September 24, 2021

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All you need to know about amenability of the Indian Constitution

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This article is written by Shiv N.S., student pursuing B.B.A., LL.B.(Hons.) from KSLU’S Law School, Hubballi.

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The Constitution is bound to be and will prove to be defective in many respects. 

“If you do not provide the appropriate outlets or safety valves for the air or the storm to pass through, the entire ship will likely be blown up.”

Without an amending provision, the Constitution is not complete. Even if the Parliament wishes to change a comma or make some significant changes, let alone changes in the Fundamental Rights, very strenuous efforts will have to be made to change. The Constitution provides that it will be ultra vires of Parliament to bring forward a Bill by which an amendment of the Constitution is sought, infringing any of the rights of individuals or groups of individuals conferred by the Constitution. 

There is apprehension in the people’s minds that the people’s liberty is not safe and that as the Parliament gets more and more power, they fear that they will not be granted even that much freedom that the Britishers allowed them.

In any case, for a long time to come, it would be necessary to amend the Constitution in many particulars; as society changes, the law needs to be on the same pace. Though the Constituent Assembly has spent many months making the Constitution, there ought to be defects. Without amendments, the administration will suffer.

If not provided with amendment provisions, Parliament will resort to something much more drastic and radical. If no provision in the Constitution allows them to mould the future of this country, they will have no alternative left but to go the whole hog and reject the Constitution as a whole. In such a situation, it is the State that will suffer. 

Therefore, it is better to provide channels so that any dissatisfaction with any provision in the Constitution may easily be cured. The complaints and dissatisfaction should not grow, resulting in dislocating the administration of the State.

In the very nature of a Constitution, an appropriate provision for its modification is deemed inherent. Because a government built on the idea of popular sovereignty must be particularly sensitive to changing situations, a democratic Constitution must be particularly flexible to the evolving conditions; As the public will change, it is necessary to make new assertions possible.

The traditional idea of Federalism, which entrusts constitutional Amendment to a body other than the Legislature, as well as the rigorous specified method for such changes, were both rejected by the Constitution’s Framers. Similarly, they never desired a system like the United Kingdom, where Parliament is omnipotent and can do everything humanly imaginable.

The Indian Constitution blends the United States written Constitution’s “theory of basic law” with the United Kingdom’s “idea of parliamentary sovereignty” to grant the Parliament constituent authority subject to checks and balances.

It is unusual for countries to revise their Constitutions to change circumstances, shift social ideologies, or even political upheavals. For example, during its 74-year existence, the Soviet Union had four Constitutions (1918, 1924, 1936, and 1977). The Communist Party of the Soviet Union’s authority ended in 1991, and the Soviet Union quickly dissolved. In 1993, the newly created Russian Federation approved a new constitution due to this political turmoil.

One of the responses to such queries is that the Indian Constitution recognises the need for changes in response to changing societal requirements.

Second, there has been sufficient flexibility in the application of the Constitution in practice. In implementing the Constitution, both political practice and judicial decisions have demonstrated maturity and flexibility. Because of these elements, the Indian Constitution is a living document rather than fixed rules.

Types of Amendment:

  1. Amendment with a simple majority of the Parliament.
  2. Amendment with a special majority of the Parliament.
  3. Amendment with a special majority of the Parliament and ratification of half of the state legislatures.

Informal methods of Amendment:

  1. Judicial Interpretation
  2. Constitutional usages and conventions

Many provisions in the Constitution state that they can be changed by a simple bit of legislation passed by Parliament. In such circumstances, no specific procedure for modification is necessary. Thus, the line between an amendment and ordinary law is obfuscated; the Parliament can change both in this easy manner.

The majority of members voting in favour of a proposal is defined as a simple majority. Present and voting in each House (similar to the normal legislative process). It is not covered by Article 368.

The following are some provisions that can be amended by a simple majority: 

  1. Formation of new states and changes to existing State’s regions, borders, or names (Art.3).
  2. Legislative Councils in states are abolished or created (Art.169).
  3. Second Schedule: the President, Governor’s, Speaker’s, and Judge’s emoluments, allowances, and privileges.

