PCS-J Question: Can Parliament amend Part III of the Constitution of India relating to Fundamental Rights? Discuss Sonia Mishra PCS-J Question Sat, Dec 11, 2021, at ,01:54 PM Under Article 368 of the Constitution of India, the Parliament has been made empowered to amend the Constitution and by this Article, both power and procedure are established for Parliament to amend the Constitution. The amendment of the Constitution is very necessary because society is changeable and if the Constitution will be stable then the Constitution will become useless in society. It is the fact for remembering that the fundamental rule must be similar to the tendency of society. If the fundamental principle shall not be according to the tendency of society, there is always the possibility of revolution. In the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, it has been enunciated by the Supreme Court that "If no provision were made for the amendment of the Constitution, the people would be left with no remedy or means for adapting it to the changing need of times and would per force have recourse to extra-Constitutional methods of changing the Constitution". Amendment of fundamental rightsThe question of whether fundamental rights can be amended under Article 368, came for consideration first time in Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458. The Supreme Court has responded positively and said that Parliament is entitled to amend the Fundamental rights. In this case, the Constitution (First Amendment) Act, 1951, which amended the fundamental rights guaranteed under Part 3 of the Constitution, was challenged on the ground, it is violative of fundamental rights. It was alleged that Article 13 (2) prohibited the making of laws abridging fundamental rights, it prohibited such abridgement even by an amendment because an amendment was also a law. The Supreme Court rejected the contention and held that power to amend the constitution, including the fundamental rights, was contained in Article 368 and the word 'law' in Article 13 (2) did not include an amendment of the Constitution which was made in the exercise of Constituent and not legislative power. This interpretation was followed by the majority judgement in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. But in Golak Nath v. State of Punjab, AIR 1967 SC 1643, the Supreme Court overruled its decision in the aforesaid cases and held that the word 'law' in Article 13 (2) included every branch of law, statutory, constitutional, etc. and hence, if an amendment to the Constitution took away the fundamental right of citizens, the amendment would be declared void. The Chief Justice said that the fundamental rights are assigned transcendental place under our Constitution and, therefore, they are kept beyond the reach of Parliament. The Chief Justice applied the doctrine of Prospective overruling and held that this decision will have only applied prospective operation and therefore previous amendments will continue to be valid. Subsequently, in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, the Supreme Court overruled the Golak Nath case and it was unanimously held that the 24th Amendment which inserted clause (4) in Article 13 or clause (3) in Article 368 was valid and Fundamental rights could be amended under Article 368. However, the Majority of 7:6 was of the view that provisions affecting the basic structure of the constitution could not be amended. Now it is clear that the Constitutional amendment passed under Article 368 shall not be considered as law within the meaning of Article 13 and therefore cannot be challenged as infringing the provisions of part 3 of the constitution but the basic structure or framework of the constitution cannot be amended. In the case of Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299, the Supreme Court stated that the judicial review is the basic structure of the Constitution even though in the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, the judicial review, rule of law and Democracy, which implies free and fair election had already been held the basic structure. It has been held that the jurisdiction of the Supreme Court under Article 32 is the basic feature of the Constitution. In the Minerva Mill Ltd v. Union of India, AIR 1980 SC 1789 Supreme Court stated that " Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution"Shri Kumar Padam Prasad v. Union of India, (1992) 2 SCC 428, in this case, it has been declared that the Independence of the judiciary is the basic structure. Again in L.Chandra Kumar v. Union of India, AIR 1997 SC 1125, it has been held that the power of the High Court (Article 226) and the Supreme Court of India (Article 32) is an integral and essential feature of the Constitution and formed part of basic structure.In S. R. Bommai v. Union of India, (1994) 1 SCC 1, The Supreme Court held that Secularism is the basic structure of the Constitution. With the 42nd amendment to the Constitution, clauses (4) and (5) were added to Article 368, making it ineligible for the Supreme Court and the High Court to review it. In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, the Supreme Court found that these clauses were destructive of the basic structure of the Constitution and struck them down.