Amendment of Constitution
- Article 368 of Part XX of Indian Constitution deals with amendment of constitution.
Comments on Indian Constitution
- Neither too rigid like constitution of USA nor too flexible like Britain
- But synthesis of both
- Present situation- Parliament cant amend those provisions which form basic structure of constitution (Supreme Court judgement in Keshavananda Bharti case,1973)
Method of Amendment By Article 368
- Can be initiated in any House of Parliament but not State Assembly
- Can be introduced by Minister or Private Member & doesn’t require permission of President
- Bill must be passed by Special majority in both the houses.
- If there is disagreement between two houses there is no provision of joint sitting
- If Amendment seek to change Federal Structure then must be ratified by half of states by Simple Majority
- After that bill sent to President for his assent and President must give his assent. He can neither hold nor send bill for reconsideration (added by 42nd Amendment)
1 . Amendment by Simple Majority
- Number of provisions (which are not very significant are) outside scope of Article 368 & can be Amended by Simple Majority
- And these are
- Admission or establishment of new states
- Formation of new states or changing boundaries of existing states
- Creation or Abolition of Legislative Councils in States
- Quorum in Parliament
- Salaries & allowances of MPs
- Use of English language in Parliament
- Delimitation of Constituencies
- Use of official language
- Fifth & Sixth schedule
- Elections to Parliament & State Legislatures
2. Amendment by Special Majority
- Majority of Amendments of Constitution can be done by Special Majority
- This way Amendments can be done in
- Fundamental Rights
- Directive Principles of State Policy
- All other provisions not included in 1st and 3rd Category
3. Special Majority and Consent Of States
- Those provisions which seeks to alter Federal Structure of Union done like this
- Election of President
- Extent of Executive powers of Union & State
- Supreme Court & High Court
- Distribution of Legislative Powers of Union & States
- Any of the list of 7th schedule
- Representation of states in Parliament
- Article 368 itself
Why so many amendments to the constitution ?
- Constitution is the Supreme law of the land . A law can remain supreme and effective only if it can fulfil the interest of the different sections of the society and keep it orderly. Interest of the people evolve with time and in order to remain relevant , constitution has to be dynamic and a living document , thereby , amending it periodically becomes inevitable
- This does not mean that Indian
Constitution is too flexible to be easily amended . It is very finely balanced and combines the
elements of Rigidity (like US) and Flexibility (like UK) .
- It gives leverage to Parliament for making cosmetic amendments by Simple Majority and keeps a tight check for critical changes by 2/3 majority
- Most importantly , it maintains a Federal Balance with acceptance of amendments by half the states that relate to Centre State relations
- Overall, Amendments have helped by creating new articles to meet the changing needs and modifying others to remain relevant .
Jawahar Lal Nehru in Constituent Assembly – ” While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless, there is no permanence in Constitution. If you make anything rigid and permanent , you stop a nation’s growth .”
Basic Structure of Constitution
Judicial history that led to Doctrine of Basic Structure
IT BASICALLY IS FIGHT BETWEEN EXECUTIVE & JUDICIARY IN WHICH EXECUTIVE AIMS TO INCREASE ITS POWER AND JUDICIARY TRIES TO SAFEGUARD ITS POWERS
1 . Shankari Prasad vs Union of India(1951)
- Article 368 not only provide method to amend constitution but is also source of power for Parliament to amend constitution (ie Constitutional Amendment is not Law under Article 13 and hence beyond Judicial Review)
2. Golaknath Vs State of Punjab (1967)
- Supreme Court ruled that power to amend constitution of India is not vested to Parliament under Article 368 but under Article 248
- Hence situation was
|Article 368||Describes method to Amend Constitution|
|Article 248||Which states that on Residuary Subjects ,Parliament will legislate and power to amend constitution also derived from it|
Implication: All laws made using 248 are subjected to Judicial Review under Article 13 .
- Supreme Court held that there are implied limitations on Amending Powers of Legislature and Fundamental Rights can be abrogated by Constituent Assembly only.
3. 24th Amendment,1971
- To nullify Golaknath judgement
- Amended Constitution such that
- Article 368 gives power to Parliament to amend constitution and hence it is out of Judicial Review under Article 13
- It is compulsory for the President to give assent to the Constitutional Amendment bill
4. Keshavananda Bharti Vs State of Kerala, 1973
- Said three things
- 24th Amendment is Constitutional
- It over ruled Golaknath Judgement and said Article 368 gives power to Parliament to amend Constitution
- But put other restriction on Parliament that Amending Power of Constitution can’t alter BASIC STRUCTURE of Constitution
- And what is Basic Structure would be decided by Supreme Court from time to time
5. 42nd Amendment, 1976
- Amending power of Parliament is Supreme and it can’t be stopped even on the basis of DOCTRINE OF BASIC STRUCTURE
6. MINERVA Mills Vs Union of India, 1980
- Supreme Court declared above provision of 42nd Amendment to be Unconstitutional
- Judicial review cant be taken away from Supreme Court as it is Basic Structure of constitution.
7. Waman Rao Case,1981
- Supreme Court adhered to doctrine of basic structure
- Clarified that it would apply to constitutional amendments enacted after April 24, 1973
What is Basic Structure of Constitution ?
- It was propounded in Keshavananda Bharti Case . Supreme Court is yet to define or clarify basic structure. But from various Judgements following things emerged as Basic structure
|Supremacy of Constitution||Separation of powers among three organs|
|Sovereign, Secular & Republican nature||Federal Character of Constitution|
|Unity & Integrity of nation||Welfare state|
|Judicial Review||Freedom & Dignity of Individual|
|Parliamentary System||Rule of Law|
|Balance between Fundamental Rights & DPSP||Free & Fair elections|
|Principle of Equality||Independence of Judiciary|
|Limited power of Parliament to amend constitution||Effective access to Justice|
|Secularism (SR Bommai Case)||Power of Supreme Court under Article 32,136,141,142|
Keshavananda Judgement – Since the Constitution had conferred a limited amending power on the Parliament , the Parliament can not under the exercise of that limited power enlarge that very power into an absolute power . The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.
Reaffirmment of Basic Structure came in Indira Nehru Gandhi vs Raj Narain (1975) which declared 39th Constitutional Amendment to be unconstitutional (39th Amendement removed the power of Supreme Court and other courts to adjudicate on elections of President, VP , PM etc) . Court held that Free and Fair Elections and Rule of Law are Basic Features of constitution
Present Debate : Where to draw line ?
- There is debate that what constitute Basic Structure of Constitution . Judiciary is increasing the scope of Basic Structure and experts fear that one day, whole of Constitution can be included in Basic Part of Constitution.
- The Constitution of any country is considered to be sacrosanct and foundational law. All articles and provisions of the constitutions are important . The question then arises can it be then interpreted to mean that some provisions are more important or basic and others are secondary. Perhaps it is time , Parliament should sit down and try to debate on what constitutes Basic Structure and insert Basic Features of Constitution by creating Schedule in Constitution itself as done by Germany.