Political science Project
Amendment Process of Indian Constitution
CHANAKYA NATIONAL LAW
UNIVERSITY
SUBMITTED TO : Dr. S.P.SINGH sir
SUBMITTED BY : ANKIT ANAND
ROLL NO. : 917, 1st SEMESTER
AIMS AND OBJECTIVE:
The researcher aims to
1. Stud the constitution briefly.
2. Study the various process of amendments.
3. Study the importance of amendments.
Hypothesis
The researcher hypotheses is that the amendments to the constitution are necessary because day by
day the world is changing and to meet the changing situation some provisions of the constitutions
need to be amended.
Research Methodology
As the research work for this topic is confined to the library and books and no field
work has been done. Hence , researcher in his research work has opted the doctrinal
methodology of research .For doing the research work various sources has been used .
Researcher in the research work has relied upon the sources like various books and online
materials is also helpful source for the research .
AKNOWLEDGEMENT
The present project on the “Amendment process of Indian constitution” has been able to get its
final shape with the support and help of people from various quarters. My sincere thanks go to all
the members without whom the study could not have come to its present state. I am proud to
acknowledge gratitude to the individuals during my study and without whom the study may not be
completed. I have taken this opportunity to thank those who genuinely helped me.
With immense pleasure, I express my deepest sense of gratitude to Dr.S. P. SINGH SIR, Faculty
for Political Science, Chanakya National Law University for helping me in my project. I am also
thankful to the whole Chanakya National Law University family that provided me all the material I
required for the project. Not to forget thanking to my parents without the co-operation of which
completion of this project would not had been possible.
I have made every effort to acknowledge credits, but I apologies in advance for any omission that
may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.
CONTENT
Introduction
A brief overview (or) The Features of a Constitution
Constitutional Amendments: Their Purpose and Importance in a Democracy
The Constitution of India: An Overview
Amendment Procedures in the Constitution of India
Notable Constitutional Amendments
The Present Scenario: The Validity of Constitutional Amendments
Conclusion: The Need for a more effective Amendment Mechanism
Bibliography
In t ro d u cti o n
A constitution is a set of rules for government, which is often c o d i f ied a s a written document.
Fundamentally, the constitution enumerates and establishes the powers and functions of a
political entity. In the case of countries and autonomous regions of federal countries the term
refers specifically to a constitution defining the fundamental p o l i t i c al p rinciples, and
establishing the structure, procedures, p o w ers a nd d u t ie s , of a gover n m e n t . The term
constitution can be applied to any overall system of law t hat defines the functioning of a
government. This can also include several uncodified historical constitutions that existed before
the development of modern codified constitutions.
Constitutions concern different levels of p ol i t i c a l orga nization as they exist at n a t i o n al ( e.g.,
codified Co n s t i t ut i o n o f Cana d a , uncodified Co n s t i t ut i o n o f t h e Un i t ed Ki n g d o m ) , r e g i o n al ( e.g.,
the M assa c hu s e tt s Co n s t i t ut i o n ) , and sometimes lower levels. They also define many political
and other groups, such as p oli t i c al p ar t ie s , p re ssure gr oup s , and t r a d e un io ns . Non-political
entities such as c or p or a t io n s a nd vo l u n t ary as s o c ia t io ns , whether incorporated or not, often have
what is effectively a c o n s t i t u t i o n , often called m e m o randum a nd a r t i c les of associa t i o n .
Etymologically, the term constitution comes from a La t in t erm denoting an important law,
usually one proclaimed by the Roman emperor ("constitutiones principis": the edicta, mandata,
decrera and rescripta). Later, the term was widely used in c a n on l aw f or an important
determination, especially by the P o p e , which is now referred to as apo s t o lic c on s t i t u t i on s . 1
The earliest written constitution still governing a sovereign nation today may be that of S a n
M ari n o . The Leges S t a t u t a e Re pub li c a e S a n ct i Ma r in i w as written in Latin and consists of six
books. The first book, with 62 articles, establishes councils, courts, various executive officers
and the powers assigned to them. The remaining books cover criminal and civil law, judicial
procedures and remedies. Written in 1600, the document was based upon the Statuti Comunali
(Town Statute) of 1300, itself influenced by the Codex Justinianus, and it remains in force today.
