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Article by - Madhavi (This article was written by her during tenure of her Internship at Legal Soch Foundation)
Abstract
This article covers amendment provision of the constitution and discuss the right of parliament to amend constitution with various landmark cases relating to the topic.
Introduction
The amending process has proved itself one of the most ably conceived aspects of the constitution. Although it appears complicated, it is merely diverse’- Granville Austin
Indian constitution is considered as the guardian of Indian democracy. Constitution is supreme law of land means all the authorities of the union and the state are subject to the authority of the Indian constitution. Keeping it in mind our constituent assembly introduced the concept and procedure of amendment in constitution which is borrowed from the constitution of South Africa.From the term amendment we understand modification, alteration, deletion, variation, repeal or addition of new provisions in provided text of constitution in other words making a change in the text. Different countries have different procedure regarding amendment in constitution. The necessity of amending provisions of the constitution:The framers of the constitution felt that constitution has to be in accordance with people’s aspirations and changes in society and made the constitution as flexible as it is today. This is to ensure that the document evolves and grows along with the nation. Thus, article 368, the powers of parliament to amend the constitution is unrestricted with regards to sections of the constitution they wished to amend.But to give absolute power to amend constitution in hands of parliament is subject to reconsideration and need to be made more flexible toward judiciary as well. As time changes many of old provisions need to be reformed and altered for the purpose of making it more clear and suitable according to time.For instance, independence of judiciary is controversial subject, there were several amendments made regarding provisions for appointment of judges for Supreme Court and high courts, finally 99th amendment in 2014 came into action and is still in use, but this method of appointment is criticised by many learned scholars and it is demanding change. Therefore, it need to be amended quite regularly to keep it updated.Constitutional provisions related to amendment of the Indian constitution Provisions for amendment of the constitution is made with a view to overcome the difficulties which may encounter in future in the functioning of the constitution.Part XX under article 368 of Indian constitution deals with the amendment of the Indian constitution. The article provide three things mentioned below-
It confers the power upon the parliament to amend the Indian constitution.
It also provides the procedure for amendment of the Indian constitution.
It also contains implied limitations which exist upon the amending power of the parliament.
Types of constitutional amendments
Not all the provisions can be amended in similar way. In fact, the constitutional provisions can be divided into three types depending upon the procedure via which they are amended. They are as follows:-
There are some constitutional provisions that can be amended by simple majority of each house of the parliament, an ordinary bill is introduced for amendment of these provisions. Examples are- rules of procedure in parliament, salaries and allowances of the members of parliament, union territories, Article 4,169,239-A etc. There are some constitutional provisions which shall be submitted by special majority. Special majority means majority of total members of each house and by majority of at least 2/3rd present and voting. All amendments, other than those referred to above, come within this category.There are some constitutional provisions which have to be amended by special majority and ratification by states. Basically states are given an important voice in amendment of these provisions. The list of these provisions is given in list proviso to clause (2) of Article 368.
Which are as-
Election of the president,
Extent of executive powers of union and states,
Supreme and high courts,
Representation of states in parliament
Distribution of legislative powers between the Centre and the States
Procedure for amendments
A constitutional amendment can be initiated only by way of a bill in either house of the parliament.The bill can be introducedeither by minister or private member.Introduction of the constitutional amendment Bill does not require prior permission of the president.The Bill has to be passed by each of the house separately.
In case there is deadlock over the Bill, there is no provision for holding a joint sitting of the two houses for the purpose of deliberation and passage of the Bill.
The procedure to be followed for passing of the bill will depend upon the provision which the Bill seek to amend.
After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for the assent.The president must give his assent to the bill.After the presidents assent, the bill becomes an Act (i.e. Constitutional Amendment Act) and constitution stands amended in accordance with the term of the Act.
Scope of the amending power of Parliament under Article 368
The amending power of parliament is subject to two limitations-
Procedural limitation-it requires the fulfilment of procedural requirement for amendment by parliament provided in Article 368. There are two procedural requirement-
That it should have been passed by the special majority and,
That it should have been ratified by the legislature of the specified number of states.
Substantive limitation- this limitation was created in Keshvananda Bharti v State of Kerala (1973). In this landmark judgement apex court created two substantive limitations which are-
While exercising its power to amend, parliament cannot alter the basic structure/fundamental features of the Indian constitution. The word amend here provides that even after amendment, the identity of the original constitution must not change.
Parliament cannot delegate its power to amend to some other body, neither directly nor indirectly.
Case laws
In Shankari Prasad v. Union of India, AIR 1951 SC 458, the validity of first amendment act which inserter Article 31-A and 31-B was challenged. The Supreme Court has held that powers to amend the constitution including the fundamental rights was contained in article 368 and that the word ‘law’ in article 13 (2) includes only an ordinary law and not constitutional amendments. Therefore, a constitutional amendments will be valid even if it is abrogates or takes away any of the fundamental rights.Same line of approach was followed in Sajjan Singh v State of Rajasthan, AIR 1965 SC 845, in which the validity of 17th amendment of the constitution was cancelled. The supreme court approved the majority judgement given in the Shankari Prasad’s case and held the word “amendments of the constitution” means amendment of all the provision of the constitution.
But in Golakhnath v State of Punjab, AIR 1967 SC 1643, the supreme court overruled Shankari Prasad’s and Sajjan Singh’s case holding that Parliament had no power to amend part 3 of the constitution so as to abridge or take away the fundamental rights.The Constitution (24th amendment) act, 1971 was passed to remove the difficulties created by Golak Nath’s case. The 24th (Amendment) act, 1971, provides that Article 13 does not include the amendment of the constitution made under article 368. It added a new law sub-clause in article 368 which providesthat Notwithstanding any ting in this constitution, Parliament may, in exercise of constituent power amend by way of addition, variation or repeal any provision of the constitution.
Doctrine of basic structure- The validity of this amendment was again challenged in Kesavananda Bharti v. State of Kerala , AIR 1973 SC 1461. In this case, the Supreme court by majority overruled the Golak Nath’s case and held that Article 368, even before the 24th Amendment contained the power as well as the procedure of the amendment. As regards the scope of the amending power contained in Article 368, the court said that the word ‘’amendment’’ has been used in various place to mean different things. In Article 368, it means any addition or change in any of the provisions of the constitution. The Fundamental rights cannot be abrogated, but they can be amended reasonably. The court further said that every part of the constitution can be amended provided in the result the basic features of the constitution remain the same.
42nd amendment Act 1976 – it added to new clause (4) and (5) to article 368 of the constitution.
Later in Minerva Mills Ltd. V Union of India, AIR 1980 SC 1789, The supreme court held clause 4 and 5 of Article 368 as void because these clauses removed all limitations on the amending power of Parliament.
Conclusion
Although there are provisions to amend constitution, there are several important provisions which have not yet been amended properly or on time. Its vague nature makes its implementation difficult, article 368 gives enhance power regarding amending constitution these powers are subject to certain restriction that create a bridge between arbitrary and fundamental laws. Supreme Court have always interpreted and provided judicial review whenever needed. Present situation in country demand change in procedure of amendment as it is rigid on many important topics that need frequent solution.Over the seven decades Indian constitution has undergone dreadful changes that will lead to future uncertainty and more amendments. Till date there have been 105 amendments to the constitution since it was first enacted in 1950. Indian democracy has its backbone in constitution, therefore amendments to betterment of constitution will lead to a better and progressive nation.
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