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CONSTITUTIONAL AMENDMENTS - POWERS OF PARLIAMENT, ART 368- Article by SONAM VISHNOI Asst Professor ,Global College of Law ,Ghaziabad UP.

                                                                                                                                     

Introduction -         

Dr. B.R Ambedkarsays  “It is the right and privilege of the highest Court of the land to interpret the Constitutional law, however, at the same time; it is also the duty of the Parliament to see that objects aimed at in the Constitution are fulfilled or not by the judgment based on such interpretation. If the object is not achieved because judgment comes in the way, it is the provisions of the Constitution here and there.”

We know fact that the Indian constitution has been subjected to a series of amendments ever since it is adopted .Infact,the post emergency period (1975-77) saw amendments as  made more frequently. Question were asked expressed about the effectiveness of the amendments and the intentions behind .Although Article-368 of the Indian Constitution gives power to the Parliament to make changes to the nations fundamental laws .A sense of arbitrariness could be felt in the way most of the amendments were made .

Growth-

Right at the beginning of the Constitution making exercise, there was serious concern in the Constituent Assembly about determining whether amending procedure should have some rigidity and, if so, to what extent. The process of formulating draft Constitution began with a questionnaire and draft proposal for amendment prepared by B.N. Rau and circulated to the members on March 17, 1947.To this questionnaire Prof K.T. Shah gave detailed suggestions demanding a rigid and complicated procedure for amendment and also favored referendum. K M Munshi also supported and justified Rau’s proposals. Rau’s draft was modified by the Drafting Committee at its meeting on Feb 10, 1948. It was introduced in Art.304 of draft Constitution.

Draft Art.304 came for deliberations before Constituent Assembly on Sep 17, 1949, events and developments had made some modifications necessary. Dr. B.R. Ambedkar moved an amendment proposing a substitute draft article. The new draft article was criticised for suggesting a rigid amending procedure. A member strongly advocated referendum to resolve deadlocks. Replying to the debate,

Dr. B.R Ambedkar inter alia said, “The Constitution is a fundamental document. It is a document which defines the position and power of the three organs of the State – the executive, the judiciary and the legislature. It also defines the powers of the executive and the powers of the legislature as against the citizens, as we have done in our chapter dealing with Fundamental Rights. In fact, the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because, if no impediment was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislature may be free to frame any law: the executive may be free to take any decision; and the Supreme Court may be free to give any interpretation of the law and it would result in utter chaos”.

Need and Importance of Amending Provisions in the Constitution

The Constitution was designed to be a means to achieve the welfare of the common man and must respond to the popular needs. In order to fulfill the aspirations of the people, we need changes in the Constitution whenever necessary. In a democracy neither the Constitution nor the government is supreme: it is the people who are supreme and they have the right to change the Constitution partially or completely. The need of an amendment to the Constitution comes into the picture when there is a change in the society. This started happening within a year from the date of commencement of the Constitution. In 1951, when Bihar Government passed a law Called Bihar Land Reforms Act, 1950, the same was challenged in the Patna High Court and declared unconstitutional.

Since it was violating some of the Fundamental Rights of the Constitution. But the Allahabad High Court upheld the relevant agrarian legislations passed in Uttar Pradesh.

The persons aggrieved by these decisions filed appeals in the Supreme Court. At this point, the Union Government, anxious to put an end to such litigation and for facilitating the implementation of agrarian laws, Prime Minister Nehru introduced the Constitution (First Amendment) Bill in the Loksabha  (Provisional Parliament) and was passed and received the assent of the President on 18th June 1951 by which Arts.31-A and 31-B were introduced and Ninth Schedule was also inserted in the Constitution reducing the power of the Court in the matter of JUDICIAL REVIEW of  legislative Acts.

The Ninth Schedule was born with the purpose of providing super protection to agrarian and economic reform legislation.

The main object was to insert provisions fully securing the Constitutional validity of Zamindari Abolition Laws in general and specified Act in particular.

