Edited excerpt from the judgment
In order to find out whether Parliament has the power to take away or abridge any of the Fundamental Rights in exercise of its power under Article 368, we must first ascertain the true scope of that Article.
As seen earlier in Sankari Prasad’s case, Supreme Court ruled that the power to amend the Constitution is to be found in Article 368. The same view was taken by the majority of judges in Sajjan Singh’s case as well as in Golak Nath’s case. We respectively hold that view to be the correct view.
Article 368- Amendment of the Constitution
As mentioned earlier, Part XX of the Constitution which purports to deal with amendment of the Constitution contains only one Article, i.e. Article 368. The title of that Part is “Amendment of the Constitution.” The fact that a separate part of the Constitution is reserved for the amendment of the Constitution is a circumstance of great significance[1].
The provisions relating to the amendment of the Constitution are some of the most important features of any modern Constitution. All modern Constitutions assign an important place to the amending provisions. It is difficult to accept the view expressed by Subba Rao C.J. and the learned judges who agreed with him that the power to amend the Constitution is not to be found even by necessary implication in Article 368 but must be found elsewhere.
In their undoubtedly difficult task of finding out that power elsewhere they had to fall back on Entry 97 of List I. Lists I to III of the VIIth Schedule of the Constitution merely divide the topics of legislation among the Union and the States. It is obvious that these lists have been very carefully prepared. They are by and large exhaustive. Entry 97 in List I was included to meet some unexpected and unforeseen contingencies.
It is difficult to believe that our Constitution-makers who were keenly conscious of the importance of the provision relating to the amendment of the Constitution and debated that question for several days, would have left this important power hidden in Entry 97 of List I leaving it to the off chance of the courts locating that power in that Entry.
We are unable to agree with those learned judges when they sought to place reliance on Article 245, Article 246 and Article 248 and Entry 97 of List I for the purpose of locating the power of amendment in the residuary power conferred on the Union. Their reasoning in that regard fails to give due weight to the fact that the exercise of the power under those articles is “subject to the provisions of this Constitution”.
Hardly few amendments to the Constitution can be made subject to the existing provisions of the Constitution. Most amendments of the Constitution must necessarily impinge on one or the other of the existing provisions of the Constitution. We have no doubt in our minds that Article 245 to Article 248 as well as the Lists in the VIIth Schedule merely deal with the legislative power and not with the amending power.
Does power to amend Constitution resides in Article 368?
Now corning back to Article 368, it may be noted that it has three components;
Firstly, it deals with the amendment of the Constitution;
Secondly, it designates the body or bodies which can amend the Constitution, and
Lastly, it prescribes the form and the manner in which the amendment of the Constitution can be effected.
The Article does not expressly confer power to amend; the power is necessarily implied in the Article. The Article makes it clear that the amendment of the Constitution can only be made by Parliament but in cases falling under the proviso, ratification by legislatures of not less than one-half of the States is also necessary.
That Article stipulates various things. To start with, the amendment to the Constitution must be initiated only by the introduction of a Bill for that purpose in either House of Parliament. It must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting and if the amendment seeks to make any change in the provisions mentioned in the proviso, it must be ratified by not less than one-half of the State Legislatures.
Thereafter, it should be presented to the President for his assent. it further says that upon such assent being given to the Bill “the Constitution shall stand amended in accordance with the terms of the Bill”. To restate the position, Article 368 deals with the amendment of the Constitution. The Article contains both the power and the procedure for amending the Constitution. No undue importance should be attached to the marginal note which says “Procedure for amendment of the Constitution“.
Marginal note plays a very little part in the construction of a statutory provision. It should have much less importance in construing a Constitutional provision. The language of Article 368 to our mind is plain and unambiguous. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the marginal note does not negative the existence of the power implied in the Article.
Whether the power conferred under Article 368 is available for amending every provision
The next question is whether the power conferred under Article 368 is available for amending each and every provision of the Constitution. The Article opens by saying “An amendment of this Constitution” which means an amendment of each and every provision and part of the Constitution. We find nothing in that Article to restrict its scope. If we read Article 368 by itself, there can be no doubt that the power of amendment implied in that Article can reach each and every Article as well as every part of the Constitution.
Reference
Kesavananda Bharthi v. Union of India (1973)
[1] Don John Francis Douglas Liyanage and Ors. v. The Queen [1967] 1 A.C. 259 at 287 and State of U.P. v. Manbodhan Lal Srivastava [1958] S.C.R. 533 at 544