Amendment of the Constitution
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Amendment of the constitution Introduction George Bernard Shaw in ³Intelligent Woman¶s Guide to Socialism´ has said: ³The institutions under which we live are being changed continually by the Parliament, because we are never satisfied with them. Sometimes they are scrapped for new ones; sometimes they are altered; sometimes they are done away with as nuisances. The new ones have to be stretched in the law courts to make them fit, or to prevent them fitting to well if the judges happen to dislike them.´ The life of a state is vibrant and in order to facilitate the ever dynamic developments and needs of society, its economic, social and political conditions mutate continuously. So, a Constitution drafted in one context at a particular time may prove inadequate at a later stage. Every Constitution has some method of amendment whereby a provision is modified by way of addition, deletion or correction so as to suit the needs of the present. Provisions for the amendment of the Constitution are made with a view to overcome the difficulties which may encounter in future in the effective working of the Constitution. The framers of the Constitution were keen to avoid excessive rigidity and wanted it to a bit flexible. They wanted to have a document that could grow with a growing nation and adapt itself to the ever changing needs of people. Oxford¶s Dictionary of Law says ³Amendment means changes made to legislation, for the purpose of adding to, correcting or modifying the operation of the legislation.´ Black¶s Law Dictionary defines µAmendment¶ as ³A formal revision or addition proposed or made to a statute, Constitution, pleading, order, or other instrument´ AND ³In Parliamentary law, it means a µmotion that changes another motion¶s wording by striking out text, inserting or adding text, or substituting text´. But Keshavananda Bharti V. State of Kerela provided the best explanation as to the scope and definition of the word µAmendment¶. It purported that ³A broad definition of the word µAmendment¶ will include any alteration or change. The word µamendment¶ when used in connection with the Constitution may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular article or clause´. The Constitution of India provides for amendment mainly in Article 368 and in some other parts as specified therein. Modes Of Amending Constitution The Constitution of India provides for the amendment by way of Amendment Acts in a formal manner. For the purpose of amendment, the various Articles of the Constitution are divided into three categories. The first category is out of the purview of Article 368 whereas the other two are a part and parcel of the said Article. The various categories of amendment to the Constitution can be summarized as follows: Amendment by Simple Majority As the name suggests, an article can be amended in the same way by the Parliament as an ordinary law is passed which requires simple majority. The amendment contemplated under Articles 5-11 (Citizenship), 169 (Abolition or creation of Legislative Councils in States) and 239-A (Creation of local Legislatures or Council of Ministers or both fir certain Union Territories) of the Indian Constitution can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed under Article 368. Amendment by Special Majority Articles which can be amended by special majority are laid down in Article 368. All amendments, except those referred to above come within this category and must be affected by a majority of total membership of each House of Parliament as well as 2/3rd of the members present and voting. Amendment by Special Majority and Ratification by States Amendment to certain Articles requires special majority as well as ratification by states. Proviso to Article 368 lays down the said rule. Ratification by states means that there has to be a resolution to that effect by one-half of the state legislatures. These articles include Article 54 (Election of President), 55 (Manner of election of President), 73 (Extent of executive power of the Union), 162 (Extent of executive power of State), 124-147 (The Union Judiciary), 214-231 (The High Courts in the States), 241 (High Courts for Union Territories), 245-255 (Distribution of Legislative powers)
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Amendment of the constitution
Introduction George Bernard Shaw in ³Intelligent Woman¶s Guide to Socialism´ has said: ³The institutions under which we live are being changed continually by the Parliament, because we are never satisfied with them. Sometimes they are scrapped for new ones; sometimes they are altered; sometimes they aredone away with as nuisances. The new ones have to be stretched in the law courts to make them fit, or to preventthem fitting to well if the judges happen to dislike them.´
The life of a state is vibrant and in order to facilitate the ever dynamic developments and needs of society, itseconomic, social and political conditions mutate continuously. So, a Constitution drafted in one context at a particular time may prove inadequate at a later stage. Every Constitution has some method of amendment whereby a provisionis modified by way of addition, deletion or correction so as to suit the needs of the present.
Provisions for the amendment of the Constitution are made with a view to overcome the difficulties which mayencounter in future in the effective working of the Constitution. The framers of the Constitution were keen to avoidexcessive rigidity and wanted it to a bit flexible. They wanted to have a document that could grow with a growingnation and adapt itself to the ever changing needs of people.