This was done to establish an egalitarian society in a country. Because of bringing the land reforms laws, lands were distributed to the landless people and oppressed class equally to attain and secure economic justice. Imagine without this amendment provision under Constitution of India, Parliament would not have helped the needy. Thereby the Parliament in exercise of its amending power, facilitated the farmers to achieve the economic goal. So this is the best illustration to say, how the provision of amendment under Constitution is very important and needful to bring some changes which people like.

ARTICLE- 368

Art.368 of the Constitution of India discusses Power of Parliament to amend the Constitution and Procedure therefor.

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.

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either of the Houses of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House by a majority of not less than two thirds of the members of that house present and voting, it has to  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-

Article 54, Article 55, Article 73, Article 162 or Article 241, or

Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

Any of the Lists in the Seventh Schedule, or

    The representation of States in Parliament, or

The provisions of this Article, the amendment shall also required to be ratified by the Legislature of not less than one half of the States by resolutions to that effect passed by the 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.

Definition of Amendment –

First important thing we all to know  about amendment .The term ‘amendment’ derives from the Latin word ‘amendere.’ The term ‘amend’ means to make right, to make correction or to rectify. In common parlance “amendment” conveys the sense of slight change. Amending, mending and ending are the degrees ie amending means slight modification/reform.

According to the Webster’s new dictionary and Funk and Wagnall’s standard dictionary the word ‘amendment’ when used in relation to a Constitution, carries all meaning such as alterations, revision, repeal, addition, variation or deletion of any provision of the Constitution.Oxford dictionary of law says “Amendment means changes made to legislation, for the purpose of adding to, correcting or modifying the operation of the legislation.”

Types of amendments –

For the purpose of amendment,  the various articles of the constitution are divided into three categories:

Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority. But, some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process). Notably, these amendments are not deemed to be amendments of the Constitution .

1.  By Simple Majority of Parliament

A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament outside the scope of Article 368. These provisions include:

·       Admission or establishment of new states.

·    Formation of new states and alteration of areas, boundaries or names of existing states.

·       Abolition or creation of legislative councils in states (Bi- cameral   to single cameral or/and vice versa ).

·            Second Schedule-emoluments,

·       Allowances, privileges and so on of the President, the Governors, the Speakers, Judges etc.

·       Quorum in Parliament.

·       Salaries and allowances of the members of Parliament.

·       Rules of procedure in Parliament.

·       Privileges of the Parliament, its Members and its Committees.

·       Use of English language in Parliament.

·       Number of puisne judges in the Supreme Court.

·       Conferment of more jurisdiction on the Supreme Court.

·       Conferment of more jurisdiction on the Supreme Court.

·       Citizenship-acquisition and termination.

·       Elections to Parliament and State-Legislatures.

·       Delimitation of Constituencies.

·       Union Territories

·  Fifth Schedule-administration of scheduled areas and scheduled tribes.

·       Sixth Schedule-administration of tribal areas.

2.  By Special Majority of Parliament

The majority of the provisions in the Constitution need to be amended by a special majority of the Parliamentie a majority (that is, more than 50 per cent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. The expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.

The special majority is required only for voting at the third reading stage of the bill but by way of abundant caution the requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the Bill.

The provisions which can be amended by this way includes:

 (i) Fundamental Rights (ii) Directive Principles of State Polices, and (iii) All other provisions which are not covered by the first and third categories.

3 By Special Majority of Parliament and Consent of States 

The provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority. If one or some or all the remaining states take no action on the bill, it does not matter, the moment half of the states give their consent, the formality is completed. There is no time limit within which the states should give their consent to the bill.

The following provisions can be amended in this way:

·     Election of the President (called as otherwise indirect) and its manner.

·   Extent of the executive power of the Union and the states.

·       Supreme Court and High Courts.

·    Distribution of legislative powers the Union and the States.

·       Any of the lists in the Seventh Schedule.

·       Representation of states in Parliament.

·       Power of Parliament to amend the Constitution and its      procedure (Article 368 itself).

