AMENDMENT OF CONSTITUTION
AMENDMENT OF CONSTITUTION -AYUSHI AGRAWAL
OBJECTIVES
The objectives will clearly tell us what we intend to find out about the research project. Here are the objectives for the topic “Amendment of Constitution”:
To understand the procedure of amendment of Constitution
RESEARCH METHODOLOGY
The nature of the project is purely descriptive and analytical. It is purely based on data collected from books, acts, journals and web sources. Books and other reference as guided by Faculty have been primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been referred. Footnotes have been provided wherever needed, either to acknowledge the source or to point to a particular provision of law.
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AMENDMENT OF CONSTITUTION NATURE AND SCOPE OF THE AMENDING PROCESS
The Constitution of a country is the fundamental law of the land — the basis on which all other laws are made and enforced. It has been described as a “superior or supreme law” with “perhaps greater efficiency and authority”, and “higher sanctity”, and more permanence than ordinary legislation. Nevertheless, an adequate provision of its amendment is considered implicit in the very nature of a Constitution. A democratic Constitution has to be particularly responsive to changing conditions, since a Government founded on the principle of popular sovereignty, “must make possible the fresh assertion of the popular will as that will change.” Rigid or Flexible Constitution Constitutions are usually classified as „flexible‟ or „rigid‟ depending upon the process through which they can be amended. Prof. A.V. Dicey defines two types of Constitutions — the flexible as „one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body‟, and the rigid Constitutions as „one under which certain laws generally known as constitutional or fundamental laws, cannot be changed in the same manner as ordinary laws‟ Need for Flexibility in the Constitution Explaining why it was necessary to introduce an element of flexibility in the Constitution, Pandit Jawaharlal Nehru observed in the 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 Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation‟s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible.… In any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible….
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AMENDMENT OF CONSTITUTION 368. Power of Parl iament to amend th e Constit uti on and procedur e therefor e,
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent (3) Nothing in Article 13 shall apply to any amendment made under this article (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS
An analysis of the procedure prescribed by article 368 for amendment of the Constitution shows that:
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AMENDMENT OF CONSTITUTION (i) an amendment can be initiated only by the introduction of a Bill in either House of Parliament; (ii) the Bill so initiated must be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. There is no provision for a joint sitting in case of disagreement between the two Houses; (iii) when the Bill is so passed, it must be presented to the President who shall give his assent to the Bill; (iv) where the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than onehalf of the State . (v) such ratification is to be by resolution passed by the State Legislatures; (vi) no specific time limit for the ratification of an amending Bill by the State Legislatures is laid down; the resolutions ratifying the proposed amendment should, however, be passed before the amending Bill is presented to the President for his assent; (vii) the Constitution can be amended: (1) only by Parliament; and (2) in the manner provided. Any attempt to amend the Constitution by a Legislature other than Parliament and in a manner different from that provided for will be void and inoperative. AMENDMENT PROCEDURE
The machinery of amendment should be like safety valve, so devised as neither to operate the machine with too great facility nor to require in order to set in motion, an accumulation of force sufficient to explode it. The Constitution makers have, therefore, kept the balance between the danger of having non-amendable Constitution and a Constitution which was easily amended. One can therefore, safely say that the Indian federation will not suffer from the faults of the rigidity of legalism. Its distinguishing feature is that it is a flexible federation.
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AMENDMENT OF CONSTITUTION For the purpose of the amendment, the provisions of the Constitution fall under three categories. The procedure of each category is laid down in the Constitution. The categories are: 1. Amendment by Simple Majority: Articles that can be amended by Parliament by simple majority as that required for passing of any law. The amendments contemplated in Articles 4, 169, 239-A and paras 7 and 21 of the Fifth and the Sixth schedule respectively fall within this class. These Articles are specifically excluded from the purview of the procedure prescribed in Article 368. 2. Amendment by Special Majority: Articles of the Constitution which can be amended by special majority as laid down in Article 368(2). All constitutional amendments other than those referred to above, come within this category and must be effected by a majority of a total membership of each House of the Parliament as well as by a majority of not less than 2/3 of the members of the House present and voting. 3. By Special Majority and Ratification by States: Articles, which requires, in addition to the special majority mentioned above, ratification by not less than half of the State Legislatures. The States are given an important voice in the amendment of these matters. These are fundamental matters where States have important power under the Constitution and any unilateral amendment by Parliament may vitally affect the fundamental basis of the system built up by the Constitution. This class of Articles consist of amendments which seek to make up any change in the provisions mentioned in Article 368. Amendments in the following provisions require such ratification: i.
the election and the manner of election of the President.
ii.