Article 368 of the Constitution contains a provision for amending the other provisions of the Constitution. Thus, there are two methods of changing the Constitution discussed in this article, and they apply to two separate groups of articles in the Constitution. One way is to alter the Constitution with a special majority of both houses of Parliament. The other approach is more complex as it needs a special majority in Parliament and the approval of half of the state legislatures.

An amendment bill, like all other laws, is forwarded to the President for his assent. However, the President lacks the authority to send it back for reconsideration in this instance.

For Constitutional Amendment, two types of special majorities are required: first, those voting in favour of the Amendment bill must account for at least half of the House’s total strength. Second, supporters of the amendment bill must account for two-thirds of those who take part in voting. In the same way, both Houses of Parliament must pass the amended bill separately (there is no provision for a joint session). This great majority is necessary for every amendment bill.

A majority of each House’s total membership and a plurality of two-thirds of the members present and voting constitutes a special majority.

The following are some provisions that can be amended by a special majority: 

  1. Fundamental Rights
  2. Directive Principles of State Policy

In most modern Constitutions, two principles govern the different methods for amending the Constitution. The principle of a special majority is one of them. For example, this idea is being used in the United States, South Africa, Russia, and other countries: in the United States, a two-thirds majority is necessary, but in South Africa and Russia, a three-fourths majority is required for some modifications.

The idea of people’s participation in changing the Constitution is another famous principle in many modern Constitutions. For example, people in Switzerland can even propose amendments. Russia and Italy, among other countries, are examples of countries where citizens present or ratify Constitutional amendments. Even if the opposition does not agree, the party in power can enact laws and approve the budget with a razor-thin majority.

If it intended to amend the Constitution, it would have to gain the trust of at least some opposition parties. As a result, the amending procedure’s core concept should be founded on comprehensive support among political parties and lawmakers.

The second type of special majority is when an amendment intends to change an article dealing with the partition of powers between the states and the Central Government or an article coping with representation. However, again, the States must be contacted and grant their approval.

By a special majority of Parliament and ratification by the States, those sections relating to the federal government’s structure can be changed.A great majority of Parliament and a simple majority of state legislatures must concur. The states are not required to approve the law within a specific time frame (Art. 368 is silent on the time frame to ratify the Amendment by State legislatures).

The following are some provisions that can be amended by a special majority with ratification by half of the states: 

  1. Election of the President and its manner.
  2. The extent of the Union and State’s executive powers.
  3. Legislative functions are divided between the Union and the states.
  4. Any of the Seventh Schedule’s lists.
  5. State’s representation in Parliament.
  6. The power of Parliament to revise the Constitution and its method (Art.368 itself).

Federalism says that the State’s powers must not be subject to the whims of the federal authority. The Constitution ensures this by requiring that half of the State legislatures adopt the amendment bill before it becomes effective. We can remark that more or broader polity consensus is expected for some portions of the Constitution. This clause also honours the states by allowing them to participate in the amendment process. At the same time, even in its more rigorous version, care is made to keep this system somewhat flexible; just half of the states must agree, and a simple majority of the state legislature is sufficient.

The bill is brought to the President for assent once officially approved by both Houses of Parliament and ratified by state legislatures if required.

The President must approve the Constitutional Amendment bill. He is unable to withhold his assent to the bill or return it to Parliament for reconsideration.

The bill becomes an Act once the President signs it, and the Constitution is amended as per the contents of the Act.

Limitations on amending power:

  1. The Amendment must not alter the basic structure of the Constitution.
  2. An Amendment relating to the federal structure of the government can be made only with a special majority and consent by half of the State legislatures.

The Supreme Court gave Parliament unlimited power to amend the Constitution in the early years of independence, as demonstrated by the decisions in Shankari Prasad (1951) and Sajjan Singh’s (1965) cases.

It is believed that this is because, throughout those early years when leading independence fighters were serving as Parliamentarians, the Apex Court had placed trust in the judgement of the then political leadership.

