CONSTITUTION AND ITS AMENDABILITY- INDIAN CONTEXT

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1 CONSTITUTION AND ITS AMENDABILITY- INDIAN CONTEXT Mohit Sharma 1 The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government. - Patrick Henry INTRODUCTION Amendment means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution. Constitution is the supreme law of the land which is fundamental in the governance of the country. It being the fundamental law, it can t be changed by the ordinary procedure for amending ordinary laws. Unless it is to forfeit its character as the fundamental law, it should be amendable only by a special procedure, which in case of the Constitution of India is given under part XX viz. Art.368. It is a well settled principle that a Constitution and its provisions can t be constructed in the same manner in which any other statute can be constructed. Generally, while constructing the other statutes, the natural and grammatical meaning is taken into consideration. Whereas, to construct the Constitution a bit flexible approach is taken into consideration. Art. 367 given under part XIX, says that the general clauses act, 1897 will apply for the interpretation of the constitution, unless the context otherwise requires. HISTORY The nature of the amending process envisaged by the makers of our Constitution can be best explained by referring to the observation of Pandit Nehru, that the Constitution should not be so rigid that it can t be adapted to the changing needs of national development and strength. 2 There was also a political significance in adopting a facile procedure for amendment, namely, that any popular demand for changing the political system should be capable of realisation, if it assumed a considerable volume. In the words of Dr. B.R. Ambedkar, explaining the proposals for amendment introduced by him in the Constituent Assembly. Those who are dissatisfied with the Constitution have only to obtain in two-thirds majority, and if they cannot obtain even a two-thirds majority in the 1 Advocate, High Court of Himachal Pradesh, Shimla. 2 Quoted under Reconciliation of a written Constitution with Parliamentary Sovereignty 1 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

2 Parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public. Elements of flexibility were therefore imported into a Federal Constitution which is inherently rigid in its nature. According to the traditional theory of federalism, either the process of amendment of the Constitution is entrusted to the body other than the ordinary Legislature or a special procedure is prescribed for such amendment in order to ensure that the federal compact may not be disturbed at the will of one of the parties of the federation, viz., the federal legislature. But, as has been explained at the outset, the framers of our Constitution were also inspired by the need of the sovereignty of the Parliament elected by universal suffrage to enable it to achieve a dynamic national progress. PROCEDURE FOR AMENDMENT Art. 368 reads thus: 368. Power of Parliament to amend the Constitution and procedure therefor- Notwithstanding anything in this Constitution,- (1) Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by majority 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, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in; (a) (b) (c) Article 54, article 55, article 73, article 162 or article 241, or Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or Any of the Lists in the Seventh Schedule, or 2 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

3 (d) (e) The representation of States in Parliament, or The provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than onehalf 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 this Article 13 shall apply to any amendment made under this article. [(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article.] They, therefore, prescribed an easier mode for changing those provisions of the Constitution which did primarily affect the federal system. This was done in two ways; I. By providing that the alteration of certain provisions of the Constitution were not to be deemed to be amendment of the Constitution. The result is that such provisions can be altered by the Union Parliament in the ordinary process of legislation, that is, by a simple majority. II. Other provisions of the Constitution can be changed only by the process of amendment which is given under part XX, Art But a differentiation has been again made in the procedure for amendment, according to the nature of the provisions sought to be amended. GENERAL FEATURES OF THE AMENDING PROCEDURE The amending process prescribed by our Constitution has certain distinctive features as compared with the corresponding provisions in the leading Constitutions of the world. The procedure for amendment must be classed as rigid insofar as it requires a special majority and, in some cases, a special procedure for amendment as compared with the procedure prescribed for ordinary legislation. But the procedure is not as complicated or difficult as in the U.S.A. or in any other rigid Constitution: 3 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

