The petitioner has challenged the validity of Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act 1962 under Article 32 of the Constitution. The above mentioned Acts were included in the 9th schedule by Constitution (seventeenth) Amendment Act, 1964. In order to invalidate the effect of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act 1962, the petitioner has challenged the Constitution (seventeenth) Amendment Act, 1964.
- Whether in the exercise of the power of amendment the fundamental structure of the Constitution may be changed or even destroyed or whether the power is restricted to making modification within the framework of the original instrument for its better effectuation ?
- Whether the amendment of fundamental rights is covered by the proviso to Article 368?
Amendment to the Constitution can be brought by the Parliament under Article 368 of the Constitution. Whenever there is a conflict between Article 368 and Article 13, it is expected from the Court that the interpretation of the provisions are done harmoniously without destroying the construction of any of them. No part of the Constitution is superior to any other part, unless there is mention of the same. Hence, all the articles hold equal importance and should be construed harmoniously. Fundamental rights are not at the option of Parliament’s giving and taking. They are secured to the citizens by Articles 12, 13, 32, 136, 141, 144 and 226. The Supreme Court and the High Courts have been authorised to determine whether any legislative or executive action on the part of state, offends any of the Fundamental Rights.
The word amendment must be contrued in the broader sense. An amendment means to introduce new matter, alter and remove old matters from an enactment. The amending power under the constitution is not intended to be used to get away from responsibilities imposed on the Parliament or from restrictions against undue State action enacted in the Constitution. The power of amendment is not available for the purpose of removing express or implied restrictions against the State.
Article 13(2) makes the State subject to Fundamental Rights as it is clearly stated in Article 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. It is not that Fundamental Rights are not subject to any change or modification, however, the State has to keep into account that the essence of the Fundamental right remains intact. In Shakari Prasad v. Union of India  S.C.R. 89 and in Sajjan Singh v. State of Rajasthan,  1 S.C.R. 933, the court has affirmed that Fundamental rights are the essence of the Constitution can not be amended to take away the protection of the citizens unless absolutely necessary.
The Constitution permits limitation and infringement of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. It allows to control the Fundamental rights through necessary curtailments, but does not allow erasure of any right. The constituent function of the Parliament under Article 368 is not only to usurp the protection and privileges granted to the citizens by the Constitution. It would be against Article 13(2) to amend Article 368 to confer on itself the right to amend and demolish Fundamental rights. Parliament cannot do indirectly what it cannot do directly.
The impugned Acts of Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1962 are valid under the Constitution because they are protected by Article 31A and the President’s assent.