Years following the Constitution being revised at will to suit the interests of the existing regime, the Supreme Court ruled in Golaknath case (1967) that Parliament’s amending authority could not touch Fundamental Rights and that this power would be reserved for a Constituent Assembly.

Whether the Constitution’s Fundamental Rights can be altered under Art.368 has been a source of contention in Indian Courts. Art.13(2) of the Constitution forbids enacting any law that deprives or restricts Part III of the Constitution containing Fundamental Rights.

In Shankari Prasad Singh v. Union of India and State of Bihar 

The Constitutional legitimacy of the First Amendment Act was challenged because it sought to abridge the Fundamental Rights assured by Part III of the Indian Constitution. According to the Supreme Court, Art.368 of the Constitution grants the right to alter the Constitution, including Fundamental Rights.

The Supreme Court of India considered whether an amendment to the Constitution could be viewed as a “law” within the meaning of Art. 13(2) in this case, it was held that an amendment was made under Art. 368 of the Constitution is not a ‘law’ within the meaning of Art. 13(2) and thus cannot be challenged on this basis.

Thereby the Court held that even though it abridges a Fundamental Right, an amendment is valid.

In Sajjan Singh v. State Of Rajasthan

The Constitutional Amendment Act of 1964, generally referred to as the 17th Amendment Act, was challenged. Because it curtailed the jurisdictional power of High Courts under Art. 226 but had not been accepted by legislatures of half of India’s States, as stipulated by Art. 368(2).

The Supreme Court ruled that the challenged Amendment was constitutional because it did not intend to reform Art. 226 of the Constitution and so did not trigger ratification by Indian states under the proviso Art. 368(2).

The Supreme Court upheld the decision in the Shankari Prasad’s case, ruling that the issue was appropriately adjudicated under Article 13 (2) and held that the term “amendment” refers to any change to the Constitution’s provisions.

The Supreme Court overturned its previous rulings in Shankari Prasad and Sajjan Singh, holding that an amendment was made under Art. 368 of the Constitution would be considered as a law under Art. 13(2), and no such amendment could be allowed to abrogate the Fundamental Rights enshrined in part III of the Constitution.

The Court’s concern was that, while the Acts in question may have curtailed Fundamental Rights, prior rulings had found them to be legitimate. They invoked the theory of prospective overruling to say that the Amendment would still be considered for those laws. They did, however, expressly say that, as of the date of the ruling, Parliament would not have the power to amend any provisions of Part III of the Constitution.

The 24th Constitutional Amendment Act aimed to incorporate Art. 13(4) into the Constitution to invalidate the impact of Golak Nath’s decision, stating that “Nothing in this article shall pertain to any amendment of this Constitution enacted under Art. 368”.

The case is commonly referred to as the Fundamental Rights case. Golak Nath’s case and the 24th, 25th, 26th, and 29th Constitutional Amendment Acts were challenged. It explained the Amendment’s scope. The 24th Constitutional Amendment Act, which declared that Parliament had the power to abridge any Fundamental Rights, was held valid.

While overruling its earlier judgment in the Golak Nath’s case, the Supreme Court ruled that Parliament can amend Fundamental Rights under Art. 368, such power could not be utilised to remove Fundamental Rights that form the Constitution’s foundation.

The Constitutional Bench, whose members had significant ideological differences, ruled 7-6 that the Parliament should not change the Constitution’s ‘fundamental structure’.The Court ruled that under Art. 368, which gives Parliament amending powers, something from the original Constitution must remain for the new Amendment.

The Court did not define the phrase ‘Basic Structure’ instead cited a few concepts like Federalism, Secularism, and Democracy as instances. Since then, the Court has pursued to develop this paradigm. In the case of Sajjan Singh, Justice Mudholkar was the first to propose the fundamental structure doctrine (1965). 

Justice Sikri gave a superficial list, and the following components were proclaimed as basic structure: Sovereignty of the Constitution, Segregation of power, Republic and democratic form of government, Secular trait of the Constitution, Federal trait of the Constitution, Sovereignty and unification, Freedom and nobility of the individual, Welfare state, Parliamentary system.

According to the Court, the power to amend the Constitution is also implied, and the 24th Constitutional Amendment Act just made it plain and declaratory. The basic structure, however, cannot be altered.

