Amendment Procedure - Political Science

7/28/2019 Amendment Procedure - Political Science

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Amendment

ProceduresA general study on the importance and purpose of Constitutional

Amendments.

Shruthi Srivastava - 0554

Shruti Srivastava - 0556

Srinivas Atreya - 0519

Political science Project


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Political Science Project

Amendments and its Procedures

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 Amendment Procedures from Across the World Amendments in the United States of America: A special emphasis The Present Scenario: The Validity of Constitutional

Amendments

Conclusion: The Need for a more effective AmendmentMechanism


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Introduction

A constitution is a set of rules for government, which is often codified as 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 political principles, and

establishing the structure, procedures, powers and duties, of a government. The term

constitution can be applied to any overall system of law that 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 political organization as they exist at national (e.g.,

codified Constitution of Canada, uncodified Constitution of the United Kingdom), regional (e.g.,

the Massachusetts Constitution), and sometimes lower levels. They also define many political

and other groups, such as political parties, pressure groups, and trade unions. Non-political

entities such as corporations and voluntary associations, whether incorporated or not, often

have what is effectively a constitution, often called memorandum and articles of association.

Etymologically, the term constitution comes from a Latin term 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 canon law for an important

determination, especially by the Pope, which is now referred to asapostolic constitutions.

The earliest written constitution still governing a sovereign nation today may be that of San

Marino. The Leges Statutae Republicae Sancti Marini was 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.
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Features of a Constitution

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 "contain[s] institutionalized mechanisms of power control

for the protection of the interests and liberties of the citizenry, including those that may be in

the minority." 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 writs, such asquo warranto.

Key features

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 civil service/bureaucracy. 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 "Basic Law."

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.
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Codification

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.

Codified constitution

Most states in the world have codified constitutions and Codified constitutions are often the

product of some dramatic political change, such as a revolution. 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

statute law. 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

unconstitutional. In addition, exceptional procedures are often required to amend a

constitution. These procedures may include: convocation of a special constituent assembly or

constitutional convention, requiring a supermajority of legislators' votes, the consent of

regional legislatures, a referendum process, 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.

Codified constitutions normally consist of a ceremonial preamble, which sets forth the goals of

the state and the motivation for the constitution, and several articles containing the

substantive provisions. The preamble, which is omitted in some constitutions, may contain a
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reference to God and/or to fundamental values of the state such as liberty, democracy or

human rights.

Uncodified constitution

As of 2010 only three states have uncodified constitutions: Israel, New Zealand, and the United

Kingdom. Uncodified constitutions (also known as unwritten constitutions) are the product of

an "evolution" of laws and conventions over centuries. By contrast to codified constitutions, in

the Westminster tradition that originated in England, uncodified constitutions include written

sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources (like

constitutional conventions, observation ofprecedents, royal prerogatives, custom and tradition

In states using uncodified constitutions there is no entrenchment 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 statute.

Entrenchment

The presence or lack of entrenchment is a fundamental feature of constitutions. An entrenched

constitution cannot be altered in any way by a legislature as part of its normal business

concerning ordinary statutory laws, but can only be amended by a different and more onerous

procedure. There may be a requirement for a special body to be set up, and the proportion of

favorable votes of members of this body may be required to be higher to pass an amendment

than for statutes. Some constitutions contain entrenched clauses, i.e. articles stating that

certain modifications are either more difficult to make than normal modifications, or may never

be made under any circumstances. Entrenchment is an inherent feature in most codified

constitutions. A codified constitution will incorporate the rules which must be followed for the

constitution itself to be changed.

The US constitution and the Indian Constitution are examples of an entrenched constitution,

and the UK constitution is an example of a constitution that is not entrenched (or codified). In

some states the text of the constitution may be changed; in others the original text is not
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changed, and amendments are passed which add to and may override the original text and

earlier amendments. Procedures for constitutional amendment vary between states. In a

nation with a federal system of government the approval of a majority of state or provincial

legislatures may be required. Alternatively, a national referendum may be required. Details are

to be found in the articles on the constitutions of the various nations and federal states in the

world.

