What is an amendment of constitution?
An amendment of Constitution is an improvement, a correction or a revision to the original content approved in 1788. As of January 2020, there have been 104 amendments of Constitution of India since it was first enacted in 1950.
The Constitution of India which was adopted by the Constituent Assembly on November 26, 1949 and it came into force on January 26, 1950. The framers of the constitution felt that this should be in accordance with the aspirations of the people and changes in the society. They did not see it as a sacred, stable and unwavering law. Therefore, they made provisions to incorporate changes from time to time. These changes are called constitutional amendments.
What is article 368 of Indian constitution?
Part-XX Article 368 (1) of the Constitution of India empowers constituent powers to make formal amendments and empowers Parliament to make changes or repeals, in addition to any provision as per the procedure laid down herein, which is different from the ordinary. The process of law is amended in Article 368 by the 24th and 42nd Amendments in 1971 and 1976 respectively.
There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by Article 368.
- The first type of amendments includes that can be passed by “simple majority” in each house of the Parliament of India.
- The second type of amendments includes that can be effected by the parliament by a prescribed “special majority” in each house; and
- The third type of amendments includes those that require, in addition to such “special majority” in each house of the parliament, ratification by at least one half of the State Legislatures.
Under Indian Constitution Article 368 of Part XX provides for two types of amendments: –
- By a special majority of the parliament: – It refers to the majority of 2/3rd members present and voting. It is used to pass a Rajya Sabha resolution empowering Parliament to enact legislation in the state list. It refers to the majority of 2/3rd members present and voting at more than 50% of the total strength of the House. It is mainly used for most of the constitution amendment bill. Examples where a majority of this type is used: –
- Passing a constitutional amendment bill that does not affect federalism.
- Removal of judges of Supreme Court or High Court.
- Removal of Comptroller and Auditor General (CAG) or Chief Election Commissioner (CEC) of India.
- National emergency
- Resolution by the State Legislature for the abolition or creation of the Legislative Council.
- With a special majority of Parliament ratified by half of the total states: – The provisions of the Constitution which pertain to the federal structure of the polity can be amended by a special majority of Parliament as well as by simple majority with the consent of half of the state legislators. If one or some or all of the remaining states take no action on the bill, it does not matter; half of the states gave their consent, the formality being completed. There is no time limit within which states should give their consent to the bill. These provisions can be amended: –
- Election of President and its manner.
- Extension of executive power of the Union and the States.
- Supreme Court and High Court.
- Distribution of legislative powers between
- Union and States.
- Any list in the Seventh Schedule.
- Representation of States in Parliament.
- Power of Parliament to amend the Constitution and its procedure (Article 368 itself).
Procedure of Amendment of Constitution as per Article 368
According to Article 368, the procedure for amendment of the Constitution is as follows in Article 368: –
- A constitutional amendment can be initiated only with the introduction of a bill in any House of Parliament (Lok Sabha and Rajya Sabha) and not in state legislatures.
- The Bill can be introduced by a Minister or a private member and does not require prior permission of the President.
- The Bill must be passed by a special majority in each House, that is, a majority of the total membership of the House (i.e. more than 50 per cent) and a majority of the two-thirds of the current members of the House and voting.
- Each House has to pass a separate bill.
- In case of disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for deliberation and passing the Bill.
- If the bill seeks to amend the federal provisions of the Constitution, it must be approved by a simple majority by the legislators of half the states, namely, presence and voting of the majority of the members of the House.
- After being duly passed by both the Houses of Parliament and ratified by the State Legislatures, the Bill is presented to the President where necessary.
- After the President’s assent, the bill becomes an Act (i.e., a Constitution Amendment Act) and is amended according to the terms of the Constitution Act.
Some important Amendments of Indian Constitution
- First Amendment Act, 1951
- Added special provision for the advancement of any socially and economically backward classes or for the Scheduled Castes and Scheduled Tribes (SCs and STs). To fully secure the constitutional validity of zamindari abolition laws and to place reasonable restriction on freedom of speech. A new constitutional device, called Schedule 9 introduced to protect against laws that are contrary to the Constitutionally guaranteed fundamental rights. These laws encroach upon property rights, freedom of speech and equality before law.
- Empowering the state to make special provisions for the advancement of socially and economically backward classes.
- Provided for the saving of laws provided for the acquisition of estates etc.
- The Ninth Schedule was added to protect land reform and other laws therein from judicial review. Article 31 was followed by Articles 31A and 31B.
- The Constitution (Seventh Amendment of Constitution) Act, 1956
- Reorganisation of states on linguistic lines, abolition of Class A, B, C, D states and introduction of Union territories.
- The Seventh Amendment brought the most comprehensive changes to the constitution ever. This amendment was made to implement the State Reorganization Act.
- The Second and Seventh Schedules were substantially amended for the purpose.
- The Constitutional (10th Amendment of Constitution) Act, 1961
- Incorporation of Dadra and Nagar Haveli as a Union Territory, consequent to acquisition from Portugal.
