AConstitutional Amendments are made by virtue of constituent power
BConstitutional Amendments are made by virtue of power under Art. 368 of the Constitution
CConstitutional Amendments are not law under Art. 13 of the Constitution
DAll the above
Answer:
D. All the above
Read Explanation:
A) Constitutional Amendments are made by virtue of constituent power
Explanation: "Constituent power" refers to the power of a body (in this case, the Parliament of India) to frame or amend the fundamental law of the land, i.e., the Constitution. It is a higher power than ordinary legislative power. When Parliament amends the Constitution, it acts in its constituent capacity, not merely its legislative capacity. This distinction is crucial because ordinary laws can be struck down if they violate the Constitution, but constitutional amendments themselves alter the Constitution. This concept was extensively discussed in landmark cases like Kesavananda Bharati v. State of Kerala, where the Supreme Court held that while Parliament has wide constituent power, it cannot alter the 'Basic Structure' of the Constitution.
B) Constitutional Amendments are made by virtue of power under Art. 368 of the Constitution
Explanation: Article 368 of the Indian Constitution specifically deals with the "Power of Parliament to amend the Constitution and procedure therefor." It lays down the different procedures for amending the Constitution, including requirements for special majorities and, in some cases, ratification by states. Therefore, any constitutional amendment is carried out by exercising the power explicitly granted by Article 368.
C) Constitutional Amendments are not law under Art. 13 of the Constitution
Explanation: Article 13 of the Constitution states that "The State shall not make any law which takes away or abridges the rights conferred by this Part (Part III - Fundamental Rights), and any law made in contravention of this clause shall, to the extent of the contravention, be void."
Initially, there was a debate on whether a Constitutional Amendment could be considered "law" under Article 13.
In the Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965) cases, the Supreme Court held that constitutional amendments were not "law" under Article 13, thus implying they could amend Fundamental Rights.
However, in Golaknath v. State of Punjab (1967), the Supreme Court reversed its earlier stand, holding that constitutional amendments were "law" under Article 13 and thus could not abridge Fundamental Rights.
To counteract the Golaknath judgment, the 24th Constitutional Amendment Act, 1971, was passed. It specifically added a clause to Article 368 (Article 368(3)) stating that "Nothing in Article 13 shall apply to any amendment made under this article." It also amended Article 13(4) to state that "Nothing in this article shall apply to any amendment of this Constitution made under Article 368."
Finally, the Kesavananda Bharati v. State of Kerala (1973) case upheld the validity of the 24th Amendment and reaffirmed that constitutional amendments are not "law" under Article 13, but simultaneously introduced the "Basic Structure Doctrine," stating that Parliament's constituent power under Article 368 does not extend to altering the basic structure of the Constitution.
Therefore, the current legal position, fortified by the 24th Amendment and Kesavananda Bharati, is that constitutional amendments are not considered "law" for the purpose of Article 13, meaning they are not subject to judicial review under Article 13 on the ground of violating Fundamental Rights, unless they violate the basic structure.