FREE WRITING PRACTISE - SERIES 2 | TOPIC : POWER OF PARLIAMENT TO AMEND CONSTITUTION
HOW THIS WRITING PRACTISE WORKS ????
UPSC LAW OPTIONAL MAINS WEEKLY STRATEGY ( 8th Feb to 12th Feb 2021)
STEP 1 | DATED : 08.02.2021 - Read this concept well
Step 2 | DATED : 09.02.2021 - 10 :00 am., a latest PY question on this topic will be posted, anyone can write the answer blank paper take picture and post the PDF as comment for evaluation
Step 3 | DATED : 03.02.2021- 10:00 am., solution for the question would be posted
Step 4 | Dated : 04.02.2021 – Evaluated answers of the aspirants will be provided
We are doing this because prelims in all near so it’s important to start with Optional and get it done at least once before May 2020 (3 months pre-study must)
STARTING WITH OUR NOTES !!!!!!
WHAT IS AMENDMENT ?
AMENDMENT = CHANGE. Amendment of Constitution – changes made in constitution.
JUDICIAL DECISIONS ON PARLIMENTS POWER TO AMEND INDIAN CONSTITUTION
CASE LAW 1: In Shankari Prasad Singh v. Union of India, ( first case on amendability of the Constitution) the validity of the Constitution (First Amendment) Act, 1951, curtailing the right to property was challenged.
The argument against the validity of the First Amendment was that Art. 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights, that the word ‘law’ in Art. 13 would include any law, even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinized with reference to the Fundamental Rights which it could not infringe.
MAIN ISSUE : WHETHER THE WORD “LAW” IN ART: 13 INCLUDES AMENDMENT ACTS MADE UNDER ART: 368 ?
IMPACT OF ANSWER :
If answered in positive – which means the word law employed in Art: 13 includes amendment to constitution, then the amendment it prone to judicial review/ changes made by judiciary so as to stop infringing fundamental rights.
If answered in negative- which means the word law in Art: 13 does not include constitutional amendment, then judiciary will have no say even if these amendments infringe fundamental rights.
Previous year UPSC Law Optional Questions | Year - 2005 | Paper 1 | Marks- 30 marks
Q.no. 2a) “All these years Article 368 has seen a tug of war between the constituent power and power of judicial review.” Comment on and narrate this development in detail.
THUS A TUSSLE OF WAR BETWEEN JUDICIARY AND PARLIAMENT AROUSE NOW !
DECISION IN SHANKARI PRASAD: The Supreme Court held that power to amend the Constitution including the fundamental rights, was contained in Article 368 and that the word “Law” in Article 13 (2) includes only an ordinary law and not constitutional amendments. Therefore, a constitutional amendment will be valid even if it abridges or takes away any of the fundamental rights # LAW UNDER ART: 13 DOES NOT INCLUDE AMENDMENT TO CONSTITUTION.
CASE 2: For the next 13 years following Shankari Prasad, the question of amendability of the Fundamental Rights remained dormant.
The same question was raised again in 1964 in Sajjan Singh v. Rajasthan, when the validity of the Constitution (Seventeenth Amendment) Act, 1964, was called in question. This Amendment again adversely affected the right to property.
ISSUE :WHETHER THE LAW UNDER ART: 13 INCLUDES CONSTITUTIONAL AMENDMENTS MADE UNDER ART: 368?
HELD : In negative again. The Supreme Court stated that the power of amending the Constitution conferred on Parliament under Art. 368 could be exercised over each and every provision of the Constitution.
CASE 3: The question whether any of the Fundamental Rights could be abridged or taken away by Parliament in exercise of its power under Art. 368 was raised again in Golak Nath in 1967. Again, the constitutional validity of the Constitution (Seventeenth Amendment) Act was challenged.
In Golak Nath vs. State of Punjab, AIR 1967 S.C. 1643, and Supreme Court overruled the decisions of Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend Part III of the Constitution so as to abridge or take away the fundamental rights.
Which Means : The word law employed in art: 13 includes constitutional amendments also. Thus a check was placed on parliament to exercise its constitutent power under Art: 368.
CONCLUSIONS FROM GOLAKNATH CASE:
(1)The substantive power to amend is not to be found in Art. 368, this Article only contains the procedure to amend the Constitution;
(2)A law made under Art. 368 would be subject to Art. 13(2) like any other law
(3)The word ‘amend’ envisaged only minor modifications in the existing provisions but not any major alterations therein;
PARLIAMENT MADE 24TH CONSTITUTIONAL AMENDMENT TO NULLIFY GOLAK NATH CASE:
To neutralise the effect of Golak Nath, a private member’s bill was introduced in the Lok Sabha on April 7, 1967, for amending Art. 36.