1 Encyclopaedia of Social Sciences, New York, 1951, Vol. II, p. 21.
2Featu r e s of a C o n s tit u ti o n 3
A constitution is a complex set of rules that acts as a mechanism-cal guideline and every
modern constitution confers specific powers to an organization or institutional entity, established
upon the primary condition that it abides by the said constitution's limitations. According to the
renowned political thinker Scott Gordon, a political organization is constitutional to the extent
that it "contains i n s t i t u t i o n ali z ed mec hanisms of power control for the protection of the
interests and l i b e r t ies o f the c i t i z e n ry, including those that may be in the mi n ori t y." In most but
not all modern states the constitution has supremacy over ordinary statute law. In such states
when an official act is unconstitutional, i.e. it is not a power granted to the government by the
constitution, that act is null and void. Another important feature of the constitution is to
provide for legal remedies or writs. Historically, the remedies for such violations have been
petitions for common law w r i t s, such as qu o wa r r an t o .
Keyfeature4
Most commonly, the term constitution refers to a set of rules and principles that define the nature
and extent of government. Most constitutions seek to regulate the relationship between
institutions of the state, in a basic sense the relationship between the executive, legislature and
the judiciary, but also the relationship of institutions within those branches. For example,
executive branches can be divided into a head of government, government
departments/ministries, executive agencies and a c ivil servic e/ bureaucracy.5 Most constitutions
also attempt to define the relationship between individuals and the state, and to establish the
broad rights of individual citizens. It is thus the most basic law of a territory from which all the
other laws and rules are hierarchically derived; in some territories it is in fact called "B asic La w ."
The following are features of democratic constitutions that have been identified by political
scientists to exist, in one form or another, in virtually all national constitutions.
2 A.V. Dicey: Introduction to the Study of the Law of the Constitution,1952, p. 127.3 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust, India..
4 "Constitution of India". Ministry of Law and Justice of India. July 2008. Retriev
5 Principles of Constitutional Design, Donald S. Lutz (2006) ISBN 0-521-86168-3
C odi f i cat i on 6
A fundamental classification is codification or lack of codification. A codified constitution is one
that is contained in a single document, which is the single source of constitutional law in a
state. An uncodified constitution is one that is not contained in a single document, consisting of
several different sources, which may be written or unwritten.
Co d i f i e d c o n s t i t ut io n 7
Most states in the world have codified constitutions and Codified constitutions are often the
product of some dramatic political change, such as a r e vol ut i o n . The process by which a country
adopts a constitution is closely tied to the historical and political context driving this
fundamental change. The legitimacy (and often the longevity) of codified constitutions has
often been tied to the process by which they are initially adopted.
States that have codified constitutions normally give the constitution supremacy over ordinary
s t a t u t e la w. That is, if there is any conflict between a legal statute and the codified constitution,
all or part of the statute can be declared ultra vires by a court, and struck down as
un c o n s t i t ut i o n a l . 8 In addition, exceptional procedures are often required to am e n d a
c o n s t i t ut i o n . These procedures may include: convocation of a special c o n s t i t u e n t asse m b ly o r
constitutional convention, requiring a s up e rm a j o ri t y of legislators' votes, the consent of
regional legislatures, a r ef er e n d u m p rocess, and other procedures that make amending a
constitution more difficult than passing a simple law.
Constitutions may also provide that their most basic principles can never be abolished, even by
amendment. In case a formally valid amendment of a constitution infringes these principles
protected against any amendment, it may constitute a so-called unconstitutional constitutional
law.9
6 he New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.
7 Pylee, M.V. (1997). India's Constitution. S. Chand & Co. p. 3. ISBN 81-219-0403-X.
8 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust, India. p. 3.ISBN 978-81-237-0734-1.
9 constitution (politics and law) - Encyclopedia Britannica. Britannica.com. Retrieved on 2013-07-12.
Codified constitutions normally consist of a ceremonial p r e a m b l e , which sets forth the goals of
the state and the motivation for the constitution, and several a r t i c les c ontaining the
substantive provisions. The preamble, which is omitted in some constitutions, may contain
r ef er e n c e t o God a nd/or to fundamental values of the state such as liberty, democracy or
human rights.
