AMENDING PROCESS UNDER constitution

Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India..

However, there is another limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power. This has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala. .The procedure of  amendment of constitution  in America or Australia or Canada or Switzerland is difficult.  The purpose for providing for amendment of constitution is to make it possible gradually to change the constitution in orderly fashion as the changes in social condition make it necessary to change the fundamental law to correspond with such social changes.[1] 

A bill to amend the constitution may be introduced in either House of Parliament.A bill which seeks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by the ½ of the states. However , Article 368 does not constitute the complete code. For the purpose of amendment the  various Articles of constitution are divided into three categories:

  • Amendment by simple majority : The amendments that can be made by simple majority are in Article 5,169& 239-A.
  • Amendment by special majority: Article 368 requires special majority to be amendmented.
  • Special majority & ratification by states: Article which require in addition to special majority mentioned above, ratification by not less than ½ of the state legislature.The provisions which require ratification by states are:  election of President, distribution of legislative powers between the centre and state and Article 368 itself.

The question whether fundamental rights can be amended under Article 368 came for consideration of the supreme court in Shankari Prasad v. Union of India [2].The amendment was challenged on the ground that it purpoted to take away the rights conferred by part III which fell within the prohibition of Article 13(2) and hence was void. In Golak Nath v.State of Punjab AIR 1971 sc 1643  the validity of the constitution(17th Amendment) Act,1964 which inserted certain state Acts in ninth schedule was again challenged. The Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision in Shankari Prasad’s case and held that parliament had no power from date of this decision to amand Part III of the constitution so as to take away the fundamental rights. In order to remove difficulties created by the decision of Supreme Court in Golak Nath’s  case Parliament enacted the 24th Amendment Act. Thus, the 24th Amendment not only restored the amending power of the Parliament but also extended its scope by adding the words “ to amend by way of the addition or variation or repeat any provision of this constitution in accordance with the procedure laid down in this Article”.[3]  

The validity of the constitution (24th Amendment) Act,1971, was challenged in Kesavananda Bharati v. State of Kerala popularly known as fundamental right’s case the petitioners had challenged the validily of the Kerala Land reforms Act,1963.But, during the pendency of the petition the kerala Act was amended in 1971. The petitioner was permitted to challenge the validity of 24th.The 24th Amendment merely made explicit what was implicit in the unamended Article 368-A.In M. Nagraj v. Union of India [4] 5 judge bench of the Supreme Court has explained the basic feature theory again in detail.These principles are part of constitutional law even if not stated.  In Kesavananda Bharati, the judges enumerated certain essentials of basic structure as follows:  supremacy of the constitution, republican and democratic forms of the govermeent, secular character of constitution, sepration of powers between the legislature , executive & judiciary,federal character of constitution.[5]  In Minerva Mills Ltd v. Union of India[6], the Supreme Court has held that the following are basic features :

  • Limited power of parliament to amand the constitution.
  • Harmony and balance between fundamental rights and directive principles.
  • Fundamental rights in certain cases
  • Power of judicial review in certain cases

The basic structure is set of fundamental foundational principles drawn from provisions of the constitutional itself. They are no fanciful principles carved out by the judiciary at its own.[7]

According to Mr.Beg, though the word “amendment” did not include the power to completely abrogating the constitution at one stroke, it was , however, wide enough to erode the constitution completely step by step so as to replace it by another constitution. According to Mr. Justice Dwivedi, the word “amendment” in Article 368 was broad enough to authorize the varying repealing or abrogating each and every provision in the constitution including PartIII.

In S.P Sampat Kumar v.Union of India [8]the constitutional validity of Article 323-A and the provisions of Administrative Tribunals Act,1985 was challenged on the ground that the Act by excluding the jurisdiction of High Courts under Article 226&227 in service maters had destroyed the power of judicial review which was a basic feature of the constitution.The Supreme Court upheld the validity of Article 323-A and the Act as the necessary changes suggested by the court were incorporated in the Administrative Tribunal Act.[9].

On the question of appointment to the Tribunals the court suggested the central government shold initiate action on the basis of recommendations of expert bodies like the Law Commission of India and the malimath committee.[10] The creation of single umbrella orgation to supervise the working of Tribunals,the cort said that it would remove the ills of system. It also stated that if the need arose, there could be a separate umbrella  organization at the centre and state.[11] The Supreme Court got an opportunity in this case to settle beyond doubt the question whether judicial review is a basic feature of constitution.

In M.Nagraj v. Union of India ,AIR 2007 SC 71 the validity of constitution was again challenged (77th Amendment)Act,introduced in Article 164-A nullifying some decisions in which Article 164-B was also introduced in which the Indra Sawhney’s case was stopped in which it emphasized the importance of maintaining efficiency in administration. In I.R Coelho v. State of Tamil Nadu [12] the validilty of the various central and state laws in the ninth schedule including the Tamil Nadu Reservations Act was challenged.[13]The Supreme Court in a nine judge Bench decision held that any law placed in the Ninth schedule after in Kesavananda Bharati’s judgement was delivered would be open to challenge.[14] Even though an Act was put in Ninth schedule by a constitutional amendment, its provisions would be open to challenge on ground that they destroy or damage the basic feature if the fundamental rights are taken away or abrogated pertaining to the basic feature of constitution.