Types of Majorities Used in the Indian Parliament –

There is no explicit classification of majorities in Indian Constitution but a careful reading of different article of Indian constitution would provide an idea about four types of majority .

Absolute Majority –

it refers to a majority of more  than 50% of total membership of the house e g  as the total membership of Lok Sabha is 545,an absolute majority in Lok Sabha means -50% of 545 plus 1 . means 273.Cases where the absolute majority is used in the normal business of the parliament or state legislature .Absolute majority is not generally used. But this majority is used during the General Election , for the formation of government at center or  states.

Effective Majority –

Effective majority of the house means more than 50% of the effective strength of the House .This implies that out of the total strength ,we deduct the vacant seats.

For example – in Rajya Sabha out of the total stenght of 245 Members, incasethere are 45 vacancies , the effective strength of the house is 200. Thus the effective majority is 50% of 200 plus 1. Means 101 .

Simple Majority-     

This refers to the majority of more than 50% of the members present and voting. This is also known as functional majority or working majority .the simple majority is the most frequently used from of majority in Parliamentary business. when the constitution or the laws do not specify the type of majority needed, the simple majority is considered for voting.

To understand simple majority, let us consider a situation in Lok Sabha .On particular day, out of the total strength of 545, suppose 45 were absent and 100 abstained from voting on an issue .Thus only 400 members were present and voted. Thus  the simple majority is 50% of 400 plus 1 means 201.

Ordinary bills need to be passed with a simple majority in both houses of the Parliament before it is sent to  President for his assent.

Special Majority –

Special majority as per article 249.

Special majority as per art 368.

Special majority as per article 368, + 50 percent.

 state ratification by simple majority.

Special majority as per article -61.

The meaning of the word amendment was for the first time sought to be explained in case of Sajjan Singh v. State of Rajasthan AIR 1965.The court held “the amendment provision of Constitution may include the deletion of any one or more of its provisions and substitution in their place of new provisions.” The meaning given in above case was restricted in Golaknath case, AIR 1967wherein the majority of judges case,  “In amendment only major changes or improvements can be made and not includes total repeal of the provisions already existing in this Constitution.”

In Keshavananda Bharati Vs State of Kerela AIR 1973, provided the best explanation as to the scope and definition of the word ‘Amendment’. It proposed that “A broad definition of the word ‘Amendment’ would include any alteration or change. The word ‘amendment’ when used in connection with the Constitution may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular article or clause.”

Effect of Amendment –

Art. 368 as it stood in 1949:-

·       It was not obligatory for the President to give his assent to a Bill for amendment, presented to himafter being passed by both houses of Parliament.

·       What is meant by ‘amendment’ was not explained.

·       Relying on the word ‘Bill’, it was held in Golak Nath’s case that a Constitution Amendment Act, though passes in exercise of the power conferred by Art.368, was a ‘law’ subject to Art.13(2).

Art.368 as it stands after1976:--

·       It has been made obligatory for the President to give his assent to a Bill passed under Art.368 ( the new clause (2) as amended by The Constitution (24th Amendment) Act, 1971), though his power to veto other Bills remains intact, subject, of course, to Cabinet’s  advice under Art. 74(1), as amended by the 42nd Amendment Act.

·       The new clause (1) of Art.368, The Constitution (24th Amendment) Act, 1971 has made it clear that amendment would include ‘addition, variation or repeal of any provision of the Constitution’.

·       The 24th Amendment Act, 1971 repelled this theory by inserting Cl.(4) in Art.13 and Cl.(3) in Art.368.

The 42^nd Amendment Act repelled this theory by inserting Cl.(5) to say that there are no limitations  whatever  to the power conferred by Art.368, and Cl.(4) to say that a Constitution Amendment Act shall be immune from judicial review altogether, whether on substantive or procedural grounds. But this amendment has been annulled by the Supreme Court.

Finally in I.R Coelho Vs state of Tamilnadu and others AIR 2007 SC 871-Nine judges constitutional bench of the Supreme Court held that all amendments to the constitution made on after 24^thApril 1973 by which the Ninth Schedule is  amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the constitution as reflected in Art-21 read with art-14,19 and the principle underlying there.