4 (a) (b) (c) Subject to the special procedure laid down in Art. 368, our Constitution vests constituent power upon the ordinary legislature of the Union, i.e., the Parliament (of course, acting by a special majority), and there is no separate body for amending the Constitution, as exists in some other Constitutions (e.g., a Constitutional Convention). The State Legislatures cannot initiate any Bill or proposal for amendment of the Constitution. The only mode of initiating a proposal for amendment is to introduce a Bill in either House of the Union Parliament. Subject to the provisions of Art. 368, Constitution Amendment Bills are to be proved by the Parliament in the same way as ordinary Bills. In other words, they may be initiated in either House, and may be amended like other Bills, subject to the majority required by Art But for the special majority prescribed, they must be passed by both the Houses, like any other Bill. DOCTRINE OF BASIC STRUCTURE The concept of basic structure giving coherence and durability to a Constitution has a certain intrinsic force. The idea of explicit limits on the constitutional amendment power in the form of unamendable provision is not novel. It already appeared in state Constitutions in the 18th and 19th centuries. 3 Apart from the notion that the amendment power could be subject to limits expressed in the Constitution, another theory, rooted in German, French and American origins, is that the amendment power by its very nature as a creature of the Constitution is substantively limited. 4. This development is the emergence of the constitutional principles in their own right. Acc. to Schmitt, the amendment process is designed for textual change of constitutional provisions that nonetheless preserve the Constitution, but not revisions to the fundamental political decisions forming the substance of the Constitution. The authority to amend the constitution means that other constitutional provisions can substitute for individual or multiple ones. They may do so, however, only under the presupposition that the identity and continuity of the Constitution as an entirety is preserved. The authority for constitutional amendment contain only the grant of 3 See e.g., the Constitution of New Jersey (1776), Art.23; The Delaware Constitution (1776) Art. 30; US Federal Constitution, Art. V; The Constitution of the Swiss Helvetic Republic (1798), Art.2; The Constitution of Mexico (1824), Art.171; The Constitution of Peru (1839), Art. 183; The French Constitution (1875), as amended in 1884, Art.8(3). 4 See e.g. Thomas M. Cooley, The Power to Amend the Federal Constitution, 2 MICH. L.J. 109, (1893); Kemal Gozler, Le Pouvoir De Revision Constitutionnelle (These, Faculte de droit de University Montesquieu- Bordeaux IV, 1995). 4 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

5 authority to undertake changes, additions, extensions, deletions, etc., in constitutional provisions that preserve the constitution itself. It is not the authority to change the particular basis of this jurisdiction for constitutional revisions. 5 The doctrine of basic structure is a set of obvious inferences relating to the interests of the Constitution makers arrived at by applying the established cannons of construction broadly. 6 The Full bench in Keshavananda Bharti v. St. of Kerala, 7 thus sacrificed the Fundamental Rights before the altar of the amending power, it introduced a novel and amorphous sphere of entrenchment, by judicial interpretation, by inventing the doctrine of basic feature of the Constitution as constituting implied limitations upon the amending power conferred by Art The advocates of doctrine of basic feature in Keshavananda Case 8 relied upon it as one of the faggots to erect that novel doctrine. The untenability of this position can be best expressed in words of Beg C.J. in St. of Karnataka v. Union of India, 9 where he observed; We cannot overtook that Kesavananda Bharati s case where the very majority of learned Judges of this Court which rejected the theory of limited implied limitation upon express plenary legislative powers of constitutional amendment, accepted, we say so with the utmost respect, limitations which appealed to be not easily distinguishable from implied limitations upon plenary legislative powers even though they were classes as parts of the basic structure of the Constitution. Throughout the world nations have declared that certain provisions or principles in their constitutions are inviolable (para 111). Other countries having a controlled Constitution, like Germany, have embraced the idea that there is a basic structure to the constitutions and in doing so have entrenched various rights as core constitutional commitments. India s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution (para 113). The history of the emergence of the modern democracy has also been the history of securing basic rights for the people of other nations also. In the United States the Constitution was finally ratified only upon an understanding that a Bill of Rights would be immediately added guaranteeing certain basic freedoms to its citizens. At about the same time when the Bill of rights was being ratified in America, the French Revolution declared the Rights of Man to Europe. When the death of colonialism and the end of World War II birthed new nations across the globe, these States embraced rights as 5 Carl Schmitt, Constitutional Theory 150 (Duke University Press and London, 2008). 6 P Ramanatha Aiyar s, The law Lexicon (3rd ed., 2012). 7 AIR 1973 SC Ibid 9 AIR 1978 SC 68 5 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

