Dr Mohan R Bolla

Amendment of the Constitution
of India

Article 368 Power of Parliament to amend the
Constitution and procedure therefor
368. Power of Parliament to amend the
Constitution and procedure therefor…..
(1)Notwithstanding anything in this
Constitution, Parliament may in exercise of its
constituent power amend by way of addition,
variation or repeal any provision of this
Constitution in accordance with the procedure
laid down in this article

Article 368
368. Power of Parliament to amend the Constitution and
procedure therefor
(1) ……
(2) An amendment of this Constitution may be initiated
only by the introduction of a Bill for the purpose in
either House of Parliament, and when the Bill is
passed in each House by a majority of the total
membership of that House present and voting, it shall
be presented to the President who shall give his
assent to the Bill and thereupon the Constitution shall
stand amended in accordance with the terms of the
Bill:

Article 368
368. Power of Parliament to amend the Constitution and procedure
therefor
(1) ……
(2) ……
Provided that if such amendment seeks to make any change in(a)
Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to
be ratified by the Legislature of not less than one half of the
States by resolution to that effect passed by those Legislatures
before the Bill making provision for such amendment is presented
to the President for assent

Article 368
368. Power of Parliament to amend the Constitution and procedure therefor
(1) ……
(2) ……
(3) Nothing in Article 13 shall apply to any amendment made under this
article
(4) No amendment of this Constitution (including the provisions of Part III)
made or purporting to have been made under this article whether
before or after the commencement of Section 55 of the Constitution
(Forty second Amendment) Act, 1976 shall be called in question in any
court on any ground
(5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by
way of addition, variation or repeal the provisions of this Constitution
under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL
PROVISIONS

the common question whether the Constitution (First
Amendment) Act, 1951, which was recently passed by
the present provisional Parliament and purports to
insert, inter alia, articles 31A and 3lB in the
Constitution of India is ultra vires and unconstitutional.
What led to that enactment is a matter of common
knowledge. The political party now in power,
commanding as it does a majority of votes in the
several State legislatures as well as in Parliament,
carried out certain measures of agrarian reform in
Bihar, Uttar Pradesh and Madhya Pradesh by enacting
legislation which may compendiously be referred to as
Zemindary Abolition Acts.
Pathanjali Sastri, C.J.,
Sri Sankari Prasad Singh Deo v. Union of India
and State of Bihar [1952] S.C.R. 89

Certain zemindars, feeling themselves aggrieved, attacked
the validity of those Acts in courts of law on the ground
that they contravened the fundamental rights
conferred on them by Part III of the Constitution. The
High Court at Patna held that the Act passed in Bihar
was unconstitutional while the High Courts at
Allahabad and Nagpur upheld the validity of the
corresponding legislation in Uttar Pradesh and,
Madhya Pradesh respectively. Appeals from those
decisions are pending in the Supreme Court. Petitions
filed in the Apex Court by some other zemindars
seeking the determination of the same question are
also pending.

At this stage, the Union Government, with a view to put
an end to all this litigation and to remedy what they
considered to be certain defects brought to light in the
working of the Constitution, brought forward a bill to
amend the Constitution, which, after undergoing
amendments in various particulars, was passed by the
requisite majority as the Constitution (First Amend-
ment) Act, 1951. Swiftly reacting to this move of the
Government, the zemindars have brought the present
petitions under article 32 of the Constitution
impugning the Amendment Act itself as
unconstitutional and void.

Now, the Constitution provides for three classes of
amendments of its provisions.
First, those that can be effected by a bare majority
such as that required for the passing of any ordinary
law.
The amendments contemplated in articles 4, 169 and
240 fall within this class, and they are specifically
excluded from the purview of article 368.

Secondly, those that Can be effected by a special
majority as laid down in article 368.
All constitutional amendments other than those
referred to above come within this category and
must be effected by a majority of the total
membership of each House as well as by a majority
of not less than two thirds of the members of that
House present and a voting;

and thirdly, those that require, in addition to the
special majority above-mentioned, ratification by
resolutions passed by not less than one-half of the
States specified in Parts A and B of 'the First
Schedule by resolutions to that effect passed by
those Legislatures before the Bill making provision
for such amendment is presented to the President
for assent.

