Constitutional amendments are, in any event, a terrific subject for a blog post. I also happen to have an exam on the subject tomorrow, which may perhaps explain the timing. This post is therefore written principally as (1) a revision aid and (2) to put some of it down in a more permanent form here on the blog. The questions involved are complex, and most of the cases that today form the basis of the law are considerably longer than one would ideally want them to be. A certain amount of condensation was therefore unavoidable, and some of the points may have lost their nuance in the process. For all such condensation that went too far, I apologise in advance.
A good place to begin is with the text of Article 368 itself. It gives us three routes by which the Constitution may be amended:
Simple majority: Certain provisions can be amended through the ordinary legislative process, and technically fall outside the provision.
Special majority: Most provisions require a majority of the total membership of each House and a ⅔ majority of members present and voting.
Special majority + State ratification: Amendments affecting specified federal provisions require the special majority in Parliament and ratification by at least half of the State Legislatures.
One can therefore see that the Constitution builds in different degrees of difficulty for different kinds of change. At the easier end, matters such as the creation or alteration of States are left to ordinary legislation -- and quite sensibly so -- because a constitutional order cannot, for instance, treat adjustments to its territorial map as a threat. The special majority, which comes next, is the ordinary rule for amendments under Article 368. And at the highest level, finally, are amendments concerning federal provisions, where the special majority is accompanied by ratification by at least half of the States. This additional requirement is because where the amendment affects the federal distribution of power, the States themselves have a stake and must therefore participate through ratification.
The text of Article 368, however, only tells us how an amendment is to be made; it tells us very little about what Parliament may amend. Could Parliament, tomorrow, amend the Constitution so as to remove the protection for free speech? If the procedure were all that mattered, the answer would appear to be yes. Google Blogger LLC could shut up shop, and this blog would have no space, provided the prescribed procedure had been followed.
This is where Kesavananda Bharati v. State of Kerala enters the picture. The 13 judge bench answered the question largely in the negative. Parliament’s power to amend the Constitution, it held, was not unlimited, and could not be used to damage or destroy its ‘basic structure’.
The majority’s conclusion relied on several lines of reasoning. Two of which are particularly worth noting:
First, the ordinary meaning of “amendment” suggests alteration or improvement, rather than the destruction of the thing being amended. An amendment may change the Constitution, but it does not follow that it may abolish it altogether. The Constitution also elsewhere uses the expression “amendment by way of addition, variation or repeal”, while Article 368, in its operative provision, speaks simply of the power to “amend”. The distinction suggests that the constituent power under Article 368 did not extend to wholesale repeal. Furthermore, the language that “the Constitution shall stand amended”, together with the reference to a “change in” rather than a “change of” specified provisions clearly presupposes the continued existence and identity of the Constitution being amended.
Second, the Constitution was the product of a political movement directed against colonial rule, and many of those who led that movement went on to frame the Constitution that followed it. It is therefore difficult to suppose that the framers intended to leave entirely unprotected the principles of democratic government for which that movement had, over decades, claimed to stand.
If this is correct, the constitutionality of the doctrine must also answer the counter-majoritarian difficulty that the doctrine appears to create (unelected judges overruling the will of elected representatives). Readers will recall that Article 245 confers upon Parliament the power to make laws, while Article 13 provides the basis for judicial review where those laws contravene Part III. This is now a fairly familiar feature of written constitutions -- originating in Marbury v. Madison (1803) (if you are reading this on a laptop, the image to your right is from Marbury; the connection with Article 13 should, by now, be apparent).
The position is rather different, however, when one looks at Article 368, which confers upon Parliament what is described as the constituent power to amend the Constitution. Constituent power is, quite literally, the power to constitute i.e. to establish or bring something into being. And what does the Constitution constitute? In our case, quite literally, the Republic of India. The power to amend, therefore, is a power exercised within which all ordinary legislative power itself operates.
On this note, a detour into the early years of the Republic becomes apt. Much of the debate -- back when -- was, in essence, a debate over what constituted “law” for the purposes of Article 13. As it happens, this question went on to shape much of the discourse in Kesavananda as well.
In Shankari Prasad, the First Amendment was challenged on the straightforward argument that Article 13 prohibits the State from making any “law” which abridges a fundamental right. A constitutional amendment, the petitioners argued, was surely law; and if so, Parliament could not use the amending power to do what it was forbidden from doing through ordinary legislation. The Court, however, unanimously disagreed. It held that “law” in Article 13 meant ordinary legislative law, and did not include an amendment made in exercise of the constituent power under Article 368. Parliament could therefore amend Part III like any other part of the Constitution.
For the moment, therefore, the amending power remained substantively unlimited. The Constitution prescribed how Parliament was to amend it, but imposed no judicially enforceable restriction upon what Parliament could amend.
Fourteen years later, Sajjan Singh largely reaffirmed Shankari Prasad. The majority saw little reason to disturb the earlier position. More interesting, however, were the doubts expressed by Hidayatullah and Mudholkar JJ.
