Indian Constitution Amendment

INTRODUCTION

Article 368 in Part XX of the Indian Constitution deals with the powers of Parliament to amend the Constitution and its procedure . It states that the Parliament may, in exercise of its constituent power, add/ remove an article, repeal any provision of the Constitution. But no change can be done in the basic structure of the constitution. The constitution can be amended in three ways-

  • Amendment by simple majority of the parliament.
  • Amendment by special majority of the parliament.
  • Amendment by special majority of the parliament and the ratification of half of the state legislatures.

WAYS OF AMENDING THE CONSTITUTION

So many provisions in the Indian Constitution can be amended by a simple majority of the Houses of Parliament outside the scope of Article 368. These provision include-

  • Admission or establishment of new states
  • Formation of new states and alteration of areas, boundaries or names of existing states
  • Abolition or creation of legislative councils in states
  • Second Schedule – emoluments, allowances, privileges and so on  of the president, the governors, the Speakers , Judges etc.
  • Quorum in Parliament
  • Salaries and allowances of the members of Parliament.
  • Rules of Procedure in Parliament
  • Privileges of the Parliament, its members and its committees
  • Use of English Language in Parliament
  • Number of puisne judges in the Supreme Court
  • Conferment of more jurisdictions on the Supreme Court
  • Use of official language
  • Citizenship- acquisition and termination
  • Elections to Parliament and State Legislatures
  • Delimitation of constituencies
  • Union Territories
  • Fifth Schedule- administration of scheduled areas and scheduled tribes
  • Sixth Schedule-administration of tribal areas

Amendment of the Constitution

  • By Special Majority Of Parliament

The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament , that is, a majority (that is ,more than 50 per cent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. The expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.

‘Strictly speaking, the special majority  is required only for voting at the third reading stage of the bill but by way of abundant caution the requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the Bill.

The provisions which can be amended by this way include;

  • Fundamental Rights
  • Directive Principles Of State Policy
  • All other provisions which are not covered by the first and third categories

Charles A Beard, American Foreign Policy in the Making ,1932-40

By Special Majority of Parliament and Consent of State:

Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority. If one or some or all the remaining states take no action bill, it does not matter; the moment half of the states give their consent, the formality is completed. There is no time limit within which the states should give their consent to the bill.

Polity: Complete Study Material

The following provisions can be amended in this way:

  • Election of the President and its manner.
  • Extent of the executive power of the Union and the states.
  • Supreme Court and high courts.
  • Distribution of legislative powers between the Union and the States.
  • Any of the lists in the Seventh Schedule.
  • Representation of states in Parliament.
  • Power of Parliament to amend the Constitution and its procedure ( Article 368 itself)

Types of Amendments- Constitutional Amendment Process

The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:

. An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament (Lok Sabha and Rajya Sabha ) and not in the state legislatures.

. The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.

. The bill must be passed in each House by a special majority, that is , a majority (that is , more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of  the house present and voting

. Each house must pass the bill separately

. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.

. If the bill seeks to amend to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.

. After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.

. The president must give his assent to the bill. He can neither withhold his assent to the bill nor return for reconsideration of the Parliament.

. After the president’s assent, the bill becomes an Act (i.e. a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.

Scope of Amendability in Indian Constitution

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.

From the various judgments, the following have emerged as ‘basic features of the constitution’:

  • Supremacy of the Constitution
  • Welfare state (socio –economic justice)
  • Principle of equality
  • Sovereign, democratic and republican nature of the Indian Polity.
  • Judicial Review
  • Free and fair elections
  • The secular character of the Constitution
  • Freedom and dignity of the individual
  • Independence of Judiciary
  • Separation of powers between the legislature, the executive and the judiciary.

Amending Power and the Doctrine of Basic Structure

The Golak Nath Case judgment and the amendments which sought to nullify its effect, when came up for the Supreme Court’s scrutiny in the case of Kesavanand Bharti against the State of Kerala and other allied petitions in 1973, it propounded the doctrine of implied powers and the doctrine of basic structure, which were hithertho unknown in India.

In Kesavanand Bharti v State of Kerala, the Supreme Court reasonably upheld the validity of the 24th Amendment. It was, however, held by the majority that Parliament’s power of Amendment was subject to implied limitation, namely, Parliament could not amend the Constitution to bring about change in the basic features of the Constitution.

In this case the Supreme Court invalidated   the following portion of Article 31(c) which was inserted through 25th Amendment Act.’’….. and now law containing a declaration that it for giving effect to such policy be called in question in any court on the ground that it does not give effect to such policy.’’ The Court through its decision in Kesavananda’s case tried to protect its right of judicial review, when the law did not give effect to the policy involving Articles 39(b) and (c)

In the Kesavananda Bharti’s case, the majority of judges held that the amending power was a limited one even though they knew that the legislature was bent upon giving unlimited amending power to itself. This courageous and independent stand was taken on the basis of the principle called’ inherent and implied limitation’.

