EXPOUNDING THE AMENDING POWERS

UNDER INDIAN CONSTITUTION

BY
DR. SANJAY JAIN
 Part I
Dynamics of Amending powers under
Indian Constitution

 Constitutional Location of Amending Power

 Article 368, or Article 248
 a) WhetherAmendment is the law in a generic sense or is it a power
above the and higher than Legislative ,executive , administrative or
Judicial power? And being the higher power , is it the amalgam of all
four?
 b) Does the term ‘Amendment’ cover alteration of the identity of the
Constitution in its entirety?
 c) Does the power under Article 368 post 24th amendment is a
constituent power or Constituted/derivative constituent power?
Types of Amendments

 1) Formal Amendments
a) amendment by Parliament with Special majority
b) Entrenched amendment
 2) Informal Amendments
a) amendments by judicial interpretation
b) Executive Amendments by way of international treaties.
 3) Amendment in the Constitution by following Legislative procedure
 4) Amendment by way of Constitutional Conventions
 Judicial Review of Exercise of
Amending powers
 A) Pre Kesavananda Bharathi Phase
❑ Shankari Prasad recognition of “Conventional hierarchy between Constituent and
legislative Powers “
❑ Sharp rift in Sajjansingh ( Mudholkar and Hidayatullah protests )
❑ Dramatic fundamental rights turn to amending powers , abandoning the
conventional hierarchy –Golak Nath Case
 B) Kesavanada Bharathi phase
Identifying Basic Structure of the Constitution , Creation of Intra constitutional
hierarchy
 C) Post Kesavananda Bharathi phase
Enforcing Basic Structure with relativity
Indira Nehru Gandhi Case (protest against Parliamentary usurpation of judicial powers)
Basic Structure in Present times

 Paradigmatic shift from provisions to principles and

values underlying Constitution.
 Transformative Constitutionalism and Constitutional
morality vis-à-vis basic Structure .
 Part II
Features of First Amendment

 In the original Constitution, 1950 , under Article 19 ,No

restrictions on freedom of Speech and expressions
except -
a) Powers of the State under existing Laws and ;
b) Authority to State to legislate to deal with libel, slander,
defamation, contempt of court or any matter which
offends against decency or morality or which
undermines the security of, or tends to overthrow the
State.
 After the First Amendment in 1951, Article 19(2) is enlarged with new
powers and mainly power to impose reasonable restriction applicable
to entire Article 19.
 Additional Grounds to limit freedom of expression under article 19 (1) (a)
friendly relations with foreign states, public order, or incitement to an offence
 In Article 19 (6) enlargement of the Power with creation of State
Monopoly.
 Article 31

 In the original Constitution 1950, enforcement mechanism for exercise of

right to Property .
 Incorporation of Principle of eminent domain
 Exception to eminent domain.

 After first Amendment 1951

 Serious inroads into Right to property, Vast acquisition powers ,

 Creation of Ninth Schedule to provide immunity to the

unconstitutional Laws.
Article 15

 In the Original Constitution 1950, absence of explicit provision for

affirmative action in favor of Backward classes, SCs and STs.
 After First Constitutional Amendment 1951, with the incorporation of clause
(4) to Article 15, making explicit the affirmative action in favor of backward
classes, SCs and STs implicit in Article 15 (1) read with Article 14.
Questioning the competence of
Unicameral house ( provisional
Parliament with limited Franchise)
 A) Whether the provisional parliament with one House was
compatible with the mandate of Article 368, empowering the
Parliament to amend the Constitution with a two-thirds majority
in both Houses.?
 B)Could a single chamber with its credentials as provisional
parliament had competence to amend the Constitution?
 C) Whether adaptation of Article 368 by substituting the Words,
‘Either house of’, ‘in each house’ , ‘that house’ with
“Parliament” was constitutionally permissible through the
channel of the Constitution (Removal of Difficulties) Orders , in
this case Order No. 2 under Article 392.?
List of Articles amended by Removal
of difficulties Order No II.

 List of Articles Altered - 3,54,55,56, 58,61,63, 70,71,75,79,85-88,93-101,105-107, 110-120,123-

124, 151,158, 168,insertion of Article 172 A, 174,178, 182, 190, insertion of Article 212A, 238,
insertion of Article 238A , 249,267, 274,281,312, 320,323, insertion of Article 329A, and 333A,
338,340,348,352,354-357, 359,361,368,
 List of Articles omitted – 62.64.65,67-69,82-92,102-104,108-109
D) Should a removal of difficulties Clause be used to amend the
amending clause of the constitution, without following the entrenched
procedure ?
E) Whether the Constitution (Removal of Difficulties) Order II was ultra virus
on the ground of the excessive delegation of power?
F) Whether President did remove difficulties or made substantive
amendments in the Constitution with alterations of the some provisions,
addition of some and omission of other provisions?
 Original Constitution having construed the word parliament narrowly for the purposes of
Article 392 (2) obligating “the President to lay every order passed under clause 1 before
parliament”, Was President justified in enlarging its scope by vesting in it the amending
power under Article 368 , Can an institution created to deal with transition be empowered
with powers to amend the constitution enduringly?
 Should the provisional parliament have taken onto itself the task of sealing the fate of
Successive generations by imposing on them the violator of the Constitution, the Villon of
the piece “ninth schedule’ ?
 Is it justified to equate provisional parliament , a ‘Constituted institution’ posterior to coming
into force of the Constitution with “Constituent assembly’ owing to mere fact of all its
members becoming the part of the former?
 Should first amendment read with the Constitution (Removal of Difficulties) Order II be
characterized as new founding on the anvil of recently commenced Constitution?
 Did the constitution not become regressive with the
incorporation of ninth Schedule and with the
suppression of freedom of speech and expression?
 Is it not correct to attribute infamous provisions like
Sections 124A and 153A of the Indian Penal Code
(penalizing sedition and Promoting enmity between
different groups on grounds of religion, etc.) to Article
19(2) as amended by first amendment?
Jurisprudentially Problematic

 Should an inferior power be used to alter, superior

instrument i.e. inferior norm altering grund norm or a
primary rule altering rule of recognition.?