The amendability of Fundamental Rights in the Indian Constitution is a complex and carefully regulated process. While the Constitution provides for amendments to accommodate changing societal needs and circumstances, certain aspects, especially those related to Fundamental Rights, are safeguarded to maintain the core principles enshrined in the Constitution. The provisions related to Fundamental Rights are found in Part III (Articles 12 to 35) of the Constitution.
- Basic Structure Doctrine:
- The Supreme Court, in the landmark Kesavananda Bharati v. State of Kerala case (1973), established the “Basic Structure Doctrine.” According to this doctrine, while the Constitution can be amended, the basic structure and essential features of the Constitution cannot be altered. Fundamental Rights, being an integral part of the basic structure, are generally considered immune from arbitrary amendments.
- Article 13
- Article 13 of the Constitution plays a crucial role in safeguarding Fundamental Rights. It states that any law inconsistent with or in derogation of Fundamental Rights shall be void to the extent of the inconsistency. This provision acts as a check on the legislature’s power to amend Fundamental Rights.
- Article 368
- The procedure for amending the Constitution is laid down in Article 368. While this article empowers the Parliament to amend the Constitution, it does not explicitly state whether Fundamental Rights can be amended or not. However, subsequent judicial interpretations, especially in the context of the Basic Structure Doctrine, have provided limitations on the amendment power.
- 24th Amendment (1971)
- In response to judicial pronouncements, the 24th Amendment Act (1971) was enacted to assert the Parliament’s power to amend any part of the Constitution, including Fundamental Rights. The amendment clarified that the Parliament had the authority to amend the Constitution without any restrictions.
- Judicial Review
- The power of judicial review allows the judiciary to examine the constitutionality of amendments, including those related to Fundamental Rights. If an amendment is found to violate the basic structure or the essence of Fundamental Rights, the judiciary has the authority to declare it void.
- Limitations on Amendments
- While Fundamental Rights are not immune to amendments, any amendment that abrogates or takes away a Fundamental Right might be subject to strict scrutiny by the judiciary. Amendments that alter the basic structure or essence of Fundamental Rights may be struck down.
- Significant Amendments
- Some amendments have explicitly addressed Fundamental Rights, such as the 42nd Amendment (1976) and the 44th Amendment (1978). The 42nd Amendment expanded the government’s powers during emergencies but was subsequently amended by the 44th Amendment to restore certain Fundamental Rights that were curtailed.
- Consensus Requirement
- Given the sensitive nature of Fundamental Rights, amendments affecting them often require a broad consensus. Parliament must pass such amendments with a special majority, which means a two-thirds majority in both the Houses of Parliament.
In summary, while the Indian Constitution allows for amendments, the judiciary, through the Basic Structure Doctrine and the principle of judicial review, has set limits on the Parliament’s power to amend Fundamental Rights. Amendments that infringe upon the basic structure or essential features of the Constitution may be struck down by the judiciary to ensure the preservation of the core principles of justice, equality, and individual liberties.