6 foundations to their new constitutions. Similarly, the rapid increase in the creation of constitutions that coincided with the end of the Cold War has planted rights at the base of these documents (para 110). Even countries that have long respected and upheld rights, but in whose governance traditions did not include their constitutional affirmation have recently felt they could no longer leave their deep commitment to rights left unstated. In 1998, the U.K. adopted the Human Rights Act which gave explicit effect to the European Convention on Human Rights. In Canada, the Constitution Act of 1982 enshrined certain basic rights into their system of governance (para 111). Articles 14, 19 & 21 represent the foundational values which forms the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. If, in future, judicial review was to be abolished by a constitutional amendment, as LORD STEYN says, the principle of parliamentary sovereignty even in England would require a relook. This is how the law has developed in England over the years. It is in such cases the doctrine of basic structure has to apply. 10 BASIS OF THEORY OF BASIC STRUCTURE The theory of basic structure is based on the theory of constitutional identity. The basic structure jurisprudence is a preoccupation with constitutional identity. The Supreme Court has observed that one cannot legally use the Constitution to destroy itself. It further observed that the personality of the Constitution must remain unchanged. Therefore, the Supreme Court while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. The word amendment postulates that the old Constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day (para 28). The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code of giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged (para 35). To determine whether a particular feature of the Constitution is a part of its basic structure, the working test is to be applied. The sad test is as follows, one has perforce to examine in each 10 I.R. Coelho v. State of T.N. (2007) 2 SCC 1 (paras 110,111 and 113) 6 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

7 individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country s governance (para 37). 11 THE PRESENT STATE OF THE DOCTRINE OF BASIC FEATURE After the re-affirmation and extension of the applicability of the doctrine of basic structure or basic feature in the Minerva Mills case, 12 it is now evident that so long as the decision in Kesavananda Bharati s case 13 is not overturned by another Full Bench of the Supreme Court (i.e. 13 Judges Bench), any amendment of the Constitution is liable to be interfered with by the Court on the ground that it affects one or other of the basic features of the Constitution. One post Kesavananda development of the doctrine is that Court has declined to foreclose the list of the basic features as suggested by different Judges in the Kesavananda case. In Indira Nehru Gandhi v. Raj Narain, 14 the S.C. observed that the claim of any particular feature of the Constitution to be a basic feature would be determined by the Court in each case that comes before it. In the result, it is impossible for those responsible for amending the Constitution to guess what surprise lies in store for them before the Supreme Court. So far, quite a multitude of features have been acknowledged as basic by different Judges, individually, in different cases, though there is no consensus as regards each of them, in particular; (a) Supremacy of the Constitution. 15 (b) Rule of law. 16 (c) The principle of Separation of Powers. 17 (d) The principle behind fundamental rights. 18 (e) The objectives specified in the Preamble to the Constitution M. Nagaraj v. Union of India (2006) 8 SCC 212 (paras 28,35 and 37) 12 AIR 1980 SC Supra, p 5 14 AIR 1975 SC S.R. Bommai v. Union of India (1994) 3 SCC 1 16 RajNarain (Ibid) 17 Bommai (Ibid) 18 Kesavanada Bharati v. St. of Kerala (1973) 4 SCC 225 ; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 19 Kesavananda (Ibid) 7 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

