Jonah Patel
The Fundamental Rights of the Indian Constitution are basic human freedoms that all Indian citizens are universally entitled to, irrespective of their race, place of birth, religion, caste, or gender. These rights are subject to certain restrictions and can be amended, but not without controversy. The Indian Parliament is competent to amend these rights, as held by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala (1973). However, the amendment must not alter the basic structure of the Constitution, as defined by the Basic Structure doctrine. This doctrine allows the judiciary to strike down any amendments that conflict with the fundamental rights enshrined in the Constitution. The process of amendment requires a constitutional amendment bill to be passed by a special majority in both Houses of Parliament and then presented to the President for assent.
| Characteristics | Values |
|---|---|
| Who can amend fundamental rights | Parliament |
| Power to amend | Absolute |
| Amendment initiation | Introduction of a Bill in either House of Parliament |
| Bill passage | Majority of total membership of that House and a majority of not less than two-thirds of members |
| Bill assent | President |
| Amendment restriction | Cannot alter the basic structure of the Constitution |
| Amendment validity | Valid even if it abridges any fundamental right |
| Amendment procedure | Article 368 |
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What You'll Learn
The role of the Supreme Court
The Indian Constitution guarantees its citizens fundamental rights, which are enforceable by the courts. These rights are not absolute and are subject to reasonable restrictions. They can be amended, but not in a way that changes their basic structure.
The Supreme Court has been involved in several landmark cases that have shaped the understanding of the amendability of fundamental rights. In the 1965 Sajjan Singh case, the Court initially held that Parliament could amend any part of the Constitution. However, in 1967, the Court reversed this stance in the Golaknath case, stating that fundamental rights could not be amended. This case led to the renaming of Article 368, which originally outlined the "Procedure for the Amendment of the Constitution".
The Kesavananda Bharati case of 1973 was another significant moment for the Supreme Court. The Court held that while Parliament had the power to amend all parts of the Constitution, it could not alter the basic structure of the Constitution, including fundamental rights. This case established the Basic Structure doctrine, which protects fundamental rights and acts as a check on Parliament's power.
In addition to these landmark cases, the Supreme Court has also provided guidance on the amendability of fundamental rights through other rulings. For example, in the Shankari Prasad case, the Court held that the power to amend the Constitution, including fundamental rights, is outlined in Article 368. The Court also clarified that an amendment is a law under Article 13(2) and can be declared void if it violates any fundamental right.
The Supreme Court's role in interpreting and safeguarding the fundamental rights of Indian citizens has been instrumental in shaping the country's constitutional framework. Through its rulings, the Court has ensured that any amendments to the Constitution do not infringe on the basic rights and freedoms guaranteed to the people of India.
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The role of the Parliament
The Parliament of India has the power to amend the Fundamental Rights of the citizens. This amendment must be made by a constitutional amendment and passed by both Houses of Parliament with a special majority. The amendment cannot alter the basic structure of the Constitution, as outlined in the Kesavananda Bharati v. State of Kerala case in 1973.
Article 368 of the Constitution of India outlines the procedure for the amendment of the Constitution. It states that the power of Parliament to amend the Constitution is absolute, but it should not take away the power of the courts to strike down ordinary legislation. An amendment is not considered a law within the meaning of Article 13(2), which states that no law can be made that takes away fundamental rights.
The Supreme Court has ruled that Parliament can amend any part of the Constitution, including fundamental rights, as seen in the Sajjan Singh case of 1965. However, in 1967, the Supreme Court reversed this decision in the Golaknath case, stating that fundamental rights cannot be amended. This was a controversial decision, as it limited Parliament's authority to amend Fundamental Rights.
To address this, Parliament enacted the Constitution (Twenty-fourth Amendment) Act in 1971, which added two clauses to bring Fundamental Rights under Parliament's amending power. This was a significant move towards ensuring Parliament's ability to make necessary changes to the Constitution while also upholding the fundamental rights of citizens.