Absolutely unmodifiable articles

The strongest level ofentrenchment exists in those constitutions that state that some of their

most fundamental principles are absolute, i.e. certain articles may not be amended under any

circumstances. An amendment of a constitution that is made consistently with that

constitution, except that it violates the absolute non-modifiability, can be called an

unconstitutional constitutional law. Ultimately it is always possible for a constitution to be

overthrown by internal or external force, for example, a revolution (perhaps claiming to be

justified by the right to revolution) or invasion.

Distribution of sovereignty

Constitutions also establish where sovereignty is located in the state. There are three basic

types of distribution of sovereignty according to the degree of centralisation of power: unitary,

federal, and co federal. The distinction is not absolute.

In a unitary state, sovereignty resides in the state itself, and the constitution determines this.

The territory of the state may be divided into regions, but they are not sovereign and are

subordinate to the state. A federal state has a central structure with at most a small amount of

territory mainly containing the institutions of the federal government, and several regions

(called states, provinces, etc.) which comprise the territory of the whole state. Sovereignty is

divided between the centre and the constituent regions. A confederal state comprises again of

several regions, but the central structure has only limited coordinating power, and sovereignty
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is located in the regions. Co federal constitutions are rare, and there is often dispute to whether

so-called "co federal" states are actually federal.

Separation of powers

Constitutions usually explicitly divide power between various branches of government. The

standard model, described by the Baron de Montesquieu, involves three branches of

government: executive, legislative and judicial. Some constitutions include additional branches,

such as an auditory branch. Constitutions vary extensively as to the degree of separation of

powers between these branches.

Lines of accountability

In presidential and semi-presidential systems of government, department secretaries/ministers

are accountable to the president, who has patronage powers to appoint and dismiss ministers.

The president is accountable to the people in an election. In parliamentary systems, ministers

are accountable to Parliament, but it is the prime minister who appoints and dismisses them.

State of emergency

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

loophole can be and has been abused to allow a government to suppress dissent without

regard for human rightssee the article on state of emergency.

Constitutional Amendments: Their Purpose and Importance in a

Democracy

Demands for constitutional reform may emerge whenever alternative procedures or

constraints appear to advance the first three goals more effectively than existing onesor

whenever a more or less temporary majority believes that it can improve its own situation
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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

nations 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 womens 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.

Constitutional Design and the Demand for Constitutional Reform

Formal constitutional documents describe the law for making laws. Constitutions,

consequently, include some of the most fundamental rules of the game in a society. Most

constitutions include rules on the machinery of government as well as more or less extensive

and general specifications of the rights of citizens. These procedure and constraints enable

societies to make collective decisions to achieve outcomes that require coordination and jointaction while reducing the risks of collective action. Constitutional law differs from most other

laws, because it also includes normally includes procedures for changing its own required

procedures and constraints. However not all constitutions are democratic.

Four general objectives can be ascribed to democratic constitutions. First, there is the practical

convenience of having standing collective decision-making routines to adjust the existing laws

and services to better advance citizen interests as economic and political conditions changethrough time. The standing routines of modern democratic governments include competitive

elections to select representatives, who in turn select among policy options, and a largely

apolitical bureaucracy that implements the policies chosen. Second, democratic constitutions

attempt to assure majority rule rather than minority rule. Representative democracy requires


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delegation, and there is always the risk that the agents employed will fail to act on the

electorates behalf. An important task of a constitut ional arrangement is to prevent delegation

of authority from turning into abdication. Any agent may have an incentive to shirk, as long as

the interests of principals and agents are not completely identical. The institutional problem,

then, is to align the agents interests with those of their principals. Democratic constitutions

accomplish this alignment through provisions that assure competitive and open elections.

Protections for the press and political speech also help to assure open policy debates, which

simultaneously improves the quality of policy choices and reduces opportunities for

malfeasance among elected officials. Amendment procedures and similar rules also restrain a

temporary majority from abusing its power by manipulating electoral rules and the

management of elections. For example, constitutional provisions that establish maximal times

between elections reduce legislative opportunities for governments that have outlived their

majorities.

