Constitutional Amendment And Fundamental Rights [Explainer]

We often commit a tactical blunder while subscribing to the fallacy that the Fundamental Rights enshrined under the Part III of the Constitution of India (hereinafter, "The Constitution") have been vouchsafed (to us) by the State. Our Constitution just reiterates that individuals possess some basic and inherent fundamental rights and the State must facilitate the enjoyment of such fundamental rights. The Constitution does not bequeath fundamental rights to us; however, it does root for the fundamental rights of the individuals. The Constitution elucidates the beinghood of such rights and goes on to accord them supreme patronage. Since the fundamental rights do not stem from State and its organs, they should not be entitled to take them away or make them of no use. If we pore over major Supreme Court judgments, we would appreciate the fact that the Supreme Court has, through landmark judgments, acknowledged the paramountcy of the fundamental rights time and again. To be au fait with the importance of fundamental rights, we can summarily peruse the observation of the Supreme Court in some celebrated cases. To name a few, in the case of A. K. Gopalan v. State of Madras ([1950] S.C.R. 88, 198), fundamental rights have been described as "paramount". In State of Madras v. Smt. Champakam Dorairajan 1951 AIR 226, these rights have been called "Sacrosanct". In Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha 1959 AIR 395, these rights have been termed as "rights reserved by the people". Also, in the case of Smt. Ujjam Bai v. State of Uttar Pradesh 1963 SCR (1) 778, these rights have been termed as "inalienable and inviolable". Not to forget that in the case of Keshvanand Bharti v. State of Kerala, AIR 1973 SC 1461, it was said that fundamental rights constitute the ark of the constitution. The Supreme Court has also played an imperative role in devising some rights (akin to fundamental rights) which are not categorically and objectively mentioned under part III of our Constitution. Supreme Court has been able to formulate these rights on its own after realizing that certain unarticulated rights are implicit in the enumerated guarantees (Part III of the Constitution). Amenability of fundamental rights and Article 368 to the Constitution It is worth noting that in the case of Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933, the Supreme Court held that the fundamental rights enshrined under Part III of the Constitution were not intended to be kept beyond the reach of any future amendments. By logical and necessary implication, we can say that it is not the case that the makers of the Constitution had thought of settling and cataloguing fundamental rights once and for all; rather, they wanted these rights to correspond to the changing circumstances. We must bear this fact in mind that our Constitution is definitely not a religious book and so it can and must be changed with time. However, it is equally true that the amending power given to the Parliament, though wide in its sweep and reaching every provision of the Constitution, does not enable Parliament to alter the basic structure or framework of the Constitution. (as held in Keshvanand Bharti v. State of Kerala, AIR 1973 SC 1461 case). It is to be noted that the Parliament derives the power to amend the Constitution from Article 368 to the Constitution but the reason why the Parliament cannot, by way of bringing amendment, change the basic structure of Constitution is, that the power to amend the Constitution cannot be equated with the power to frame the Constitution (a task already undertaken by the Constituent Assembly). Now, let's look at the bare language of Article 368 (1) to the Constitution. It reads, 368. Power of Parliament to amend the Constitution and procedure therefor (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. If we read the marginal note of Article 368 to the Constitution, it reads, "Power of Parliament to amend the Constitution and procedure thereof". Before 1971, the marginal note of this Article read, "Procedure for amendment to the constitution". It is to be noted that the Constitution (Twenty-fourth Amendment) Act, 1971 is responsible for this sea change. In fact, in the Case of I.C. Golak Nath And Ors. vs State Of Punjab And Anr. 1967 2 SCR 762, Subbarao C. J. delivered the leading majority judgment which held that, under Article 368, only the procedure to amend the Constitution has been given, whereas the power to amend the Constitution is derived from Entry 97 of List I read with Article 245. To affirm that the Parliament indeed derives its power from Article 368 (to amend the Constitution) and not from Entry 97 of List I read with...

Constitutional Amendment And Fundamental Rights [Explainer]

Sparsh Upadhyay

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