The extent of the executive power of the Union under Article 73
iii.
The extent of the executive power of a State under Article 162
iv.
Provisions dealing with the Supreme Court (Chapter IV of Part V).
v. vi. vii.
Provisions dealing with the High Courts in the States.(Chapter V of Part VI). High Courts for Union Territories. (Article 214). Distribution of legislative powers between the Union and the States.(Chapter I of Part XI). Page | 5
AMENDMENT OF CONSTITUTION viii. ix. x.
The representation of States in the Parliament. (Fourth Schedule). Seventh Schedule to the Constitution. (Lists I, II and III, Schedule VII). Article 368, i.e. the power and procedure of amendment of the Constitution.
A Bill to amend the Constitution may be introduced in either houses of the Parliament. It may be passed by each House by a majority of the total membership to that House and by a majority of not less than two-third of the members of that House present and voting. The Bill, after it has been passed by both the Houses and, if the amendment is as such as requires ratification by States, after it has been ratified by the required number of States, must be presented to the President for his assent and if he gives his assent to the Bill then the Constitution stands amended. In other respects, the normal procedure of each House of Parliament is to be followed so far as that may be applicable consistently with the express provisions of Article 368. But a bill which seeks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by one -half of the States. An amendment may specify the date of its commencement or leave it to the President to bring it into effect from such date as he ma y notify. The power to amend the Constitution conferred upon the Parliament includes the power to amend Article 1 and that logically would include the power to cede national territory in favour of a foreign territory. Article 368, however, does not constitute the complete Code. The process of amending the Constitution is the legislative process governed by the rules of that process. In U.S.A., amendment of the Constitution may be proposed only by Congress, with the approval of two-third majority of both Houses or a convention summoned on an application from twothird members of both Houses. The proposed amendment must subsequently be ratified by at least three-fourths of the total number of the State Legislatures or by conventions in three-fourths of the total number of States. In Switzerland, no alteration of the Constitution can be effected without resorting to a referendum. It is also quite detailed and complicated.
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AMENDMENT OF CONSTITUTION In Australia, the Constitution can be altered only by an Act passed by an absolute majority in both Houses, or in case on House refuses to pass it, by an Act passed by an absolute majority in either Houses , for the second time, after an interval of three months. But in either case, the Act must be subjected to a referendum in each State. If in a majority of the States, a majority of the voters approve the amendment, and if a majority of all the voters also approves, it shall be presented to the Governor General for the Royal assent. Thus, it is clear that most of the provisions of the Constitution can be amended by an ordinary legislative process. Only a few provisions which deals with the federal principles require a special majority plus ratification by States. The procedure to amend these provisions is in conformity with the federal principles. The procedure to amend the Constitution, is however, not so difficult as in America or in Australia or in Switzerland. AMENDMENT OF FUNDANMENTAL RIGHTS
The question whether the amendment of fundamental rights guaranteed by Part III of the Constitution is permissible under Article 36 came before the Supreme Court as early as in 1951 1
in Shankari Prasad Singh Deo v Union of India. In that case the validity of the Constitution (First Amendment) Act, 1951, especially the inclusion of Articles 31-A and 31-B was challenged in a petition under Article 32. The amendment was challenged on the ground that it purported to take away or abridges the rights conferred by Part III which fell within the prohibition of Article 13(2) and hence was void. It was argued that State in Article 12 included Parliament and the word “law” under Article 13(2); therefore, it must include Constitutional amendment. The Supreme Court held that the power to amend the Constitution, including the Fundamental Rights, was contained in Article 368 and that the word law in Article 13(2) did not include an amendment of the Constitution which was made in the exercise of the constituent and not legislative power. Later several other amendments were made in the Constitution of which the Fourth and Seventh Amendment related to Part III of the Constitution. The Seventeenth Amendment which added several legislations to the Ninth Schedule making them immune from attack on the ground of
1
AIR 1951 SC 458
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violation of fundamental rights was challenged in Sajjan Singh v. State of Rajasthan. The Supreme Court approved the majority judgment given in Shankari Prasad ‟s case and held that the words “amendment of the Constitution” means amendment of all the provisions of the Constitution. Gajendragdkar, C.J. said that if Constitution-makers intended to exclude the fundamental rights form the scope of the amending powers they would have made a clear provision in that behalf. 3
