Amendment of Constitution (Part 1 of 2) -UPSC IAS Exam- Indian Polity-...

Amendment of Constitution (Part 1 of 2) -UPSC IAS Exam- Indian Polity- by Dr Ashok Dhamija

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Amendment of Constitution as laid down in Article 368 of the Constitution of India has been discussed in this Part 1 of the two-video series and the Doctrine of Basic Features of the Constitution is also discussed here (also freely subscribe to our YouTube Education channel with about 100 free videos on UPSC IAS and other competitive examinations):

Constitution of a State deals with:

  • the structure, composition, powers, functions of legislature, executive and judiciary;
  • their mutual relationships.
  • the relationship of these institutions with the citizens of the state;
  • the rights and liabilities of the citizens;
  • other important high level institutions in the state (such as Election Commission);
  • AMENDMENT OF THE CONSTITUTION ITSELF.

Need to amend a Constitution…

  • The object of an amending clause in a Constitution is to ensure that the Constitution is preserved.
  • A state cannot be static. It is dynamic and it changes with the passage of time.
  • The political, social and economic conditions in a state keep changing with time.
  • Scientific and technological advancements change the life of a state.
  • The social values and ideals also change with time giving rise to new problems and new opportunities.
  • The principles or philosophies, on which the Constitution drafted by one generation is based, may become obsolete for the next generation and may be shunned.
  • Constitution adopted by one generation in a particular political context and value system, may be found to be inadequate or even perverse by a future generation in another political context and value system.
  • A future generation may therefore need to change the provisions of the Constitution in a proper and peaceful manner to make it suitable to its requirements. It is the amending clause in a Constitution which fulfils this requirement.
  • A properly drafted amending clause enables the future generations to adapt the Constitution in accordance with the contemporary needs and philosophy of a state in a peaceful manner.
  • In the absence of a suitable amending clause in a Constitution, the only alternatives left open for the future generations would be to either resort to a revolution to change or even overthrow the unamendable Constitution or to stagnate with such unamendable Constitution. Both these situations are not desirable.
  • The amending clause in a Constitution, which can help in avoiding both these situations, is thus of great significance.
  • A Constitution binds only that generation which made it. In fact, this statement is also only half true, as there may be occasions, when a Constitution may be required to be suitably amended even during the lifetime of the generation which has drafted it.
  • The posterity may either maintain the original Constitution by acquiescence or may amend the same so as to suit the changed needs of its own generation.
  • Any Constitution, howsoever perfect it may be, is only an experiment and needs to be perfected from time to time in accordance with the changing requirements of the subsequent generations or may be of the same generation itself.
  • Rousseau says, “There is no fundamental law that cannot be revoked, not excluding the social compact itself…”.
  • “…it is undeniably true that no existing Constitution has reached its final form and become, as it were, a dead or fixed thing incapable of further development.” – James Wilford Garner.
  • “Human societies grow and develop with the lapse of time, and unless provision is made for such constitutional readjust­ments as their internal development requires, they must stagnate or retrogress.” – James Wilford Garner.
  • Sir Ivor Jennings: “A Constitution has to work not only in the environment in which it was drafted but also centuries later. It must therefore be capable of adaptation to new conditions as they arise.”
  • “Each generation has a right to determine the law under which it lives; the earth belongs in usufruct to the living; the dead have neither powers nor rights over it.” – Thomas Jefferson.
  • William Bennett Munro: “…a Constitution is a manifestation of popular sovereignty; and one generation of the people can hardly impose, for all time, a limitation upon the sovereignty of future generations. That would constitute government by the graveyards.”

Article 368 of Indian Constitution – original

368. Procedure for the amendment of the Constitution.-

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in –

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

Steps involved in Amendment

  • Introduction of an Amendment Bill in Parliament
  • The Bill is to be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.
  • Thereafter, the bill has to be assented to by the President
  • In case of matters covered in the Proviso, the Bill is also required to be ratified by the Legislatures of not less than one-half of the States.

Article 368 – existing (present) provision…

368. Power of Parliament to amend the Constitution and procedure therefor.-

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in –

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3) Nothing in article 13 shall apply to any amendment made under this article.

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

Methods of amendment of the Constitution of India

(1) Amendment by simple majority (24 such provisions): Examples:

  • Admission of a new state or establishing of a new state under Article 2, along with consequential amendments of the First Schedule (which defines the states and their territories).
  • Formation of a new state or alteration of the area, boundaries or name of any state under Article 3, along with consequential amendments of the First Schedule.
  • Provisions relating to the citizenship of India under Article 11, in spite of the specific provisions of articles 5 to 10 which may be negated by such an action under Article 11.
  • Emoluments, allowances and privileges of the President under Article 59(3), along with consequential changes in the Second Schedule.

[Note: Such amendments are not under Article 368 of Constitution.]