Hidayatullah J. found it difficult to believe that the carefully framed guarantees of Part III were intended to become mere “playthings of a special majority”. Mudholkar J. went somewhat further and wondered whether the Constitution possessed certain “basic features” which the framers intended to preserve, and whether destroying those features could properly be described as an amendment at all (I have written in some detail about Mudholkar J.’s opinion here, for those interested).
(c) I.C. Golak Nath v. State of Punjab (1967)
The unease expressed by Hidayatullah and Mudholkar JJ. became a holding in Golak Nath. By the narrowest possible majority -- of 6:5 -- an 11 judge bench held that Parliament could not amend the fundamental rights in Part III. A constitutional amendment was “law” for the purposes of Article 13 and was consequently subject to its prohibition against abridging fundamental rights. The result was that fundamental rights were placed beyond Parliament’s future amending power, although the Court employed prospective overruling so that earlier amendments were not thereby invalidated.
Yet Golak Nath created an obvious difficulty of its own. If Parliament could not amend Part III at all, the rule would apply not only to amendments restricting fundamental rights, but potentially even to those expanding them. Suppose, for instance, Parliament wanted to amend Article 22 to give an arrested person an additional procedural safeguard. That amendment would still alter a fundamental right and, on the Golak Nath approach, could therefore be impermissible. More fundamentally, the judgement located the restriction on the amending power in Article 13, rather than in Article 368 itself. .
(d) Kesavananda Bharati v. State of Kerala (1973)
The 24th amended Article 13 to undo Golak Nath by stating that nothing in Article 13 would apply to an amendment of the Constitution made under Article 368. At the same time, Article 368 was recast to describe Parliament’s power as a “constituent power”, expressly permitting amendment “by way of addition, variation or repeal”. So, in effect, if Golak Nath had derived a substantive limitation upon the amending power from Article 13; Parliament via the 24th amendment removed the very premise upon which that limitation rested.
The Kesavanada bench accepted Parliament’s position to the extent that Golak Nath had rejected it. The amending power was plenary in the sense that no particular part of the constitutional text, including Part III, was placed altogether beyond Parliament’s reach. Fundamental rights could therefore be amended; and Golak Nath could no longer be sustained on the proposition that Article 13 itself rendered them wholly immune from constitutional amendment. But the Court was unwilling to take the next, and more consequential step that because Parliament could amend every provision, it could therefore do anything to the Constitution so long as it followed the procedure prescribed by Article 368.
The power to amend, the majority reasoned, could not be understood as a power to destroy the Constitution in the process of amending it. It distinguished between the ‘scope’ of the amending power and the ‘limits’ of what may be done in its exercise. Parliament could alter the Constitution, including its most important provisions, but there were certain features of the constitutional order whose destruction would cease to be an exercise of amendment at all.
The question had thus changed from “Is a constitutional amendment law?” to the question, “What does it mean to amend a Constitution?” And it was in answering the latter that the Court arrived at -- what we call today -- the ‘basic structure’ doctrine.
***Finally, here are some points I wasn't able to cover, but which are, very much in the syllabus -- so here goes:
With regard to procedure, the Constituent Assembly had two rough models before it. One was the 1922 Free State Irish Constitution which allowed amendment by ordinary legislative majority for an initial eight years, meant to fix drafting defects; except that same ordinary-legislation power was used to extend the window itself, pushing it to sixteen years in 1929, and no amendment of that Constitution was ever put to a referendum and the safeguard was itself simply amended away. The 1937 Constitution course corrected hard and Article 46 of the Irish Constitution now makes a referendum mandatory for every amendment, with only a narrow 3 year transitional exception.
On the other hand stood the American Constitution, whose Article V procedure is close to virtually impossible in practice -- ⅔ of both Houses of Congress, then ratification by ¾ of the state legislatures. The result is 27 amendments in over 200 years, 10 of which arrived as a single package (the Bill of Rights) right at the start. The path the framers were treading therefore sat somewhere between an Irish regime that had shown how easily a safeguard could dissolve itself and an American regime that had shown how a safeguard could freeze a Constitution; Article 368's three tier structure -- ordinary majority, special majority, special majority plus state ratification -- was the balance struck between the two.
On the necessity of amendment as such: Ambedkar himself described the Indian Constitution as, before anything else, a social document -- an observation true of most post-colonial constitutions, which could never content themselves with "liberté, égalité, fraternité" alone, but had to write in the socio-economic transformation the anti-colonial movement had actually promised. Hence the DPSPs, hence the whole "transformative constitutionalism" discourse. Which, finally, brings me back to why that power needs limits in the first place: Weimar Republic had an amending procedure too -- a fairly workable one -- and it got Hitler amended straight into unchecked power, generally regarded as a suboptimal outcome for constitutional democracy.
Thus, if you think about it, necessity and danger are really two sides of the same coin. A Constitution needs to change or it dies slowly, and it needs limits on that power or it dies quickly.
History has shown us both these endings.