The incapacity of Parliament to modify, restrict or impair Fundamental Freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms. As a result of the judgment of the Supreme Court in Golak Nath’s case, the Parliament passed the Constitution (Twenty-fourth Amendment) Act, 1971. This Act has amended the Constitution to provide expressly that Parliament has power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This has been done by amending articles 13 and 368 to make it clear that the bar in article 13 against abridging or taking away any of the Fundamental Rights does not apply to Constitution amendment made under article 368. In His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala 6 , the Supreme Court reviewed the decision in the Golak Nath’s case and went into the validity of the 24th, 25th, 26th and 29th Constitution Amendments. The case was heard by the largest ever Constitution Bench of 13 Judges. The Bench gave eleven judgements, which agreed on some points and differed on others. Nine Judges summed up the ‘Majority View’ of the Court thus: 1. Golak Nath’s case is over -ruled. 2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. 3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid. 4. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. 5. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely “and no law containin g a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid. 5 A.I.R. 1967 S.C. 1643. 6 A.I.R. 1973 S.C. 1461.
Amendment procedure India V. U.S. 6. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid. The majority of the Full Bench upheld the validity of the Constitution (Twenty-fourth Amendment) Act and overruled the decision of the Golak Nath’s case holding that a Constitution Amendment Act is not “law” within the meaning of article 13. Upholding the validity of clause (4) of article 13 and a corresponding provision in article 368(3), inserted by the Twenty-fourth Amendment Act, the Court settled in favour of the view that Parliament has the power to amend the Fundamental Rights also. However, the Court affirmed another proposition also asserted in the Golak Nath’s case. The Court held that the expression ‘amendment’ of this Constitution in article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to Fundamental Rights, it would be that while Fundamental Rights cannot be abrogated, reasonable abridgement of Fundamental Rights could be effected in the public interest. The true position is that every provision of the
- Fall '19
- United States Constitution