Amendability of Fundamental Rights

The question whether Fundamental Rights can be amended by the Parliament under Article 368 came for consideration of the Supreme Court within a year of Constitution coming into force.

Cases Related to Fundamental Rights

In the Shankari Prasad case 4 (1951), the constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged. The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws). Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

But in the Golak Nath cases (1967), the Supreme Court reversed its earlier stand. In that case, the constitutional validity of the Seventh Amendment Act, which inserted certain state acts in the Ninth Schedule, was challenged. The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of the Fundamental Rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights. Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including the contravention of any of the fundamental rights

However, the Supreme Court in the Minerva Mills case (1980) invalidated this provision as it excludes judicial review which is a ‘basic feature’ of the Constitution. Again in the Waman Rao case 8 (1981), the Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973 (i.e., the date of the judgement in the Kesavananda Bharati case).

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