CONSTITUTIONAL LAW

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Constitutional Amendments A Legal Analysis
by Raja Ram Agarwal*

Cite as : (1976) 3 SCC (Jour) 1


The three most talked-about topics in the proposed constitutional amendments, which have given rise to a cleavage of opinion in the country are:

(i) Power of amendment of the Constitution,

(ii) Judicial review, and

(iii) Preponderance of Directive Principles over Fundamental Rights.

Power of Amendment of the Constitution

A historical survey of the framing of our Constitution shows that our Constitution is not a product either of any revolution or of any agreement between the component units or a document adopted by the people at large by means of a referendum to them, but it is the deliberate and well-considered product of a group of eminent persons assembled in the Constituent Assembly, elected by various Provincial Assemblies and also giving appropriate representations to various interests. It is a unique document drawn from many sources. The framers sought to utilise the experience gathered from the working of all the known Constitutions to avoid all defects and loopholes that might be anticipated in the light of that experience, but due to the vastness of our country and the peculiarity of the problems to be solved in the process of development all-round, the framers of the Constitution could not visualise all the problems which would arise in future.

The Constitution is a living document designed to serve the society which is a living organ. It is just like a living tree transplanted in the body politic of our nation and for its proper and natural growth it sometimes requires trimming and cutting for serving the everchanging society and for providing effective solutions to the enormous problems arising from time to time. Being conscious of this essential aspect, the framers of the Constitution took precaution to make the Constitution flexible and living when they authorised Parliament and provided a procedure for amendment of the Constitution in Article 368, purposely to avoid revolutions and long-drawn-out process of referendum to the people for bringing about amendments to the Constitution. In fact, all the modern written Constitutions provide for a safety- valve by conferring a power of amendment. The Constitutions of the two biggest democracies of the world, namely, England and America, are open to amendments without making a referendum to the people or constituting a new Constituent Assembly every time. The role of making a policy decision about the need of amendments to be made in the Constitution has been entrusted by the framers of the Constitution to Parliament and the State Legislatures which consist of elected representatives of the people. When the national interest requires, what changes are required—are all to be decided by the Parliament. No doubt the three wings, namely, the Legislature, the Executive and the Judiciary have been assigned their respective roles under the Constitution, but it could not possibly have been intended by the framers of the Constitution while conferring the power of amending the Constitution itself on the Legislature that the exercise of the said power should be open to judicial scrutiny. The amendment of the Constitution is a part of the Constitution itself which is the fountainhead for the power of the judiciary as well. The power of judicial review is intended to be exercised with respect to laws made under the Constitution, but not to a constitutional law itself. However, this concept was not accepted by the Supreme Court and the view expressed by it in the famous case of Kesavananda Bharati v. State of Kerala1 placed a restriction and imposed limitation on Parliament's power to amend the Constitution by introducing the concept of essential features which are also described by other jurists as basic structure of the Constitution, and holding that the Parliament has no power to change the basic structure or the essential features of the Constitution. The doctrine of basic structure or essential features is a very vague one. A concept which is considered to be basic today ceases to be so tomorrow. Property rights which were regarded to be basic rights at one time and included as one of the fundamental rights in our Constitution, are now declared, by even some of the eminent jurists and public men, as not the basic rights. The introduction of this exception on the power to amend has created a very peculiar situation. It has opened a vast gate for importing individual Judges' own political and economic thoughts into the concept of basic structure and under the garb of what his view of the essential feature of the Constitution is, nullifying, or at any rate substantially curtailing, the power of Parliament which has always been envisaged as the only authority competent to decide as to what amendment should be made. The need for changing the Constitution is a political decision taken by the representatives of the people which by its very nature could not and should not be subjected to review or to be nullified by a few persons who have neither the means nor adequate knowledge nor all the material and information before them to judge the need or form of amendments. In England, where there is no written Constitution, Parliament is supreme. In the United States Constitution, Article V confers power of amending the Constitution on the Congress. In Canada, even though the Dominion Parliament could not amend any provision of the Constitution Act, a convention had grown by which the Imperial Parliament passed as a matter of course any amendment suggested by the Dominion Parliament. By enacting the British North America (No. 2) Act, 1949 the Imperial Parliament empowered the Canadian Parliament to amend that part of the Constitution which relates to the matters within the jurisdiction of the Dominion Parliament. The Constitution of the Fourth French Republic, 1946 represented the type of a completely flexible written Constitution as much as the Constitution was open to amendment by the ordinary process of legislation subject of course to a certain specified majority. Certain procedural limitations were placed by the Constitution known as the Fifth French Republic Constitution. The Ceylon (Constitution) Order in Council, 1946 provides for amendment of the Constitution by ordinary process of legislation subject to certain specified majority.

