First Amendment to Constitution of India

COMMENTARY 42nd amendment, did try to arrogate to First Amendment to Constitution itself supreme unfettered powers to amend the Constitution. of India The introduction to the statement of objects and reasons for the amendment, laid on the table of the Lok Sabha on C K Mathew 1 September 1976, reads: Parliament and the State Legislatures em- India’s Constitution has been he 100th amendment to the Con- body the will of the people and the esse nce amended over a hundred times stitution was passed after due of democracy is that the will of the people process in Parliament, and was should prevail. Even though arti cle 368 of since its inception in 1950. The T the Constitution is clear and categoric with notifi ed on 28 May 2015 by the Ministry landmark amendments are regard to the all inclusive nature of the amend- of Law and Justice. The ame nd ment ena- ing power, it is considered necessary to put discussed with special emphasis bles the transfer of certain properties of the matter beyond doubt. It is proposed to on the fi rst amendment, which India to Bangladesh and certain other strengthen the presumption in favour of the properties of Bangladesh to India, there- constitutionality of legislation enacted by altered the way the freedom Par liament and State Legislatures by provid- by resolving an issue that was as old as of speech and expression was ing for a requirement as to the minimum independent India itself. It received the number of Judges for determining questions originally understood by the unanimous support of all political par- as to the constitutionality of laws and for a framers of the Constitution. ties, and was widely welcomed by the special majority of not less than two-thirds peoples of the two countries, especially for declaring any law to be constitutionally invalid. It is also proposed to take away the those living in the areas concerned, and jurisdiction of high courts with regard to de- those adjoining the transferred places. termination of Constitutional validity of Cen - Undoubtedly, India is the only country tral laws and confer exclusive jurisdiction in in the world with a written constitution this behalf on the Sup reme Court so as to that has been amended so many times in avoid multiplicity of proceedings with regard to validity of the same Central law in different the six and a half decades since its incep- high courts and the consequent possibility tion in 1950. The fact that the Constitu- of the Central law being valid in one State tion has indeed been amended a hundred and invalid in another State (The Constitu- times sometimes gives rise to two con- tion (Forty-Second Amendment) Act 1976). fl icting trends of thought. One school of Parliament achieved this purpose by thought derides the constant and unend- inserting a new article, namely, Article ing process by which the Constitution is 131A, after Article 131, which removed being mutated and, some would say, the powers of the high courts in matters m utilated, to suit the needs of the politi- related to validity of constitutional mat- cal party in power. Such criticism is ters and gave exclusive jurisdiction for o ften made with reference to the contro- the same to the Supreme Court. The new versial 42nd amendment brought in by article reads as follows: Indira Gandhi at the height of the Emer- Article 131A. Exclusive jurisdiction of the gency, when her powers were supreme. Supreme Court in regard to questions as to Yet others argue that the Constitution is the Constitutional validity of Central laws. a living document and must refl ect the (1) Notwithstanding anything contained in any other provision of the Constitution, the growing aspirations of the people of Supreme Court shall, to the exclusion of any I ndia from time to time. Hence, it is other court, have jurisdiction to determine a rgued that amendments to the Consti- all questions relating to the constitutional tution are not merely refl ective of such validity of any Central law. aspirations but also emphasise and Concurrently the 42nd constitutional translate the will of the people to carve amendment, through a new article, out their own destiny. Article 228A, also curtailed the powers of The procedure for such amendment is high courts by restricting their jurisdic- Views expressed are personal. laid out in Article 368 of the Constitu- tion over central laws; “Article 228 A(1). C K Mathew ([email protected]), retired tion and indeed can be said to protect No high court shall have the jurisdiction from the Indian Administrative Service, the sanctity of the Constitution as well to declare any Central law to be consti- was former Chief Secretary, Government of as to check the arbitrary power of tutionally invalid.” Rajasthan, and is presently Senior Fellow in Parliament. Nevertheless, it cannot be In order to ensure