Examination of Objections to Limitations of Amending Power (1960)

This piece is an excerpt about Parliament’s Amending Power from Nani Palkhivala’s “Our Constitution Defaced and Defiled”. This was first published in 1960 by The Macmillan Company of India Limited. In the introduction to this publication, Nani Palkhivala says “WE, THE PEOPLE OP INDIA, adopted, enacted and gave to ourselves the Constitution. We, the people, are also its only keepers. We have to pay the State not only in taxes but in time and in thought.”

You can read more about Nani Palkhivala here

The arguments frequently urged against imposing any limits on Parliament’s amending power may nowbe examined.

“The democratically expressed will of the people”

It is argued that unlimited power of amendment is necessary to meet the democratically expressed will of the people and that the representatives of the people should be trusted not to abrogate the basic freedoms.

If this argument is right, it would be equally true to say that unlimited power of passing ordinary laws is necessary to meet “the democratically expressed will of the people”, and that would be the end of fundamental rights. If the representatives of the people could be trusted to respect citizens’ basic freedoms, there would have been no need for the chapter on fundamental rights at all. To say that the founding fathers of the Constitution did not trust Parliament with unlimited power in dealing with citizens’ rights by ordinary laws, but trusted them with unlimited power in dealing with citizens’ rights when amending the Constitution, is to attribute to the founding fathers incredible irrationality.

The destruction of the basic freedoms is no longer an academic question but has become a painful reality, and therefore the plea about trusting the people’s representatives is wholly misconceived. The point that between 1951 (when the Sankari Prasad case recognised unlimited power of amendment) and 1967 (when the Golaknath decision* reversed that view) the basic freedoms were not abridged although Parliament was credited with unlimited power of amendment, has no relevance to the issue of the real ambit of the amending power. Constitutional morality between 1951 and 1967 was immeasurably higher than it is today. An amendment like Article 31C would have been unthinkable before 1967 and yet it came to pass in 1972. Extremists may have in their hands the levers of power at one time in the country’s history and not at other times.

The special majority in Article 368

It has been pleaded that the special majority in Article 368 is an adequate safeguard against abuse of an unlimited amending power.

When the Constitution-makers did not permit Parliament even by a unanimous vote to pass an ordinary law violating a single fundamental right, it is impossible to believe that they put their faith in the special majority in Article 368 as a sufficient safeguard against the abrogation of fundamental rights. Besides, the special majority in Article 368 can be reduced to a bare majority by following the procedure in Article 368 itself. Again, an amending power of the same width is vested in Parliament under the Fifth and Sixth Schedules which deal with the lives and freedoms of millions of citizens and which permit all amendments by a simple majority. It is clear that the Constitution has in mind a more potent way of preserving its essential features than the requirement of a special majority.

Judicial review of constitiutional amendments

Another plea against holding the amending power to be limited has been that it would inevitably bring in judicial review. A constitutional amendment cannot enjoy the same immunity from judicial scrutiny as the original Constitution. The validity of an amendment is capable of being judged on the touchstone of the Constitution, whereas that is not the case with the original Constitution. Judicial review of constitutional amendments would be no different from that of ordinary laws with reference to questions of legislative competence or fundamental rights. If an amendment is struck down as going beyond the limits of the power, the court would be merely upholding the supremacy and sanctity of the Constitution, exactly as it does when an ordinary law is struck down as being unconstitutional. Such judicial review does not make the judiciary superior to the legislature; it only postulates that the sovereignty of the people is superior to both. Where the will of Parliament, declared in an amendment, stands in opposition to that of the people declared in the Constitution, the will of the people must prevail. One of the most futile points urged is that to let the court have the power of judicial review over constitutional amendments would involve the court in political questions. It is meaningless to say that the considerations which lead to an amendment are political, for nearly every consideration arising from the Constitution can be so described. The Constitution is a political instrument. Many constitutional problems are often not so much legal as political, social or economic, yet they must be solved by a court of law. It is vain to invoke the voice of Parliament.

Are essential features vague and unascertainable?

It has been urged that a test which involves consideration of the essential features of the Constitution would be vague, because the essential features are not precisely ascertainable.