(2) Amendment by two-thirds majority in Parliament followed by ratification by state legislatures:

  1. Election of the President of India and the manner of the said election, as detailed in articles 54 and 55.
  2. Extent of the executive power of the Union, as detailed in Article 73.
  3. Extent of the executive power of a state, as detailed in Article 162.
  4. Provisions relating to High Courts for Union Territories, as detailed in Article 241.
  5. Provisions relating to the Union Judiciary, i.e., the Supreme Court, as detailed in Chapter IV of Part V of the Constitution.
  6. Provisions relating to the High Courts in the states, as detailed in Chapter V of Part VI of the Constitution.
  7. Distribution of legislative powers between the Union and the states, as detailed in Chapter I of Part XI of the Constitution.
  8. The three lists in the Seventh Schedule, i.e., the Union List, the State List and the Concurrent List, enumerating details of the matters in which the Union only, the states only and both the Union and states respectively have the powers to make laws.
  9. The representation of states in Parliament (e.g., articles such as 80, 81 and 82 and the Fourth Schedule).
  10. The amending clause itself, i.e., Article 368.

(3) Amendment by two-thirds majority in Parliament.

  • Amendment of all other provisions of the Constitution, other than those discussed above, are covered under this method.

Amending clause – scope and extent of power to amend – main cases

  • Shankari Prasad v. Union of India, AIR 1951 SC 458.
  • Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
  • Golak Nath v. State of Punjab, AIR 1967 SC 1643.
  • Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
  • Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
  • Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Shankari Prasad v. Union of India, AIR 1951 SC 458 (5-judges)

  • Constitution (1st Amendment) Act, 1951 was passed amending the Constitution, inter alia, by inserting two new articles 31A and 31B and a new Ninth Schedule in the Constitution.
  • The affected zamindars challenged the said amendment by filing petitions under Article 32 of the Constitution before Supreme Court.
  • The Supreme Court held as under:

“…the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that indication clear by adding a proviso to that effect.

“In short, we have two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Having regard to the considerations adverted to above, we are of the opinion that in the context of Art. 13 “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that Art. 13(2) does not affect the amendments made under Art. 368.”

  • It was thus made clear by the court that any provision of the Constitution, whatever, can be amended by following the process under Article 368.

Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 (5-judges)

  • Constitutional validity of the Constitution (17th Amendment) Act, 1964 was challenged which had placed certain statutes affecting property rights in the Ninth Schedule and had thus immunized them from court review.
  • The majority decision (3-judges) of the Supreme Court held: “when Art. 368 confers on Parliament right to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution”.
  • Separate minority judgments of M. Hidayatullah and J.R. Mudholkar, JJ., and on separate grounds, however, raised doubts as to whether Article 13 would not control Article 368. Hidayatullah, J., held that:

 “But I make it clear that I must not be understood to have subscribed to the view that the word “law” in Art. 13(2) does not control constitutional amendments.”

  • Hidaytullah, J., further observed that:

 “I would require stronger reasons than those given in Shankari Prasad’s case, 1952 SCR 89, to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with other parts of the Constitution and without the concurrence of the States.”

 “The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play things of a special majority.”

  • Similarly, Mudholkar, J., held that:

 “…I feel reluctant to express a definite opinion on the question whether the word ‘law’ in Art. 13(2) of the Constitution excludes an Act of Parliament amending the Constitution and also whether it is competent to Parliament to make any amendment at all to Part III of the Constitution.”

  • However, Mudholkar, J., based his arguments mainly on the theory that there are certain basic features of the Constitution which may not be subject to the amendatory process. By developing the said theory of basic features of the Constitution, His Lordship observed that:

“The Constitution indicates three modes of amendments and assuming that the provisions of Art. 368 confer power on Parliament to amend the Constitution, it will still have to be considered whether as long as the preamble stands unamended, that power can be exercised with respect to any of the basic features of the Constitution.”

To be continued in Video Part 2 of 2…

  • Constitution Amendment and Basic Structure Doctrine to be continued in Part 2 of this lecture.
  • Part 2 will deal with other judgments on Amendment of Constitution and will also deal with the latest position on Article 368 and on the Basic Structure Doctrine.

Watch the YouTube video with full explanation:

In this video (Part 1 of the two-video series), Amendment of Constitution as laid down in Article 368 of the Constitution of India has been discussed and the Doctrine of Basic Features of the Constitution is also discussed here.

This video is useful for the aspirants of the UPSC Civil Services Examination (for IAS, IPS, IFS, and Group-A Central Services) for the General Studies, Paper 2, for Indian Polity. This lecture is also useful for those appearing for Judicial Service Examinations in India, as also for law students, and also for aspirants of other competitive examinations.

This video has been prepared by Dr. Ashok Dhamija, a former IPS.

 

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