By Jalaj Tokas
Published On: December 21, 2021 at 14:10 IST
Introduction
“The amending process has proven itself to be one of the most brilliantly constructed features of the constitution. It looks to be difficult, but it is just various” remarks Granville Austin, a famous researcher of the Indian Constitution.
A State’s Constitution is its basic law, the foundation upon which all other laws are created and enforced. It encapsulates a country’s and its people’s fundamental choices that provide the foundation for social and political life. It has been called a “superior or supreme law” perhaps due to its better efficiency, legitimacy, superior sanctity and greater permanency than regular legislation.
Nonetheless, the nature of the Constitution makes an appropriate provision for its revision implicit. Amendments are made to reflect situations and occurrences that were not anticipated at the time a piece of legislation became signed into law. This is because a government which is established on the premise of popular sovereignty must make possible the new declaration of the people will as that will change. Hence, a Democratic Constitution must be particularly adaptable to changing situations.
In this article, we will look at the degree to which the government can alter the Constitution, the process of amendment, the key judicial concerns that it raises and much more through some landmark cases in an attempt to find answers to these questions.
What are Constitutional Amendments?
The creators of the Constitution believed that the Constitution should reflect people’s desires and developments in the public view. They didn’t see it as a sacred, unchangeable rule. As a result, they developed plans to aggregate modifications on a regular basis.
Amendments to the Constitution are thus necessary because they carry the potential to remove impediments or flaws in the Constitution while also fulfilling the desires and demands of individuals. Revisions are frequently woven into the most important sections of the country’s constitution, ostensibly by modifying its text. Alternatively, they might be added to the constitution as extra choices (additions), altering the government’s edge without changing the report’s present substance.
Thus, the term “Constitutional Amendment” refers to a formal modification in the wording of a nation’s or state’s written constitution.
Why is Amendment Necessary?
While the founding fathers wished for the Constitution to be as strong and long-lasting as possible. They did, however, recognize that a constitution is not permanent and that it should always allow some room for change. You stop a nation’s growth, the growth of a living, vibrant, organic society, if you build something stiff and permanent. As a result, it must be adaptable.
The provision of constitutional amendment is required in order for the Constitution to reflect the reality and necessity of the day. People’s social, cultural, and political circumstances are gradually changing. We would not be able to confront future crises if constitutional amendments were not implemented, and it would become a roadblock to growth. There’s a reason why the founding fathers of the constitution built it to be as strong as it is today. And that is to guarantee that the plans evolve in tandem with the country’s development.
As a result, pursuant to Article 368, Parliament has powers to rewrite the constitution for elements of the constitution that it desires to change. Amendments are made to reflect situations and occurrences that were not anticipated at the time a piece of legislation became signed into law.
Thus, the Constitution must be amended in order to change and steer the constitution so that it reflects the realities of life.
Types of Amendments
In comparison to the world’s leading Constitutions, Indian Constitution allows for a unique amendment process. It may be defined as partly flexible and partly rigid.
The following is a list of different types of amendments. The Constitution can be changed in one of three ways:
- Amendment by Simple Majority of the Parliament
Amendments that can be achieved by Parliament with a simple majority, similar to the ones which are necessary to enact any ordinary law. Outside the ambit of Article 368, a simple majority of the two houses of Parliament can change a number of provisions in the Constitution. This category includes the amendments contemplated in Article 4, Article 169, Schedule V, paragraph 7(2), and Schedule VI, paragraph 21(2), which are specifically excluded from the scope of Article 368, which deals with the power and procedure for amending the Constitution.
- Amendment by Special Majority of the Parliament
A Special Majority of the Parliament is required to modify the Constitution, which is defined as a majority (greater than 50%) of the total number of members of each House and a majority of two-thirds of the representatives of each House present and voting. The term ‘total membership’ refers to the total number of representatives in the House, including vacancies and absentees.
The special majority is only necessary for voting on the bill at the third reading stage, but the necessity for the special majority has been included in the Houses’ rules for all of the bill’s effective stages out of an abundance of caution.
Fundamental Rights, Directive Principles of State Policy, and any other clauses not covered by the first and third categories are among the provisions that can be altered this way.
- Amendment by Special Majority of the Parliament and at least half of the state legislatures’ ratification.
The Constitution’s provisions relating to the federal structure of the polity can be modified by a special majority of Parliament, as well as by a simple majority of half of the state legislatures. It makes little difference whether some states do not act on the bill; since the formality is accomplished if half of the states agree. However, the states are not required to offer their agreement to the law within a specific time frame.
Procedure of Amendment
The process of amending the constitution entails modifying specific clauses or upgrading a few exterior elements to satisfy current needs. An examination of the mechanism for amending the Constitution set out in Article 368 reveals that:
- The only possible way to modify the Constitution is to introduce a bill in either House of Parliament (Lok Sabha or Rajya Sabha).
- The bill can be proposed by a minister or a private member, and it does not need the president’s prior consent.
- The law must be passed by a special majority in each House, which is defined as a majority (more than 50%) of the entire membership of the House plus a majority of two-thirds of the representatives present and voting.
- The law must be passed by each House separately.
- However, there is no provision for calling a combined session of the two Houses for the purpose of consideration and passing of the bill if there arises a dispute between them.
- If the bill aims to change the federal provisions of the Constitution, it must be approved by the legislatures of half of the states by a simple majority.