The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution
was the subject matter of decision
31A. Saving of laws providing for acquisition of estates, etc
( 1 ) Notwithstanding anything contained in Article 13, no law providing for(a) the acquisition by the State of any
estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest
or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper
management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing
directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the
purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation
of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with,
or takes away or abridges any of the rights conferred by Article 14 or Article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not
apply thereto unless such law, having been reserved for the consideration of the President, has received his
assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where
any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State
to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time
being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to
the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall
not be less than the market value thereof

The Constitution (First Amendment) Act, 1951, which inserted
inter alia Articles 31A and 31B in the Constitution was the
subject matter of decision
31B. Validation of certain Acts and Regulations Without
prejudice to the generality of the provisions contained in
Article 31A, none of the Acts and Regulations specified in the
Ninth Schedule nor any of the provisions thereof shall be
deemed to be void, or ever to have become void, on the
ground that such Act, Regulation or provision is inconsistent
with, or takes away or abridges any of the rights conferred by,
any provisions of this Part, and notwithstanding any
judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regulations shall, subject
to the power of any competent Legislature to repeal or
amend it, continue in force

Pathanjali Sastri, C.J.
Article 31A aims at saving laws providing for the compulsory
acquisition by the State of a certain kind of property from the
operation of article 13 read with other relevant articles in Part III,
while article 3lB purports to validate certain specified Acts and-
Regulations already passed, which, but for such a provision, would
be liable to be impugned under article 13. It is not correct to say
that the powers of the High Court under article 226 to issue writs
"for the enforcement of any of the rights conferred by Part III" or
of this Court under articles 132 and 136 to entertain appeals from
orders issuing or refusing such writs are in any way affected. They
remain just the same as they were before:
only a certain class of case has been excluded from the purview of
Part III and the courts could no longer interfere, not because their
powers were curtailed in any manner or to any extent, but
because there would be no occasion hereafter for the exercise of
their power in such cases.

articles 3IA and 3lB really seek to save a certain class of laws
and certain specified laws already passed from the combined
operation of article 13 read with other relevant articles of
Part III. The new articles being thus essentially amendments
of the Constitution, Parliament alone had the power of
enacting them. That the laws thus saved relate to matters
covered by List II does not in any way affect the position. It
was said that Parliament could not validate a law which it had
no power to enact. The proposition holds good where the
validity of the impugned provision turns on whether the
subject-matter falls within or without the jurisdiction of the
legislature which passed it. But to make a law which
contravenes the constitution constitutionally valid is a matter
of constitutional amendment, and as such it falls within the
exclusive power of Parliament. …..

P B Gajendragadkar, C.J.
Sajjan Singh vs State of Rajasthan
[1965] 1 S.C.R. 933.
These six writ petitions which have been filed under Art.
32 of the Constitution, seek to challenge the validity of
the Constitution (17th Amendment) Act, 1964. The
petitioners are affected by one or the other of the Acts
added to the 9th Schedule by the impugned Act, and
their contention is that the impugned Act being
constitutionally invalid, the validity of the Acts by which
they are affected cannot be saved. Some other parties
who are similarly affected by other Acts added to the
9th Schedule by the impugned Act, have intervened at
the hearing of these writ petit ions, and they have
joined the petitioners in contending that the impugned
Act is invalid.

[1965] 1 S.C.R. 933.
the broad scheme of Art. 368 is that if Parliament proposes to amend
any provision of the Constitution not enshrined in the proviso, the
procedure prescribed by the main part of the Article has to be
followed. The Bill introduced for the purpose of making the
amendment in question, has to be passed in each House by a
majority of the total membership of that House and by a majority
of not less than two-thirds of the members of that House present
and voting. This requirement postulates that a bill seeking to
amend the relevant provisions of the Constitution should receive
substantial support from members of both the Houses. That is why
a two-fold requirement has been prescribed in that behalf. After
the bill is passed as aforesaid, it has to be presented to the
President for his assent and when he gives his assent, the
Constitution shall stand amended in accordance with the terms of
the bill. That is the position in regard to the amendment of the
provisions of the Constitution to which the proviso does not apply.

[1965] 1 S.C.R. 933.
If Parliament intends to amend any of the provisions of the
Constitution which are covered by clauses (a) to (e) of the
proviso, there is a further requirement which has to be
satisfied before the bill carn be presented to the President for
his assent. Such a bill is required to be ratified by the
Legislatures of not less than one-half of the States by
Resolutions to that effect passed by them. In other words, in
respect of the Articles covered by the proviso, the further
safeguard prescribed by the proviso is that the intended
amendment should receive the approval of the Legislatures of
not less than one-half of the States. That means that at least
half of the States constituting the Union of India should by a
majority vote, approve of the proposed amendment.