AIM OF THE BILL : To make it explicit that any constitutional provision could be amended by following the procedure contained in Art. 368. To retain the “Supremacy of Parliament” which principle implied “the right and authority of Parliament to amend even the Fundamental Rights.
WHAT THE BILL DID ?
To undo the effect of this pronouncement, the following changes were sought to be made in Arts. 13 and 368:
(a)It was now clarified that Art. 13 would not stand in the way of any constitutional amendment made under Art. 368. This was sought to be achieved by adding a clause to Art. 13 declaring that Art. 13 shall not apply to any constitutional amendment made under Art. 368. # Constitutional amendment not law under Art: 13
(b)As a matter of abundant caution, a clause was added to Art. 368 declaring that Art. 13 shall not apply to any constitutional amendment made under Art. 368.
(c)The marginal note to Art. 368 was changed from “Procedure for Amend- ment of the Constitution” to “Power of Parliament to amend the Constitution and Procedure therefor”.
Previous year UPSC Law Optional Questions Year -2010, Paper - 1, Marks - 20 marks
Q.no. 4a) "The power to destroy the constitution is not included in the power to amend the Constitution.”
THIS COLD WAR BETWEEN PARLIAMENT AND JUDICIARY WAS FINALLY SET AT REST BY THE FORMULATION OF NOVEL BASIC STRUCTURE DOCTRINE IN KESHAVANANDA BHARATHI CASE.
CASE 4: The validity of this Amendment was again challenged in Keshvanand Bharti v. State of Kerala, AIR 1973 S.C. 1461. In this case, Supreme Court overruled the decision of Golak Nath case and held that Article 368, even before the 24th Amendment of the Constitution, contained the powers as well as the procedure of the amendment.
The fundamental rights cannot be abrogated, but they can be amended reasonably. The court further said that every part of the Constitution can be amended provided in the result the basic structure of the Constitution remains the same.
Previous year UPSC Law Optional Questions | Year - 1995 , Paper -1, Marks - 20 marks
Q.no.1d) “The doctrine of basic structure has established judicial supremacy in the area of constitutional amendment.”
WHAT IS BASIC STRUCTURE OF INDIAN CONSTITUTION?
There is no straight formula /definition for basic structure, however some essential characteristic are regarded as basic structure viz.
(i)Supremacy of the Constitution
(ii)Republican and democratic form of government;
(iii)Secular character of the Constitution;
(iv)Separation of powers between legislative, executive and the judiciary;
(v)Federal character of the Constitution.
Now in Indira Gandhi Nehru Vs. Raj Narain the court declared an amendment clause volatile of basic structure of constitution. Aggravated by this the Parliament started its next move.
NOW! THE PARLIAMENT DID NOT STOP : To nullify the hurdles created by keshvanada Barathi Case it enacted the 42nd Constitutional Amendment Act.
Previous year UPSC Law Optional Questions Year - 1997 , Paper -1, Marks - 20 marks
Q.no.1a) “The amending power of parliament should not be subjected to the vague and uncertain doctrine of basic structure.” Comment.
42ND CONSTITUTIONAL AMENDMENT ACT: The Constitution (42nd Amendment) Act, 1976, has added two new clauses (4) and (5) to Article 368 of the Constitution. Clause (4) provides that no constitutional amendment (including the provisions of Part III) or purporting to have been made under Article 368 whether before or after the commencement of Constitution (42nd Amendment) Act, 1976, shall be called in question in any court on any ground.
Clause (5) declares that there shall be no limitation whether on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of the Constitution under this Article.
FINAL POSITION : CASE 5: To check this arbitrary concentration of power the judiciary in Minerva Mills Ltd. v. Union of India, AIR 1980 S.C. 1789, the Supreme Court held clauses (4) and (5) of Article 368 as void, because through these clauses all limitations on the amending power of the Parliament were removed.
The court held that Parliament cannot have unlimited power to amend the Constitution. “Limited amending power” is the basic feature of the Constitution. The court, however, held that the doctrine of basic structure is to be applied only in judging the validity of the amendments to the Constitution and it does not apply for judging the validity of ordinary laws made by the Legislature.
UPSC QUESTION:
Previous year UPSC Law Optional Questions | Year - 2000 , Paper -1, Question no - 3a, Marks - 30 marks
Q.no.3a) Assuming that the Parliament, under Article 368 of the Constitution, passes the following constitutional amendments:
(i)Religion is a matter of personal faith. Its propagation in any form is strictly prohibited.
(ii)Article 16(4) of the Constitution empowering the state to make reservation in services under the state in favour of backward class of citizens .Discuss whether these amendments are likely to be held valid.
Hint : Amendment (1) is totally invalid as it affect the fundamental right directly. Reg (2) aspirant must discuss whether such removal is reasonable and required.
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