Thus it would be seen that changes in the needs and environment of a political society demand changes in its political institution just as in the case of any other human organism. The contingency for adapting itself to the changing circumstances is envisaged in the Constitutions of all democratic countries by conferring a power of amendment. That was noticed by our Constitution-makers and the reason for introducing this element of flexibility was explained by Pandit Jawaharlal Nehru in the following words:

"While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop the nation's growth, the growth of a living, vital, organic people . . . .

In any event, we could not make this Constitution so rigid that it cannot be adapted to changing conditions. When the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow."

Dr Ambedkar while summing up the provisions contained in Article 368 observed as under:

"The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or Australia, but has provided for a facile procedure for amending the Constitution.... If those who are dissatisfied with the Constitution have only to obtain a two-thirds majority and, if they cannot obtain even a two-thirds majority in the Parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public."

The opinion of the American Supreme Court since as far back as 1798, is that the question of validity of constitutional amendment is a political question, which is beyond the competence of the court. The process itself is political in its entirety, from submission until the time when an amendment becomes part of the Constitution and is not subject to judicial guidance, control or interference at any time. In England also legislative supremacy of Parliament is recognised. Judged in this background, the proposed amendment of Article 368 providing that any amendment of the Constitution passed in accordance with the requirements specified in Article 368 shall not be called in question in any court on any ground is in line with the accepted principles in various countries in which values of democracy are cherished if not much more, then not in any way less, than it is in our country. The proposed amendment clears the clouds and restores the original intention of the Constitution-framers which, to a certain extent, was eclipsed by judicial pronouncements.

As the critics of the proposed amendment relating to conferment of absolute power on Parliament to amend the Constitution have voiced their fear by placing extreme illustrations of changing the very form of Government provided under the present Constitution, such a situation can very well be met by inserting a provision in the form of an exception to the main provision of Article 368 like Article 95 of the Constitution of French Republic, 1946 providing that "the present federal structure of the Constitution and the cabinet form of the Government may not be the subject of any amendment unless the said proposal has received concurrence of the people by means of a referendum". Such a provision would be in consonance with the spirit and intention of our Constitution as well as the proposal for amendment of Article 368.

