Since 1951, questions have been raised about the scope of the constitutional amending process contained in Article 368. In Shankari Prasad Singh v. Union of India , the argument against the validity of he 1st Amendment was that Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights that the word “Law” in Art. 13 would include any law; even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinized with the reference to the fundamental rights which it could infringe. Here in this case there was a conflict between Arts. 13 and 368. Adopting the literal meaning of the constitution, the Supreme Court upheld the validity of the 1st Amendment. The Court rejected the contention and limited the scope of Art. 13 by ruling that the word ‘Law’ in Art. 13 would not include within its compass a constitution amending law passed under Art. 368. The Court stated on this point: “we are of the opinion that is the context of Art. 13 laws must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Art. 13(2) do not affect amendments made under Art. 368.”
The Court held that the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution without any exception. The fundamental rights are not excluded or immunized from the process of constitutional amendment under Art. 368. These rights could not be invaded by legislative organs by means of laws and rules made in exercise of legislative powers, but they could certainly be curtailed, abridged or even nullified by alterations in the Constitution itself in exercise of the constituent power.
There is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Both Article 13 and 368 are widely phrased and conflict in operation with each other. To avoid the conflict, the principle of harmonious construction should be applied. Accordingly, one of these Articles ought to be read as being controlled and qualified by the other. In the context of Article 13, it must be read subject to Art. 368. Therefore, the word ‘law’ in Art. 13 must be taken to refer to rules and regulations made in exercise of ordinary legislative power, and not to constitutional amendments made in the exercise of the constituent power under Art. 368 with the result that Art. 13(2) do not affect amendments made under Art. 368. The Court, thus, disagreed with the view that the fundamental rights are inviolable and beyond the reach of the process of constitutional amendment. The Court, thus, ruled that Art. 13 refer to a “legislative” law that is an ordinary law made by a legislature, but not to a constituent law that is a law made to amend the constitution. The Court thus held that Parliament could by following the ‘procedure’ laid down in Art. 368 amend any fundamental right.
Again in Sajjan Singh’s case this issue came up. But the Supreme Court in this case ruled by majority of 3:2 that the “pith and substance” of the Amendment was only to amend the fundamental right so as to help the State Legislatures in effectuating the policy of the agrarian reform. The conclusion of the Supreme Court in Shankari Prasad’s case as regards the relation between Arts. 13 and 368 was reiterated by the majority. it felt no hesitation in holding that the power of amending the Constitution conferred on Parliament under Art. 368 could be exercised over each and every provision of the Constitution. The Court refused to accept the argument that fundamental rights were “eternal, inviolate, and beyond the reach of Art. 368.”
(2.) Whether Fundamental Rights can be amended or not?
No earthly wisdom can foresee every possible situation which may have to be faced in future. Nothing may remain static in the world. Nature demands change. A political society undergoes changes with the passage of time. To face new problems and challenges changes and modifications are called for in all aspects of national life. It is therefore, impossible to make a constitution which can satisfy the needs of the people for all times to come. Changing circumstances will require modification of constitutional provisions. A constitution that denies the right to amend it is likely to be destroyed and replaced by the succeeding generations. It is therefore wise to provide for a mechanism to change the constitution in the Constitution itself. That is why every modern constitution provides for a machinery or process to amend its provisions. The framers of the Indian Constitution provided for a process which is neither too rigid nor too flexible. Article 368 specially deals with amendments but some other Articles in the Constitution provide for amendments by ordinary legislative process.
Views of Pandit Jawaharlal Nehru supporting the amending provisions:
“That while we want this constitution to be as solid and as permanent as a structure we can make it nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop the Nation’s growth, the growth of a living, vital organic people……
But in any event, we should not make a Constitution such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, 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.”
In Shankari Prasad’s case soon after the 1st Amendment was made, a controversy arose as to whether fundamental rights could be amended by procedure prescribed in Article 368. The validity of the 1st Amendment was considered by the Supreme Court in Shankari Prasad v. Union of India. It was argued that Article 13 prohibited enacting a law infringing or abrogating the fundamental rights. A law amending the Constitution must conform to Article 13. So the amendment Act is void as violating Article 13. But the Supreme Court did not accept the argument. It held that Article 13 is not applicable to Acts which amend the Constitution. Article 368 permits the Parliament to amend any provision of the Constitution. In 1965 in Sajjan Singh’s case the SC adhered to the judgment given in the Shankari Prasad’s case. After referring to the reasoning given in Shankari Prasad's case the learned Chief Justice observed:
“In our opinion, the expression "amendment of the Constitution" plainly and unambiguously means amendment of all the provisions of the Constitution."
Referring to Art. 13 (2), he restated the same reasoning found in the earlier decision and added that if it was the intention of the Constitution-makers to save fundamental rights from the amending process they should have taken the precaution of making a clear provision in that regard. In short, the majority, speaking through Chief Justice Gajendragadkar, agreed that no case had been made out for reviewing the earlier decision and practically accepted the reasons given in the earlier decision. Many judges have stated that Parliament had the power to amend any or all provisions of the Constitution. Also Article 368 contained both the power and procedure for amending the Constitution. However those Judges were clear that an amendment to the Constitution was not the same as a law as understood by Article 13(2). Justice Ray held that all parts of the Constitution were essential, and no distinction could be made between its essential and non-essential parts.