8 (f) Judicial Review; 20 Art.32, 21 Arts. 226/ (g) Federalism. 23 (h) Secularism. 24 (i) The sovereign, 25 democratic, 26 republican 27 structure. (j) Freedom and dignity of the individual. 28 (k) Unity and integrity of the Nation. 29 (l) The principle of equality; 30 not the very feature of equality, but the quintessence of equal justice. 31 (m) The rule of equality in public employment. 32 (n) The essence of other Fundamental Rights in Part III. 33 (o) The concept of social and economic justice- to build a welfare State; 34 Part IV in toto. 35 (p) The balance between Fundamental Rights and Directive Principles. 36 (q) The principle of free and fair elections. 37 (r) Limitations upon the amending power conferred by Art Kesavananda (Ibid) 21 Minerva Mills v. Union of India AIR 1980 SC L. Chandra Kumar v. Union of India (1997) 3 SCC Bommai (Ibid) ; I.C. Golak Nath v. St. of Punjab (1967) 2 SCR Bommai (Ibid) ; RajNarain (Ibid) 25 RajNarain (Ibid) ; Indira Sawhney v. U.O.I. (1992) Supp. (3) SCC 217 (para 339) 26 R.C. Poudyal v. Union of India (1994) Supp. (1) SCC 324 (paras 116, 701, 702) 27 Poudyal (Ibid) ; U.O.I. v. Association for Democratic Reforms (2002) 5 SCC 294, 309 (para 21) 28 Bommai (Ibid) 29 Kesavananda (Ibid) 30 Raghunathrao v. Ganpatrao v. U.O.I. AIR 1993 SC Raghunathrao (Ibid) 32 Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 (para 43) 33 Waman Rao v. Union of India AIR 1981 SC Bhim Singhvi v. Union of India (1981) 1 SCC 166 (paras 18 anad 82) 35 Bhim Singhji (Ibid) 36 Minerva Mills v. Union of India (paras 31,59,61,62) AIR 1980 SC Kihota Hollohan v. Zachilhu, AIR 1993 SC 412 ( paras 18, 46, 104) 38 Minerva Mills v. Union of India, (paras 22,91) AIR 1980 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

9 (s) Independence of the judiciary 39 ; but within the four corners of the Constitution and not beyond that. 40 (t) Independent and efficient judicial system. 41 (u) Powers of the Supreme Court under Arts. 32,136,141, (v) Effective access to justice. 43 Parliamentary democracy and multi party system are an inherent part of the basic structure of the Indian Constitution. 44 The difference between the original and derived power is the basis of the doctrine of basic structure. 45 The mere fact that equality, which is a part of the basic structure, can be excluded for a limited purpose, to protect certain kinds of laws does not prevent it form being part of basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure- rule of law, separation of powers-the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure. 46 Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act would be violative of the basic feature of the Constitution. 47 On the other hand, the following amendments have been held not to destroy or damage the basic structure or basic feature of the Constitution: 39 Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441 (paras 53ff, 329, 331 ; Supreme Court Advocates on Record Association v. Union of India, Writ Petition (Civil) No. 13 of Registrar (Administration) v. Sisir Kant Satyapathy, (1999) 75 SCC 725 (paras 1 and 2) 41 All India Judge s Assn. v. Union of India, (2002) 4 SCC 247, (para 25) 42 Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176 (para 37) 43 Central Coal Fields v. Jaiswal Coal Co., AIR 1980 SC 2125 (para 2) 44 Kuldip Nayar v. Union of India (2006) 7 SCC 1,153 (para 452) 45 Kuldip Nayar v. Union of India (2006) 7 SCC 1,72 (para 124) 46 I.R. Coelho v. St. of T.N., (2007) 2 SCC 1,105 (para 130) 47 G.C. Kannungo v. St. of Orissa (1995) 5 SCC 96 (para 28) 9 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