Third, democratic constitutions address the classical constitutionalist concern of protecting

individual and minority. Democratic constitutions, consequently, include lists of fundamental

rights that specify policy domains in which policies must or must not be made. Such

constitutional constraints on the domain of government policy reduce the ability of simplemajorities to transgress individual rights and the rights of permanent ethnic, religious, linguistic,

or other identifiable minority groups. For example, equal protection clauses protect

individuals and groups from discriminatory legislation, and takings clauses protect personal

property by requiring compensation to be paid to those whose property is taken to advance

public purposes.

Fourth, democratic constitutions address dynamic problems involving the stability and flexibilityof the constitutional regime itself. Modesty on the part of constitutional designers requires

them to acknowledge that even their best efforts may need to be adjusted to take account of

new circumstances, new ideas, or new information. However, a constitution that is too flexible

ceases to serve as rules of the game for day -to-day politics, which can undermine a


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constitutions ability to advance the first three objectives. A democratic constitutions

amendment process has to allow reforms that advance broad interests to be adopted, without

undermining its practical value as a standing routine for advancing majority interests and

protecting minorities.

How Amendments affect the Stability of the Constitution

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 nations written constitution i n principle change related

unwritten parts of the constitution as well. It bears noting, however, that to the extent that

other unwritten parts of a nations constitution change as a consequence of other factors, the

true underlying stability of a politys constitution will be somewhat understated by this

approach.

The Constitution of India: An Overview

The Constitution of India is the supreme law of India. It lays down the framework defining

fundamental political principles, establishing the structure, procedures, powers and duties, of

the government and spells out the fundamental rights, directive principles and duties of

citizens. Passed by the Constituent Assembly on 26 November 1949, it came into effect on 26

January 1950.

It declares the Union of India to be a sovereign, democratic republic, assuring its citizens of

justice, equality, and liberty and to promote among them all fraternity. It is the longest written

constitution of any sovereign country in the world, containing 395 articles in 22 parts, 14

schedules and 94 amendments, for a total of 117,369 words in the English language version.

Besides the English version, there is an official Hindi translation. The Constitution effectively

replaced the Government of India Act 1935 as the governing document of India. Being the

supreme law of the country, every law enacted by the government must conform to the

constitution.
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The constitution of India is divided into several parts. Fundamentally, parts are the individual

chapters in the Constitution, focused in single broad field of laws, containing articles that

addresses the issues in question.

Preamble Part I - Union and its Territory Part II - Citizenship. Part III - Fundamental Rights Part IV - Directive Principles and

Fundamental Duties.

Part V - The Union. Part VI - The States. Part VII - States in the B part of the

First schedule (Repealed).

Part VIII - The Union Territories Part IX- Panchayat system and

Municipalities.

Part X - The scheduled and TribalAreas

Part XI - Relations between theUnion and the States.

Part XII - Finance, Property, Contracts andSuits

Part XIII - Trade and Commerce within theterritory of India

Part XIV - Services Under the Union, theStates and Tribunals

Part XV - Elections Part XVI - Special Provisions Relating to

certain Classes.

Part XVII - Languages Part XVIII - Emergency Provisions Part XIX - Miscellaneous Part XX - Amendment of the Constitution Part XXI - Temporary, Transitional and Special

Provisions

Part XXII - Short title, date ofcommencement, Authoritative text in Hindi

and Repeals

Part XXIII - Temporary, Transitional andSpecial Provisions

Part XXIV - Temporary, Transitional andSpecial Provisions
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Schedules

Schedules are lists in the Constitution that categorizes and tabulates bureaucratic activity and

policy of the Government.

First Schedule (Articles 1 and 4) States and Union Territories This lists the statesand territories on of India, lists any changes to their borders and the laws used to make

that change.

Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186 and 221) Emoluments for High-Level Officials This lists the salaries of officials holding public

office, judges, and Comptroller and Auditor-General of India.

Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219) Forms of Oaths Thislists the oaths of offices for elected officials and judges.

