AMENDMENT caper 2D) . Modes of Amendment (Informal / formal) Amendment procedure : Rigid or flexible > Constituent Assembly Debates (Vol. VII p. 43-44) 4. Procedure of amendment in federal Constitution A st » 5. Special features of Amendment of Constitution in India ‘ 6. Entrenched Provisions (Proviso to clause(2) of Art. 368) } 7. Scope & Extent of Amendment in Article 368 > Law vis-a-vis amendment 8. Joumey from Shankari Prasad case to Keshavaniind Bharati Case. 9. 24th Amendment, 1971 10. Doctrine of Basic Structure and its Evolution. ; > Extent of Amending Power Conferred by Article 368 of the Indian Constitution > Meaning of the Basic Structure 11. 42nd Amendment, 1976 & Minerva Mills case 12. Position after Waman Rao decision 3 13. Theory of Basie Structure 14, Some important recent Amendment: Ss 1, Need of Amendment 2. 3 1. NEED OFAMENDMENT Article 368 of Indian Constitution provides power to the Parliament to amend the Constitution. Q. Why do we need Amendment? Constitution ofa country is its fundamental and foundational law. The constitution is an organic and dynamic document. It should be able to grow with the nation so as to suit the needs, requirements and circumstances. The needs of the nation are like that of an individual, which are not static, both keep changing with the time. The constitution should change with the changing needs of the society and meet the challenges of growth and change. If Constitution does not meet the new challenges it could come under pressure and crack and crumble. 2. MODES OFAMENDMENT Broadly speaking, there are two modes of amending the Constitution — A. The informal method. B. The formal method. Law Institution eS LTInformal method of Amendment: Un, A the same. But, its meaning and its im vingaell established convention; angina’ sie Constitution. \der this method, the letter of the law does not ch; portance changes. This . lange, it m method includes amendmey ‘and (i) amendment by change ‘metho nt (i) by in the interpretation of the provisions Forexample, incase ofthe appointment ofthe Chief Justice of India, since the commencementof the cassitutionn 1950 till 1973, the convention got evolved and observed, according to which, the senior ost Judge ofthe Supreme Court was to be appointed as the Chief Justice of India, But, in 1973, this reeling tae junior to thee Judes, was appointed the Chief Justice of India, Thenar-observanceof the convention brought about achange inthe operation of Article 124(2) which segulatesthe appointments to the Supreme Court The law interpreted by the final Court of Appeal, is binding throughout the country. But the law so declared, is not binding on the Apex Court, the final Court of Appeal. The text of the Constitution having given one meaning in one context may be given altogether a different meaning in another context. The written provision of the Constituti ion remaining the same; the operation, the application of thelaw undergoes a change and the Constitution stands amended B. Formal method of Amendment: U; nder this method, it is changed the text of the law, i.e., the written provision of the Constitution is amended, by way of addition, variation orrepeal. Forexample, the Constitution (1st Amendment) Act, 1951, added new Articles 31-A and31B along with Ninth Schedule to the Constitution. The Constit ion (44th Amendment) Act; 1978, repealed the existing Article 31 relating to the fundamental right to property. 3, AMENDMENT PROCEDURE: RIGID OR FLEXIBLE. Generally, the Constitution of federal systems extremely rigid and involves difficult and complicated process of amendment. But, Indian Constitution prescribes less rigid procedure, we have adopted different procedure as compared to other countries. Our procedure of amendment is more flexible shen Tigid. More so, ithas departed from traditional way of amendment in federal polity, of amendment to body other than legislature Switzerland or convention in US. > Constituent Assembly Debates (VoleVII p. 43-44): Ironically, the draft provisions relating tothe 1) amending power came in fr sarp eiticism and itwas fet that the procedure for amending the Constitution was too difficult, (2) Dr. Ambedkar pointed out that in comparison to the U.S. Constitution, the provisions of the draft Constitution were very simple. He rightly pointed out theneed for a two-third majority as a future Parliament may not be non-partisan and would have an “axe to grind.” Prophetic words, indeed. Little did Dr. Ambedkar realise that less than 25 years after the Constitution cane into beang, it faced its greatest danger and was onthe bring of being totally destroyed 4. PROCEDURE OFAMENDMENT IN FEDERAL CONSTITUTION : ity the difficult procedure is basically aimed to ensure intactness of federal polity. So, In federal pol eed ‘easier mode for changing those provisions of the constitution