not become the original Constituent Assembly.

Emphasis on the doctrine of basic structure, which limits Parliament's power in amending the Constitution.

Fundamental rights under Part 3 of the Constitution can be amended through Article 368, a point analyzed in multiple court cases.

Discussion of the case Shankari Prasad Deo Singh vs Union of India, challenging the Constitution First Amendment Act of 1951, including Articles 31a and 31b.

The Court ruled that the power to amend the Constitution, including fundamental rights, is distinct from legislative power, dismissing the petition against the First Amendment Act.

The case of Golaknath vs State of Punjab, where the Supreme Court ruled that fundamental rights are beyond the amendatory powers of Parliament if an amendment abridges them.

Explanation of how Article 13 Clause 2 was reinterpreted in the Golaknath case, ruling that the word 'law' includes constitutional amendments that affect fundamental rights.

The judgment in Golaknath has a prospective effect, meaning past amendments (like the First and Fourth Amendments) were not invalidated.

Clarification that Parliament cannot amend fundamental rights due to an implied limitation in the Constitution, and any law infringing on these rights is void.

Amending the Constitution is a legislative process, and Articles 245, 246, 248, and Entry 97 of List I of the Seventh Schedule clarify Parliament's legislative powers.

Articles 4, 169, and specific schedules (like the Fifth and Sixth) provide additional powers for amending the Constitution.

Article 368 does not grant the power to amend the Constitution but provides a procedure for it, while the actual power is within Parliament's legislative authority.

Any amendments to fundamental rights need the approval of a constituent assembly, which can be called into action by Parliament using its residual legislative power.

The case reinforced the idea that amending powers are sovereign only within the Constitution's defined limits.

The judgment rejected the argument that amending powers are superior to legislative powers, affirming the need for judicial review of conflicting constitutional articles.

