AMENDMENT PROCEDURE OF THE CONSTITUTION OF INDIA

AMENDMENT PROCEDURE OF THE CONSTITUTION OF INDIA

Constitution of India LAW EXPLAINED
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AMENDMENT PROCEDURE OF THE CONSTITUTION OF INDIA signifies changing provisions or updating certain features to meet the requirement of the day.

Need for Constitutional Amendment –

  1. If there was no provision for amending our constitution the people and leaders would have deviated to extra-constitutional means like revolution and violence.
  2. The provision for amending our Constitution to overcome the difficulties which we may come across in the future.
  3. It is necessary to fix loopholes that subsisted during the enactment of our Constitution.
  4. Ideas, priorities, and visions of people vary from generation to generation. To incorporate these, an amendment is necessary.

Procedure for Amending Our Constitution –

Different degrees of rigidity attach to different portions of our Constitution, depending on their importance and significance. Our Constitution, accordingly, provides for the following three classes of amendments of its provision –

  1. Constitutional provisions of comparatively less significance can be amended by the simple majority as it is adopted in passing ordinary legislation in Parliament;
  2. Those provisions which are material and vital are made relatively stable as these can be amended by following the rule of the special majority;
  3. There are certain provisions relating to the federal character, which may be characterized as the ‘entrenched provisions’, which need for their amendment, in addition to the passage of the amendment bill by the special majority in the two Houses of Parliament, ratification by half of the State Legislatures.
  • CATEGORY 1 –

Several Articles of our Constitution make provisions of a tentative nature, and our Parliament has been given the power to make laws making provisions different from what these Articles provide for. Such a law can be made by the ordinary legislative process, and is not be regarded as an amendment of our Constitution and is not subject to the special procedure prescribed under Article 368. These Articles of our Constitution are as follows –

  1. When Parliament admits a new State under Article 2, it can consequently make amendments in Schedules I and IV defining territory and allocating seats in the Council of States among various States respectively.
  2. Under Article 11, our Parliament is empowered to make any provision for acquisition and termination of all matters relating to citizenship.
  3. Article 73(2) retains certain executive powers in the States and their offices until Parliament makes any laws.
  4. Articles 59(3), 75(6), 97, 125(2), 148(3), 158(3) and 221(2) permit amendment by our Parliament of our Second Schedule which deals with salary and allowances of certain offices created by our Constitution.
  5. Article 105(3) provides Parliamentary privileges until it is defined by our Parliament.
  6. Article 124(1) provides that our Supreme Court shall have a Chief Justice and seven Judges until our Parliament increases the strength of the Judges.
  7. Article 133(3) prohibits an appeal from the judgment of a Single Judge of a High Court to our Supreme Court unless our Parliament provides otherwise.
  8. Article 135 confers jurisdiction on our Supreme Court (equivalent to the Federal Court) unless our Parliament provides otherwise.
  9. Under Article 137, the Supreme Court’s power to review its judgment is subject to a lam made by our Parliament.
  10. Article 171(2) states that the composition of the State Legislative Council as enshrined in Article 170(3) shall exist until our Parliament makes a law providing otherwise.
  11. Article 343(3) provides that our Parliament may by law provide for the use of English even after 15 years as prescribed in Article 343(2).
  12. Article 348(1) establishes English as the language to be used in our Supreme Court and our High Courts and of legislation until or Parliament provides otherwise.
  13. Schedules V and VI dealing with the administration of the Scheduled Areas and Scheduled Tribes and Tribal Areas in Assam, respectively, may be amended by our Parliament by making a law.

These are certain provisions that can be amended by our Parliament through a simple majority.

  • CATEGORIES (2) AND (3) –

The process to amend and adopt other provisions of our Constitution is contained in Article 368. The phraseology of Article 368 has been amended twice since the inauguration of our Constitution. However, the basic features have remained intact.  The basic features are –

  1. An amendment of our Constitution can be initiated by introducing a Bill for the purpose in either House of Parliament.
  2. After the Bill is passed by each House by a majority of its total membership, and a majority of not less than two-thirds of the members of that House present and voting, and after receiving the assent of our President, our Constitution stands amended following the terms of the Bill.
  • To amend certain constitutional provisions relating to its federal character, termed as ‘entrenched provisions’, after the bill to amend our Constitution is passed by our Parliament as mentioned above, but before being presented to our President of his assent, it has also to be ratified by the legislatures of not less than one-half of the States resolution.

The ‘entrenched provisions’ includes –

  1. The manner of election of our President: Articles 54 and 55.
  2. The extent of the executive power of our Union and the States: Articles 73 and 162.
  3. Our Supreme Court and our High Courts: Articles 124-147 and 214-231.
  4. Scheme of distribution of legislative, taxing, and administrative powers between the Union and the States: Articles 245-255.
  5. Representation of the States in our Parliament.
  6. Article 368 itself.