[1965] 1 S.C.R. 933.
In our opinion, the two parts of Art. 368 must on a reasonable construction be harmonised with
each other in the sense that the scope and effect of either of them should not be allowed to
be unduly reduced or enlarged. It is urged that any amendment of the fundamental rights
contained in Part III would inevitably affect the powers of the High Court, prescribed by Art.
226, and as such, the bill proposing the said amendment cannot fall under the proviso;
otherwise the very object of not including Part III under the proviso would be defeated.
When the Constitution-makers did not include Part III under the proviso, it would be reasonable
to assume that they took the view that the amendment of the provisions contained in Part III
was a matter which should be dealt with by Parliament under the substantive provisions of
Art. 368 and not under the proviso.
It has no doubt been suggested that the Constitution-makers perhaps did not anticipate that
there would be many occasions to amend the fundamental rights guaranteed by Part III.
However that may be, as a matter of construction, there is no escape from the conclusion that
Art. 368 provides for the amendment of the provisions contained in Part III without imposing
on Parliament an obligation to adopt the procedure prescribed by the proviso.
It is true that as a result of the amendment of the fundamental rights, the area over which the
powers prescribed by Art. 226 would operate may be reduced, but apparently, the
Constitution-makers took the view that the diminution in the area over which the High
Courts' powers under Art. 226 operate, would not necessarily take the case under the
proviso.

[1965] 1 S.C.R. 933.
It is well-known that the amendment of a law may in a
proper case include the deletion of any one or more of
the provisions of the law and substitution in their place
of new provisions. Similarly, an amendment of the
Constitution which is the subject matter of the power
conferred by Art. 368, may include modification or
change of the provisions or even an amendment which
makes the said provisions inapplicable in certain cases.
The power to amend in the context is a very wide
power and it cannot be controlled by the literal
dictionary meaning of the word "amend".

[1965] 1 S.C.R. 933.
It would, we think, be unreasonable to suggest that what Art. 368 provides is only the
mechanics of the procedure to be followed in amending the Constitution without
indicating which provisions of the Constitution can be amended and which cannot.
Such a restrictive construction of the substantive part of Art. 368 would be clearly
untenable. Besides, the words used in the proviso unambiguously indicate that the
substantive part of the article applies to all the provisions of the Constitution. It is
on that basic assumption that the proviso prescribes a specific procedure in respect
of the amendment of the articles mentioned in clauses (a) to (e) thereof.
Therefore, we feel no hesitation in holding that when Art. 368 confers on Parliament
the right to amend the Constitution the power in question can be exercised over all
the provisions of the Constitution.
How the power should be exercised, has to be determined by reference to the
question as to whether the proposed amendment falls under the substantive part
of Art. 368, or attracts the provisions of the proviso.
It is true that Art. 13(2) refers to any law in general, and literally construed, the word
"law" may take in a law made in exercise of the constituent power conferred on
Parliament; but having regard to the fact that a specific, unqualified and
unambiguous power to amend the Constitution is conferred on Parliament, it
would be unreasonable to hold that the word "law" in Art. 13 (2) takes in
Constitution Amendment Acts passed under Art. 368

[1965] 1 S.C.R. 933.
If the Constitution- makers had intended that any future amendment
of the provisions in regard to fundamental rights should be subject
to Art. 13 (2), they would have taken the precaution of making a
clear provision in that behalf.
Besides, it seems to us, very unlikely that while conferring the power
on Parliament to amend the Constitution, it was the intention of
the Constitution-makers to exclude from that comprehensive
power fundamental rights altogether. There is no doubt that if the
word "law" used in Art. 13(2) includes a law in relation to the
amendment of the Constitution, fundamental rights can never be
abridged or taken away, because as soon as it is shown that the
effect of the amendment is to take away or abridge fundamental
rights, that portion of the law would be void under Art. 13 (2). We
have no doubt that such a position could not have been intended
by the Constitution-makers when they included Art. 368 in the
Constitution.