Uncodified constitution10
As of 2010 only three states have uncodified constitutions: I s ra e l, N ew Z e ala n d , and the Un i t e d
Ki n g d o m . Uncodified constitutions (also known as unwritten constitutions) are the product of
an "evolution" of laws and conventions over centuries.11 By contrast to codified constitutions, in
the We s t mi n s t er t radition that originated in England, uncodified constitutions include written
sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources (like
c o n s t i t ut i o n al c o n v e nt i o n s , observation of p r e c e d e n ts , r o yal p r e r o ga t i v e s , c u s t om and tradition12
In states using uncodified constitutions there is no e nt r e n c h m e n t of constitutional provisions and
thus constitutional law as such: laws of constitutional significance can be created, altered, or
repealed by the legislative body in the same was as any s t a t u t e .
10 ^ Blaustein, Albert (January 1993). Constitutions of the World. Fred B. Rothman & Company. ISBN 978-0-8377-0362-6.
11 ^ Instrument of Government (England [1653]) - Encyclopedia Britannica. Britannica.com. Retrieved on 2013-07-12.
12 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust, India. p. 3.ISBN 978-81-237-0734-1.
Uncodified constitution13
As of 2010 only three states have uncodified constitutions: I s ra e l, N ew Z e ala n d , and the Un i t e d
Ki n g d o m . Uncodified constitutions (also known as unwritten constitutions) are the product of
an "evolution" of laws and conventions over centuries.14 By contrast to codified constitutions, in
the We s t mi n s t er t radition that originated in England, uncodified constitutions include written
sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources (like
c o n s t i t ut i o n al c o n v e nt i o n s , observation of p r e c e d e n ts , r o yal p r e r o ga t i v e s , c u s t om and tradition15
In states using uncodified constitutions there is no e nt r e n c h m e n t of constitutional provisions and
thus constitutional law as such: laws of constitutional significance can be created, altered, or
repealed by the legislative body in the same was as any s t a t u t e .
13 ^ Blaustein, Albert (January 1993). Constitutions of the World. Fred B. Rothman & Company. ISBN 978-0-8377-0362-6.
14 ^ Instrument of Government (England [1653]) - Encyclopedia Britannica. Britannica.com. Retrieved on 2013-07-12.
15 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust, India. p. 3.ISBN 978-81-237-0734-1.
Uncodified constitution16
As of 2010 only three states have uncodified constitutions: I s ra e l, N ew Z e ala n d , and the Un i t e d
Ki n g d o m . Uncodified constitutions (also known as unwritten constitutions) are the product of
an "evolution" of laws and conventions over centuries.17 By contrast to codified constitutions, in
the We s t mi n s t er t radition that originated in England, uncodified constitutions include written
sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources (like
c o n s t i t ut i o n al c o n v e nt i o n s , observation of p r e c e d e n ts , r o yal p r e r o ga t i v e s , c u s t om and tradition18
In states using uncodified constitutions there is no e nt r e n c h m e n t of constitutional provisions and
thus constitutional law as such: laws of constitutional significance can be created, altered, or
repealed by the legislative body in the same was as any s t a t u t e .
S e p a r a t i on o f p o w e r s
Constitutions usually explicitly divide power between various branches of government. The
standard model, described by the B ar o n d e M o n t es qu i e u , involves three branches of government:
exec ut i v e , l egisla t ive a nd j ud i c ia l . Some constitutions include additional branches, such as an
a u d i t ory b r a n c h . Constitutions vary extensively as to the degree of se p a ra t i o n o f p o w ers b etween
these branches.
L in e s of a c c o u n tab i li ty 19
In p r e si d e n t ial a nd sem i - p r e si d e nt i al s ystems of government, department secretaries/ministers
are accountable to the p r e si d e n t , who has patronage powers to appoint and dismiss ministers.
The president is accountable to the people in an election. In p arli a m e nt a ry s ystems, ministers are
accountable to P a rli a me nt , but it is the p rime mi n is t er w ho appoints and dismisses them.
16 ^ Blaustein, Albert (January 1993). Constitutions of the World. Fred B. Rothman & Company. ISBN 978-0-8377-0362-6.
17 ^ Instrument of Government (England [1653]) - Encyclopedia Britannica. Britannica.com. Retrieved on 2013-07-12.
18 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust, India. p. 3.ISBN 978-81-237-0734-1.