Judicial Review

With the increase in Government responsibility in social and economic matters it has become essential to establish tribunals for dealing with disputes or claims arising out of schemes created by statutes. The institution of various tribunals is not a new one. It exists in various democracies of the world as for example, in England, in France and in the United States of America. Our writ jurisdiction contained in Articles 32 and 226 of the Constitution has been modelled on the prerogative writs in England which have been called the bulwark of English liberty. The Constitution of U.S.A. assumed that these common law writs would be available in the United States. Thus the main source of this jurisdiction is to be traced to the jurisdiction to issue prerogative writs available to the courts in England. Even in England, as mentioned earlier, various tribunals, for example, National Insurance Tribunal, Pensions Appeal Tribunals, Industrial Tribunals, Income Tax Appellate Tribunals, Fare Transport Licensing Tribunals, National Health Service Tribunals, Agricultural Land Tribunals, etc. have been in existence for the last several years. A review of the decisions of these tribunals is provided either by means of an appeal to a higher body or by writ jurisdiction. Yet instances are not wanting when the Act itself provided that a decision "shall not be questioned in any legal proceedings whatsoever" and the effect of insertion of such a clause was held to exclude the writ jurisdiction of the court. If may be remembered at this stage that in England there is no written Constitution, hence by inserting such a clause in the ordinary Act itself the Parliament excludes judicial review in writ jurisdiction. This position was prevalent till the Tribunals and Enquiries Act, 1958, where it was enacted that prohibition or declaration contained in the Acts passed before August 1, 1958 shall not have the effect of preventing the applicability of the writ jurisdiction. But this Act did not refer to prohibition in respect of ouster clauses contained in the Acts passed after August 1, 1958. The House of Lords in Smith v. East Elloe Rural District Council2 held that such a clause excludes writ jurisdiction even in those cases where the order is challenged on the ground of bad faith or mala fides. The matter was, however, reconsidered by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission3 where the East Elloe case was criticised and it was held that such a prohibitive clause could not oust the jurisdiction of the court to declare a determination to be a nullity where it was void ab initio. After the decision in the Anisminic case the position of the Foreign Compensation Commission was discussed in the Legislature. It was considered to be unreasonable that the Commission's determinations should be subjected to review on any ground and the Bill that became the Foreign Compensation Act, 1969 provided that a determination or purported determination should not be subjected to judicial review. However, ultimately, this clause was adapted with certain clarifications making an exception in those cases where breach of natural justice was complained of and providing for a reference to the court of appeal on a question of law. An ouster clause is, therefore, effective in preventing certiorari being granted to quash an error. It is, therefore, not an atrocious proposal to exclude writ jurisdiction in certain specified matters like service matters, industrial and labour disputes, matters relating to revenue, land reforms, procurement and distribution of foodgrains and other essential commodities, election matters, etc. The exclusion of writ jurisdiction in these matters cannot be said to be contrary to any basic principles or concept of democracy or to bring about a disastrous effect on the proper working of democracy. This is amply borne out by England where one of the best democracies of the world is functioning and where by means of ouster clauses in various Acts the writ jurisdiction is excluded in those particular matters and the exclusive jurisdiction to decide them is conferred on the tribunals. Of course, credibility of the tribunals shall depend on the personnel who man them. It is absolutely essential that the personnel comprising these tribunals should be such as to inspire immense public confidence. Further judicial review against the decisions of these tribunals lies in the form of special appeal to the Supreme Court under Article 136 of the Constitution.

The writ jurisdiction, as held in several cases, is an equitable jurisdiction. The exercise of discretion is mainly governed by the consideration of substantial failure of justice.4 The discretion is also regulated by presence or absence of an alternative remedy. These principles are now well settled by a series of pronouncements of the Supreme Court and the High Courts. Yet in many cases, Judges, irrespective of these well-established principles, have been interfering in the absence of any constitutional fetter on their discretion under Article 226. Therefore, if these principles are being sought to be incorporated in black and white in the Constitution itself so as to put it beyond any doubt and make it binding on all courts, it cannot be said that the insertion of these clauses by themselves erode the jurisdiction of the Court.

Even though the phrase "for any other purpose" is canvassed for deletion, yet suggestion for insertion of a provision for exercise of writ jurisdiction in cases where a contravention of any provision of the Constitution other than any fundamental right enumerated in Part III, or the contravention of any provision of a statutory law where such contravention has resulted in substantial failure of justice, preserves the constitutional jurisdiction of the High Courts under Article 226. Even today, before relief can be obtained, one has to establish his personal legal right except in writs of habeas corpus and quo warranto.5 This legal right is now in a sense defined as a constitutional or statutory right. Of course, interference with every administrative order where neither one's constitutional nor statutory right has been violated is excluded. It is important to note here that the power to issue writs in cases of violation of fundamental rights is still retained.

A law is enacted by elected representatives who know the needs of their people. It is in the fitness of things that before such law is declared void, at least a substantial number of minds in the Supreme Court and in the High Courts must be applied. The declaration of any statute as void is a very serious matter and therefore a bare majority should not be sufficient to set at naught the will and the act of legislatures. In cases where the majority is only of one, truly speaking, it is the judgment of that one Judge which has the effect of declaring the Act ultra vires. It is, therefore, essential to provide for a minimum number of judges to sit for deciding the question of vires and also to provide for a specified majority for declaring it ultra vires. The provision for confining the judgment of the validity of Central Acts and Rules etc. to the Supreme Court is also justified. Experience has shown that in many matters, High Courts have differed on the question of vires of a Central Act, rule or notification and before the Supreme Court can finally settle it, which takes some time, the same law is administered differently in two different States while it is meant for uniform applicability. This has often created a piquant situation for the administration and caused hardship to the public. To avoid such a situation the insertion of such a provision is very salutary. So far as the State laws are concerned, the jurisdiction to decide their vires is still retained with the respective High Courts with a right of appeal to the Supreme Court. These provisions can, by no stretch of imagination, be described as unreasonable.