- The law is brought to the president for assent once it has been officially enacted by both Houses of Parliament and confirmed by state legislatures, if required.
- The bill must be signed by the president. He cannot refuse to give his approval to the bill or return it to Parliament for reconsideration.
- The bill becomes a Constitutional Amendment Act once the president signs it, and the Constitution is altered in line with the text of the Act.
Only Parliament has the authority to modify the Constitution in the way specified. Any effort by a legislature other than Parliament to modify the Constitution in a way other than that provided for shall be null and invalid.
Landmark Judgements
- Can Fundamental Rights be Amended? – Sankari Prasad Singh Deo Vs Union of India[i]
In this case, the legitimacy of the First Constitutional Amendment, 1951 was challenged. It was claimed, among other things, that while Article 13(2) prohibits the enactment of laws abridging fundamental rights, it also prohibits such abridgement through amendment because an amendment is a law.
The court rejected the claim, holding that Article 368 comprised the ability to modify the constitution, including the basic rights, and that the word law in article 13(2) did not include a constitutional modification made in the exercise of constituent rather than legislative power. As a result, a Constitutional Amendment will be lawful even if it restricts or eliminates any fundamental right.
- Parliament has the Power to amend any part of the Constitution- Sajjan Singh Vs State of Rajasthan[ii]
The legality of the Constitution (17th Amendment) Act of 1964 was questioned in this case. The Supreme Court upheld the majority decision in Shankari Prasad’s case, ruling that the term “amendment of the Constitution” refers to changes to all of the document’s sections.
The Supreme Court ruled, by a vote of 3–2, that when Parliament is given the ability to change the Constitution under Article 368, that power extends to all of the Constitution’s provisions. On the basis of Article 368, the capacity to change the rights had been affirmed in both situations.
The Court determined that if the framers of the Constitution meant to exclude basic rights from the amending authority, they would have provided an explicit provision to that effect.
- The Power of Parliament to amend the Constitution- I. C. Golaknath & Ors Vs State of Punjab & Anr.[iii]
The legality of the Constitution (17th Amendment) Act, 1964, which brought certain State Acts into the Ninth Schedule was questioned anew inthis case. By a 6 to 5 vote, the Supreme Court overturned its prior decisions in the Shankari Prasad and Sajjan Singh cases, holding that Parliament has no competence to change Part III of the Constitution to take away or abridge basic rights as of the date of this ruling.
It was decided that Parliament’s ability to change the Constitution stems from Article 245, read in conjunction with Entry 97 of List I of the Constitution, rather than from Art. 368. Article 368 only specifies the process for amending the Constitution. A legislative procedure is the process of amending a document.
- Basic Structure of the Indian Constitution cannot be Amended- Kesavananda Bharati Vs State of Kerala[iv]
The Supreme Court while laying forth the basic structure held that the Constitution is supreme, according to theory and the court, since parliament’s powers are broad but not endless, and they cannot modify the Indian constitution’s basic structure.
Article 368 of the Constitution was held to be legitimate according to the Supreme Court.
It held that even though the Parliament has the power to alter any provision of the Constitution, yet it cannot change the constitution’s core framework. In other words, the Parliament has a lot of authority, but it isn’t limitless.
- Amendment of Fundamental Features is Unconstitutional- Indira Nehru Gandhi Vs Raj Narain[v]
The Supreme Court used the basic structure theory to strike down Cl. (4) of Article 329 A, which was introduced by the Constitution (39th Amendment) Act, 1975, on the grounds that it was outside Parliament’s amending competence since it damaged a fundamental characteristic of the Constitution.
The amendment was adopted to make the election of the then-Prime Ministers, which had been thrown down by the Allahabad High Court, legitimate with retroactive effect. Justice Khanna invalidated the article on the grounds that it infringed on the right to free and fair elections, which is a fundamental tenet of democracy and hence an element of the Constitution’s basic framework.
Conclusion
A constitution is primarily concerned with enshrining fundamental principles in institutional arrangements. But a constitution is more than a set of ideals and principles. The Constitution of India devotes a significant portion of its text to these principles and arrangements which makes it a lengthy and comprehensive text. As a result, it requires to be updated on a frequent basis.
The Indian Constitution was written with the belief that it needed to reflect people’s aspirations and developments in society. The founding fathers of the Constitution did not see it as a sacrosanct, unchangeable commandment. As a result, they included mechanisms to absorb adjustments as needed. Constitutional Amendments are the names that are given to these modifications.
ABOUT THE AUTHOR
Jalaj Tokas is a second Year Law student pursuing B.A.LLB from University School of Law and Legal Studies, GGSIPU, New Delhi. He is a life-long learner is self driven towards his ambitions. He strongly believes that expectations are premeditated disappointments and strives not just to be successful but more importantly to be of value.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
References
- Amendability of Indian Constitution with Reference to Fundamental Rights
- Constitution of India: Parts, Schedules and Articles- All in a Glance
- Constitutional Amendment Procedure of US
[i] Sankari Prasad Singh Deo Vs Union of India, 1952 SCR 89.
[ii] Sajjan Singh Vs State of Rajasthan, (1965) 1 SCR 933
[iii]I. C. Golaknath & Ors Vs State Of Punjab & Anrs, 1967 AIR 1643, 1967 SCR (2) 762.
[iv] Kesavananda Bharati Vs State of Kerala, (1973) 4 SCC 225.
[v] Indira Nehru Gandhi Vs Raj Narain, 1975 Supp SCC 1