Amendability of Fundamental Rights and Basic feature

Chronological Events

1. Before Golaknath case : The Supreme Court had been holding that no part of the Constitution was unamendable and that Parliament might, by passing a Constitution Amendment Act, in compliance with the requirements of Art. 368, amend any provision of the Constitution, including fundamental rights and Art. 368 itself.

Note : Some of the amendments of the Constitution so far made were effected with a view to superseding judicial pronouncements which had invalidated certain legislation on the ground of contravention of fundamental rights.

eg. - 1st Amendment Act, 4th Amendment Act

2. Golaknath Vs State of Punjab (1967) : The Supreme Court put an halt to the process of amending the fundamental rights through amending procedure laid down in Art. 368.

The Supreme Court held that the fundamental rights has been given a transcendental position by the Constitution, so that no authority functioning under the Constitution, including the Parliament exercising the amending power under Art. 368 was competent to amend the fundamental rights.

3. 24^th Amendment Act, 1971 : Art. 13 and Art. 368 were amended to make it clear that fundamental rights was amendable under the procedure laid down in Art. 368, thus over-riding the majority decision of the Supreme Court in Golaknath case.

4. Kesavananda Bharti case, 1973 : The majority decision upheld the validity of 24^th Amendment Act and also overruled Golaknath's case, holding that it is competent for the Parliament to amend fundamental rights under Art. 368. This case also laid down that there were implied limitations on the power to amend and that power cannot be used to alter the 'basic feature' of the Constitution.

Note : The judicially innovated doctrine of 'basic feature' can be eliminated only if a Bench larger than the 13-judge bench in Kesavananda's case be prepared to overturn the decision in that case.

5. 42^nd Amendment Act : Excluded judicial review of Art. 368

6. Minerva Mills case, 1980 : Cls. (4) and cls. (5) of Art. 368 has been invalidated as violation of the basic features of the Constitution because it excluded judicial review.

7. Current position : The Parliament can amend any part of the Constitution, including fundamental rights, but it cannot alter the basic feature. Though the Court had not defined it in precise terms but in a number of subsequent judgements, the Supreme Court has identified some of the concepts as basic features of the Constitution :- Supremacy of the Constitution, Republican and democratic form of government, secular character, separation of powers, judicial review, rule of law etc.