In Golak Nath v. State of Punjab , the validity of the seventeenth Constitutional Amendment which inserted certain State Acts in the Ninth Schedule was again challenged. The Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision in Shankari Prasad and Sajjan Singh‟s cases and held that Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge the fundamental rights. The judgment proceeded on the following reasoning: a) The Constitution incorporates an implied limitation that the fundamental rights are out of the reach of the Parliament. The Constitution has given by its scheme a place of permanence to the fundamental freedoms. The incapacity of the Parliament, therefore, in exercise of its amending powers to modify, restrict or impair fundamental freedoms in Part III arises from the scheme of the Constitution and the n ature of the freedoms. b) Article 368 does not contain the power to amend but merely provides the procedure for amending the Constitution. The power to amend the Constitution is a legislative process and is included within the plenary legislative power of Parliament. c) The power to amend Constitution by should be found in the plenary legislative powers of the Parliament. The residuary power of the legislation certainly takes in the power to amend the Constitution. d) Amendment to the Constitution, either under Article 368 or under other articles, are made only by Parliament by following the legislative process adopted by it in making other laws. An amendment in the Constitution can be nothing be nothing but “law”. The word “law” in Article 13(2) includes the Constitutional amendments and therefore, the fundamental rights are outside the powers of amendment given to Parliament under
2
AIR 1965 SC 854 AIR 1971 SC 1643
3
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AMENDMENT OF CONSTITUTION Article 368, if such an amendment seeks to abridge or take away any of the fundamental rights. e) If at all the provisions guaranteeing the fundamental rights must be amended so as to curtail those rights, this could be done only by a Constituent Assembly which might be convoked by Parliament by enacting a law for that purpose in the exercise of its residuary powers. In order to remove the difficulties created by the decision of Supreme Court in Golak Nath‟s th
case, Parliament enacted the (24 Amendment) Act. The Amendment has made the following amendments: 1) It has added a new clause (4) to Article 13 which provides that „nothing in this Article shall apply to any amendment of this Constitution under Article 368. 2) It substituted a new marginal heading to Article 368 in place of the old heading “Procedure for amendment of the Constitution”. The new heading is “Power of Parliament to amend the Constitution and Procedure thereof” 3) It inserted a new sub-section (1) in article 368 which provides that “notwithstanding anything in this Constitution, Parliament, may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article” 4)
It substituted the words “ it shall be presented to the President who shall give his assent to the Bill and thereupon” for the words “it shall be presented to the President for his assent and upon such assent being given to the Bill.” Thus it makes it obligatory for the President to give his assent to the Bill amending the Constitution.
5) It has added a new clause (3) to Article 368 which provide that “ Nothing in Article 13 shall apply to any amendment made under this article” th
Thus the 24 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 repeal any provision of this Constitution in accordance w ith the procedure laid down in this Article.”
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AMENDMENT OF CONSTITUTION AMENDMENT OF BASIC STRUCTURE
Basic Structure are systematic principles underlying and connecting provisions of the Constitution. They give coherence and durability to Constitution. These principles are a part of Constitutional law even if not expressly stated. This doctrine has essentially developed from the German Constitution. It is not based on literal words. Theory of basic structure is based on the concept of Constitution identity. The main objective behind this theory is continuity and within that continuity of identity. In Kesavananda Bharti v State of Kerala, the Judges has enumerated certain essentials of basic structure as follows: 1) Supremacy of the Constitution 2) Republic and democratic forms of the Government 3) Secular characters of the Constitution 4) Separation of Power between the Executive, Legislative and the Judiciary 5) Federal character of the Constitution 6) Dignity of individual secured by various freedoms and b asic rights in Part III 7) The mandate to build to build a welfare state contained by Part V 8) Unity and integrity of the nation 9) Sovereignty of India 10) Parliamentary democracy 11) Rule of law 12) Judicial review 13) Democracy, which implies free and fair election 14) Limited power of Parliament to amend Constitution 15) Harmony and balance between fundamental rights and directive principles of state policy 4
The validity of the above amendments was questioned in Kesavananda Bharti v State of Kerala , wherein a writ petition was filed initially to challenge the validity of the Kerala Land reforms Act of 1963 as amended in 1969. But during the pendency of the petition the Kerala Act was 4
AIR 1973 SC 1461
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AMENDMENT OF CONSTITUTION th
amended in 1971 and was placed in the Ninth Schedule by the 29 Amendment Act. The petitioner was not allowed to challenge the validity of the twenty-fourth Amendment Act. On the behalf of Union of India it was claimed that amending power was unlimited and short of repeal of the Constitution any change could be affected. On the other hand, the petitioner contended that the amending powers were wide but not unlimited. Under Article 368 Parliament cannot destroy the “Basic Feature” of the Constitution. Th is is so because: i.