19 C.A. Deb., Vol. VII, 8 November 1948, pp. 322-323
State of emergency20
Many constitutions allow the declaration under exceptional circumstances of some form of
state of emergency during which some rights and guarantees are suspended. This deliberate
lo op h ole c an be and has been abused to allow a government to suppress dissent without
regard for human rights—see the article on s t a t e of e m erg e n c y .
Cons t i t u ti o n al A me n d m e n ts: T h e i r Pu r p o se a n d I m p o rt a n ce in a
Dem o cra c y
Demands for constitutional reform may emerge whenever alternative procedures or
constraints appear to advance the first three goals more effectively than existing ones—or
whenever a more or less temporary majority believes that it can improve its own situation
through constitutional reform. Political interests are not constant over time, nor are all
institutional structures equally effective at advancing the shared interests of the electorates. A
nation’s citizenry may want to modify their system of governance as they learn about unintended,
unexpected, and unwanted consequences of their present institutions. Voters may also wish to
modify core procedures and constraints of governance as their values and goals change through
time, as with women’s suffrage and religious and racial tolerance, or as constitutional innovations
are found to deliver more effective governance. Major realignments in the political arena may
also generate relatively narrow partisan pressures for institutional reforms. However one must
understand that not every demand for constitutional reform attempts to advance broad interests as
illustrated in many instances across the political world.
20 Ibid., Vol. IX, 17 September 1949, pp. 1644-1667.
How A me nd me n ts a ff e c t t h e St a b i l i ty o f t h e C o n s ti t u tion 21
Changes in constitutional text can serve as a useful first approximation for constitutional stability,
insofar as all formal changes in the constitution require changes in constitutional language, and all
formal changes to a nation’s written constitution in principle change related unwritten parts of the
constitution as well. It bears noting, however, that to the extent that other unwritten parts of a
nation’s constitution change as a consequence of other factors, the true underlying stability of a
polity’s constitution will be somewhat understated by this approach.
Feder a l St r u c t u r e 22
One of the most important features of the Indian constitution is that it provides for separation
of powers between the Union and the States.
It enumerates the powers of the P a rlia m e n t a nd State Legislatures in three lists, namely Union
list, State list and Concurrent list. Subjects like national defense, foreign policy, issuance of
currency are reserved to the Union list. Public order, local governments, certain taxes are
examples of subjects of the State List, on which the Parliament has no power to enact laws in
those regards, barring exceptional conditions. Education, transportation, criminal law are a few
subjects of the Concurrent list, where both the State Legislature as well as the Parliament have
powers to enact laws. The residuary powers are vested with the Union.
The upper house of the Parliament, the Raj y a Sa bh a , which consists of representatives of
States, is also an example of the federal nature of the government.
21 Ibid, Vol. VII, 4 November 1948, pp. 43-44.
22 S r myneni, political science,Allahabad law agency,13th reprint,2011,pg_342
P a rlia m e nt ary D e m o c racy
The P r es i d e n t of I n d ia is elected by the Parliament and State Legislative Assemblies, and not
directly by the people. The President is the H e a d of t h e S t a te , and all the business of the
Executive and Laws enacted by the Parliament are in his/her name.23 However, these powers are
only nominal, and the President must act only according to the advice of the P rime M i n i s t er a nd
the Co un c il of M i n is t e r s . 24
The Prime Minister and the Council of Ministers enjoy their offices only as long as they enjoy a
majority support in the Lok Sa bha , the lower house of the Parliament, which consists of
members directly elected by the people. The ministers are answerable to both the houses of
the Parliament. Also, the Ministers must themselves be elected members of either house of the
Parliament. Thus, the Parliament exercises control over the Executive. A similar structure is
present in States, where the directly elected Leg i sla t ive Asse m b ly e njoys control over the Chi e f
M i n is t er a nd the State Council of Ministers.
In d e p e n d e n t J ud i c iary
The J ud i c iary of In d ia i s free of control from either the executive or the Parliament. The
judiciary acts as an interpreter of the constitution, and an intermediary in case of disputes
between two States, or between a State and the Union. An act passed by the Parliament or a
Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the
judiciary if it feels that the act violates some provision of the Constitution.
