Justice J.M. Shelat and Justice A.N. Grover

Preamble- The Guiding Light

The three main organs of government legislative, executive and judiciary and the entire mechanics of their functioning were fashioned in the light of the objectives in the Preamble, the nature of polity mentioned therein and the grand vision of a united and free India in which every individual high or low will partake of all that is capable of achievement.

It is pointed out on behalf of the petitioners that the scheme of Article 368 itself contains intrinsic pieces of evidence to give a limited meaning to the word “amendment”. Firstly, Article 368 refers to “an amendment of this Constitution”, and the result of the amendment is to be that “the Constitution shall stand amended”. As the Constitution has an identity of its own, an amendment, made under a power howsoever widely worded cannot be such as would render the Constitution to lose its character and nature.

Amendments cannot destroy the Identity of the Constitution

In other words, an amendment cannot be such as would denude the Constitution of its identity. The amending power is conferred on the two Houses of Parliament, whose identity is clearly established by the provisions in the Constitution. It must be the Parliament of the Sovereign Democratic Republic. It is not any Parliament which has the amending power, but only that Parliament which has been created by the Constitution. In other words, it must continue to be the Parliament of a sovereign and democratic republic.

The institution of States must continue to exist in order that they may continue to be associated with the amending power in the cases falling under the proviso. If the respondents are right, the proviso can be completely deleted since Article 368 itself can be amended. This would be wholly contrary to the scheme of Article 368 because two agencies provides for amending the provisions covered by the proviso.

One agency cannot destroy the other by the very exercise of the amending power. The effect of limitless amending power in relation to amendment of Article 368 cannot be conducive to the survival of the Constitution because the amending power can itself be taken away and the Constitution can be made literally unamendable or virtually unamendable by providing for an impossible majority.

Amending Body under Article 368 has not the Power of Constituent Assembly

While examining the above contentions, it is necessary to consider the claim of the respondents that the amending body under Article 368 has the full constituent power. It has been suggested that on every occasion the procedure is followed as laid down in Article 368 by the two Houses of Parliament and the assent of the President is given there is the reproduction of the functions of a Constituent Assembly. In other words, the Parliament acts in the same capacity as a Constituent Assembly when exercising the power of amendment under the said Article. This argument does not take stock of the admission made on behalf of the respondents that the entire Constitution cannot be repealed or abrogated by the amending body.

Indisputably, a Constituent Assembly specially convened for the purpose would have the power to completely revise, repeal or abrogate the Constitution. This shows that the amending body under Article 368 cannot have the same powers as a Constituent Assembly. Even assuming that there is reference on the nature of power between enacting a law and making an amendment, both the powers are derived from the Constitution.

The amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested. And if that power has limits, it can be exercised only within those limits.

The respondents have taken up the position that even if the power was limited to some extent under Article 368, as it originally stood, that power could be enlarged by virtue of Clause (e) of the proviso. It must be noted that the power of amendment lies in the first part of Article 368. What Clause (e) in the proviso does is to provide that if Article 368 is amended, such an amendment requires ratification by the States, besides the larger majority provided in the main part.

If the amending power under Article 368 has certain limits and not unlimited Article 368 cannot be so amended as to remove these limits nor can it be amended so as to take away the voice of the states in the amending process. If the Constitution makers were inclined to confer the full power of a Constituent Assembly, it could have been easily provided in suitable terms. If, however, the original power was limited to some extent, it could not be enlarged by the body possessing the limited power.

That being so, even where an amending power is expressed in wide terms, it has to be exercised within the framework of the Constitution. It cannot abrogate the Constitution or frame a new Constitution or alter or change the essential elements of the Constitutional structure. It cannot be overlooked that the basic theory of our Constitution is that “Pouvoir Constituent“, is vested in the people and was exercised, for and on other behalf by the Constituent Assembly for the purpose of framing the Constitution.

Procedural and or substantive limitations on the amending power

To say, as has been said on behalf of the respondents, that there are only two categories of Constitutions, rigid or controlled and flexible or uncontrolled and that the difference between them lies only in the procedure provided for amendment is an over- simplification. In certain Constitutions there can be procedural and or substantive limitations on the amending power.

