24th Constitutional Amendment Act 1971

Also called: 24th Constitutional Amendment Act · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Class 11, Ch 9 "Constitution as a Living Document"

Meaning

The 24th Constitutional Amendment Act, 1971 is the amendment that said Parliament can amend any part of the Constitution under Article 368, including the fundamental rights in Part III. It also said that such an amendment is not a "law" under Article 13, and that the President must give assent to an amendment bill once both Houses have passed it.

• Why it matters: it reversed Golaknath v. State of Punjab (1967) and set off the clash between Parliament and the judiciary.
• That clash ended in Kesavananda Bharati (1973). The Court upheld this amendment but also created the basic structure doctrine.

Explanation

Why Parliament passed it

• Art. 13(2) says the State cannot make a "law" that takes away or cuts down a fundamental right. A law that does this is void.
• Golaknath (1967) said an amendment is also a "law":
• So Art. 13(2) applied to amendments as well.

• This meant Parliament could not amend the Constitution to cut down fundamental rights.

• R.C. Cooper v. Union of India (1970), the Bank Nationalisation case, struck down parts of the 1969 law that nationalised 14 banks [3]. This added to the government's anger with the courts.

• The 1971 election gave the government a large majority. It used that majority to pass a series of amendments that reversed these judgments. The 24th was the first of them.

What the Act changed

• Art. 13(4) (new): nothing in Art. 13 applies to an amendment made under Art. 368 [2].
• Art. 368(1): Parliament may amend any provision "by way of addition, variation or repeal". It does this in exercise of its constituent power.
• Constituent power means the power to make or change the Constitution itself.

• This is different from ordinary law-making power, which Parliament uses to pass normal Acts.

• Art. 368 heading and scope: the article now covers both the power to amend and the procedure for amending [2]. Before 1971, critics read it as dealing only with procedure.

• Art. 368(2): the President shall give assent to an amendment bill that has been passed in the proper way. The President can no longer refuse it or send it back.
• Art. 368(3) (new): Art. 13 does not apply to amendments made under Art. 368.
• Net effect: an amendment is not "law" under Art. 13. So a court cannot strike it down just because it cuts down a fundamental right.

How an amendment passes under Art. 368 (after 1971)

1. Introduction: the bill can start in either House. The President's prior permission is not needed.

2. Passing in each House separately: each House must pass it by a special majority: - a majority of the House's total membership, and - two-thirds of the members present and voting.

3. Deadlock: there is no joint sitting (a combined meeting of both Houses). Each House must pass the bill on its own.

4. Federal provisions (Art. 368(2) proviso): these are the provisions about the division of powers between the Union and the states. Changes to them also need ratification by the legislatures of at least half the states. Each state legislature votes by simple majority.
5. President's assent: obligatory since the 24th Amendment.

Its limits, as set by the Court

• Kesavananda Bharati (1973) upheld the 24th Amendment.
• However, the judgment added a limit that the 24th Amendment had not stated:
• Parliament can amend any part of the Constitution, including fundamental rights.

• But it cannot alter or destroy the basic structure. The basic structure is the set of core features of the Constitution, such as democracy, secularism, federalism and judicial review.

• So the 24th Amendment won the point about Art. 13. It did not win unlimited amending power.

In the Constitution and practice

• Where it sits:
• It changed Art. 13 by adding clause (4) [2].

• It changed Art. 368 in its heading, clause (1), clause (2) and a new clause (3) [2].

• Part of a package of amendments:

• 25th Amendment (1971): replaced "compensation" with "amount" in Art. 31(2) and inserted Art. 31C. It reversed R.C. Cooper [3].
• 26th Amendment (1971): abolished privy purses. These were yearly payments promised to the former princely rulers.

• 29th Amendment (1972): placed two Kerala land reform Acts in the Ninth Schedule [4]. Laws in this Schedule are protected from challenge on the ground of fundamental rights.