Constitutional remedy against any action of the government is available in a H i g h Co u r t or the
S up r e m e Co u r t , if the action violates any of the fundamental rights of an individual as
enumerated in the Constitution.
23 It is often argued that federal states where the central government has the constitutional authority to suspend a constituent state's government by invoking gross mismanagement or civil unrest, or to adopt national legislation that overrides or infringe on the constituent states' powers by invoking the central government's constitutional authority to ensure "peace and good government" or to implement obligations contracted under an international treaty, are not truly federal states.
24 Oxford English Dictionary
A me n d m e n t Pro c edures in t h e C on stit u ti o n of I n d ia
According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. The founding fathers wanted the Constitution to
be an adaptable document rather than a rigid framework for governance. Hence Parliament
was invested with the power to amend the Constitution. Article 36825 of the Constitution gives
the impression that Parliament's amending powers are absolute and encompass all parts of the
document. However, this power is not absolute in nature and the Constitution vests in the
judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by
Parliament or the state legislatures violates any provision of the Constitution, the Supreme
Court has the power to declare such a law invalid or ultra vires.26 With the intention of
preserving the original ideals envisioned by the constitution-makers, the apex court
pronounced that Parliament could not distort damage or alter the basic features of the
Constitution under the pretext of amending it. The phrase 'basic structure' itself cannot be found
in the Constitution.
The Supreme Court recognised this concept for the first time in the historic Kesavananda
Bharati case in 1973. The Supreme Court has since been recognized as the interpreter of the
Constitution and the arbiter of all amendments made by Parliament. Its worth noting that the
Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since
independence
Th e p r e -K e s a v a n a d a p o s i t i o n 27
25 http://www.constitution.org/cons/india/a1.html
26 http://www.preservearticles.com/201104235908/procedure-for-amendment-of-the-constitution-of-india.html
27 164.100.47.134/intranet/CAI/CA_Nature.pd
The Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951. After independence, several laws were enacted in the states with the aim of reforming land ownership and tenancy structures. This was in keeping with the ruling Congress party's electoral promise of implementing the socialistic goals of the Constitution [contained in Article 39 (b) and (c) of the Directive Principles . production among all citizens and prevention of concentration of wealth in the hands of a few. Property owners adversely affected by these laws petitioned the courts and the courts struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the unfavorable judgments, the Parliament placed these laws in the Ninth Schedule of the Constitution through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively removing them from the scope of judicial review.
The Parliament added the Ninth Schedule to the Constitution through the very first amendment
in 1951 as a means of immunizing certain laws against judicial review. Under the provisions of
Article 31, which themselves were amended several times later, laws placed in the Ninth
Schedule pertaining to acquisition of private property and compensation payable for such
acquisition cannot be challenged in a court of law on the ground that they violated the
fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by
state legislatures with the aim of regulating the size of land holdings and abolishing various
tenancy systems. The Ninth Schedule was created with the primary objective of preventing the
judiciary - which upheld the citizens' right to property on several occasions - from derailing the
Congress party led government's agenda for a social revolution. Property owners again
challenged the constitutional amendments which placed land reforms laws in the Ninth
Schedule before the Supreme Court, saying that they violated Article 13 (2) of the Constitution.
Article 13 (2) provides for the protection of the fundamental rights of the citizen. Parliament
and the state legislatures are clearly prohibited from making laws that may take away or
abridge the fundamental rights guaranteed to the citizen. They argued that any amendment to
the Constitution had the status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad
Singh Deo v. Union of India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court
rejected both arguments and upheld the power of Parliament to amend any part of the
Constitution including that which affects the fundamental rights of citizens. Significantly
though, two dissenting judges in Sajjan Singh v. Rajasthan case raised doubts whether the
fundamental rights of citizens could become a plaything of the majority party in Parliament.
As per the context of the Indian constitution, The Keshavananda Bharti V. State of Kerela Case
provides for the best explanation as to the scope and definition of the word ‘Amendment’. It
purported that “A broad definition of the word ‘Amendment’ will include any alteration or
change. The word ‘amendment’ 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”.
Amen d i n g procedure
The Constitution of India provides for amendment mainly in Article 368 and in some other parts
as specified therein 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:
A me nd me n t b y Simp l e Ma j o ri ty
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.
A me nd me n t b y Sp e c i a l Ma j o ri ty
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.