In conclusion, the Parliament of India plays a crucial role in amending the Fundamental Rights of citizens. It must follow specific procedures and ensure that any amendments do not alter the basic structure of the Constitution. The dynamic nature of the Constitution allows for progressiveness and adaptability while upholding the fundamental rights and freedoms of Indian citizens.
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The Basic Structure doctrine
The case of Kesavananda Bharati v. State of Kerala established that Fundamental Rights can be amended by Parliament through a constitutional amendment, but such amendments should not alter the basic structure of the Constitution. This judgement drew a line of demarcation, holding that the judgement should not be applied retrospectively to reopen the validity of any amendment to the Constitution that took place prior to 24 April 1973.
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Article 368
The process of amending the Constitution is laid down in Article 368. An amendment may be initiated by introducing a Bill in either House of Parliament. When the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it is presented to the President for assent.
The founding fathers of the Indian Constitution intended for the document to be adaptable rather than a rigid framework for governance. However, the unrestricted power of Parliament to amend the Constitution has been criticised, as it may threaten India's democracy by reducing the Constitution to a tool to establish Parliament's totalitarianism.
To address this concern, the judiciary has established the Basic Structure Doctrine of the Indian Constitution through various landmark cases, including Kesavananda Bharati v. State of Kerala (1973). This doctrine holds that while Parliament has the power to amend any provision of the Constitution, it cannot alter the basic structure of the Constitution. The Basic Structure Doctrine is also known as the Doctrine of Separability and is mentioned in Article 13, which states that all laws enforced in India before the commencement of the Constitution that are inconsistent with the provisions of fundamental rights shall be void.
In conclusion, Article 368 of the Indian Constitution gives Parliament the power to amend the Constitution, but this power is limited by the Basic Structure Doctrine, which protects the fundamental rights enshrined in the Constitution.
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The process of amendment
The Fundamental Rights of the Indian Constitution can be amended, but not without a thorough process. The process of amendment involves multiple stakeholders and requires a series of steps to be followed.
Firstly, it is important to note that the power to amend the Fundamental Rights rests with the Parliament. This power is derived from Article 368 of the Indian Constitution, which outlines the process of constitutional amendment. The Parliament's ability to amend the Fundamental Rights was established in the landmark judgement of Kesavananda Bharati v. State of Kerala in 1973, where the Supreme Court affirmed Parliament's authority to amend any part of the Constitution, including Fundamental Rights.
The amendment process begins with the introduction of a Bill in either house of Parliament. This Bill must address a specific aspect of the Fundamental Rights that requires amendment. For the Bill to pass, it must secure a majority vote in both houses of Parliament, regardless of vacancies or absentees. The majority should not be less than two-thirds of the members present and voting. It is worth noting that there is no joint sitting if the two houses disagree.
Once the Bill achieves the required majority, it is presented to the President for their assent. At this stage, the President's approval is necessary for the Bill to proceed. If the Bill pertains to provisions mentioned in Article 368, which outlines the process of constitutional amendment, it requires additional ratification. Specifically, it needs to be ratified by at least half of the states, and this ratification is achieved through resolutions passed by the state legislatures.
While the Parliament has the power to amend the Fundamental Rights, there are important limitations to this power. The Supreme Court has ruled that any amendments must not alter or contravene the basic structure of the Constitution. This principle, known as the Basic Structure doctrine, was reiterated by the Supreme Court in 1981 and serves as a safeguard to protect the fundamental rights enshrined in the Constitution.
In summary, the process of amending the Fundamental Rights of the Indian Constitution involves introducing and passing a Bill in both houses of Parliament, presenting it to the President for assent, and potentially seeking ratification from state legislatures for specific provisions. This process ensures that any changes to the Fundamental Rights are carefully considered and approved by the legislative and executive branches of the government.
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Frequently asked questions
The Parliament can amend the Fundamental Rights of the Indian Constitution by a constitutional amendment. However, this amendment should not alter the basic structure of the Constitution.
An amendment of the Constitution may be initiated by the introduction of a Bill in either House of Parliament. When the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for their assent.
Yes, the Fundamental Rights of the Indian Constitution can be amended during a national emergency. However, the rights guaranteed under Articles 20 and 21 cannot be suspended.