It is true that the borderline cannot be definitely drawn between amendments which would be valid and those which would be invalid on the principle that the essential features cannot be altered or destroyed ; nor would it be possible to specify exhaustively the amendments which would be invalid by this test. But this is no argument against the validity of the principle. Rejecting a similar plea that administrative action should not be struck down on the ground that it violated the rules of natural justice since the concept of natural justice was too nebulous to afford a legal test, Lord Reid* observed. In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that . . .

Adapting the words of Frankfurter, one may say that the essential features of the Constitution are not authoritatively formulated anywhere as though they were prescriptions in a pharmacopoeia. The fact that judges among themselves may differ whether in a particular case an amendment alters or destroys a fundamental principle of the Constitution is no disproof that general rather than idiosyncratic standards have to be applied.

Legal tests of the validity of a law, based on the concept of what is essential, fundamental or basic in a constitution, in a power, in a religion, etc.^ arc well- known. They have been applied time and again in interpreting the Constitution and determining the vires of legislative or administrative action. These legal tests have been universally accepted despite the fact that in no case can there be an exhaustive enumeration of the laws which would be valid or invalid by the application of the tests, nor can there be unanimity of judicial opinion in the cases which arise from time to time. A few examples may suffice. Delegated legislation is invalid where the legislature has parted with ‘^its essential legislative function”. “Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this . . . , but this much is clear . . . : it cannot include a change of policy.” The protection of Articles 25 and 26 has been held to extend to “ceremonies and modes of worship which are integral parts of religion. . . . What constitutes an essential part of a religion or religious practice has to be decided by the courts. . . . “

Our Constitution requires the courts to use legal concepts which are no less “vague” than the concept of fundamental or essential features. The rule of pith and substance which is to be applied to any ordinary law with a view to ascertaining whether it is within legislative competence is surely no more precise. Legislation which usurps or infringes the judicial power is void, although it would be an impossible task to trace where the line is to be drawn between what will and what will not constitute such an interference. Even in the field of fundamental rights, restrictions are permissible if they are “reasonable”, “in the interests of the general public”, or arc imposed on the ground of “decency” or “morality”. These tests do not permit any abstract standard to be laid down as applicable to all cases. Yet they have to be applied in determining the validity of ordinary laws.

In Australia it has been held that there are implied limitations which prevent the Commonwealth Parliament from interfering with the “essential functions” of State government, although there can be no complete or precise formulation of such functions, “A recognition that there are difficulties in formulating a single test in precise and comprehensive terms does not provide . . . a reason for denying that there can be any limitation by implication upon the power to affect the States.”

No esoteric test is required to discern the essential features of our Constitution. The essential features are those which arc vital to the constitutional scheme and which give the Constitution its identity and integrity. If any guidance were needed in tins matter, it is afforded by the Preamble which expressly enumerates several basic elements. The Constitution is framed to be worked not by robots but by men. It is a fair assumjjtion that those who seek to amend the Constitution would have at least sufficient understanding to perceive its essential features.

There cannot possibly be any mistake about the authentic voice of our Constitution, its ringing tones proclaiming the sanctity of our sovereign democratic republic, and the rights and duties of freedom.

The following are some of the essential features of the Constitution which Parliament cannot alter or destroy in the exercise of its amending power.

The supremacy of the Constitution. Ours is a “controlled constitution” par excellence. All institutions, including Parliament, arc merely creatures of the Constitution and none of them is its master.
The sovereignty of India. This country cannot be made a satellite, colony or dependency of any foreign country.
The integrity of the country. The unity of the nation, transcending all the regional, linguistic, religious and other diversities, is the bedrock on which the constitutional fabric has been raised.
The republican form of government. India cannot be transformed into a monarchy.
The democratic way of life as distinct from mere adult franchise. There is a guarantee of fundamental rights to ensure justice, social, economic and political; liberty of thought, expression, belief, faith and worship; and equality of status and of opportunity.
A State in which there is no State religion. All religions are equal and none is favoured.
A free and independent judiciary. Without it, all rights would be writ in water.
The dual structure of the Union and the States. It permits centralization and decentralization to coexist.
The balance between the legislature, the executive and the judiciary. None of the three organs can use its powers to destroy the powers of the other two, nor can any of them abdicate its power in favor of another.
The amendability of the Constitution according to the basic scheme of Article 368. The Constitution must continue to be amendable without being alterable in its essentials.

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