The procedural limitations could be by way of a prescribed form and manner without the satisfaction of which no amendment can validly result. The form and manner may take different forms such as a higher majority either in the houses of the concerned legislature sitting jointly or separately or by way of a convention, referendum etc. Besides these limitations, there can be limitations in the content and scope of the power.

To illustrate, although the power to amend under Article 5 of the U.S. Constitution resides ultimately in the people, it can be exercised in either of the modes as might be prescribed by the Congress viz. through ratification by the State legislatures or through conventions, specially convened for the purpose. The equal suffrage in the Senate granted to each of the States, cannot be altered without the consent of the State.

The true distinction between a controlled and an uncontrolled Constitution lies not merely in the difference in the procedure of amendment, but in the fact that in controlled Constitutions the Constitution has a higher status by whose touch-stone the validity of a law made by the legislature and the organ set up by it is subjected to the process of judicial review.

Where there is a written Constitution which adopts the preamble of sovereignty in the people there is firstly no question of the law-making body being a sovereign body for that body possesses only those powers which are conferred on it. Secondly, however representative it may be, it cannot be equated with the people. This is especially so where the Constitution contains a Bill of Rights for such a Bill imposes restraints on that body, i.e. it negates the equation of that body with the people.

Amendment should not be against the intention of the Constitution Makers

The meaning of the words “amendment of this Constitution” as used in Article 368 must be such which accords with the true intention of the Constitution makers as ascertainable from the historical background, the Preamble, the entire scheme of the Constitution, its structure and framework and the intrinsic evidence in various Articles including Article 368.

It is neither possible to give it a narrow meaning nor can such a wide meaning be given which can enable the amending body to change substantially or entirely the structure and identity of the Constitution.

Inherent and implied limitations

They fall in two categories. In one category are those cases where limitations have been spelt out of Constitutional provisions; the second category consists of such decisions as have laid down that there is an implied limitation on legislative power.

Taking up the cases of the first category, before 1955, Article 13(2) was read as containing an implied limitation that the State could acquire property only for a public purpose. (The Fourth Amendment expressly enacted this limitation in 1955). It was observed in Charanjit Lal Chowdhauri v. The Union of India and Ors. [1950] S.C.R. 869 at p. 902 that one limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for a public purpose.

Mahajan J., (later Chief Justice) said in the State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors. [1952] S.C.R. 889 at p. 934 that the existence of a public purpose is undoubtedly an implied condition of the exercise of compulsory power of acquisition by the State. The power conferred by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose has been stated to contain the implied limitation that the new State must conform to the democratic pattern envisaged by the Constitution and the power which Parliament can exercise is not the power to override the Constitution.

The cases which fall in the second category are decidedly numerous. It has been consistently laid down chat there is an implied limitation on the legislative power; the legislature cannot delegate the essentials of the legislative function. Mukherjea J. (who later became Chief Justice) in Re. Delhi Laws Act 1912 case (1951) S.C.R. 747 at pp. 984-985 stated in clear language that the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and complete.

We are equally unable to hold that in the light of the Preamble, the entire scheme of the argument that the Nation cannot grow and that the objectives set out in the Preamble cannot be achieved unless the amending power has the ambit and the width of the power of a Constituent Assembly itself or the People themselves appears to be based on grounds which do not have a solid bask.

The Basic Structure of the Constitution

The Constitution makers provided for development of the country in all the fields social, economic and political. The structure of the Constitution has been erected on the concept of an egalitarian society. But the Constitution makers did not desire that it should be a society where the citizen will not enjoy the various freedoms and such rights as are the basic elements of those freedoms, e.g., the right to equality, freedom of religion etc., so that his dignity as an individual may be maintained.

The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure. (These cannot be catalogued but can only be illustrated).

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and sovereignty of the country.

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the executive and the judiciary.

5. The dignity of the individual (secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.

6. The unity and the integrity of the nation.

The entire discussion from the point of view of the meaning of the expression “amendment” as employed in Article 368 and the limitations which arise by implications leads to the result that the amending power under Article 368 is neither narrow nor unlimited.


Kesavananda Bharthi v. Union of India (1973)