- The Tenth Amendment unifies the territories of the free Dadra and Nagar Haveli with the Union of India and provides for their administration under the regulation of the powers to form a President.
- The Constitutional (13th Amendment of Constitution) Act, 1963
- Formation of State of Nagaland, with special protection under Article 371A.
- Gave Nagaland the status of a state and made special provisions for it to the States Reorganization Act.
- The Constitution (24th Amendment of Constitution) Act, 1971
- Enable parliament to dilute fundamental rights through amendments to the constitution.
- Articles 13 and 368 were amended to remove all possible doubts regarding the power of Parliament to amend the constitution and procedure.
- It exercises authority over Golak Nath and asserts the power of Parliament, Golak Nath was rejected to amend the fundamental rights.
- The Constitution (Twenty-fifth) Amendment Act, 1971
- Restrict property rights and compensation in case the state takes over private property. However, the Supreme Court quashed a part of Article 31C, to the extent it took away the power of judicial review. This was done in the landmark case of Kesavananda Bharati vs. State of Kerala (1973) 4 SCC 225 which for the first time enunciated the Basic structure doctrine.
- The 25th Amendment of the Constitution in 1971 added a new section to Article 31C in the Constitution. By the 1971, the position of the fundamental rights was higher than Directive Principles of State.
- Article 31C sought to change the relationship to some extent by citing preeminence over Articles 14, 19 and 31 over Articles 14 (b) and 39 (c).
- Twenty-sixth Amendment of Constitution Act, 1971
- Abolition of privy purse paid to former rulers of princely states which were incorporated into the Indian Republic.
- Abolished privy purses and privileges of former rulers of princely states.
- The Constitution (Thirty-second Amendment) Act, 1974
- Protection of regional rights in Telangana and Andhra regions of State of Andhra Pradesh.
- This amendment added twenty state enactments relating to land sealing and land tenure reforms to the Ninth Schedule of the Constitution.
- The Constitution (Thirty-eighth Amendment of Constitution) Act, 1975
- Enhances the powers of President and Governors to pass ordinances.
- Declaration of Emergency by the President made non-justification.
- The declaration of ordinances by the Presidents, Governors and Administrators of the Union Territories was held to be unjustified.
- Empowered the President to declare various proclamations of national emergency on different grounds simultaneously.
- The Constitution (42nd Amendment of Constitution) Act, 1976: – The amendment was meant to increase the power of the government. The major amendments made to the Constitution by the 42nd Amendment Act are as follows: –
- Amendment passed during internal emergency by Indira Gandhi. Provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a “Socialist Secular” Republic. However, the Supreme Court, in Minerva Mills v. Union of India, quashed the amendments to Articles 31C and 368 as it was in contravention with the basic structure of the Constitution.
- The preamble has been changed to ‘Sovereign Democratic Republic of India as ‘Sovereign Socialist Secular Democratic Republic’.
- The term ‘Unity of the nation’ has been changed to integrity ‘Unity and Integrity of the nation’.
- Parliament and State Legislative Assemblies: – The life span of the Lok Sabha and State Legislative Assemblies was extended from 5 to 6 years.
- Executive: – It expressly amends Article 74 of the State that the President shall act in accordance with the advice of the Council of Ministers in the discharge of his functions.
- Judiciary: – The 42nd Amendment Act inserted
- Article 32A to negate the Supreme Court’s power to consider the constitutional validity of state law.
- Another new provision, Article 131A, gave the Supreme Court a special jurisdiction to determine questions relating to the constitutional validity of a central statute.
- Article 144A and Article 128A, the creators of the Constitutional Amendment Act further innovated in the field of judicial review of the constitutional review of legislation.
- Under Article 144A, the minimum number of judges of the Supreme Court to decide the constitutional validity of the Central or State law was set at least seven and further, for which the two-thirds majority of the judges declared the law unconstitutional. While the power of the High Court to enforce the Fundamental Rights remained untouchable, its power to issue any writ for any other purpose was subject to a number of restrictions’.
- Federalism: – The Act has added Article 257A to the Constitution so that the Center can deploy any armed force, or any other force of the Union, to deal with the critical situation of law and order in any state.
- Fundamental Rights and Directive Principles: –
- A major change that was made by the 42nd Constitutional Amendment was to give priority to all the Directive Principles on Fundamental Rights contained in Articles 14, 19 or 31.
- The 42nd Constitutional Amendment added a few more directive principles i.e., free legal aid, workers’ participation in the management of industries, protection of the environment and protection of the country’s forests and wildlife.
- Fundamental Duties: – The 42nd Amendment Act inserted Article 51-A to create a new part called IV-A in the Constitution, which laid down fundamental duties to the citizens.
- Emergency: – Before the 42nd Amendment Act, the President could declare an emergency under Article 352 all over the country and not in one part of the country alone. The Act authorized the President to declare an emergency in any part of the country.
Doctrine of Basic Structure
According to the Indian Constitution, the Parliament and the State Legislatures can make laws within their jurisdictions. The power to amend the Constituiton is only with the parliament and not the state legislature assemblies. However, this power of the parliament is not absolute. the Supreme Court has the power declare any law that it finds unconstitutional void. As per the Basic Structure Doctrine, any amendment that tries to change the basic structure of the constitution is invalid.
