Constitutional Amendments Part2
Summary
TLDRIn 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
📜 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.
📚 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.
Mindmap
Keywords
💡Article 368
💡Constituent Power
💡Fundamental Rights
💡Basic Structure Doctrine
💡Shankari Prasad vs. Union of India
💡Golaknath vs. State of Punjab
💡Article 13
💡Ninth Schedule
💡Residuary Powers
💡Legislative Process
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
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