Political Science Answer Writing Practice - Week 9 - Question 2
90 Days Political Science Answer Writing Practice Question 2 for 29-Jan-2018
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29-Jan-2018 - Question 2
Comment: 'Article 368 does not enable Parliament to alter the basic structure or the framework of the constitution. 200 words. 2016
The amendment process is an opportunity to express democratic conceptions of basic constitutional values without derogating from the fundamental constitutional principles. Article 368 of the Constitution of India grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation. As per the procedure laid out by article 368 for amendment of the Constitution, an amendment can be initiated only by the introduction of a Bill in either House of Parliament. The Bill must then 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. There is no provision for a joint sitting in case of disagreement between the two Houses. Total membership in this context has been defined to mean the total number of members comprising the House irrespective of any vacancies or absentees.
In the Golaknath v. State of Punjab case, by a 6 to 5 majority judgement, the Supreme Court held that fundamental rights cannot be abridged or taken away by the amending procedure in Art.368 of the Constitution. An amendment to the Constitution is law within the meaning of Art. 13(2) and is therefore subject to Part III of the Constitution. In Kesavananda Bharati v. State of Kerala case the Supreme Court reversed its own previous decision in Golaknath, in declaring that the decision of the majority in Golaknath that the word law in Art.13(2) included amendments to the Constitution and the article operated as a limitation upon the power to amend the Constitution in Art.368 is erroneous and is overruled. Further, Court, in this case, gave a threat to the power of the Parliament by introducing the doctrine of basic structure theory. According to this doctrine, the Parliament under Art.368 is not enabled to alter the basic structure or framework of the Constitution. As a result, Parliament through 42nd Amendment committed another mistake by inserting Clauses (4) and (5) in Art.368 of the Constitution. Under these clauses, Parliament declares its unlimited power and made clear Constitution Amendment Act would not be subject to judicial review on any ground. But Supreme Court in Minerva Mills case held that the power to amend does not include the power to alter the basic structure, or framework of the Constitution so as to change its identity and made clauses (4) and (5) of Art.368 as unconstitutional, judiciary rectified the mistake committed by Parliament in 42nd Amendment. Further, Court held that, indeed, a limited amending power is also one of the basic features of the Constitution, therefore, the limitation on that power cannot be destroyed.
In I.R Coelho s case, the Supreme Court has rightly concluded that the Parliament s power of amendment is subject to judicial review of courts. The court emphasised on the doctrine of Basic structure theory propounded by it in the famous Kesavananda Bharati s judgement while adjudging the validity of amendments. This is how the ups and downs of the power of Parliament have been questioned in many cases and finally this was resolved in I.R.Coelho s case. As a final point, the power of Parliament bringing many amendments to the Constitution with respect to Ninth Schedule was justiciable except in 4th, 39th 40th 42nd and 76th amendments where the Parliament placed some controversial laws (Non-Agrarian Laws) in to the Schedule and tried to misuse and abuse its power in order to show its supremacy by making the Constitution text very feeble one. Thus, the amendment power of parliament is a constituent power, not a legislative power, and also faces certain restrictions of a basic structure while exercising the power.