K. Subba Rao , C.J. [11judges]
I. C. Golaknath & Ors vs
State of Punjab & Anrs. [1967] 2 S.C.R. 762
The petitioners are the son, daughter and granddaughters of one Henry Golak
Nath, who died on July 30, 1953. The Financial Commissioner, in revision
against the order made by the Additional Commissioner, Jullundur Division,
held by an order dated January 22, 1962 that an area of 418 standard acres
and 9-1/4 units was surplus in the hands of the petitioners under the
provisions of the Punjab Security of Land Tenures Act X of 1953, read with
s.10-B thereof.
The petitioners, alleging that the relevant provisions of the said Act where
under the said area was declared surplus were void on the ground that they
infringed their rights under cls. (f) and (g) of Art. 19 and Art. 14 of the
Constitution, filed a writ in this Court under Art. 32 of the Constitution for a
direction that the Constitution (First Amendment) Act 1951, Constitution
(Fourth Amendment) Act, 1955, Constitution (Seventeenth Amendment)
Act, 1964, insofar as they affected their fundamental rights were
unconstitutional and inoperative and for a direction that s. 10-B of the said
Act X of 1953 was void as violative of Arts. 14 and 19 (1) (f) and (g) of the
Constitution. There are several other petitions also.

K. Subba Rao , C.J. [11judges]
I. C. Golaknath & Ors vs
State of Punjab & Anrs. [1967] 2 S.C.R. 762
The Judgment of Subba Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ. was
delivered by Subba Rao, C.J. [HIDAYATULLAH, J. consented ]
(i) the power to amend the Constitution is not to be found in Art. 368 but in
Arts. 245, 246 and 248 read with Entry 97 of List 1;
(ii) the amending power cannot be used to abridge or take away the
fundamental rights guaranteed in Part III of the Constitution;
(iii) a law amending the Constitution is "Law" within the meaning of Art. 13(2)
and
(iv) the First, Fourth and 17th Amendments though they abridged fundamental
rights were valid in the past on the basis of earlier decisions of this Court
and continue to be valid for the future.
On the application of the doctrine of "prospective over-ruling", as enunciated
in the judgment, the decision will have only prospective operation and
Parliament will have no power to abridge or take away Fundamental Rights
from the date of the judgment.

Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. &
Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea,
B.K. Chandrachud, Y.V. His Holiness Kesavananda Bharati Sripadagalvaru and Ors. Vs.
State of Kerala April 24, 1973, (1973) 4 SCC 225)
six writ petitions involve common questions as
to the validity of the Twenty- fourth, Twenty-
fifth and Twenty-ninth Amendments of the
Constitution.
The majority judgments of seven judges held
that Parliament had no power to alter “the
basic structure of the Constitution”.

Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. &
Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea,
B.K. Chandrachud, Y.V.
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. Vs. State of Kerala, (1973) 4
SCC 225)
Six other judges, headed by Justice A.N. Ray, held that
there were no restrictions on Parliament’s power to
amend the Constitution.
Then Chief Justice of India (CJI) S.M. Sikri, who headed
the majority judgment, was to retire the next day.
Coming to know of the judgments in advance, the
government
disregarded the seniority of three judges who had been
part of the majority —
Justices J.M. Shelat, K.S. Hegde and A.N. Grover — for
the appointment of the next CJI, and appointed Justice
A.N. Ray the next day.

Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A N.,
Jagan Mohan Reddy, P. Mukherjea, H.R. Khanna JJ.,
Sikri, C.J. explained that the concept of basic
structure included:
Supremacy of the Constitution
Republican and democratic form of government
Secular character of the Constitution
Separation of powers between the legislature,
executive and the judiciary
Federal character of the Constitution

Shelat, J. and Grover, J. added three more basic
features to this list:
The mandate to build a welfare state
contained in the Directive Principles of State
Policy
Unity and integrity of the nation
Sovereignty of the country.

K S Hegde J. and Mukherjea, J.
basic features
Sovereignty of India
Democratic character of the polity
Unity of the country
Essential features of the individual freedoms
secured to the citizens
Mandate to build a welfare state

Jaganmohan Reddy, J.
-elements of the basic features
were to be found in the Preamble of the
Constitution and the provisions into which they
translated such as:
Sovereign democratic republic
- Justice - social, economic and political
-Liberty of thought, expression, belief, faith and
worship
-Equality of status and the opportunity.

Dr Mohan R Bolla

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