Experience has shown that many a time either by suppression of material facts, or by making a false statement, or by misrepresentation, or without placing adequate facts to enable the courts to weigh the pros and cons of an interim order, interim orders are obtained which cause immense, incalculable and irreparable loss. To remedy such a mischief is the provision for prior notice and opportunity of hearing to the opposite party in consonance with the principles of equity and natural justice. Such a provision was more than overdue. Of course, the provision for notice should be confined to the Central Government, the State Government, local authority or the officers of any of these entities.

The necessity of all these amendments relating to judicial review arose out of experience of the working of this jurisdiction with reference to various socio-economic schemes and enactments. The Constitution as well as the institution of courts exist for subserving the aspirations of the people, needs of time and to play an effective part in the development of the Nation. In view of our past heritage from pre-independence era the outlook has more often than not been that of status quo in judging the validity of an Act or action in the light of precedents based on the needs and views of the past which ceases to have any validity in the evergrowing and everdeveloping needs and concept of the society of today. The pace with which the nation wants to progress is very often halted or blocked by exercise of writ jurisdiction in its present form and content. The race is against time. It is, therefore, in the fitness of things that the said jurisdiction be suitably amended so as to play an effective role and contribute its mite towards the progress of the nation. It is to be noticed that even the suggested amendments do not affect "judicial review". In certain specified matters, the forums alone for judicial review have been changed subject to further judicial scrutiny by the Highest Court of the country under Article 136 of the Constitution. Judicial review in its full form is, therefore, still retained.

Preponderance of directive principles over fundamental rights

While inserting a chapter on fundamental rights of individuals against the State the Constitution-framers also laid down directive principles of State policy in Part IV. It was intended that it shall be the duty of the State to fulfil those policies. Yet they remained only pious enumerations. Now when the nation is to develop in all spheres, particularly in the socio-economic field, the individual's right has to be subordinate to the larger interests of the society. This aspect was recognised even by the Supreme Court in Kesavananda Bharati case where it was held that there should be no reluctance to abridge or regulate the fundamental rights to property if it was felt necessary to do so for changing the economic structure and attaining the objectives contained in the directive principles. Freedom of a few has to be abridged in order to ensure the freedom of all. In judging the scope of various Articles contained in Part III (described as fundamental rights) and the reasonableness of the restrictions placed on an individual's fundamental rights, the Supreme Court has now often recognised that the implementation of the directive principles will have a preponderance over such rights.6 The proposed amendment relating to preponderance of directive principles over fundamental rights is nothing else but a recognition of the recent judicial interpretations by making it a part of the Constitution itself to avoid any future dissension on the matter.

No Parliament nor any Constitution-framers can bind its or their successors for all times to come. The needs of the nation today urgently require suitable modification for achieving the goal set forth before the country. To meet this situation, the present amendments are proposed. When the need of such a position is no longer felt, there is no bar to amending the Constitution again. The judgment, of course, to do one or the other, shall be of the elected representatives of the people at that time. The critics of the proposed amendments are not at all justified in voicing the fear that the proposed amendments would completely erode democracy in our country. The proposed amendments are in consonance with the need of the time, for proper functioning of our democracy and in national interest.

* Advocate-General, U. P. Return to Text

  1. (1973) 4 SCC 225. Return to Text
  2. (1956) 1 All ER 855. Return to Text
  3. (1969) 1 All ER 208. Return to Text
  4. A.M. Allison v. B.L. Sen, 1957 SCR 359 : AIR 1957 SC 227. Return to Text
  5. State of Orissa v. Madan Gopal Rungta, 1952 SCR 28 : AIR 1952 SC 12. Return to Text
  6. State of Kerala v. N.M. Thomas, (1976) 2 SCC 310. Return to Text
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