These provisions can be amended by our Parliament through Special majority and ratification.

In Supreme Court Advocates-on-Record Association vs UOI, our Supreme Court observed that the mere alteration of, or damage of the basic structure, basic features, essential elements, core structure, or core features of our Constitution would be enough to render a constitutional amendment ultra-virus to or Constitution.  [1]

The Court went on to hold that the “width of power test” or “direct impact and effect test” should be used to see if a constitutional amendment violates or alters the basic structure of our Constitution and the principles of presumption of constitutionality, the wisdom of amendment are beyond judicial scrutiny.  [2]

AMENDMENT AND BASIC STRUCTURE THEORY –

Originally when our Constitution was framed, our Parliament had the authority to amend any part of our Constitution. The first case where the power of our Parliament to amend our Constitution was in Sankari Prasad Deo vs Union of India,[3] in this case, the ability of our Parliament to amend Part III of our Constitution was questioned. The contention being constitutional amendment is ‘law’ under Article 13 hence it was impermissible for the State to amend Part III of our Constitution. The contention was unanimously rejected by our Supreme Court, it was held that our Parliament had the power to amend any provision of our Constitution without exception.

The question reappeared in Sajjan Singh vs State of Rajasthan,[4] where the Court reiterated the decision in Sankari Prasad case. Justice Mudholkar observed that the framers may have intended to give persistency to certain “basic features” of our Constitution and whether such a change be defined as “amendment” under Article 368.

The position was reversed in I.C. Golak Nath vs the State of Punjab,[5] our Supreme Court held that our Parliament had no power to amend Part III of our Constitution. All provisions dealing with fundamental rights were thus placed beyond the reach of our Parliament.

To overcome the limitations set by Golak Nath our Parliament brought the Twenty-Fourth Constitutional Amendment. It provided that the prohibition in Article 13 would not apply to an amendment of our Constitution. It also substituted the words “amendment by way of addition, variation or repeal” for “amendment”.

The above amendment act along with other issues was challenged in Keshavananda Bharati vs the State of Kerala.[6] Initially, the Kerala Land Reforms Act of 1963 was challenged. But the act was subsequently amended and was placed in the 9th Schedule. Later, the validity of the 25th and 29th Amendments was also questioned. The Court held that our Parliament’s amending power was plenary, and extended to every provision of our Constitution, however, our Parliament could not destroy the basic structures of our Constitution.

To determine the basic structure, recourse was taken to our preamble, the Constitutional “scheme”, our struggle for independence from colonial rule, and drafting history of our Constitution. Chief Justice Sikri, in his opinion, provided five such “basic features” – (i) supremacy of our Constitution, (ii) republican and democratic form of government, (iii) secular character of our Constitution, (iv) separation of powers between the executive, legislature and judiciary, and (v) federal character of our Constitution. Similar “basic features” were listed by other judges.

The basic structure was further elaborated in the following three decisions.

In Indira Gandhi vs Raj Narain,[7] a Constitutional amendment dealing with the election of our Prime Minister and our Speaker was struck down for violating the basic features of democracy, rule of law, and equality.

In Minerva Mills vs Union of India,[8] our Parliament attempted to overturn Keshavanada case judgment by inserting the 42nd Amendment, which expressly stated that the ability to amend was unlimited and not open to judicial review.

In Waman Rao vs Union of India,[9] it was held that laws placed in the 9th Schedule, and thus beyond the pale of judicial review, would have to be tested on the touchstone of the basic structure before giving them immunity.

In the following years, there was a consolidation of the doctrine. In series of judgments, which can be termed as Tribunal Cases, it was held that judicial review of our Supreme Court under Article 32, and of our High Courts under Article 226, was a basic feature.

SOURCE –

  1. P Jain, Constitution of India, Justice Jasti Chelameswar and Justice Dama Seshadri Naidu, 8th edition, LexisNexis, Printed by Saurabh Printers Pvt limited (2018).
  2. N SHUKLA, Constitution of India, Mahendra Pal Singh, 13th edition, Easter Book Company, Printed by Gopsons Papers Ltd (2019).
  3. The Constitution of India, by PM Bakshi
cases-
[1] Supreme Court Advocates-on-Record Association v UOI, (2016) 5 SCC 1.

[2] Supreme Court Advocates-on-Record Association v UOI, (2016) 5 SCC 1.

[3] AIR 1951 SC 458.

[4] AIR 1965 SC 845

[5] AIR 1967 SC 1643: (1967) 2 SCR 762.

[6] AIR 1973 SC 1461: (1973) 4 SCC 225: (1974) 1 SCC (JI.) 3.

[7] AIR 1975 SC 2299: 1975 Supp SCC 1.

[8] AIR 1986 SC 2030: (1986) 4 SCC 222.

[9] AIR 1981 SC 271: (1981) 2 SCC 362: (1981) 2 SCR 1.

This blog is written by Kushal, KLE Society’s Law College.

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