Fourth Schedule (Articles 4 and 80) This details the allocation of seats in the RajyaSabha(the upper house of Parliament) per State or Union Territory.

Fifth Schedule (Article 244) This provides for the administration and control ofScheduled Areas and Scheduled Tribes (areas and tribes needing special protection due

to disadvantageous conditions).

Sixth Schedule (Articles 244 and 275) Provisions for the administration of tribal areasin Assam.

Seventh Schedule (Article 246) The union (central government), state, and concurrentlists of responsibilities.

Eighth Schedule (Articles 344 and 351) The official languages. Ninth Schedule (Article 31-B) - This covers land and tenure reforms; the accession of

Sikkim with India. It may be reviewed by the courts[17]

.

Tenth Schedule (Articles 102 and 191) "Anti-defection" provisions for Members ofParliament and Members of the State Legislatures.

Eleventh Schedule (Article 243-G) Panchayat Raj(rural development). Twelfth Schedule (Article 243-W) Municipalities (urban planning).
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System of government

The basic form of the Union Government envisaged in the Constitution was introduced by Dr.

Ambedkar as follows,

A democratic executive must satisfy three conditions:

1. It must be a stable executive, and

2. It must be a responsible executive.

3. It must be impartial to all religion, caste and community. Unfortunately, it has not

been possible so far to devise a system which can ensure both conditions in equal

degree. ..... The daily assessment of responsibility, which is not available in the

American system is, it is felt, far more effective than the periodic assessment and far

more necessary in a country like India. The Draft Constitution in recommending the

parliamentary system of Executive has preferred more responsibility to stability.[18]

Federal Structure

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 Parliament and 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 Rajya Sabha, which consists of representatives of

States, is also an example of the federal nature of the government.
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Parliamentary Democracy

The President of India is elected by the Parliament and State Legislative Assemblies, and not

directly by the people. The President is the Head of the State, and all the business of the

Executive and Laws enacted by the Parliament are in his/her name. However, these powers are

only nominal, and the President must act only according to the advice of the Prime Minister and

the Council of Ministers.

The Prime Minister and the Council of Ministers enjoy their offices only as long as they enjoy a

majority support in the Lok Sabha, 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 Legislative Assembly enjoys control over the Chief

Minister and the State Council of Ministers.

Independent Judiciary

The Judiciary of India is 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 High Court or the

Supreme Court, if the action violates any of the fundamental rights of an individual as

enumerated in the Constitution.
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Amendment Procedures in the Constitution of India

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 368 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. 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 theSupreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since

independence

The pre-Kesavanada position

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, severallaws 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 of State Policy] that required equitable distribution of resources of


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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 againchallenged 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. Unionof India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court rejectedboth 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.


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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.

Amending 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:

Amendment by Simple Majority

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.


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Amendment by Special Majority

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.

Amendment by Special Majority and Ratification by States

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.

Procedure For Amendment U/A 368

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.


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Notable Constitutional Amendments in India

Shankari Prasad V. Union of India (AIR 1951 SC 458)

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.

Sajjan Singh V. State Of Rajasthan (AIR 1965 SC 845)

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.

Golaknath V. State Of Punjab (AIR 1967 SC 1643)

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.


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24th Amendment Act, 1971

Golaknaths 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.

Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461)

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 ofGolaknaths case. The Supreme Court

overruled its decision in Golaknaths 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.

Basic Structure

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.

The eminent judges during the course of the case gave their opinion on the crux of the matter.


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Chief Justice Sikri indicated that Basic structure is:1. The supremacy of Constitution

2. The republican and democratic forms of government

3. The secular character of Constitution

4. Maintenance of separation of power

5. The federal character of the Constitution

Justices Shelat and Grover added another three:

1. The mandate to build a welfare state contained in the Directive Principles of State

Policy

2. Maintenance of the unity and integrity of India3. The sovereignty of the country

Justices Hegde and Mukherjea listed the following:

1. The Sovereignty of India

2. The unity of the country

3. The democratic character of the polity

4. Essential features of individual freedoms

5. The mandate to build a welfare state

Justice Jaganmohan Reddy referred the Preamble only:

1. A sovereign democratic republic

2. The provision of social, economic and political justice

3. Liberty of thought, expression, belief, faith and worship

4. Equality of status and opportunity


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42nd Amendment Act, 1976 and Article 368

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.