Oxford¶s Dictionary of Law says ³Amendment means changes made to legislation, for the purpose of adding to,
correcting or modifying the operation of the legislation.´
Black¶s Law Dictionary defines µAmendment¶ as ³A formal revision or addition proposed or made to a statute,Constitution, pleading, order, or other instrument´ AND ³In Parliamentary law, it means a µmotion that changesanother motion¶s wording by striking out text, inserting or adding text, or substituting text´.
But Keshavananda Bharti V. State of Kerela provided the best explanation as to the scope and definition of the wordµAmendment¶. It purported that ³A broad definition of the word µAmendment¶ will include any alteration or change. Theword µamendment¶ when used in connection with the Constitution may refer to the addition of a provision on a newand independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular articleor clause´.
The Constitution of India provides for amendment mainly in Article 368 and in some other parts as specified therein.
Modes Of Amending Constitution The Constitution of India provides for the amendment by way of Amendment Acts in a formal manner. For thepurpose of amendment, the various Articles of the Constitution are divided into three categories. The first category isout of the purview of Article 368 whereas the other two are a part and parcel of the said Article. The variouscategories of amendment to the Constitution can be summarized as follows:
� Amendment by Simple Majority As the name suggests, an article can be amended in the same way by the Parliament as an ordinary law is passedwhich requires simple majority. The amendment contemplated under Articles 5-11 (Citizenship), 169 (Abolition or creation of Legislative Councils in States) and 239-A (Creation of local Legislatures or Council of Ministers or both fir certain Union Territories) of the Indian Constitution can be made by simple majority. These Articles are specificallyexcluded from the purview of the procedure prescribed under Article 368.
� Amendment by Special Majority
Articles which can be amended by special majority are laid down in Article 368. All amendments, except thosereferred to above come within this category and must be affected by a majority of total membership of each House of Parliament as well as 2/3rd of the members present and voting.
� Amendment by Special Majority and Ratification by States Amendment to certain Articles requires special majority as well as ratification by states. Proviso to Article 368 laysdown the said rule. Ratification by states means that there has to be a resolution to that effect by one-half of the statelegislatures. These articles include Article 54 (Election of President), 55 (Manner of election of President), 73 (Extentof executive power of the Union), 162 (Extent of executive power of State), 124-147 (The Union Judiciary), 214-231(The High Courts in the States), 241 (High Courts for Union Territories), 245-255 (Distribution of Legislative powers)
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and Article 368 (power of the Parliament to amend the Constitution and procedure therefor) itself. Any list of seventhschedule or representation of states in Parliament as mentioned in the fourth schedule is also included.
Procedure For Amendment U/A 368 A Bill to amend the Constitution may be introduced in either house of the Parliament. It must be passed by eachhouse by a majority of the total membership of that house and by a majority of not less than 2/3rd of the memberspresent and voting. Thereafter, the bill is presented to the President for his assent who shall give his assent and
thereupon the Constitution shall stand amended.In case, ratification by state is required it has to be done beforepresenting it to the President for his/her assent.
Amendability Of The Indian Constitution According to Vepa P. Sarathi, there will never be a conflict between Legislature and Judiciary and these two powerfulorgans will be better capable of guiding the third branch i.e. Executive, if the following view for the purpose of amendment is accepted. Article 368 can be interpreted in the following manner:
A) The power of the Parliament to amend Constitution is absolute and there are no limits on that power.B) Parliament should not, however, take away the power of the courts to strike down ordinary legislation as testedagainst the amended Constitution.
One can relate to what Shakespeare said in ³Measure for Measure´:³O, it is excellentTo have a giant¶s strength; but it tyrannous
To use it like a giant.´
The elementary question in controversy has been whether Fundamental Rights are amendable so as to take awaythe basic rights guaranteed by the Constitution. Another controversy deals with the extent, scope and authority of Parliament to amend Constitution. The answer has been given by the Supreme Court from time to time, sometimesunder immense pressure and can be understood in the light of the following cases:
Shankari Prasad V. Union Of India (AIR 1951 SC 458)The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to abridgethe fundamental Rights under Part 3 of the Constitution of India. Supreme Court held that the power to amend theConstitution, including Fundamental Rights is contained in Article 368. An amendment is not a law within the meaningof Article 13(2). Article 13(2) states that ± ³The State shall not make any law which takes away or abridges the rightsconferred by this part and any law made in contravention to this clause shall, to the extent of the contravention, bevoid´. An amendment is valid even if it abridges any fundamental Right.
