The power to change the constitution lies in article
368.
The Constitution establishes the legislative authority of the
central government and the state legislatures within their respective spheres
of influence.
However, this authority is not unchecked and may be
challenged in a court. The judiciary has the authority to determine whether a
law is constitutionally valid and it can even abolish any statute that violates
it. However, the courts have no power to tell the Government to pass any law,
but they can advise the Government to do so.
To prove its power, the Parliament has passed a number of
constitutional modifications. The 24th constitutional amendment
passed in 1971 modified article 368 & article 13 of the constitution
allowing the Parliament to unilaterally amend fundamental rights without any
check.
This amendment overturns the ruling of the SC in the
Golaknath & Ors Vs the State of Punjab case in 1967 that Parliament cannot in
any way limit fundamental rights. In the Golaknath case a bench of 11 justices
of the SC heard the case.
The Golaknath family owned 500 acres of land in Punjab. The
government brought in land ceiling and of the 500 acres, it was said that only
30 acres each can be held by the two Golaknath brothers, and some would go to
the tenants and the rest of the land would be declared surplus, and would go to
the state. The Land Ceiling Act was placed in schedule number 9 of the Constitution, making it unchallengeable in a court of law. The
Golaknath family contested the matter on abrogation of fundamental rights in
court and it finally reached the Supreme Court. A constitutional bench of 11
judges heard this case and ruled that the act was invalid by a thin majority of
6 to 5. The then Chief Justice was Koka Subbarao who headed the Bench.
To get around this judgment and assert its powers, the Constitution's 24th amendment was brought in by Indira Gandhi.
The decision of the Golaknath case was reiterated in the
Kesavananda Bharati Vs the state of Kerala case in 1970 where a 13-judge constitutional
bench again by a thin majority of 7 to 6 ruled that Parliament cannot amend the
basic character of the constitution. The then Chief Justice S.M.Sikri headed
the bench.
However, in this judgment, the SC upheld the constitutionality
of Article 31C, which implied that amendments seeking to implement the
Directive principles that do not affect the basic structure of the
constitution shall not be subjected to judicial review.
The very next day of this judgment by the SC, 3 of the senior
most justices who favored the judgment Justices A N Grover, H.R.Khanna & J
M Shelat have been bypassed by Indira Gandhi and Justice AN Ray the 4th
senior most after them who opposed the majority judgment was appointed as the
Chief Justice of India. After this was done, all the 3 bypassed justices as
well as the CJ Justice S.M. Sikri who headed the bench resigned.
Perhaps looking to the attempts of the state to gain absolute
and unquestionable powers over the judiciary, the judiciary slowly brought in
the collegium system. Such a system was not enshrined anywhere in the
constitution; nevertheless perhaps giving unbridled power to the center can end
in a disaster for the country. The Parliament certainly has the power to
legislate, but if that power is made absolute and unquestionable then one day, a
one-sided dictatorship may come in and snuff out Democracy in the country. If
the judiciary is in the hands of the Government then one cannot even oppose it
on anything.
The Constitution certainly does not give such unbridled power
to anyone. Considering this aspect perhaps a Collegium system is not bad for
the country. But that system has to be refined to purge it of its current
defects. Otherwise, it is worse than political leaders appointing it.
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