10 (a) (b) (c) (d) (e) (f) (g) The insertion of Art. 31A by the Constitution (1st Amendment) Act,1951, because, instead of damaging the principle of equality, these amendments strengthen that basic feature, by removing inequalities in the matter of agricultural holdings. 48 Even though Parliamentary democracy is a basic feature of our Constitution, the right and immunities under Art. 105 (2) cannot be elevated into the status of fundamental rights or basic feature so as to invalidate a Constitutional Amendment (by inserting the Xth Sch.) for the purpose of condemning defection. 49 The amendment of Art. 334 by the 45th Amendment Act, 1978, extending the reservation for Scheduled Castes, Scheduled Tribes and Anglo- Indians in the Legislatures. 50 The amendment of para 6(2) of the 5th Sch. [inserting Cl. (aa)], by the Fifth Schedule to the Constitution (Amendment) Act, the Vth Sch. is only a temporary provision and even the procedure laid down in Art.368 is not required to amend it. 51 The insertion of Art. 239A (by the Constitution 14th Amendment Act, 1962), prescribing a partly elected and partly nominated Legislature for the Union Territories,-because provision for such nomination, in view of different historical, regional or administrative reasons, existed in the original Constitution itself [e.g. Arts. 240, 331, 81, 171(3)(e)]. 52 Arts. 291, 362, 366(22) relating to the ex-rulers of Indian States were not intended to form a basic structure of the Constitution. Hence, the Constitution (26th Amendment) Act, 1971, by which these provisions were abolished, cannot be challenged as changing the basic structure of the Constitution; on the other hand, these privileges were incompatible with the republican and egalitarian forms which are essential features of our Constitution (paras 92,96). 53 The insertion of Art. 323A (by the Constitution 42nd Amendment Act, 1976), which takes away the jurisdiction of the High Courts and the Civil Courts to decide service matters, because that jurisdiction of the Courtesies replaced of the Courts is replaced by that of an 48 Waman Rao v. Union of India, AIR 1981 SC 271 (para 15) 49 Kihota Hollohan v. Zachilhu, AIR 1993 SC 412 (paras 18,46,104) 50 Vichitra Banwarilal Meena v. Union of India, AIR 1982 Raj. 297 (paras 15, 21, 52, 53) 51 2nd Judges Case, Supra p Sambhamurthy T. v. State of A.P., AIR 1987 SC 663 (paras 4-5) 53 Raghunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267 (paras 96, 176, 185, 186) 10 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

11 Administrative Tribunal which is a complete substitute of the High court, being competent to decide any question and grant any relief which the High Court could. 54 (h) (i) (j) In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the width test and the test of identity. The width test means boundaries of the width of power and the test of identity means no alteration in the existing structure. In applying, the width test, it is seen whether the impugned amendments obliterate the constitutional limitations and in applying the test of identity ; it is seen whether the circumstances justifying the same have been identified and valued. 55 Every amendment to the Constitution whether it be in form of amendment of any article or amendment by insertion of an Act in the Ninth Schedule, has to be tested by reference to the doctrine of basic structure. 56 The development made in the filed of constitutional interpretation and expansion of judicial review shall have to be kept in view while deciding the applicability of the basic structure doctrine- to find out whether there has been violation of any fundamental right, the extent of violation, does it destroy the balance or it maintains the reasonable balance. 57 BASIC FEATURE OF CONSTITUTION NOT AMENDABLE There are certain basic features of the Constitution, as above mentioned, which cannot be altered in exercise of power to amend it, under Art If, therefore, a Constituent Amendment Act seeks to alter the basic structure or framework of the Constitution, the Court would be entitled to annul it on ground of ultra vires, because the word amend in Art.368, means only changes other than altering the very structure of the Constitution, which would be tantamount to making a new Constitution. Article 31C, which was introduced by S.3 of the 25th Amendment Act, provided; (a) That if any law seeks to implement the Directive Principle contained in Art. 39(b)-(c) i.e., regarding socialistic control and distribution of the material resources of the country, such law shall not be void on the ground of contravention of Art. 14 or 19; 54 S.P. Gupta v. Union of India, AIR 1987 SC 386 (paras 3,15); L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 (para 99) 55 M. Nagaraj v. Union of India (2006) 8 SCC 212 (paras 102 and 117) 56 I.R. Coelho v. St. of T.N. (2007) 2 SCC 1, 106 (para 133) 57 I.R. Coelho v. St. of T.N. (2007) 2 SCC 1, (para 50) 11 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