A me nd me n t b y S p e c i a l Ma j o ri ty a n d Ra t i f i cat i o n b y St a tes
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) and Article 368 (power of the Parliament to amend the Constitution and
procedure thereof) itself. Any list of seventh schedule or representation of states in Parliament as
mentioned in the fourth schedule is also included.
Pro c e dur e F o r A me nd m e n t U/A 3 6 8
A Bill to amend the Constitution may be introduced in either house of the Parliament. It must
be passed by each house by a majority of the total membership of that house and by a majority of
not less than 2/3rd of the members present 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 before presenting it to the
President for his/her assent.
N o table Cons t i t u t i o n al A me n d m e n ts in In d ia
Sh a n k a r i Pr a s a d V. Un i o n o f I n di a ( A I R 1 9 51 SC 4 5 8 )
The validity of the First Amendment Act to the Constitution was challenged on the ground that
it purported to abridge the fundamental Rights under Part 3 of the Constitution of India.
Supreme Court held that the power to amend the Constitution, including Fundamental Rights is
contained in Article 368. An amendment is not a law within the meaning of Article 13(2).
Article
13(2) states that – “The State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention to this clause shall, to the extent of the
contravention, be void”. An amendment is valid even if it abridges any fundamental Right.
S a jj a n Si n g h V . St a te O f Ra j a s th a n (A I R 1 9 65 SC 8 4 5)
The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the
acts inserted by the amendment 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 approved the 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.
G ol a k n a th V. St a te O f P unj a b ( AI R 1 9 6 7 SC 1 6 4 3 )
The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh
cases and held that Parliament had no power to amend part 3 of the Constitution so as to
abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays
down the procedure for the purpose of amendment. Further, The Court said that an amendment
is a law under Article 13(2) of the Constitution of India and if it violates any fundamental
right, it may be declared void.
2 4 th A me nd me n t A c t , 1 9 7 1
Golaknath’s case created a lot of difficulties and as a result the Parliament enacted
24th Amendment act, 1971 whereby it changed the old heading of Article 368– “Procedure
for Amendment of the Constitution” to a new heading – “Power 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 “amend by
way of addition or variation or repeal any provision in accordance with the provisions laid
down in this Article” Further, the amendment provided that “Nothing in Article 13 shall
apply to any amendment made under this article” by way of an addition of Clause 3 to Article
368.
K e s a v a n a nd a Bha r ti V. St a te O f K e r e l a ( A I R 1 9 73 SC 1 4 6 1 )
One of the various questions raised in this case was the extent of the power of the
Parliament to amend under Article 368. A 13 Judge Constitutional bench was
formulated under Chief Justice Sikri in order to evaluate the intricacies of Golaknath’s
case. The Supreme Court overruled its decision in Golaknath’s case and held that even
before the 24th Amendment, Article 368 contained power as well as procedure for
amendment. The majority held that there are inherent limitations on the amending power of
the Parliament and Article 368 does not confer power so as to destroy the ‘Basic Structure’
of the Constitution.
The Theory of basic structure very effectively proved to be a limitation on the amending
power of the Parliament. The Basic 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.
4 2n d A me nd me n t A c t , 1 9 7 6 a n d A r t i c l e 3 6 8
The 42nd Amendment Act, 1976 was passed by the Parliament soon after. The 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.
M in e r va M ill s V. U n i on O f I n d i a (A I R 1 9 80 SC 1 7 8 9 )
Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment.
Justification for the deletion of the said clauses was based on the destruction of ‘Basic
Structure’. The Court was satisfied that 368 (4) and (5) clearly destroyed the ‘Basic Structure’ as
it gave the Parliament absolute power to amend Constitution. Limitation on the amending power
of the Parliament is a part of the ‘Basic Structure’ explained in Kesavananda’s case.
The Constitutional validity of Article 323A and the provisions of the Administrative Tribunals
Act was challenged on the ground that it excluded the jurisdiction of High Court under Article
226 and 227. Supreme Court held that Article 323A and Administrative Tribunals Act was valid
as it has not excluded Judicial Review under Article 32 and 136. It was not proved
beyond reasonable doubt that Article 323A and Administrative Tribunals Act destroyed the basic
structure and the Court upheld their validity.
