This article was written by Aashrita Sachdev, a student of Bharati Vidyapeeth Deemed University, Pune.
When we study a subject as dynamic as law, we have the proposition in mind that is bound to changes with the development and needs of the society. Law is ultimately for the people of the society, to fill the existing gaps in the society, for development and to fill the existing anomie of the society.
Law is not static in nature although it is very difficult to determine what all aspects constitute a law as it has a wider scope for definition. Thus we will discuss below all the aspects that the word “law” covers and the amending abilities of the Indian Constitution.
According to Blackstone,” law in its most significance and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of actions whether animate or inanimate, rational or irrational.”
According to Austin, “a law is a rule of conduct imposed and enforced by the sovereign. Thus these rules of conduct are essential for peaceful and prosperous living of the people in the country.”
Due to the different opinions, definitions and interpretation of the term law worldwide it was really important for the judiciary and parliament to interpret in a way to grant justice to one and all in the country and for the embodiment of this the existence of amending procedure was thought to be necessary by the constitution makers.
Amending Power Of The Constitution:
Times are not static and so are not the laws of the society. They keep on changing with time and needs of the society i.e. the political, social and economic needs of the society keep on changing from time to time. Amendments in the constitution are necessary to overcome and alter the problems which are existing in the society.
Over the time the laws of the constitution which were sufficient to fulfill the needs of the society might be spurned as old fashioned and insufficient in the present. It’s thus necessary to have a mechanism or a particular procedure by which the constitution must be adapted from time to time.
There exists two kinds or categories of amendments, first being an informal method of amendments:
Judicial interpretation: in the context of this procedure the constitutional text does not change but the text goes under various interpretations by means of the judiciary. This procedure of interpretational amendment is slow as it develops from case to case.
Conventional and constitutional usage: the operation of constitutional provisions may be modified by the growth of conventions, practices, and observances. This is another process of slow metamorphosis, of imperceptible change, where the constitutional text retains its original form and phraseology, where there is no visible modification on the face, but where, underneath the surface, a change has come about so far as the working and operation of the provision is concerned.
The second method of amendments is the formal procedure: the formal procedure includes the procedure laid down by the constitution for amending the same, it includes the powers procedure without following which the amendments would not hold true. In some countries the procedure might be easy that is flexible enough but whereas in the other countries it may be rigid to maintain the rigidity of the constitution.
India has a federal constitution and it has to be rigid for it seeks to achieve a balance of powers between the centre and the states and it ensures that this balance is not disturbed lightly or unilaterally.
But what really are amendments and how does it affect the federal structure of the constitution.
In general terms amendments means a change or an inclusion or removal of a particular word or provision which changes the meaning and the reason behind which a particular provision exists. Now obviously the Indian Constitution has absolutely remarkable provisions and one of its provisions include the amending procedure of the existing provisions. It has been discussed further in detail.
But while learning about the amending procedure one should always keep in mind that there exists an exception to every rule.
Let us discuss below the amending procedure of the Indian constitution and the development of the concept of Basic Structure doctrine.
Basic Structure Doctrine
In the Indian Constitution different degrees of rigidity are attached to various different parts of the constitution depending totally upon its implementation importance and significance in the society. The constitution thereby provides for three clauses of amendments
Firstly, constitutional procedures of a little less significance can be amended by simple legislative processes as is existing to pass the ordinary legislation in the parliament.
Secondly, those provisions which are vital and material are made amendable by a special majority as laid down in the article 368 of the constitution i.e. 2/3rd majority of the parliament.
Lastly, there are provisions relating to the federal character of the Indian constitution which can be characterised as entrenched provisions which for amendments need the special majority and also the ratification by not less than half of the state legislatures. This procedure has also been laid down in the provisions of Article 368 of the Indian Constitution.
Questions on the amendments of the constitution has been raised since 1951 regarding the scope of the parliament in amending the constitution basically with regard to the powers of the parliament to amend the fundamental rights of the Indian constitution.
The questioning began only after the first amendment of the constitution in the year 1951 whereby by means of article 31 of the constitution the right to property of the citizens was curtailed. The argument that was raised against the validity of the first amendment was that article 13 prohibits laws which infringe the fundamental rights and thus it includes all laws even the amendment laws. A conflict between Article 13 and Article 368 of the Indian constitution was observed and to overcome this conflict the Supreme Court in a leading case upheld the validity of the First Amendment. The court limited the scope of Article 13 and said that the meaning of “law” constitutes only ordinary law and it does not include amendment laws. Thus the court made a statement, “ we are of the view that is the context of Article 13 law must be taken to mean rules and regulations made in the exercise of ordinary legislative powers and not amendments to the Constitution made in the exercise of constituent power with the result that Article 13(2) does not affect the amendments made under article 368”.
