Part XX (Article 368) of the Constitution of India lays down procedure of amendment in the constitution. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India. There are various doctrines or rules in regard to checking the validity 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 vs State of Kerala.
The Constitution is a set of fundamental basic rules governing the politics of a nation reflecting the exercise of political power. It lays down the framework and principal organs of the government together with their functions as well as the modalities of interactions between the state and its citizens. The Constitution of India generally regarded as the lengthiest constitution of the world, came to be enforced on 26th January, 1950. It originally had 395 articles divided into 22 Parts and 8 Schedules.
WHAT IS AN AMENDMENT?
An amendment of the constitution implies “an addition or change within the lines of original instrument, as will effect an improvement or better carry out the purpose for which it was framed.‟ An amendment of the constitution does not imply fundamental change or destruction of the `basic structure‟ of the constitution.
NEED FOR CONSTITUTIONAL AMENDMENT:
Although a constitution is drawn up to meet the needs of a society at a given point of time, it cannot actually be fully adequate to meet the growing and changing future needs of a modern state. Hence, a constitution is expected to be a dynamic document. It should grow with a growing nation. It should undergo suitable change to suit the changing needs and circumstances of a growing and changing people. All constitutions therefore, acknowledge the need and significance of an amendment of the constitution and accordingly provide for it.
Article 368 (1) of the constitution of India empowers the Parliament to amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down in article 368(2). Moreover, an amendment of the constitution can be initiated only by an introduction of a bill in either House of Parliament. In each case, prior assent of the President of India is obligatory. Without the prior assent of the President the constitution cannot be amended. However, the President cannot refuse his final assent to the amendment proposals once it is passed by the Parliament.
PROCEDURE FOR AMENDMENT
Article 368(2) of the Indian Constitution deals with the following procedure for amendment of the Constitution:
- Amendment by a simple majority: There are certain articles in the Constitution which can be amended by a simple majority (i.e., more than 50 percent) of the total members present and voting. Admission of a new state under article 2, Schedule IV and article 11 etc. for example can be amended under this category.
- Amendment by special majority: There are some articles in the Constitution which can be amended by a special majority (i.e., 66 percent) of not less than two thirds of the members of that House present and voting.
THE CONSTITUTION (FORTIETH AMENDMENT) ACT, 1976
The 40th amendment of the Indian Constitution’s 40th amendment was a part of the ninth schedule, and it contained 64 more central and state laws that were mostly related to land reforms. With the commencement of this amendment act the borders of territorial waters, the continental shelf, the exclusive economic zone (EEZ), and India’s maritime zones were timely checked.
REASONS FOR PROPOSING THE 40th AMENDMENT BILL
Under article 297 of the Constitution, all lands, minerals and other things of value underlying the ocean within the territorial waters or the continental shelf of India vest in the Union to be held for the purposes of the Union. India has sovereign rights over the resources of the exclusive economic zone and is entitled to exercise jurisdiction in respect of certain other matters. It is proposed to amend article 297 of the Constitution so as to provide that all lands, minerals and other things of value underlying the ocean within the exclusive economic zone of India and all other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union. At present, the limits of territorial waters and the continental shelf are determined by Proclamation issued by the President. It is proposed that the limits of the territorial waters, the continental shelf, the exclusive economic zone and the maritime zones of India shall be as specified from time to time by or under law made by Parliament.
Recourse was had in the past to the Ninth Schedule whenever it was found that progressive legislation conceived in the interest of the public was imperilled by litigation. Certain State legislations relating to land reforms and ceiling on agricultural land holdings have already been included in the Ninth Schedule. Certain amendments made to these legislations also require protection of the provisions of article 31B in as much as in many cases such enactments have been challenged in courts and courts have granted interim reliefs which has hampered the implementation of the national land reform policy.
Besides these Acts relating to land reforms certain State enactments relating to private forests require protection of article 31B as these enactments are progressive and beneficial pieces of legislation intended to and the monopoly of vested interests and forest contractors. Some of such legislations have been challenged in courts and as the courts have granted interim reliefs staying the operation of these enactments, the State Governments have not been able to implement these legislations.
Certain Central laws like the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, the Urban Land (Ceiling and Regulation) Act, 1976, the Essential Commodities Act, 1955 and certain provisions of the Motor Vehicles Act, 1939 require protection of article 31B. If these legislations are allowed to be challenged in courts of law thereby delaying the implementation of these laws, the vary purpose of enacting these laws would be frustrated and the national economy may be severely affected. These and other important and special enactments which it is considered necessary should have the constitutional protection are proposed to be included in the Ninth Schedule..
AMENDED PROVISIONS OF THE ACT
The Constitution (Fortieth Amendment) Act, 1976, when introduced in the Lok Sabha on 21 May 1976, was titled as the Constitution (Forty-Second Amendment) Bill, 1976.
Article 297 of the Constitution has been substituted by a new article. The new article provides that all lands, minerals and other things of value underlying the ocean within the territorial waters or continental shelf or the exclusive economic zone, and all other resources of the exclusive economic zone shall vest in the Union and be held for the purposes of the Union. The limits of the territorial waters, the continental shelf, the exclusive economic zone and other maritime zones of India shall be such as may be specified by any law made by Parliament. (Section 2).
Section 3 amended the Ninth Schedule to the Constitution by adding therein 64 new entries, i.e. Entry 125 to Entry 188.
Clauses 2 and 3 of the Bill were adopted in the original form by both the Lok Sabha and the Rajya Sabha.
- Dr. J. N. Pandey, The Constitutional Law of India, 49th Edition (2012), Central Law Agency, Allahabad.
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