Minerva Mills V. Union Of India (AIR 1980 SC 1789)

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 Kesavanandas 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. Chandra Kumar V. Union Of India (AIR 1997 SC 1125)

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.


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The Amendbility of The Indian Constitution

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 Shakespearesaid in Measure for Measure:

O, it is excellent

To have a giants 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.

Constitutional Amendments: A Global Perspective

The study of constitutional design is of interest, in large part, because constitutions can be

amended from time to time. Not every constitutional procedure or constraint will stand the

test of time, and most constitutional designers take this into account by including

constitutional procedures for changing the fundamental rules of the political game. Almost all

national constitutions include articles that provide for partial or total change of their


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constitutions. Only less than 4 percent of the worlds constitutions lack articles on formal

amendment procedures.

In this respect, constitutions differ from rules governing some informal game (or sport) rule

insofar as the latter do not include rules for changing the rules. Other less formal methods for

reforming constitutional practice are also commonplace. Constitutional procedures and

constraints may also be altered by judicial interpretation and political adaptation, and by

irregular (nonlegal or unconstitutional) means. In democratic systems, constitutional

developments are often gradual or incremental, although replacement of the entire

document is also a possibility.

However the scope of amending procedures is somewhat limited. But this is not because

amendment procedures are unimportant or a secondary matter in democratic constitutional

design. For instance, if variations in the details of constitutional design have important effects

on public policies and welfare within a polity, changes in the procedures by which

constitutions may be changed are obviously important as well. Moreover, amendment

processes may contribute to both the stability and durability of a constitutional regime,

which may themselves have significant effects on welfare insofar as prosperity, health, andtrust are promoted by stable public policies. Indeed, the age of a particular constitution is

often measured by the period in which its rules of amendment are followed, rather than by

the period in which particular political procedures and constraints have been in place.

For instance, Norway has one of the oldest constitutions in the world, second only to the U.S.

constitution and it was signed and sealed by the Constituent on May 17, 1814, a few weeks

after elected delegates from all parts of Norway had assembled. Since 1814, however, morethan 200 amendments to the constitution have been adopted. During that time, the balance

of power within the Norwegian government and the nature of the electorate underwent

substantial transformations. The authority to make public policies shifted from the King to


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the parliament. Even in the case of India, there have been 94 amendments to the constitution

since its inception in 1950.

If durability is measured by the existence of a stable amendment procedure rather than core

features of political procedures and constraints, an important difference clearly exists between

a constitutions durability and the stability of its associated pattern of governance. The

fundamental rules and procedures of governance may change substantiallyas they have in

Norway, the United States, and many other countrieswithout changing amendment

procedures.

Formal Constitutional Amendment Procedures

Almost all constitutions specify procedures for rewriting or replacing the constitutional text,

and they are almost always more stringent or demanding than ordinary legislative

procedures. However, a wide range of formal amendment procedures potentially satisfy this

condition, and, this allows the stringency of amendment processes to vary widely. More

stringent amendment procedures help makes constitutional commitments stable and thus

credible. Such procedures, consequently, help to create a higher legal system that will stand

above and limit ordinary legislation. Less stringent amendment procedures allow

constitutional mistakes to be readily corrected and institutional experimentation to be more

readily conducted.

The stringency of a formal amendment process reflects a commitment by constitutional

designers to entrench certain rules and procedures or specific programs and prohibitions. Often

formal amendment procedures are quite complex, and in many cases different methods of

amendment are stipulated for different provisions in the constitution or allowed in more or less

urgent times.


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The data shows the amendment procedures from countries across the world.


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Conclusion

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 beand often arechanged 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 nations 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, womens 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


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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.

Date post:	03-Apr-2018
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Amendment Procedure - Political Science

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