The court also held that the Parliament has unlimited scope and powers of amendments to the constitution and related it to the principle of harmonious construction that no article could be understood individually and it has to be understood with relation to other provisions of the Constitution.
After that another question was raised in front of the judiciary with a views that the 17th amendment , 9th Schedule of the Indian constitution took away the power of the High Courts in relation to the judicial review and that such an amendment was invalid and unconstitutional. In this case the Supreme Court was of a similar view in the previous case and added that 17th amendment was only to facilitate the state legislatures with policies of agrarian reforms and any effect on the judicial review of the high courts was only incidental. Thus the judgement was backed by the theory of pith and substance.
Further in the development of amendability of the constitution supreme court reversed its own judgement, by stating that article 368 does not give any power to the parliament to amend or take away the fundamental rights of the citizens. The word Amendment comes under the ambit of the term law as mentioned in article 13 and thus restricts such amendments.
This provision did not last long and after the 24th amendment of the Indian Constitution two important clauses were added as article 13(4) which stated that nothing in this article shall affect the amendments of the constitution and article 368(3) which stated that nothing in this article shall apply to Article 13. Which brought back the position of amending powers to just as before wherein the parliament had unlimited powers to amend the constitution.
Then came the judgement of the supreme court which was marked as an essential highlight of the amending procedures. The supreme court held the validity of 24th amendment but also stated that it only gave position and its validity was thus upheld stating that “law” under article 13 means ordinary law. But most importantly it upheld the need for the existence of the basic features of the constitution even after the amendments. Thus developing the basic structure doctrine which says that on amending the constitution the basic features of the constitution cannot be taken away and shall not be harmed. Thus it gave power to the parliament to impose reasonable restrictions on the fundamental rights by way of the amendment but it cannot be in order to harm the essence on which the constitution is based.
Supreme Court held certain basic features in its judgement which included supremacy of the Indian Constitution, republican and democratic form of government, secular and federal character of the constitution and separation of powers.
It has also held that the basic structure doctrine is a dynamic concept and would be upheld and is bound to changes in its meaning by way of interpretation. It also held that this doctrine would act as a safeguard against the arbitrary actions of amending powers.
The basic structure doctrine has thus developed since then in various cases by adding on features of basic structure be it , judicial review, free and fair elections, jurisdiction of supreme court as under article 32 or be it doctrine of equality. Evidently in the cases of Minerva Mills vs Union of India , AIR 1980.
The basic structure doctrine has proved to be an asset to the Indian constitution as well as the parliament by giving it powers to restrain the unlimited powers to the citizens or arbitrary use of amending power. Although it always has to be kept in mind that the judiciary in the country has evidently shown its lack of competence in various cases and if this might be the case in the amending procedure then the arbitrary nature might prove to take the country in drains.
Though the doctrine has been upheld by the judiciary as well as the parliament it has also been criticized in many aspects.
The doctrine of basic structure has been criticized on the basis that it does not have any particular definition as per the constitution and is open to interpretations. These interpretations happening frequently might result in taking away the actual essence of the doctrine and thus the bench of judges giving frequent interpretation might not be likely to the general public. Thus it is necessary that a parameter of measuring basic structure must be set upon to prevent such chaos and preventing another unitary feature of the constitution.
There does not exist any hard and fast rule for the interpretation of the basic structure features of the constitution and thus are open to interpretation by various judges proving to a criticism of the doctrine on one hand and beneficial on the other.
The ambiguous nature of the doctrine has never really affected the constitutional provisions as such but to prevent such a chaos in the future it is believed to be necessary to mark a demarcation on the development and interpretation of provisions of constitution as under the purview of the basic structure doctrine.
It is also to be noted that the Supreme Court has given the greatest contribution in the development of the basic structure doctrine but has it been exercised in an arbitrary manner? and most importantly the question that is attached to this is whether the concept of constitutionalism has been harmed?
It is to be understood very clearly that in the initial stages of the amendment procedure when discussed in the apex court, the judiciary had acted in a very demeaning and careless manner. Although the procedure of amendment has been improved and certain restrictions are put on the parliament to exercise its power in this context there exists a fear of distress for the interpretation of the constitution.
 Shankari Prasad vs Union of India AIR 1952, www.scconline.com
 Sajjan Singh vs State of Rajasthan AIR 1965
 Golak Nath vs State of Punjab AIR 1971
 Kehavananda Bharati vs State of Kerala AIR 1973