which doesnot our constitution makes rina atte federal ©) che Constitition of India also provides procedure frits amendment, Like any written constitute procedure for amendment is much less tigi. Itshall provide Bua, unlike many federal const res foritsamendment. The main provision in this) regards Article 368 according to which an fr constituent power ofthe Union, The procedure for constitutional Parliament is the repost creas certain distinctive features which clearly mark out Parliament's amendment, as spelt out in tha ty rom its ordinary role aS legislative body constituent capaci constituent capacity © a sacra ree ates (ENEMA in - ro which entrust power or prescribes special procedure like referendum inAn amendment ofthe constitution can be initiated only by the introduction of a Bill in either House of parliament so that the initiative in the matter of constitutional amendment has been eXelusively reserved for parliament For the most part, the provisions of the constitution ean be amended by parliament by speciay Majority, (dual majority) namely, a majority of total membership and a majority of not less than two-thirds ofthe members of each house present and voting. Itis only in the case ofa limiteg category of constitutional provisions, that the amendment Bill needs to be ratified by the legislature of not less than one halfof the states. Ona constitution Amendment Bill, as duly passed/ratified, being presented to the President, the President's assent is mandatory and unlike in the case of ordinary legislative Bills, he has no option to withhold his assent or return the Bill to the house for reconsideration, 4. Itis significant that none of the provisions of the constitution is unamendable in as much as Parliament can in any way amend, alter or repeal any provision of the constitution and such amendment can’t be questioned in any court of law on any ground whatsoever tinless they tend toalter or violate what may be considered as the basic features of the constitution. 5. SPECIAL FEATURES OF AMENDMENT OF CONSTITUTION IN INDIA. i Alteration of certain provision not deemed to be amendment such proyisions can be altered by ordinary process and by simple majority. ii Other provisions of constitution can be changed only by way ofamendment under Art. 368, ii, Again, there is differentiation regarding procedure foramendment depending upon nature of provisions to be amended. iv, All amendment in Art. 368 has to be passed by special majority by the Parliament but in case of provisions affecting federal structure ratification of at least half of the states is required, ‘ For Amendment purpose, there are 3 categories of provisions (3 procedures) : 1. By simple/ working majority i.e, more than 50% of present and voting (Article 5 -citizenship, Art.169-creation of legislative council, Art. 239A- Creation of local legislatures or council of ministers or both for certain Union territories) 2. By Special Majority (dual majority) ~All constitutional amendment except above mentioned articles (5, 169, 239-A) must be effected by a special majority (i.e. majority of total + majority of not less than 2/3 of members of that house present and voting ). 3. By special majority(dual majority) and ratification by not less than half of states. Here states aré given an important Voice in amendment as they may affect federal character (Dual Majority + Ratification) 6. ENTRENCHED PROVISIONS The provisions which necessitate amendment by dual majority and ratification have been mentioned in proviso to clause (2) of Art. 368: (a) Relating to Executive: Art, 54, 55 (election of President), Art 73and 162 (executive power of centreand states). (b) Relating to Judiciary: Arts 124 to 147 (Supreme Court); 21410231 (High Courts); 241 (judiciary for UTs.) (©) Relating to Legislative power: Arts 245 to 255 (distribution of Legislative powers);Part XI Chapter 1, lists of seventh schedule, LAH AMBITION LAW INSTITUTE. Institution(a) Representation of Staten council of states (Fourth schedule), (Art 368 itself Kihoto Holohan vs. Zac! han vs illu, AIR 1993 SC 412 : Para 7 of the Tenth Schedule to the constitution “yhoh brs the jurisdiction ofthe courts in respect of any matter connected with the disqualification of a amber of House under the scheduled, has been invalidated by the court because it has the effect of yenmen of power of the SCand HC without following procedure required in proviso to Ast. 368(2) goplingtne doctrine ofseverablity the majority held the para 7 was severable from the rest ofthe schedule oF therefore is invalidity did not affect the rest ofthe scheduled, Re Berubari Union, AIR 1960 SC 845 : Powerto amend Constitution inefudes power toamend ‘art Land that logically would include the power to cede national territory in favour of a foreign state. Our: constitution makers have sought a via media between extreme flexibility and extreme rigidity as yehave no difficult procedures such as referendum or convention, the only limitation is that it shall be done bymajority of total and majority of 2/3 rd present and voting member of the house ofthe Parliament. 