L . C h a n d r a Ku ma r V. Un i on O f I n d i a(A I R1 9 97 SC 1 1 2 5)
The Supreme Court struck down clause 2(d)of Article 323A and clause 3(d) of Article 323B
as they excluded the jurisdiction of High court under Article 226 and 227 as well as jurisdiction
of Supreme Court under Article 32 as they damage the power of Judicial Review which is a
basic feature of Constitution.
The Am e nd b i l i t y of The Ind i an C o n s t i t u t i o n
According to the eminent jurist V P. Sarathi, there will never be a conflict between Legislature
and Judiciary and these two powerful organs 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 tested against the amended Constitution.
One can relate to what Shakespeare said in “Measure for Measure”:
“O, it is excellent
To 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 away the 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, sometimes under immense pressure and can be
understood in the light of the cases previously discussed.
Conclusi o n
The frequency of lawful constitutional changes, unfortunately, cannot be understood by focusing
on the number of veto players and degree of required consensus alone. The political demand for
constitutional reform reflects economic, political, and cultural circumstances, as well as the
magnitude of unresolved problems at any given point in time. External pressure for revision,
constitutional traditions, and recent innovations in constitutional design, as well as the cost of
formal amendments, will also affect the types of constitutional reforms proposed. It would be
useful to have a more complete model of the demand for constitutional reform, so that the
effects of “demand” can be clearly separated from those of “supply.”
Moreover, measures of constitutional reforms can clearly be improved, insofar as formal
constitutional documents do not include all of the core procedures and constraints of governance.
For example, election law is often not included in constitutional documents. That some core
procedures and constraints are not fully specified by constitutional documents implies that some
constitutional reforms may be lawfully adopted through other means. Constitutions can be—and
often are—changed without altering the text of constitutional documents. Election laws can often
be reformed through ordinary legislation. The courts may reinterpret formal constitutional
documents as well as “quasi-constitutional” legislation. Moreover, not all constitutional reforms
have the same effect on a nation’s fundamental procedures and constraints of governance. The
constitutional reforms adopted in the first part of the twentieth century by many European
parliaments included such radical changes as the adoption of universal male suffrage, women’s
suffrage, and proportional representation. Although the more recent constitutional histories of
many countries include many dozens of reforms, relatively few of these affect such fundamental
procedures or rights. Consequently, the number of formal changes to constitutional documents is
a far from perfect measure of constitutional stability. Clearly, there may be much more to
be learned about the relationship between amendment rates and amendment procedures. We
do not yet know
exactly how to strike a good balance between flexibility and rigidity; a unique optimal
solution may not exist at all. (The variation in amendment rates among successful OECD nations
is clearly greater than that of per capita income.) The new empirical analysis of
constitutional stability remains very much a work in progress.
Nonetheless, the new empirical work clearly suggests that amendment procedures affect the
stability of constitutional documents. Insofar as constitutional law and practice are similar in
long-standing democratic states (an issue that we leave for further study), these results
suggest that politics in both the large and small tends to be relatively more routinized and,
consequently, more predictable in polities with relatively demanding amendment
procedures.
From the Indian Perspective, The amendment process was incorporated in the Constitution by
the Draftsmen of the Constitution to help India adapt itself to the changing circumstances.
Society is never stagnant. It is ever- changing. Therefore the amending procedure was made
partly flexible so as to make it easy for the Legislature adapt and mould laws according to the
needs of the people. However, there have been instances where the Parliament started
making amendments which were destroying the basic structure of the Indian Constitution. It was
during this period that the supreme court through landmark decisions of Keshavnand Bharati
and Minerva Mills by its power of judicial review has curtailed the amending power of the
Parliament. The amendments made by the Parliament can no more affect the basic structure of
the Constitution. But, looking at the ease with amendments can take place depending on
the whims and fancies of the ruling government and the POLITICS IN THE POLITICS OF
INDIA we cannot say how long the rights of the citizens are safe and unobstructed.
In spite of all the constitutional reforms that have taken place over the years, there is an urgent
need for a more effective amending mechanism.
BIBLIOGRAPHY:
BOOKS:-
The amending process and constitutional amendments in the Indian Constitution-K.C. Markandan.
Constitution Amendment in India-
Amendments to Constitutions-D.Munikanniah
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