'Life of Man itself is uncertain so every modification cannot help him, but he has to follow one settled principle that way came the purpose of Nation Building on a firm foundation - that foundation is the very Constitution of a Country - Never modify the principle of Rule of Law - Obviously you can't always go on run for Constitutional Amendments - that way was built is the Art 368 in the Indian Constitution, by the Constituent Assembly by introducing - Fundamental Rights in Part III of the very Constitution of India' - Guru Balakrishnan, a philosopher of Laws.
You read 'Power of Parliament to amend the constitution
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 being 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
(3) Nothing in Article 13 shall apply to any amendment made under this article) is 'limited is obvious'.
It could mean, you as parliament cannot interfere with Part III, a vital part of the Indian Constitution. Obviously, Parliament misused the power of constitutional amendment not valid on Part III, well highlighted by CJI Mr. S R Das, full bench in Champakam Doraiswany of Madras (1951) , -
'The directive principles of State policy laid down in Part IV the Constitution cannot in any way override or abridge the fundamental rights guaranteed by Part III. On the other hand they have to conform to and run as subsidiary to the fundamental rights laid down in Part III. A judgment of the Madras High Court affirmed.(Champakam Durairajan v St of Madras (1951)'
In that light Justice Mr. K. K. Mathew said in 'Kesawnanda Bharathi of Kerala' in his decent part of his judgement reads as under -
KK Mathew's opinion in Kesavananda Bharati is a mini-treatise on the use of jurisprudence in judicial lawmaking. Justice Mathew approached the question of amendment of the Constitution as a constitutionalist, expounding a written document of governance. He refused to accept that the makers of the Constitution ever intended that Fundamental Rights should be subservient to Directive Principles of State Policy; rather (he said) they visualised a society where rights in Part IV and aspirations in Part IV would co-exist in harmony - 'A succeeding generation might view the relative importance of the Fundamental Rights and Directive Principles in a different light or from a different perspective. The value judgment of the succeeding generations as regards the relative weight and importance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no answer to say that the relative priority value of the Directive Principle over Fundamental Rights was not apprehended, or even if apprehended was not given effect to when the Constitution was framed, or to insist that what the Directive Principles meant to the vision of that day it must mean to the vision of our time.'
Justice Mathew concluded that the 'only limitation to the amending power in the Constitution was that the Constitution could not be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the state was constituted and organized - 'that limitation flows from the language of the Article (Article 368) itself. I don't think there were or are any implied inherent limitations upon the power of Parliament under the Article.'
When you read with Art 13(1)(2) and(3) of Part III makes it amply clear -
It should mean, you can handle Part IV onwards (other than what is stated in Part III of the Constitution, if one can comprehend the Octopus Constitution of India.
So, it is clear any Constitutional amendment made under Art 368, other than on Part III of the Constitution of India, is tenable; otherwise all such Part III related ones are 'void abinito'. This aspect is not understood by the Indian Parliament from day one it sat as a 'parliament' under Mr Jawaharlal Nehru, so he brought about, in schedule IX in First amendment itself; but it (schedule IX) is declared 'void ab initio' by 2007 judgment in 'L.R. Coelho v state of TN' by a Constitutional bench headed by CJI. Mr Y.K. Sabharwal. If Parliament is to be respected it ought to repeal all constitutional amendments concerning Part III of the Indian constitution if not SCI would do the needful is my considered thought.
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Tags :Constitutional Law
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