7, SCOPE & EXTENT OF AMENDMENT IN ARTICLE368 Art. 368 of constitution raises few questions : (1) Clause(1) of Art 368 includes all the provisions or not? (2) Whether part IIl is amendable or not? (3) Whether word “law” used in Art, 13(2) ineludes/méndment of fot? > Law vis-a-vis Amendment : Iflaw includes afttendment then according to Article 13(2) it should be void if it takes away orabridges fundamental rights. In 1951, the Supreme Court madea distinction between ordinary legislative power and Constituent power. Article 13(2) states “the State shall not make any law which takes away or abridges the rights conferred by this Part (II) and any law made in contravention ofthe clause shall, to the extent of the contravention, be void.” Ifthe word “law” included a constitutional amendment, Parliament could never amend Part III of the Constitution at all. ‘The First Amendment to the Constitution was ¢hallenged but it was held that the word “law” in Article 13(2) would not include an amendment to the Constitution which was made in exercise of constituent power Itwas held that Article 368 empowered Parliament amend the Constitution without any exception ‘whatsoever. Thereafter, the Fourth and Seventh Amendiments affected Part IIl of the Constitution. 8, JOURNEY FROM SHANKARIPRASAD CASE TO KESHAVANAND BHARTI ‘The first case relatedito this issue is Shankari Prasad vs. UOI, AIR 1951 SC 458: The court held thatthe powerto amend the constitution, inclding the fundamental rights, was contained in Art 368 and that the word “law” inart. 13(2) did not includean amendment of the constitution which was made in the exercise ofthe constituent and not legislative power. Sankari Prasad case was concerned with the validity of the Constitution (Ist Amendment) Act, 1951. After the Courts decision, several amendments were made in the constitution of which the fourth and seventh Amendment related to part IT ofthe Constitution, “The seventeenth Amendment which added several legislations tothe Ninth schedule making them ‘immune from attack on the ground of violation of fundamental rights was challenged in Sajjan Singh vs. Seats a Rafasthan, AIR 1965 SC 845, The Supreme Court held that Fundamental Rights ean be se capproved the above case. Gajendragadkar C.J. held that law in Art, 13@2) does not amended and itapprert- damental right was intended to be excluded from preview of amendment, it ie for the same. ‘Amendment’ means amendment of all provisions. State of Punjab, AIR 1967 SC 1643 : In this case, three writ petitions were ed by the son, daughter and grand-daughter of Golnk Nath. In this petition, the security of land Tenures Act, 1953 had been challenged on the ground that the include amendments 1 provision would have been madi Golak Nath»ys involved, one was fil inclusion of the Punja!was so included as well as first and fourth Amendment abridging the fundamental rights were unconstitutional. The case was heard by an eleven judge bench of the Si reme Courts which by Majority of 6 to 5 held that Parliament had no power to amend Part IT as there is implied limitation that fundamental rights are out of reach of Parliament ie. Parliament does not enjoy the constituent legislative power so it can’tamend the Fundamental rights. The judgement proceeded on following reasoning, 1. The Constitution incorporates an implied limitation thatthe fundamental rights are out ofthe reach ofparliament. It declares certain rights as fundamental rights; makes all laws infringing the said rights void, preserves only the laws of social control infringing the said rights and expressly confers, power on Parliament and the President toamend or suspend them in specified circumstances. 2, Art. 368 does not contains the power to amend but merely provides procedure for amending the constitution. The power to amend the constitution is legislative process and is included within the plenary legislative power of parliament. : Pe 3. Power of parliament toamend constitution is derived from Art. 245 read with entry 97 of list lof the 7th Schedule and the residuary power of legislation. Art. 368 does not confer power to amend but only prescribes the procedure for amendment, Residuary power is vested in Parliament but Article 368 requires ratification by the States in certain cases as mentioned in proviso to Article 368, They seem to be contradictory as states have no role in residuary power, 4. Article 368 laid down merely the procedure. It isa legislative procedure. Amendment is a law within Art. 13(2) therefore, if it violates Fundamental Rights then that will be declared unconstitutional Earlier in Sankari Prasad & Sajjan Singh ease it was held the word ‘law’ in Art. 13(2) did not \clude amendment. Constitution has given place of permanence to fundamental freedom and Article 13, merely incorporates that situation and that can’t be amended. 