22 August 2011

Pin It

Right to Amend Constitution and Indian Parliament – Indian Constitutional Law Part 3

Right to Amend Constitution and Indian Parliament – Indian Constitutional Law Part 3
Abraham Lincoln said that democracy means a Government of the people, by the people and for the people.

Amendment –
Free dictionary defines amendment as follows -
1. The act of changing for the better; improvement
2. A correction or alteration, as in a manuscript.

Part XX of the Constitution of India deals with the Amendment of the Constitution.

Constitution of India gives right to parliament to amend the constitution.

Why it is necessary to amend constitution of India time to time?

The main reason is one can not see the difficulties which may come; to overcome those difficulties the makers of Indian constitution gave the right to amend constitution of India to our law makers, our elected politicians.

In other countries also their constitution provides the procedures how the constitution can be amended.

In U.S.A., amendment of the constitution may be proposed only by congress, with the approval of 2/3 of majority of both houses (congress and senate), or a convention summoned on an application from 2/3 of the members of both houses.
The proposed amendments must be ratified by at least ¾ of the total number of the state legislatures or by conventions in ¾ of the total numbers of the states.

Indian constitution also provides the procedure regarding how the constitution should be amended by Indian parliament.

Indian constitution makers did not make the procedure to amend constitution very difficult but procedure is not easy also.

According to constitution, parliament and state legislature in India have the power to make the laws within their respective jurisdiction.
This power is not absolute in nature.

The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all the laws.

If a laws made by parliament or state legislature violates any provision of the constitution, the Supreme Court has power to declare such a law invalid or ultra virus.
So the process of judicial scrutiny of legislative acts is called Judicial Review.

3 modes or Categories of Amending Indian Constitution –

Amendment by 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) 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.

Amendment by Special Majority – Article 368
Articles which can be amended by special majority are laid down in Article 368.
Requirement - majority of total membership of each House of Parliament as well as 2/3rd of the members present and voting.
In case, ratification by state is required it has to be done before presenting it to the
President for his/her assent.

Article 368 says that Amendment to certain Articles requires special majority as well as ratification by states.

What is the meaning of ratification by state?
Ratification by states means that there has to be a resolution to that effect by one-half of the state legislatures.

Which Articles come under this?
1. Article 368 (power of the Parliament to amend the Constitution and procedure

2. Article 54 (Election of President)

3. Article 55 (Manner of election of President)

4. Article 73 (Extent of executive power of the Union)

5. Article 162 (Extent of executive power of State)

6. Article 124-147 (The Union Judiciary)

7. Article 214-231 (The High Courts in the States)

8. Article 241 (High Courts for Union Territories)

9. Article 245-255 (Distribution of Legislative powers)

Right to Amend Fundamental Rights and Indian Constitution –

Regarding this time to time Supreme Court of India has given excellent judgments
Following are the important cases regarding this
1. Shankari Prasad V. Union Of India (AIR 1951 SC 458) – First Amendment
2. Sajjan Singh V. State Of Rajasthan (AIR 1965 SC 845) – 17th Amendment
3. Golaknath V. State Of Punjab (AIR 1967 SC 1643)- 24th Amendment
4. Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461)
5. Minerva Mills V. Union Of India (AIR 1980 SC 1789) -42nd Amendment Act, 1976 and Article 368
6. S. P. Sampath Kumar V. Union Of India (AIR 1987 SC 386)
7. L. Chandra Kumar V. Union Of India (AIR 1997 SC 1125)
8. Indira Gandhi v. Raj Narayan[

Indian Parliament amended the constitution of India and tried to get unlimited powers
Parliament added clauses (4) and (5) to Article 368, which gave unlimited powers to parliament that is to make the amending power of Parliament unlimited and to limit the judicial review over such amendments.
But this amendment was struck down by Supreme Court in
Minerva Mills Vs Union of India (1980) case.

Basic Structure of the Indian Constitution –

The Basic Structure doctrine applies only to the Constitutionality of amendments and not to ordinary Acts of Parliament.

Basic Structure and Supreme Court Judges –
How they defined the Basic Structure or what meant Basic Structure?

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 India
3. 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

Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
1. Sovereign democratic republic status
2. Equality of status and opportunity of an individual
3. Secularism and freedom of conscience and religion
4. government of laws and not of men' i.e. the rule of law

In short Indian Parliament can not change the Constitution easily.
Now its established fact that all laws and constitutional amendments are now subject to judicial review and laws that try to change the basic structure are likely to be struck down by the Supreme Court.

Reality views by sm –
Monday, August 22, 2011

Tags- Constitution of India Law of Constitution Amendment


R. Ramesh August 22, 2011  

boss u have such useful info...gr8 yar..proud of u...