Conclusion:-The framers of the Constitution were keen to bring about socio-economic revolution in free India through constitutional means, and Constitution was to serve as a vehicle for social change. To provide security for the tiller of soil and assure equality of status and opportunity to all sections of the rural population, host of the laws passed in different States in the matter of land reforms have led to a lot of litigation. Firstly, the Constitutional validity of the abolition of intermediaries has been questioned. Subsequently, the issue of compensation, its quantum and its justiciability, has been tested on the constitutional anvil. A good deal of litigation has also arisen out of laws which authorised States to take over property either as a part of land – reforms measures or in other situations, laws amending existing land tenures, law relating to the security of tenants, consolidation of land holdings and fixation of ceilings on individual holdings. As a result, in order to overcome from the above problems, Parliament passed First Amendment in 1951, whereby Arts.31-A and 31-B were inserted to avoid the multiplicity of petitions filed by the Zamindars and to supersede the judicial decisions. This action of Parliament by bringing above mentioned Articles along with Ninth Schedule is really justiciable and commendable. In respect of compensation concerned, Art.31 was amended substantially by the Fourth Amendment Act in 1955 and the Twenty Fifth Amendment Act in 1972. These amendments were necessary because of the judgments of the SC.

Opinion –As a final point, the researcher submits that, the power of Parliament bringing many amendments to the Constitution with respect to Ninth Schedule was justifiable except in 4th, 39th 40th 42nd and 76th amendments where the Parliament placed some controversial laws (Non-Agrarian Laws) in to the Schedule and tried to misuse and abuse its power in order to show its supremacy by making the Constitution text very feeble one.

Now we can say there is no Hard and fast rule for basic feature of the constitution.Different judges keep different views regarding to theory of basic structure. But at one point they have similar view that Parliament has no power to destroy, alter or emasculate the “BASIC STRUTURE” or framework of the constitution. In the historical background, thepreamble, the entire scheme of the constitution and the relevant provisions there of including Art-368 are kept in mind there can be no difficulty, in determining what are the basic elements of the basic structure of the constitution with the object to bring about a welfare state. The Preamble of the Constitution of India gives the RULE OF LAW on which the Constitution is required to be operated, enabling to tend towards to build India a self-reliant State where its populace to enjoy all human rights based on the principle of EQUALITY, LIBERTY, FRATERNITY Independently and SOCIAL JUSTICE interdependently as given in the Preamble of the Constitution.

Merely Political freedom   being a democratic state will not serve the purpose until economic Freedom is provided to all, based on the doctrine of equitable distribution of resources. The GDP growing through and by a counted number does not have any meaning until all work and add to GDP, all have participation in framing of Policy to empower all irrespective of caste, creed and religion. Thus it should be no clear that any amendment in the Constitution has to support the RULE OF LAW in its finality.

with more analysis we see that 1951 to 2017, 101 amendments make a law in Indian Constitution.The amendments process was incorporated in the constitution by draftsmen of the Constitution to help India adopt itself to the changing circumstances, society  is ever changing.

Reference –

Dr. Subash C. Kashayap’s ,‘Constitution of India’, Vol.2, Universal Law Publishing Co., 2008 edition, p 2294.

M.K.Bandari,’Basic Structure of Indian Constitution’1993, p.29

Constituent Assembly debates Vol IX p1661

Dr. Harahan  , ‘Amending Process in the Indian Constitution’,1972 P18 Oxford law dictionary p45  Garner, ‘Black Law dictionary’ , 8th Edition, p-89  Burrton ,  William.

M P Jain, Constitution of India.

M.V. Pyle, ‘Select World Constitution’.

J.N  Panday. Constitutional law  ofIndia

V.N Shukla. Constitution of India

ClearIAS.com.

H.M Seervai,Constitutional law of India.

By: SONAM VISHNOI

       Asstt Professor

       Global College of Law

       Ghaziabad UP.