Having only such constituent powers as is conferred on it by the Constitution which is given by the people unto themselves, Parliament cannot enlarge its own powers so as to abrogate the limitation in terms on which the power to amend was conferred.
ii.
Being a functionary created under the Constitution, the Parliament cannot abrogate to itself the power of amendment so as to alter or destroy any of the essential features of the Constitution.
iii.
Purporting to empower itself to take away or abridge all or any of the fundamental rights, Parliament does not become competent to destroy the basic human rights and fundamental freedoms which were reserved by the people for themselves when they gave to themselves the Constitution.
iv.
Initially having no power to alter or destroy any of the essential features of the Constitution, and also recognizing implied and inherent limitation on the amending power, Parliament has no power to alter or destroy all or any one of the fundamental rights, or, in other words, Parliament cannot abrogate the limits of its constituent power by repealing those limitations and thereby purporting to do what is forbidden by those limitations.
All the judges were of the view that the Twenty-Fourth Amendment was valid, and that by virtue of Article 368, as amended by the Twenty-Fourth Amendment, Parliament has power to amend any or all the provisions of the Constitution including those relating to the fundamental rights. However, the individual freedom secured to the citizens was regarded by all the six judges as a basic feature of the structure or framework of the Constitution which could not be altered or destroyed by invoking the power of amendment under Article 368. As regards to the amending power contained in Article 368, six judges held that there are inherent or implied limitations on the amending powers of the Parliament and Article 368 does Page | 11
AMENDMENT OF CONSTITUTION not confer power to amend the Constitution so as to damage or destroy the essential elements or basic features of the Constitution. The word “amendment” postulated that the old Constitution must survive without loss of indemnity and it must be retained through in the amended form and, therefore, the power does not include the power to destroy or abrogate the basic structure or framework of the Constitution. nd
After the decision of Supreme Court in Kesavananda Bharti case, the Constitutional (42
Amendment) Act, 1976, was passed which added two new clauses, namely Clause (4) and (5) to Article 368. Clause (4) provided that “ No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground”. And Clause (5) provide that “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS” thus, by inserting clause (5) it made it clear that even the “basic feature” of the Constitution can be amended. This amendment removed the limitation imposed on the amending powers of the Parliament by ruling of the Supreme Court in Kesavananda Bharti case. It was said that the theory of basic structure as invented by Supreme Court is vague and will create difficulties. The amendment was intended to rectify this situation. It was argues that the amending body under Article 368 has the full constituent power. In other words, Parliament acts in the same capacity as the Constituent Assembly when exercising the Power of Amendment under Article 368.
This proposition is fully wrong because: i.
An amendment made by parliament cannot be said to be an amendment made by the people. There is distinction between the power of people to amend a Constitution and the power of legislature to amend it.
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AMENDMENT OF CONSTITUTION ii.
The assertion of parliamentary supremacy is based on wrong nations. The supremacy of Parliament is the main characteristic of Bristish Constitution, the Parliamentary supremacy means the Parliament has both the constituent power and ordinary lawmaking powers. It means that there is no distinction in England between constitutional law and ordinary law.
Thus, the Constitutional Amendments made under Article 368 can still be challenged on the ground that they are destructive of the “basic feature of the Constitution” CONCLUSION
A democratic Constitution has to be particularly responsive to changing conditions, since a Government founded on the principle of popular sovereignty, “must make possible the fresh assertion of the popular will as that will change.” Article 368 of the Constitution provides for the amending powers of Parliament to amend the Constitution. For the purpose of the amendment, the provisions of the Constitution fall under three categories. The procedure of each category is laid down in the Constitution. The categories are simple majority, special majority and special majority and ratification. It is clear that most of the provisions of the Constitution can be amended by an ordinary legislative process. Only a few provisions which deals with the federal principles require a special majority plus ratification by States. The procedure to amend these provisions is in conformity with the federal principles. The procedure to amend the Constitution, is however, not so difficult as in America or in Au stralia or in Switzerland.
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AMENDMENT OF CONSTITUTION BIBLIGRAPHY
Dr. J. N. Pandey, The Constitutional Law of India
V.N. Shukla, Constitution of India
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