In this case the Supreme Court supported the President’s dismissal of the administrations following the demolition of the Babri Masjid. It is an example of its application (Separation of power between State and Central government).

The 42nd Amendment included provisions stating that the power to amend is unrestricted and that amendments are not subject to judicial scrutiny.

In Minerva Mills Ltd. v. Union of India

The legality of the Constitution’s 42nd Amendment Act of 1976 was challenged in the Supreme Court because it obliterated the Constitution’s basic structure.

The Supreme Court ruled that the Amendment was unconstitutional because it granted Parliament public authority to amend the Constitution’s provisions and stripped courts of their ability to judge any modification to the Constitution, including those affecting Fundamental Rights.

The Court further held that the power of judicial review was acknowledged as part of the Constitution’s basic structure.

In Waman Rao v. Union of India

The Supreme Court elucidated the prospective essence of the doctrine. The doctrine of basic structure would bear on to all Constitutional Amendments sanctioned after 24th April 1973 (the judgement date of the Kesavananda Bharati case).

Art.13(2) expresses, ‘The State shall not pass any legislation that deprives or restricts the rights granted by Part-III of the Constitution, and any law passed in violation of this clause shall be null and void to the degree of the breach.’

The bench had decided that the term ‘law in Art. 13 must be interpreted to refer to rules or regulations enacted under regular legislative authority, rather than amendments to the Constitution enacted with Constituent authority under Art. 368.

According to the fundamental structure doctrine, Parliament might alter any portion of the Constitution, including Fundamental Rights.

Non- Obstante clause

The Supreme Court held that regardless of a non-obstante provision, it cannot go against the basic structure of the Constitution.

The Bombay High Court held that by such a non-obstante clause, the Courts are not excluded from reviewing the validity of Laws/Amendments.

In Kihoto Hollohan v. Zachillhu, the Supreme Court held that the Doctrine of Severability applies to the Constitutional Amendments.

  1. There is no stipulation for a unique body to amend the Constitution, such as a Constitutional Convention (as in the United States) or a Constitutional Assembly.
  2. The constituent power is vested in Parliament, with state legislatures only having it in a few instances.
  3. The Parliament has the power to propose a constitutional amendment. State legislatures cannot introduce any bill or proposal to change the Constitution (unlike in the United States) except in one case: adopting a resolution urging the Parliament to create or abolish legislative councils in the states. The Parliament can either accept or condemn such a resolution or take no action on it.
  4. There is no set time limit for state legislatures to approve or reject a proposed amendment. It is also unclear if states may revoke their approval once it has been granted.
  5. If both Houses of Parliament are stuck over the approval of a Constitutional Amendment Bill, there is no provision for a joint session (Art.108).
  6. The amendment procedure’s provisions are just too ambiguous. As a result, they give rise to court action.

First Amendment Act, 1951

  1. Empowered the government to help the socially and economically disadvantaged.
  2. It provided for the preservation of legislation governing the acquisition of estates.
  3. Added 9th Schedule to prevent judicial scrutiny of land reform and other legislation contained in it.
  4. Public order, good relations with foreign nations, and incitement to a crime were included as a new rationale for regulating freedom of speech and expression. It also made the limitations more “reasonable” and therefore justifiable.
  5. Put forward that state trading and nationalisation of any trade or business by the State is not to be incapacitated on the ground of violation of the right to trade or business.

The Constitution (15th Amendment) Act, 1963

  1. Permitted the High Court to issue writs to any person or authority, even exterior to its provincial jurisdiction if the cause of action arises within its territorial limits.
  2. It raised the age of retirement for high court judges from 60 to 62 years.
  3. It has enabled the appointment of retired high court justices as acting judges in the same Court.
  4. It provided a compensatory allowance to judges transferring from one High Court to another.
  5. Made it possible for a retired High Court judge to serve as an ad hoc Supreme Court judge.

The Constitution (24th Amendment) Act, 1971

  1. Parliamentary ability to amend any part of the Constitution, including Fundamental Rights, was affirmed.
  2. The President is required to grant his assent to any Constitutional Amendment bill.