that Parliament re- the Public Affairs Centre, Bengaluru. denied that Parliament, through the mains supreme, Article 368 was suitably 20 may 7, 2016 vol lI no 19 EPW Economic & Political Weekly COMMENTARY amended by the insertion of the clauses Constitution would hold pre cedence, it of the First Amendment Bill reads as (4) and (5) as reproduced below: is now the right time to examine how the follows: Article 368 (4) No amendment of this Con- very fi rst constitutional amendment did During the last fi fteen months of the work- stitution... made or purporting to have been succeed in abridging the most valued of ing of the Constitution, certain diffi culties made under this article...shall be called in fundamental right of a citizen, namely have been brought to light by judicial decisions question in any court on any ground. that of freedom of speech. Of course, these and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s (5) For the removal of any doubts, it is here- actions took place before the contentious by declared that there shall be no limitation right to freedom of speech and expression whatever on the constituent power of parlia- issues brought to the fore by the 42nd guaranteed by Article 19 (1) (a) has been held ment to amend by way of addition, variation amendment. The fi rst constitutional by some courts to be so comprehensive as not or repeal the provisions in this Constitution amendment was brought in by the Gov- to render a person culpable even if he advo- under this article. ernment of India’s fi rst Prime Minister cates murder and other crimes of violence. In other countries with written constitutions, Indeed the promulgation of Emergency Jawaharlal Nehru in 1951. He moved freedom of speech and the press is not re- in the country was hugely unpopular and the bill on 12 May 1951 and the same garded as debarring the State from punish- its most controversial issue was the 42nd was enacted by the Provisional Parlia- ing or preventing abuse of this freedom. (The amendment. In time, judicial pronounce- ment of India (called thus until as when Constitution (First Ame ndment) Act 1951). ments restricted the power of Parlia- the full- fl edged Parliament was consti- ment for making constitutional amend- tuted through adult franchise in 1952) Colonial Censorship ments only in such cases as where the basic on 18 June 1951. From where did this concern arise? Be- structure of the Constitution is not altered. The fi rst amendment of the Constitu- fore we address this issue, it would be In this regard, we may in passing tion, offi cially known as the Constitution relevant to take a quick look at the vari- mention three judgments which addre- (First Amendment) Act, 1951, made sev- ous measures that were imposed by the ssed this contentious issue: eral changes to the Fundamental British government prior to independ- (i) The Golaknath v State of Punjab (AIR Rights provisions of the Constitution ence. This is necessary because it would 1967 SC 1643), where it was upheld that and other important provisions. It pro- give an idea of the kind of suppression of constitutional amendments through vided against abuse of freedom of speech speech and expression that the Indian Ar ti cle 368 were subject to fundamental and expression, validation of zamind- newspapers, and indeed the nationalist rights issue; ari abolition laws, and clarifi ed that movement, had to face against a foreign (ii) The Keshavananda Bharathi judgment the right to equality does not bar the en- government. (1973) 4 SCC 225, where the doctrine actment of laws which provide “special We are aware of the censorship that was espoused that the Constitution has a consideration” for weaker sections of so- the British government imposed on the basic structure of constitutional princi- ciety. The device of the Ninth Schedule people of India ever since the days of the ples and values and that the judiciary has to protect certain legislations from judi- fi rst war of independence, derisively re- the power to review and strike down cial review also found its origins in the ferred to by the British as a sepoy mutiny. amendments which confl ict with, or fi rst amendment. Immediately thereafter, a “Gagging Act” seek to alter, this basic structure of the In fact, this amendment set the prec- was passed by the new British govern- Constitution; and edent for amending the Constitution to ment that took over the reins of admi- (iii) The Minerva Mills Ltd and Ors v Union overcome judicial judgments which nistration of the country. Its aim was of India and Ors judgment (AIR 1980 SC purportedly impeded the fulfi lment of unabashedly to regulate the printing 1789), that applied and evolved the basic the government’s responsibilities to presses and restrain them from printing structure doctrine of the Constitution, particular policies and programmes.

Load more