Can Fundamental Rights be amended under Constitution of India-: a Judicial Response

Law is said to be dynamic in nature, and amendment in the law is the method through which such dynamic character of law can be maintained. Under the Indian legal system two types of amendments are generally practised i.e., amendment with simple majority or amendment with special majority. While performing a constitutional amendment also the above mentioned methods are generally followed.

But when we talk about amendment in fundamental rights they are two opinions regarding their amendment, one being that fundamental rights should never be amended, because they are basic rights that a human being possesses by their virtue of being human, and if such amending power is given to legislation they can take away or abridge such basic rights on their wills and fantasies.

Another view is that amendments in fundamental rights are also very necessary to maintain the effectiveness of fundamental rights. For example with the evolution of society new fundamental rights keep coming up through judicial activism which sometime need to be expressly mentioned in the constitution, and for doing the same amendments are required, e.g., right to education was not a fundamental right from the very beginning of the constitution and it was only added later on through 86th constitutional amendment 2002, wherein the State shall provide free and compulsory education to all children of the age of 6 to 14 years.

Judicial Responses

The issue of amendments of fundamental rights has been before the judiciary from the very early times of constitution being enforced. This issue came up before the judiciary for the first time in the case of Shankari Prasad (1951) where the constitutional validity of 1st amendment to the constitution was challenged. The Supreme Court in this case upheld the constitutional validity of the 1st amendment and declared that the parliament was empowered to do so under Article 368 of Constitution of India.

But this view of the Supreme Court was changed in the decision of Golak Nath's case (1967) where the Supreme Court said that fundamental rights are transcendental and immutable so they cannot be abridged or taken away.

The parliament responded to this decision of the Supreme Court by bringing the 24th amendment to the constitution which amended article 13 and 368 of the constitution and said that parliament can take away or abridge any of the fundamental rights under article 368 of constitution.

Then came the landmark decision of Keshvananda Bharti vs. Union of India (1973) where the constitutional validity of 24th constitutional amendment was challenged. The Supreme Court in its decision upheld the constitutional validity of the 24th of Constitutional amendment but came up with the exception of doctrine of basic structure. The apex court while explaining basic structure said that any amendment in the fundamental rights which hinders the basic structure of Indian constitution will be declared unconstitutional. The apex court in this decision also reversed the decision of Berubari’s Union case whereby it was held that preamble is not a part of constitution. The court in its decision said that preamble is very much a part of the constitution and will be the source for determining the basic structure of our constitution.

But this judgment also did go down well with the parliament and another amendment was brought to counter this judgment. 42nd constitutional amendment also known as the mini constitution was brought whereby article 368 was amended to say that any amendment of the constitution under Article 368 cannot be challenged in any court of law even though if there is any contravention of a fundamental right. Thereby it said that there can be no judicial review of any constitutional amendment. This amendment of article 368 was again challenged in the case of Minerva Mills case 1980 and the supreme court in its decision invalidated such amendment under article 368 and said that judicial review is the basic structure of Indian constitution and it cannot be stopped.

After this decision a number of amendments in the fundamental rights have been affected and many of them have been struck down if they have been found in contravention of basic structure of the constitution.

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