Amendability of the Fundamental Rights

Article 368 of the Constitution provides for the power of the Parliament as also the method of amending the Constitution. Unless otherwise provided and also if the amending proposal does not relate to certain articles, parts, chapters, schedules as indicated in Article 368, the procedure of amendment of all the remaining Articles, including Part III of the Constitution containing the fundamental rights, (parts, chapters, and schedules including) is:

  • an amending proposal can be initiated in either House of the Parliament;
  • such a proposal has to be passed by each House;
  • such a proposal has be passed by majority of the total membership of each House;
  • such a proposal has also to be passed by a majority of not less than two-thirds of the members of each House present and voting;
  • the President has no option but to give his assent on such a proposal passed as by the Parliament;
  • the Constitution does not make any provision for a joint meeting in case there is a deadlock on the amending proposal.

It is only for amending those provisions, as indicated in Article 368, that the ratification of not less than one-half of the States is required and not for all other amending proposals For over twenty years, the power of the Parliament, though not explicitly stated in Article 368, to amend the Constitution, including fundamental rights, was not challenged. In Golaknath v. State of Punjab—1967, the apex court held the view that the Parliament, not to speak of amending the fundamental rights, has no power to amend the Constitution, for, the decision of the Supreme Court stated that, Article 368 only gives the procedure of amendment, and not the power of the Parliament to amend the Constitution.

“The Parliament, through 24th amendment (1971) helped remove the difficulties created by the Golaknath Case. “The Parliament through 42nd amendment (1976), (despite the support given by Kesavananda case, 1973) sought to ensure its position vis-à-vis the judiciary by having for itself the unlimited power to amend the Constitution and securing amendments beyond judicial scrutiny. But the Supreme Court, rallying behind the Kesavananda verdict, in the Minerva Mills case (1980), agreed to the Parliament’s constituent power to amend the Constitution including fundamental rights, kept the Parliament out of domain in respect of basic structures, amendments including.

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