In Kesavananda Bharti’s case, six senior judges of the Supreme Court and CJ, SM Sikri held as follow:

  • Parliament’s amending power is limited. While Parliament is entitled to abridge any Fundamental Right or amend any provision of the Constitution, the amending power does not extend to damaging or destroying any of the essential features of the Constitution. The Fundamental Rights are among the essential features of the Constitution; therefore, while they may be abridged. The abridgement cannot attend to the limit of damage to or destruction of their core.
  •    Article 31C is void since it takes many invaluable Fundamental Rights, even those unconnected with property.

To sum, the Supreme Court held that the Constitution is not made to suffer a loss of identity through the amending process. The identity of the Constitution is the sum of its essential features. Article 368 cannot be read as expressing the death of the Constitution or as a provision for its legal suicide.

Major Constitutional Amendments: A Brief Survey

During the 70 years of the Constitution it was amended 103 times. Such rapid succession of amendments during such a short time in the life of the Constitution has been attacked by many of its critics as a sign of weakness in the Constitution. Some of them thought that the Constitution should not be made so cheap so as to admit of amendment so quickly and easily. There is an element of truth in this criticism. Yet ,on close examination it will be seen that there were compelling circumstances which led to constitutional amendments during a momentous period stabilization and consolidation of the political freedom won just a decade earlier. In 1950 there were other necessitated by practical difficulties in the working of certain provisions of the Constitution. The reorganization of the State and the consequent constitutional amendment is the best example of the former type while the amendments dealing with rights to property provides a good example of the latter type.

It will be appropriate here to describe the major constitutional amendments in chronological order.

THE GOLAK NATH’S CASE

The Supreme Court, in its decision in the Golak Nath’s case on February 27,1967 held that Parliament’s powere to amend the Constitution could not be used to abridge the Fundamental Rights, in part because an amendment was deemed to be a ‘law” under Article 13 which prohibited Parliament from making any law abridging the Rights.

THE KESAVANANDA BHARTI’S CASE

In the Kesavananda Bharti’s case , on April 24 ,1973 the thirteen judges delivered eleven opinions. The view by majority is as follows: It then specifically overruled Golak Nath, upheld the 24th and 29th Amendments and struck down the ‘escape clause’ in the 25th Amendment in Article 31C while upholding the remainder of the amendment. The essence of the statement of the nine judges was that ‘Article 368 did not enable Parliamnt to alter the basic structure or framework of the Constitution.

Constitutional Amendments: Acts Of Oppurtunism

Less than 70 years after the Constitution came into force on Republic Day 1950, we have had more than 103 constitutional amendments. Some were necessary. Most were not. As so often in the past, the constitutional amendments which were introduced in the Parliament in the Rajiv era were purely self seeking, introduced to serve the aims of the party in power. There had been murky motives behind the spate of such amendments in recent years.

The 38th Amendment was rushed through Parliament in July 1975 in order to prevent the Courts from inquiring into the legality of of the fraudulent proclamation of emergency promulgated on June 26, 1975 by the supine President, Fakhruddin Ali Ahmed , on the advice of Prime Minister Indira Gndhi who had been unseated in the Lok Sabha by the Allahabad High Court exactly a fortnight earlier. The amendment also barred judicial review of Presidential Orders suspending the enforcement of fundamental rights.

There followed swiftly the 39th amendment which ousted the jurisdiction of courts, with retrospective effect, in respect of any petition challenging the Prime Minister’s election to the Lok Sabha. This part of the amendment was struck down by the Supreme Court on the ground that it violated ‘the basic structure’ of the Constitution. But Mrs Gandhi won her appeal all the same and not on the merits , either. She had the election law, the Representation of the People Act, 1951, amended retrospectively and precisely on the points on which she had lost in the Allahabad High Court. The 39th amendment put the entire Act together, with the motivated 1975 amendment in the Ninth Schedule to the Constitution so that it became protected against chaleenge on the ground that it violated the Fundamental Rights.

Arithmetical Computations and Dr Ambedkar’s Speech

Arithmetical computations are not a safe guide in those matters, but 103 odd amendments in 70 years is a lot. Not all were unneccessary or unwise. Some were called for to grant Statehood a new or to carve out new States out of existing ones. Some others were necessary to protect land reforms and economic legislation. A good few others dealt with taxes. But the Ninth Schedule was expanded not only in size but altogether cjhanged in content.

Dr. Ambedkar said in the Constituent Assembly on November 4, 1948 that the Constitution is not ” a something which you are going to change from day to day.” It must deal with the fundamental aspects….. and not with the details which are matters for legislation.” If you do that “you bring the basic things to the level of the secondary things too. You lose them in a Forest of Detail.

And except for the 44th Amendmdent of the Janata Days, not once has a constitutional amendment enlarged the area of the citizen’s rights, let alone added new ones such as the right to privacy of home or to confidentiality of correspondence. The trend has been consistently an illiberal one.

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