The object of Ninth schedule was to save Land Reforms Laws enacted by various states from being challenged in the court. Later on, it became an omnibus and every kind of laws whether it related to election, mine and minerals, industrial relations , requisition of property, monopolies, coal or copper nationalization, general insurance, sick industries acquiring the Altcock Ashdown company, Kerala chilies Act, Tamil Nadu reservations of 69% and so on were inserted in it. The Tamil Nadu law was included in it because of the Supreme Court’s ruling in the Mandal case that overall reservations cannot exceed 50%.[15]

In Waman Rao v. Union of India [16]the Supreme Court held that all amendments to the constitution which were made before the judgement of Keshavananda Bharti ie 24th April, 1973, including those by which the Ninth schedule to the constitution was amended from time to time were valid and constitutional.But, amendments to the constitution were made after that date by which the Ninth schedule was amended and was left open for challenge on the ground that they were beyond the constituent power of parliament because they damaged the basic structure of constitution.[17]

The doctrine of basic structure has been criticized. It has been said that the court had not precisely defined as to what are the essential features of the basic structure and if this doctrine is accepted every amendment is likely to be challenged on the ground that it effects some or the other essential features of basic structure. In other words, it is urged that the amending power of the parliament cannot be subjected to such vague and uncertain doctrine.[18]  

It is however submitted that the criticism of the doctrine of basic structure cannot be justified on the ground that it lays down a vague and uncertain. There are many concepts of law which still cannot be defined precisely, but they do exists and play very important part in our law.[19] If the historical background, the preamble, the entire scheme of constitution and the relevant provisions therefore including Article 368 are kept in mind then there can be no difficulty in determining what are the basic structure of the constitution.[20]  The parliament elected for a fixed period of five years is meant for ceratin specific purposes and cannot be vested with unlimited amending power. The court however held that the doctrine of basic structure is to be applied only in judging the validity of amendments to the constitution and it does not apply for judjing the validity of ordinary laws by legislatures.

The 33rd Amendment in 1974 was the outcome of Gujarat movement where coercive methods were used to compel members of a legislative assembly to resign their seats. It also amended Articles 101 &190 of the constitution.[21] The 34th amendment, the Ninth schedule of the constitution for the fourth time and added twenty state land reforms act to the ninth schedule. The 36th Amendment in 1975 made Sikkim a full-fledged state of the Indian union.The 37th Amendment amended Articles 239-A & 240and made Arunachal Pradesh a union territory and provided for the creation of a legislature and a council of ministers for territory.[22]

The 42nd Amendment inserted two new Parts IV-A &XIV-A and nine Articles-39A,43A,48A,131A,114C,226A,228A and 257A along with it amended 50 Articles of constitution.[23] The 42nd Amendment made very significant changes in the judiciary. Article 139-A provided for the withdrawal of certain cases from High courts to the Supreme Court if expedient to do so for the ends of justice.[24]  The 42nd Amendment added a new clause (4) to Articles 77 & 166 which took away the power of court to compel production of rules for the production of business of both central and state government. The new clause (4) in Article 123,213 and 239-B made the  satisfaction of President, Governor or Administrator final in issuing ordinances.[25]  

In l. Chandra Kumar v. Union of India  AIR 1997 SC 1125, a seven member constitution bench of the Supreme court had struck down clause 2(d) of Article 323A and clause 3(d) of Article 323-B which provided for exclusion of the jurisdiction under Article 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic feature of constitution.[26]  

In Indira Nehru Gandhi v. Raj Narayan AIR 1975 SC 2299, the Supreme court applied the theory of basic structure and struck down clause (4) of Article 329-A on the ground that it was beyond the amending power of parliament as it destroyed the basic structure of the constitution.[27]

CONCLUSION

Article 368 however does not constitute the complete code. The process of amending the constitution is the legislative process governed by rules of that process. Thus it is clear that most of the provisions of constitution can be amended by an ordinary legislative process. Only a few provisions which deal with the federal principle require a special majority plus ratification by the states.[28]


[1] Quoted in Keshavananda Bharati  v. State of Kerala, AIR 1973 SC 1461

[2] AIR 1951 SC 455 p.458

[3] Pandey, J.N (Dr) p.779

[4] AIR 2007 SC 71

[5] Pandey , J.N(DR) p 781

[6]  AIR 1980 SC 1789

[7] Jadish Singh Khehar J. in Supreme Court Advocates –on-record Association v.Union of India

[8] AIR 1981 SC 271

[9] Pandey J.j (Dr) P.785

[10] IBID

[11] IBID

[12] AIR 2007 SC 8617

[13] PANDEY J.N (Dr) p.786

[14] IBID

[15] PANDEY J.N (Dr) p.787

[16] AIR 1981 SC 271

[17] PANDEY J.N (Dr) p.785

[18] PANDEY J.N (Dr) p.784

[19] IBID

[20] IBID

[21] PANDEY  J.N  (Dr) p.793

[22] IBID

[23] IBID

[24] PANDEY J.N(Dr) p.795

[25] IBID

[26] PANDEY J.N (Dr) p.785

[27] IBID

[28] PANDEY J.N (Dr) p.777

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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