Is there any order of precedence between various parts of Constitution?
Querist :
Anonymous
(Querist) 11 November 2010
This query is : Resolved
While interpreting the Constitution, if there is any doubt or conflict between various parts of Constitution, is there any order of precedence between various parts of the Constitution? If we say there is no order of precedence, then why is the need to mention the exceptions under Part III? Example: Article 13(4) says "Nothing in this article shall apply to any amendment of this Constitution made under article 368." In other words if there was no order of precedence, then the sentence of Article 13(4) could have been very conveniently mentioned in article 368 itself.
R.Ramachandran
(Expert) 11 November 2010
Dear Anonymous,
It is said that Half knowledge is always dangerous. This is what precisely happening in your case.
I don't think that you have even understood what the particular Article 13(4) really means.
If you have understood please tell and then I will give proper explanation to you.
aman kumar
(Expert) 11 November 2010
IT IS CLARIFICATION NOT CONFLICT !
Querist :
Anonymous
(Querist) 11 November 2010
@ Mr. R. Ramamchandran,
I appreciate your question to first understand the understanding of the querist in order to answer the query. As per my understanding on reading of the text of Article 368 it is conferring unlimited powers to Parliament to make any amendments(Article 13 will not be offended if Amendment done under Article 368)to the Constitution and Article 13(4) besides Article 368(3) is also confirming that. But as per interpretation of Supreme Court in Kesavananda Bharati v State of Kerala the power of Parliament under Article 368 is not an unlimited or unrestricted power and it does not entitle it to amend the Constitution in such a way as to alter or affect the basic structure of the Constitution. Personally I am in agreement with the view of Supreme Court otherwise having a written Constitution by a Constituent Assembly becomes unnecessary. My query can also be understood as what is the need for explicit clarification under Article 13(4) when similar clarification is already present in Article 368(3) or did the physical order of precedence of these Articles 13 & 368 played any role?
@ Mr. Aman kumar
It appears you have not understood my question. I am not saying that there IS a conflict or the clarification provided in the Constitution is a conflict. I am asking IF there is a conflict or doubt or lack of clarity about any articles of Constitution, does the physical order of precedence of Articles have any role in interpretation?
R.Ramachandran
(Expert) 11 November 2010
Dear Anonymous,
It is a double locking in the constitution.
Article 13(2) has a clear prohibition to the effect that (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the ontravention, be void.
But if any amendment is made by the parliament (Constitution Amendment Act) it falls under the realm of law. But if that particular Act has the effect of taking away or abridging any of the fundamental rights, then the Parliament would be prohibited from doing sucn an amendment. So, in order to avoid such a situation, Article 13(4) specifically excludes from the application of Article 13(1), (2) and (3) to the Constitutional Amendments.
Similarly, as a matter of abundant precaution even under Article 368(3) it has been made explicitly clear that Article 13 would have no application to the Constitutional Amendments made under Art. 368. This provision in Art. 368 was inserted at a later point of time.
I must clarify that in such matters the physical order of precedence of these Articles or Sections have no role to play and one is not superior to other. All have equal footing. The legal experts who draft these Articles do take extra pain and care to ensure that there is no internal conflicts between one Article and another.
I hope I have made myself clear.
I really enjoyed discussing this issue with you.
Querist :
Anonymous
(Querist) 12 November 2010
Of course you have made it abundantly clear! Thank you Mr. R. Ramachandran.
