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

URL:-

www.preservearticles.com

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www. constitution .org

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