The Constitution (42nd Amendment) Act, 1976

It was enacted amid a state of Emergency inside the country. Parliament passed it on 11th November 1976, and the President approved it on 18th December 1976.

  1. The Amendment established beyond a shadow of a doubt Parliament’s dominance over the other branches of government; it gave Directive Principles precedence over Fundamental Rights and, for the first time, enumerated a set of 10 Fundamental Duties.
  2. It also limited the judiciary’s power and jurisdiction and increased the Lok Sabha and Vidhan Sabha from 5 to 6 years. 
  3. Authorised the use of Central armed forces in any State to deal with law and order issues. 
  4. Bound the President to the Council of Ministers’ advice and envisaged administrative tribunals for Government service matters.
  5. The Act also categorically stated that no Constitutional Amendment might be challenged in a court of law.

The Constitution (43rd Amendment) Act, 1978

The Constitution (42nd Amendment) Act, enacted during the Emergency, is repealed by this Act. 

  1. It restores civil rights by repealing Article 3ID, which allowed Parliament to restrict even legal trade union activity under the pretext of anti-national activity laws.
  2. The new legislation, which has been passed by more than half of the states as per the Constitution, also returns legislative rights to the states to establish suitable provisions for anti-national actions that are in line with the Fundamental Rights. 
  3. The Act also restores the judiciary to its proper position.

The Constitution (44th Amendment) Act, 1978

  1. The Act corrects critical constitutional flaws that were established during the Emergency. The Lok Sabha and State Legislative Assemblies terms have been lowered from six to five years, the usual period extended during the Emergency under the 42nd Amendment for political reasons.
  2. According to the 44th Amendment to the Constitution, the property right ceases to be a fundamental right and becomes legal.
  3. The Act also extends constitutional protection for publishing Parliamentary and State Legislature proceedings for the first time since independence, except in situations where it is proven to be “malicious”.
  4. Another critical aspect of the Act is that any proclamation of Emergency must now be made by the President only after the Cabinet has given its written recommendation. The President will not be required to act solely on the Prime Minister’s recommendation without first engaging his Cabinet. Other protections require a two-thirds majority of both Houses of Parliament members to approve the proclamation within a month.

The Constitution (52nd Amendment) Act, 1985

The Act makes defection to a different political party after an election unlawful. Any member who switches parties after the election will be disqualified from serving in Parliament or the state legislature.

The Constitution (61st Amendment) Act, 1989

The voting age was reduced from 21 to 18.

The Constitution (86th Amendment) Act, 2002

Right to education up to the age of fourteen and early childhood care until six was guaranteed.

The Constitution (91st Amendment) Act, 2004

The Council of Ministers was limited to 15% of parliamentary members, and anti-defection laws were reinforced.

The Constitution (93rd Amendment) Act, 2006

It Established a 27% reservation in government and private higher education institutions for other backward classes.

The Constitution (99th Amendment) Act, 2014

The Amendment bring forth the formation of a National Judicial Appointments Commission.

The Constitution (101th Amendment) Act, 2017

Pioneered the Goods and Services Tax in the country from 1st July 2017.

The Constitution (102th Amendment) Act, 2018

It granted the National Commission for Backward Classes constitutional status.

The Constitution (103th Amendment) Act, 2019

It permitted a maximum of 10% Reservation for Economically Weaker Sections (E.W.S.s).

The Constitution (104th Amendment) Act, 2020

It increased the number of seats reserved for S.C.s and S.T.s in the Lok Sabha and state legislatures.

Overall, it may be said that Amenability is an absolute necessity to make the Constitution a more relevant document in light of changing circumstances, reality and match society’s evolving needs and ambitions. It guarantees that the constitutional framework and the current government’s policies and programmes are in harmony.

On a final note, it is resolved to adopt a Joint Parliamentary Committee that might be formed for in-depth debate and consensus-building. It also discusses forming a special committee or body (as in the United States) to consider constitutional amendments. 

Amendments should be confined to parts of the Constitution that do not comprise the core philosophy.


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