5. There is nothing in Amendment process which empowers parliament to all the provision of constitution did not provide a specific power to take away or abridges fundamental righteven by amendment under Article 368. Ifall the provisions guaranteeing the fundamental rights must be amended so as to curtail those rights this could be done by a Constituent Assembly which might be invoked by the Parliament. After this decision, it became impossible for Parliament to pass any law which would amend oralter fundamental rights, The Constitution (24th Amendment) Act, 1971 was passed to overcome the Golaknath’s decision. The amendment inserted Clause (4) which stated that Article 13 would not apply to any amendment made under Article 368 Thereafter, the 25th, 26th and 29th Amendments were all made in 1971-1972. The 25th Amendment ‘was to get over the decision in the Bank Nationalisation case wherein the Supreme Court has held that there was a constitutional guarantee for a right to compensation and the adequacy thereof would be jjusticiable, Similarly it was also held that a law of acquisition or requisition must satisfy the requirements of Article 19(1}(0. The 26th Amendment abolished privy purses, which the 29th Amendment included Land reform legislation of Kerala in the Ninth Schedule sos to protect them under Article 31B, Thus, Parliament tried to undo the effect of Golaknath case. Itwas not long before the correctness of this view was once again considered by the Supreme Court. 9. 24THAMENDMENT 1971 24th Amendment which came in 1971 made significant changes in Article 368. i To nullify the effect of Golak Nath case, it added clause 4 to Article 13 which provides that nothing in Article 13 shall apply to amendment passed under Art. 368, Siem Seventeenth Amendment by which it ZiT wows No. 1 SLAW INSTITUTE La Institution 284| a ‘ jramended the title of 368, originally it was procedure for amendment. It was changed to empower + jfParliament to amend and procedure thereof, ji, Clase (1 10Aticle 368 was added (cali there was confusion between the mode of amendmen, ‘Accordingt0 it, amendment isa constituent power and there can be amendment by way of addition, variation of repeal jy, Use of word constituent power indicated that there i amending power, difference between the legislative power and Implication and Effect of 24th Amendment b 1, 24th Amendment not only restored amending power but also extended its soy by.adding words- addition, variation and repeal. Sa 2, Thisamendment substituted the words it shall be presented to the President who shall give his assent to the Bill, z , ©) Maneka Gandhi case intended to save Ay » (d) None of the above 1. Const (s*anaien) Ast Basic structure of Constitution can be amended 2. Constitution (24" Amendinént)Act (a) Bysimple majority 3. Constitution (I7#Amendment) Act (b) By2/3 majority 4 Contin ads ag? (©) Byspecial majority and ratification by half Which of th staiements: given above are ofstates correct? : (@) None of the above (@ 1,2and3 9. Which one of the following sets contains a (b) 3and4 feature which is not a basic feature of the @©r2y3.and 4 constitution of India? (@1and3) (a) Rule of law, republicanism, secularism 4. Whighis te latest case wherein Constitutional (b) Independence of judiciary, parliamentary Bench’6f the Supreme Court has reviewed democracy, federal policy the atnending power of the Parliament under (c) Emergency provision, egalitarianism, Article 368 of the Constitution? dignity of the individual (a) Golaknath vs. State of Punjab (@) Parliamentary democracy, secularism, (b) Indira Nehru Gandhi vs. Rajnarain egalitarianism 290rang the following in chronological order - ethe codes given below (c) 100" (d) 101* (1) Kesavananda Bharti case 13. Which constitutinal amendment is known as (2) Golak Nath case “Mini Constitution? : (3) Minerva Mills case (a) 31stAmendment (4) Saja Singh case (b) 42nd Amendment codes (c) 44thAmendment Oe 224. | (d) 91stAmendment _». — 14. Which Amendment Aci of the Constitution has Oro 1 3 inserted the Sindhi language? @2 4 3 1 (a) 2istAmendient 11, Through which amendment ofthe constitution (b) 23rd Amendment > of India, Sikkim was included in UOI? (©) 42nd Amendment ~. (@) 36" Amendment (@) 32ndAmendment, “~<_) (b) 35° Amendment 15. By which of the following Constitutional (6) Seventh Amendment amendments the women got reservation in the (4) SthAmendment Panchayati Raj Institutions? 12. Which of the followin; €@) 420d me ee g Amendments are We zs (@ 97 / © Tard. (b) 98” _ (@) None ofthe above fm». ana % Hine SerPii Te 291