Can Fundamental Rights be amended?

by Yuvi - January 28, 2021

Can Fundamental Rights be amended ?

The Golak Nath case is a landmark in the constitutional history of India. In this decision the Supreme Court took away the power of Parliament to amend the Fundamental Rights. But by the 24th Amendment Act 1971, the Parliament amended Art. 13 and 368 to make it clear that the Parliament has the power to amend any part of Indian Constitution including Fundamental Rights and the word ‘law’ as used in Article 13 does not include a Constitutional Amendment Act.

In the Kesavananda Bharti Case the Supreme Court ruled that Parliament could amend any and every part of Indian Constitution including Fundamental Rights but it could not destroy the basic structure of Indian Constitution. To make the Fundamental Rights easily amendable, the 42nd constitutional amendment was passed which declared in unambiguous terms that the Parliament had unlimited power of amending the Constitution.

Suspension of Fundamental Rights

When the President makes a proclamation of emergency under Article 352 the freedoms guaranteed under Article 19 are automatically suspended. However, an important change has been introduced by the 44th Amendment Act 1978. This Amendment prohibits the suspension of Articles 20 and21 even during a national emergency.

The President can suspend other Fundamental Rights through specific orders, but these orders must be approved by the Parliament.

Judicial Review and the Fundamental Rights

Judicial Review is the power of courts (Supreme Court and the High Courts) to declare a law unconstitutional and void if it is inconsistent with any of the provisions of Indian Constitution to the extent of its inconsistency.

So far as the contravention of the Fundamental Rights is concerned this power is specially enjoined upon the courts by Indian Constitution, in Article 13.