Opinion | Article 368 and Living Character of Indian Constitution…

By Noor UL Shahbaz

Every country in the world is governed by laws and they emanate from either the written Constitutions or they have unwritten law. Each organ in the state has to function within the limits of the Constitution. The Constitution is the grundnorm and the fundamental law of the land. All other laws take their hierarchy from the provisions of the Constitution, if any law is inconsistent with the provisions of the Constitution, then that law will be struck down and provisions of the constitution will guide and prevail. Any law that is to be enacted must submit to the tenants of the constitution which is the grundnorm or the “Rule of Law” in every society. Change is the law of nature, in this process our societies are subject to social transformation when the perspective of the people has become unlike the things around them, they started to demand to bring changes in society. Law is an instrument through which these changes can be made and regulated in the society. One of the theory in political science “social contract theory” says that People have a social contract with the sovereign or political king and he is bound to carry out the demands of the people by whom he has got power. Since the perspective of the people has changed and now political societies have adopted the doctrine of democracy. In a democratic country everyone is subject to the ‘Rule of law’ whether ordinary citizens or the one who is the sovereign or representative of the people. In the same way according to the Constitution of India, India is a democratic country and has inscribed the ‘rule of law’ in its Constitution. The structure of the Government has been demarcated into three branches: The legislature, the Executive, and the Judiciary. The exclusive responsibility of the first organ is to draft laws and policies for the people of India. During the course of enactment of any law that law shouldn’t be inconsistent with the Constitution. Various provisions in the Constitution deal with the powers and functioning of Parliament. Parliament has the power to pass any law or amend the law subject to the provisions specified in the Constitution. Constitutional amendments under article 368 are an important means to change and develop the Constitution, as it is considered as the living document. These amendments have affected fundamental changes in the structure of the government and developed the Constitution according to the needs of the time. The demarcation has been made among the organs so that no organ should extend its powers on the functioning of any other organ, which could be the reason for conflict. After the commencement of the Constitution, many a times Parliament tried to build up its domain over the judiciary due to which the conflict has increased between the two organs. The first Constitutional amendment of 1951 was made by Parliament in response to a case decided by Supreme Court of India namely, State of Madras v. Champakam Dorairajan (AIR 1951 SC 226). It was the first major judgement regarding reservations in Republic of India. Supreme Court held that DPSP have to conform to and run as subsidiary to the Fundamental Rights. The important question before the Supreme Court was does Parliament have the power to amend the Fundamental rights? Then in Shankari Prasad Singh Deo v. Union of India (AIR 1951 SC 458), the Supreme Court has held that the power to amend any of the provisions of the constitution including Fundamental rights is contained in Article 368, and the word “law” under Article 13(2) includes only an ordinary law made in the exercise of power. The Constitutional amendment will be valid even if it abridges or takes away any Fundamental rights. Subsequently, Supreme Court upheld the above decision in Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845). But the perspective of the Supreme Court has changed in Golak Nath v. State of Punjab (AIR 1967 SC 1643) in which Supreme Court prospectively overruled its earlier decisions. The court held that Parliament does not have the power to amend the Fundamental rights. The power of Parliament to amend the constitution isn’t absolute but rather subject to certain implied limitations of the Constitution itself. Further by a 6:5 majority, it held that, the word “law” in clause (2) of Article 13 included amendments to the Constitution and consequently, if an amendment abridged or took away a fundamental right guaranteed by Part III of the Constitution, the amending Act itself was void and ultra vires. This tussle between Parliament and Supreme Court of India did not end here but continued. The Golak Nath decision surely disillusioned Parliament of India due to which they came up with the 24th Constitutional Amendment in which clause (4) has been added to Article 13 which provided that, “Nothing in this article shall apply to any amendment of this Constitution made under 368”. Further 24th Amendment also added clause (3) to Article 368 which provides that, “Nothing in Article 13 shall apply to any amendment made under this article”. The decision in Golak Nath case summarily led to the passing of Constitution 24th Amendment Act, 1971 which made significant changes in Article 368. Firstly, it sought to nullify the effect of Golak Nath by adding clause (4) to Article 13. It means that the meaning of the word “law” in terms of Article 13 will not extend to an Amendment made under Article 368. This position is reassured by adding caluse (3) to Article 368. Secondly, this Amendment made a change in the marginal note to Article 368 by substituting “Power of Parliament to amend the Constitution and Procedure thereof” for “Procedure for Amendment of the Constitution”. This was done because Subba Rao, C.J in Golak Nath case was of the view that Article 368 provided only the procedure for Amendment of the Constitution and the power to amend the constitution is to be found elsewhere. Thirdly, in the next paragraph of Article 368, now numbered as (2) this Amendment substituted the words “it shall be presented to the President who shall give his assent to the Bill” in place of the words, “it shall be presented to the President for his assent and upon such assent being given to the Bill”. This change takes away any discretion, if any, with the President in giving his assent to the Bill proposing amendment to any provision of the Constitution, and makes the position of the President in the matter of giving assent to Bill’s under Article 368 somewhat different from that of Article 111 which deals with an ordinary Bill. To be continued …