Amendability Of Fundamental Rights
Until the Golak Nath case, the Supreme Court had held that no part of the constitution was inviolate and that Parliament could amend any part of it, including Fundamental Rights. However, in the much-debatedGolak Nath Vs State of Punjab Case, the Supreme Court put a stop to the process of amending fundamental rights through the amending procedure. The Supreme Court held in this case, overturning previous decisions, that the Constitution had given Fundamental Rights, embodied in Part III, a transcendental status, and that no authority operating under the constitution, including the Parliament, was competent to amend the Fundamental Rights.
However, the 24th Amendment Act of 1971 amended Arts 13 and 368 to make it clear that Fundamental Rights could be amended under the procedure outlined in Art. 368, effectively overturning the majority decision in the Golak Nath Case. The majority decision in the Keshavananda Bharti Case upheld the constitutionality of these amendments and overruled Golak Nath's case, holding that the parliament had the authority to amend fundamental rights under Art. 368, which makes no exception for fundamental rights and does not include acts amending the constitution. At the same time, the Keshavananda Case established that the power to 'amend' is subject to implied limitations, and that it cannot be used to change the constitution's "basic features."
As a result, the current position is that fundamental rights, like any other part of the constitution, can be amended, but only without affecting the Basic Structure.
Effecting Certain Fundamental Rights
Article 35 states that only the Parliament, not the state legislatures, has the power to make laws and give effect to certain specified fundamental rights. This provision ensures that the nature of those fundamental rights, as well as the penalties for violating them, are consistent across India. Article 35 contains the following provisions in this regard:
1) The Parliament shall have (and the legislature of a state shall not have) power to make laws with respect to the following matters: a. Prescribing residence as a condition for certain employment’s or appointments in a state or union territory or local authority or other authority (Article 16).
b. Empowering courts other than the Supreme Court and the high courts to issue direc¬tions, orders and writs of all kinds for the enforcement of fundamental rights (Article 32).
c. Restricting or abrogating the application of Fundamental Rights to members of armed forces, police forces, etc. (Article 33).
d. Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).
2) Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing punishment for those acts that are declared to be offences under the funda¬mental rights. These include the Untouchability (Article 17) and Traffic in human beings and forced labour (Article 23). Further, the Parliament shall, after the commencement of the Con¬stitution, make laws for prescribing punishment for the above acts, thus making it obligatory on the part of the Parliament to enact such laws.
3) Any law in force at the commencement of the Constitution with respect to any of the matters specified above is to continue in force until altered or repealed or amended by the Parlia¬ment.
It's worth noting that Article 35 broadens Parliament's power to enact legislation on the above-mentioned topics, even if some of them may fall under the purview of state legislatures (i.e., State List).