12 (b) it further provided that if anybody challenges the constitutionality of any such law, the Court would be precluded from entering even into the preliminary question, namely, whether such law is, in fact, a law, giving effect to Art. 39(b) or (c), if on the face of the Act, there was a declaration of the Legislature that it is for giving effect to such Directive policy. In other words, by adding a declaration to an Act, the Legislature was empowered by the 25th Constitution Amendment Act, to deprive the Courts of their power to determine the validity of the Act on the ground that it contravened some provision of the Constitution. The majority held that Art. 368 did not confer any such power to take away judicial review, in name of amending the Constitution. The foregoing view of the majority in Keshavananda case as to basic features is debatable inasmuch as there is no express limitation upon the amending power conferred by Art. 368(1). If it is supposed that there are some implied limitations; it is difficult to appreciate how the Court, after holding that the Fundamental Rights did not constitute such inviolable part of the Constitution, could come to the conclusion that judicial review, which is an adjunct on Fundamental Rights, could be so considered. It would, therefore, be no wonder if another Full Bench of the Supreme Court comes to overturn this view in Keshavananda case, on the grounds; That Art. 368(1), as it stands amended in 1971, makes it clear that not only the procedure, but also the power to amend the Constitution is conferred by Art.368 itself and cannot be deprived from somewhere else, such as Art Hence, the limitations, if any, upon the amending power must be found from Art. 368 itself and not from any theory of implied limitation; That the word repeal in Art. 368(1) also makes it clear that amendment under Art. 368, includes a repeal of any of its provisions, including any supposed basic or essential provisions. That the Constitution of India makes no distinction between amendment and total revision, as do some other Constitutions, such as the Swiss. Hence, there is no bar to change the whole Constitution, in exercise of the amending power, which is described as the constituent power [Art.368(1)] and that, accordingly, it would not be necessary to convene a Constituent Assembly to revise the Constitution in toto. HOW CAN THE EXISTING CONSTITUTION OR ITS BASIC FEATURES BE REPLACED 12 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

13 The 1949 Constitution may be replaced by an altogether new Constitution, if need be; or if a basic feature, such as Parliamentary system of Government, may be replaced by the Presidential system. Three modes have been suggested so far- (a) (b) (c) Revolution. Parliament converting itself into a Constituent Assembly. Referendum. So far as revolution is concerned, it is out of context. Further, as Khanna, J. himself observed, it was to avoid revolution that a provision for amendment is included in a written Constitution. 58 As far as Constituent Assembly is concerned, a Constituent Assembly could have been set up by amending Art. 368 itself. But the majority in the Minerva Mills case, 59 held that the limited nature of the amending power in Art. 368 is itself one of the basic features of the existing Constitution so that Parliament cannot enlarge its own powers by making itself a new Constituent Assembly. Any such amendment of Art. 368 or ordinary law made by Parliament would be unconstitutional, acc. to Minerva mills. Hence, before taking any step in this direction, the decision in Minerva Mills should be got rid of by submitting it to review by another Constitution Bench, or by placing the specific question to a larger Bench than 5 Judges. As regards Referendum, however, the decision in Minerva Mills case, would not stand in the way, inasmuch as a referendum to the verdict of the people would be no enlargement of the amending power of Parliament itself. CONCLUSION As Andre Gide said, Everything has been said already, but as no one listens, we must always begin again. The framers of Indian Constitution adopted the British model of parliamentary government because Independent India is a product of the most massive freedom movement. Hence it could be a mass democracy, based on universal adult franchise. However they did not make it a sovereign law making body like its English counterparts. They placed supremacy in the hand of legislature, but it had to be restricted because unlike Great Britain, India has a lengthy written Constitution, a federal distribution of powers and a list of fundamental rights. Therefore parliamentary law to be valid must 58 Kesavanada Bharati v. St. of Kerala AIR 1973 SC 1461(para 1410) 59 Minerva Mills v. Union of India AIR 1980 SC P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW

14 confirm in all respects with the constitution. As a student of Constitutional Law, let me say this that we have a Constitution which has two trusteeship i.e., trusteeship to the political texts (Parliament) and the trusteeship to the judicial text (Judiciary). Judiciary, as I understand plays a far more important role than any of its counterpart, because not only it interprets the law, but it also checks the validity of those laws to maintain the peace and harmony in the State. 14 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW