amend the Constitution. Five out of the six learned judges held that Article
368 did not confer any power to amend but merely prescribed the procedure
for amendment. The sixth learned Judge held that Article 368 did contain the
power of amendment but that the Parliament must amend Article 368 to
convoke another Constituent Assembly pass a law under item 97 of List I of
Schedule 7 to call Constituent Assembly and then that Assembly may be able
to abridge or take away, the fundamental rights if desired.
650. The decision of Golak Nath’s case raised a debate of national
dimensions as the Parliament’s power to amend the Constitution so as to
abridge or take away the fundamental rights virtually became a dead letter.
Under the majority judgment, the Constituent Assembly alone, called by
virtue of a law to be passed under Entry 97of List I, could abridge or take
away the fundamental rights. The Parliament, in a resolve to reaffirm its
powers, passed the Constitution (Twenty-fourth Amendment) Act on
November 5, 1971 and the Constitution (Twenty-fifth Amendment) Act on
April 20, 1972. By the 24th Amendment, the Parliament amended Articles 13
and 368 of the Constitution so as to provide that nothing contained in Article
13 shall apply to any amendment of the Constitution made under Article 368
and that notwithstanding anything in the Constitution, Parliament may, in
the exercise of its constituent power, amend by way of addition, variation or
repeal any provision of the Constitution in accordance with the procedure laid
down in article 368. As an instance of the amendatory power re-acquired
under the 24th Amendment, Parliament, by the 25th Amendment,
substituted a new clause (2) in Article 31 and introduced a new Art. 31-C in
the Constitution. By the 29th Amendment Parliament placed the Kerala Law
Reforms (Amendment) Acts of 1969 and 1971 in the Ninth Schedule.
651. A Bench of thirteen Judges of this Court sat to consider the
constitutionality of the 24th, 25th and 29th Amendments. The eleven
judgments delivered in that case are reported in Kesavananda Bharti v. State
of Kerala, 1973 (Supp) SCR 1= (AIR 1973 SC 1461) commonly known as the
Fundamental Rights case. Golak Nath’s case stood over ruled as a result of
the decision in this case But six learned Judges out of the thirteen (Sikri, C.J.
and Shelat, Grover, Hegde, Reddy and Mukherjea, JJ.) accepted the
contention of the petitioners that though Article 368 conferred the power to
amend the Constitution, there were inherent or implied limitations on the
power of amendment and therefore, Article 368 did not confer power to
amend the Constitution so as to damage or destroy the essential elements or
basic features of the Constitution. Fundamental Rights, being a part of the
essential features of the Constitution, could not therefore be abrogated or
emasculated in the exercise of the power conferred by Article 368, though a
reasonable abridgement of those rights could be effected in the public
interest. Brother Khanna, J. found it difficult, in face of the clear words of
Article 368, to exclude from their operation the articles relating to
fundamental rights in Part III of the Constitution. But proceeding to consider
‘‘the scope of the power of amendment under Article 368’’, the learned Judge
held that the power to amend did not include the power to abrogate the
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