In the Indian Constitution, the word basic structure is nowhere mentioned. The idea that Parliament cannot enforce laws that will develop slowly and in many cases over time in the basic structure of the Constitution. The idea is to uphold the nature of Indian democracy and to protect the rights and freedoms of the people. This principle helps to protect and preserve the spirit of the constitution document.
It was the Kesavananda Bharati case that brought this theory to the headlines. It was held that “the basic structure of the constitution cannot revoked even by constitutional amendment”.
The decision listed some basic structures of the constitution: –
- Supremacy of the constitution
- Unity and sovereignty of India
- Democratic and republican form of government
- Federal character of constitution
- Secular character of constitution
- Separation of power
- Personal freedom
Over time, many other features have also been added to this list of infrastructural facilities. Some of them are: –
- The rule of law
- Judicial review
- Parliamentary system
- Law of equality
- Coherence and balance between Fundamental Rights and DPSP
- Free and fair elections
- Limited power of Parliament to amend the constitution
- Power of Supreme Court under Articles 32, 136, 142 and 147
- Power of High Court under Articles 226 and 227
Evolution of the Basic Structure Concept
The concept of the basic structure of the Constitution evolved over time. In this section, we will discuss this development with the help of some historical decisions related to this theory.
- Shankari Prasad Case (1951)
- In this case, the SC argued that the power of Parliament to amend the Constitution under Article 368 also included the power to amend the Fundamental Rights guaranteed in Part III.
- Sajjan Singh case (1965)
- In this case also, the SC considered that Parliament can amend any part of the Constitution including fundamental rights.
- It is worth mentioning that two disgruntled judges commented on whether the fundamental rights of citizens in Parliament could become the role of a majority party.
- Golaknath case (1967)
- In this case, the court reversed its earlier stance that fundamental rights could be amended.
- It stated that Article 13 states that fundamental rights are not liable to parliamentary restriction and a new Constituent Assembly would be required to amend fundamental rights.
- It was also stated that Article 368 gives the procedure for amending the Constitution but does not give Parliament the power to amend the Constitution. The case awarded the fundamental rights ‘transcendental position’.
- The majority decision invoked the concept of inherent limitations on the power of Parliament to amend the constitution. According to this view, the Constitution gives stability to the basic freedom of the citizens.
- In giving themselves the constitution, the people had secured these rights for themselves.
- Kesavananda Bharti Case (1973)
- This was a historical case in defining the concept of basic structure theory.
- The SC considered that although no part of the constitution, including fundamental rights, is beyond the amended power of Parliament, “the basic structure of the constitution cannot also be repealed by constitutional amendment.”
- The decision implied that Parliament could only amend the constitution and not rewrite it. It is just a power to amend and not the power to destroy.
- This is the basis in Indian law in which the judiciary can repeal any amendment passed by Parliament which is in conflict with the basic structure of the Constitution.
- Indira Nehru Gandhi vs. Raj Narayan case (1975)
- Here, the SC applied the principle of basic structure and struck down clause (4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amended power of the Parliament as it destroy the amending powers of the parliament.
- The 39th Amendment Act was passed by the Parliament during the Emergency. The Act elected the President, Vice President, Prime Minister and Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
- Minerva Mills Case (1980)
- This case again reinforces the basic structure theory. The 42nd Amendment Act 1976 ruled on 2 changes to the constitution, declaring them to be infringing on the basic structure.
- The decision makes it clear that not the parliament but the constitution is supreme.
- In this case, the court added two features to the list of basic infrastructure facilities. They were: judicial review and balance between fundamental rights and the DPSP.
- Waman Rao Case (1981)
- The SC reiterated the basic structure principle again.
- It drew a line of demarcation as the date of the verdict of Keshvananda Bharti on April 24, 1913, and held that it should not be retrospectively applied to reopen the validity of any amendment to the constitution that preceded that date. Should not be done.
- In the Kesavananda Bharati case, the petitioner challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amended Act in the 9th Schedule to the Constitution.
- Waman Rao case verdict states that the amendments made to the 9th schedule and the cases passed after that date may be subject to scrutiny till the Kesavananda decision is valid.
- Indra Sawhney and Union of India (1992)
- The SC examined the scope and extent of Article 16 (4), which provides for reservation of jobs in favor of backward classes. It retained the constitutional validity of 27% reservation for OBCs with certain conditions (e.g. creamy layer boycott, no reservation in promotion, total reserved quota should not exceed 50%, etc.)
- Here, the ‘Rule of Law’ was added to the list of basic features of the Constitution.
- S. R. Bommai Case (1994)
- In this decision, the SC tried to prevent widespread misuse of Article 356 (in relation to imposition of President’s rule for the states.
- In this case, there was no question of constitutional amendment, but still, the concept of the basic principle was applied.
- The Supreme Court held that state government policies directed against an element of the basic structure of the Constitution would be a valid basis for the exercise of central power under Article 356.