Sajjan Singh V. State Of Rajasthan (AIR 1965 SC 845)The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by theamendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview of
Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court approvedthe judgment in Shankari Prasad case and held that on Article 13 (2) the case was rightly decided. Amendment¶includes amendment to all provisions of the Constitution.
Golaknath V. State Of Punjab (AIR 1967 SC 1643)The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held thatParliament had no power to amend part 3 of the Constitution so as to abridge or take away any of the FundamentalRights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, TheCourt said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates anyfundamental right, it may be declared void.
24th Amendment Act, 1971: Golaknath¶s case created a lot of difficulties and as a result the Parliament enacted 24th Amendment act, 1971whereby it changed the old heading of Article 368± ³Procedure for Amendment of the Constitution´ to a new heading
± ³Power of the Parliament to Amend the Constitution and Procedure Therefor.´
To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and extended the scope of power of Parliament to amend the Constitution by adding the words ³amend by way of addition or variation or repeal anyprovision in accordance with the provisions laid down in this Article´ Further, the amendment provided that ³Nothing in
Article 13 shall apply to any amendment made under this article´ by way of an addition of Clause 3 to Article 368.
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Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461)One of the various questions raised in this case was the extent of the power of the Parliament to amend under Article368. A 13 Judge Constitutional bench was formulated under Chief Justice Sikri in order to evaluate the intricaciesof Golaknath¶s case. The Supreme Court overruled its decision in Golaknath¶s case and held that even before the24th Amendment, Article 368 contained power as well as procedure for amendment. The majority held that there areinherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroythe µBasic Structure¶ of the Constitution.
Basic Structure:The Theory of basic structure very effectively proved to be a limitation on the amending power of the Parliament. TheBasic Structure doctrine applies only to the Constitutionality of amendments and not to ordinary Acts of Parliament,which must conform to the entirety of the Constitution and not just its basic structure.
Chief Justice Sikri indicated that Basic structure is:1. The supremacy of Constitution2. The republican and democratic forms of government3. The secular character of Constitution4. Maintenance of separation of power 5. The federal character of the Constitution
Justices Shelat and Grover added another three:
1. The mandate to build a welfare state contained in the Directive Principles of State Policy2. Maintenance of the unity and integrity of India3. The sovereignty of the country
Justices Hegde and Mukherjea listed the following:1. The Sovereignty of India2. The unity of the country3. The democratic character of the polity4. Essential features of individual freedoms5. The mandate to build a welfare state
Justice Jaganmohan Reddy referred the Preamble only:1. A sovereign democratic republic2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship4. Equality of status and opportunity
42nd Amendment Act, 1976 and Article 368: 42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added clause 4 and clause 5 to
Article 368. Article 368(4) provided that no Constitutional Amendment shall be called in any court on any ground. Article 368(5) provided that there shall be no limitation whatsoever on the constituent power of the Parliament.
Minerva Mills V. Union Of India (AIR 1980 SC 1789)Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment. Justification for thedeletion of the said clauses was based on the destruction of µBasic Structure¶. The Court was satisfied that 368 (4)and (5) clearly destroyed the µBasic Structure¶ as it gave the Parliament absolute power to amend Constitution.Limitation on the amending power of the Parliament is a part of the µBasic Structure¶ explained in Kesavananda¶scase.
S. P. Sampath Kumar V. Union Of India (AIR 1987 SC 386)The Constitutional validity of Article 323A and the provisions of the Administrative Tribunals Act was challenged onthe ground that it excluded the jurisdiction of High Court under Article 226 and 227. Supreme Court held that Article323A and Administrative Tribunals Act was valid as it has not excluded Judicial Review under Article 32 and 136. Itwas not proved beyond reasonable doubt that Article 323A and Administrative Tribunals Act destroyed the basicstructure and the Court upheld their validity.
L. Chandra Kumar V. Union Of India (AIR 1997 SC 1125)The Supreme Court struck down clause 2(d)of Article 323A and clause 3(d) of Article 323B as they excluded the
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jurisdiction of High court under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 as theydamage the power of Judicial Review which is a basic feature of Constitution.
Conclusion The final word on the issue of Amendability can be related to µBasic Structure¶ defined in Kesavananda Bharti¶s case.To name a few Minerva Mills¶ case, S. P. Sampath Kumar¶s case and L. Chandra Kumar¶s case are well based on theprinciple of µBasic Structure¶ and this situation is unlikely to change in the near future. It is clear that all laws and
constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely tobe struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute andthe Supreme Court is the final arbiter over and interpreter of all constitutional amendments.