• Kesavananda Bharati v. State of Kerala (24 April 1973):

• The bench: 13 judges led by CJI S.M. Sikri, who decided 7:6.
• Golaknath overruled: an amendment under Art. 368 is not "law" under Art. 13.
• 24th Amendment upheld, but subject to the basic structure limit.
• Decisive opinion: Justice H.R. Khanna.
  • He agreed with the six "no-limits" judges that an amendment is not "law".
  • He agreed with Sikri's group that the amending power has limits.

• The six "no-limits" judges were Ray, Palekar, Mathew, Beg, Dwivedi and Y.V. Chandrachud [5].

• What happened next:

• Supersession (26 April 1973): A.N. Ray, one of the six, was made CJI over three senior judges, Shelat, Hegde and Grover [5]. Supersession means appointing a junior judge as CJI ahead of senior judges.
• Review bench (November 1975): during the Emergency, CJI Ray set up a 13-judge bench to review Kesavananda. It was dissolved after two days.

Don't confuse with

• 25th Amendment (1971): the 24th dealt with the power to amend (Arts. 13 and 368). The 25th dealt with property: "amount" instead of "compensation" in Art. 31(2), and the new Art. 31C [3].
• Golaknath (1967) vs Kesavananda (1973): Golaknath said an amendment is "law", so it could not cut down fundamental rights. Kesavananda said it is not "law", so it can cut them down, but it cannot destroy the basic structure.
• Constituent power vs ordinary legislative power: amending the Constitution under Art. 368 is constituent power. Passing a normal Act is ordinary law-making, and such an Act is still a "law" under Art. 13(2), which courts can strike down for breaking fundamental rights.
• President's assent to amendment bills vs ordinary bills: for an amendment bill, assent is obligatory under Art. 368(2) after 1971. For an ordinary bill, the President may withhold assent or return the bill.

Prelims Hooks

• 24th Amendment (1971) inserted Art. 13(4) and Art. 368(3): Art. 13 does not apply to amendments made under Art. 368 [2].
• 24th Amendment made the President's assent obligatory for constitutional amendment bills, under Art. 368(2).
• 24th Amendment changed Art. 368 to cover the power to amend as well as the procedure [2]. It was passed to overrule Golaknath (1967).
• Kesavananda Bharati (1973) upheld the 24th Amendment but added the basic structure limit. Trap: "Kesavananda struck down the 24th Amendment" is false.
• Art. 368 procedure: special majority in each House separately, with no joint sitting. Ratification by half the states is needed only for federal provisions.
• Trap: the words "basic structure" do not appear in the 24th Amendment or anywhere in the Constitution's text.

Mains Points

• Parliamentary sovereignty vs constitutional supremacy:
• The 24th Amendment claimed an unlimited amending power for a Parliament with a large majority.
• Kesavananda accepted that Parliament can amend fundamental rights, but held that even the people's elected representatives cannot destroy the Constitution's core.

• The result is a balance: the Constitution is supreme, and the judiciary is its final guardian.

• Counter-majoritarian debate: this is the debate over whether judges who are not elected should limit what an elected majority can do.

• Critics say unelected judges "invented" a limit that is not in the text, and kept for themselves the power to define it.

• Defenders say the doctrine reads the spirit of the Constitution over its bare letter. They point to the Emergency (1975–77) and the 42nd Amendment as proof that core features need protection from temporary majorities.

• Judicial independence:

• After the verdict on the 24th Amendment, the government superseded three judges in 1973. In 1975, a bench was set up to review Kesavananda.
• Both showed executive pressure on the courts. This history later fed the push for collegium-based appointments of judges.

Related concepts

• 25th Constitutional Amendment Act 1971
• Kesavananda Bharati case
• Basic structure doctrine
• Letter and spirit of the Constitution

Read more

• Parliament vs the judiciary II: the 24th and 25th Amendments and Kesavananda Bharati