Transcripts

hello dear students welcome back to the

second lecture on Amendment of the

Constitution I hope you have tried to

find out the answers to the last three

questions of first lecture of this topic

now let us understand the relevance of

article 368 in detail one of the key

term of article 368 is the word

constituent Power by addition of the

word constituent power in article 368

the amending body namely the parliament

does not become the original constituent

assembly it remains a parliament under a

controlled

Constitution limitation of doctrine of

basic structure would continue to apply

to Parliament power of framing the

Constitution has no no limitation or

constraint it is a primary part a real

plenary part the amending part has to be

within the Constitution and not

outside all of us have fundamental

rights right yes the Constitution

guarantees fundamental rights under part

three of the Constitution where

fundamental rights are capable of

amendment under article 368 of the

Constitution of India the above question

was discussed by the court in Shang

Prasad Dio Singh versus Union of India

in that case validity of constitution

First Amendment act 1951 especially the

inclusion of article

31a and 31b was challenged in a petition

under article 32 it was alleged that as

Article 13 Clause 2 prohibited making of

laws abridging fundamental rights it

prohibited such abridgment even by an

amendment because an amendment was also

a law rejecting the argument the Court

held that the power to amend the

Constitution including the fundamental

Rights was contained in article

368 and that the word law in Article 13

Clause 2 did not include an Amendment of

the Constitution which was made in the

exercise of constituent and not the

legislative power in golak NAD versus

state of Punjab the Supreme Court by a

majority of 6 is to five descended from

Shangri Prasad and sajin Singh and held

that the fundamental rights were outside

the amendatory process if the amendment

took away or Abridged any fundamental

rights in the golak case three RIT

petitions were involved one was filed by

the son daughter and the granddaughters

of golokar in this petition the

inclusion of the Punjab security of of

Land tenur Act 1953 in the n9th schedule

was challenged on the ground that the

17th amendment by which it was so

included as well as the first and fourth

amendments abridging the fundamental

rights were unconstitution in the other

two petitions the inclusion of myour

land reforms act had been attacked on

the same grounds the case Was Heard by

11 judge bench of the Supreme Court

which by a majority of 6 is to five held

that the fundamental rights were outside

the amendatory process if the amendment

took away or AB any of the rights and

that the shangari Prasad and the sjan

Singh cases conceded the power of the

amendment over part three on an

erroneous view of Article 13 Clause 2

and the and article

368 and to that extent they were not

good law the judge was however given a

prospective effect and therefore it did

not invalidate any of the Amendments

disputed in the case the Judgment

proceeded on the following reasoning the

Constitution incorporates an implied

limitation that the fundamental rights

are out of the reach of parliament it

declares certain rights as fundamental

rights makes all the laws infringing the

said rights void preserves only the laws

of social control infringing the said

rights and expressly confers power on

Parliament and the president to amend or

suspend them in specified circumstances

the Constitution has given by its scheme

a place of permanence to the fundamental

freedoms in giving to themselves the

Constitution the people have reserved

the fundamental freedoms to themselves

Article 13 merely incorporates that

reservation that article is however not

the source of the protection of

fundamental rights but the expression of

that reservation the importance attached

to the fundamental freedom is so

transcendal that a bill enacted by a

unanimous vote of all the members of

both the house is ineffective to

derogate from its guaranteed exercise it

is not what a parliament regards at a

given moment as conducive to the public

benefit but what part three of the

Constitution declares protect which

determines the Ambit of the freedom the

incapacity of the parliament therefore

in exercise of its amending part to

modify restrict or impair fundamental

freedoms in part three arises from the

scheme of the Constitution and the

nature of the freedoms article 368 does

not contain the power to amend but

merely provides the procedure for

amending the Constitution the power to

amend the Constitution is a legislative

process and is included with within the

plenary legislative power of the

parliament the power to amend the

Constitution should be found in the

plenary legislative power of the

parliament as is clear from articles 245

246 248 and entry 97 of list one of the

7th schedule the resid power of the

legislation is vested in the parliament

the resid power of the parliament

certainly takes in the power to amend

the Constitution Article 4 169 and

paragraph 7 of The Fifth Fifth schedule

and paragraph 21 of the sixth schedule

have expressly conferred such part there

is therefore no inherent inconsistency

between the legislative process and the

amending process whether in the field of

constitutional law or statutary law

amendment can be brought about only by

law article 245 and 392 do not indicate

the contrary intention the limitation in

article 245 in so far as it is subject

to the provisions of the Constitution is

in respect of the power to make a law

and not of the content of the law made

within the scope of the power as regards

article 392 apart from the limited scope

of the article which is intended only

for the purpose of removing difficulties

and for bringing about a smooth

transition an order made by the

president cannot attract article 36 68

as the amendment contemplated by that

provision can be initiated only by the

introduction of a bill in Parliament

amendments to the Constitution either

under article 368 or under other

articles are made only by Parliament by

following the legislative process

adopted by it in making other laws an

Amendment of the Constitution can be

nothing but law if the amendment is

intended to be something other than law

the Constitutional inconsistencies on

the legislative process is unnecessary

the fact that there are other conditions

such as larger majority and in the case

of Articles mentioned in the provision

Proviso a ratification by legislature is

provided does not make the amendment

anything else than the law the

imposition of further condition is only

a safeguard against Hasty action or

protection to the States but does not

change the legislative character of the

amendment the word law in Article 13

Clause 2 includes the Constitutional

Amendment and therefore the fundamental

rights are outside the powers of

amendment given to Parliament under

article 368 if such an amendment seeks

to abridge or take away any of the

fundamental rights the contention that a

power to amend is a sovereign part and

that the set Power is superior to the

legislative power that it does not

permit any implied limitations and that

amendments made in exercise of that

power involve political questions which

are outside the scope of judicial review

cannot be accepted one need not Cav at

the description of an amending part as

Sovereign part for it is Sovereign only

within the scope of the part conferred

by a particular Constitution when there

are conflicting articles couched in the

widest terms the court has jurisdiction

to construe and harmonize them the

nothing in the nature of the amending

part which enables Parliament to

override all the express or implied

limitations on that part if at all the

provisions guaranteeing the fundamental

rights must be amended so as to curtail

those rights this could be done only by

a constituent assembly which might be

convoked by a parliament by enacting a

law for that purpose in the exercise of

its resdiary power thank you dear

students see you in the next video