THE nature of the amending process envisaged by the makers of our Constitution can be best explained by referring to the observation of Pandit Nehru (quoted under 'Reconciliation of a written Constitution with Parliamentary Sovereignty'), that the Constitution should not be so rigid that it cannot be adapted to the changing needs of national development and strength.
There was also a political significance in adopting a 'facile procedure' for amendment, namely, that any popular demand for changing the political system should be capable of realisation, if it assumed a considerable volume.
Elements of flexibility were therefore imported into a Federal Constitution which is inherently rigid in its nature. According to the traditional theory of federalism, either the process of amendment of the - Constitution is entrusted to a body other than the ordinary Legislature or a special procedure is prescribed for such amendment in order to ensure that the federal compact may not be disturbed at the will of one of the parties of the federation. viz., the federal legislature.
But, as has been explained at the outset, the framers of our Constitution were also inspired by the need for the sovereignty of the Parliament elected by universal suffrage to enable it to achieve a dynamic national progress. They therefore, prescribed an easier mode for changing those provisions of the Constitution which did not primarily affect the-federal system
By providing that the alteration of certain provisions of the Constitution were 'not to be deemed to be amendment of the Constitution'. The result is that such provisions can be altered by the Union Parliament in the ordinary process of legislation, that is, by a simple majority.
Other provisions of the Constitution can be changed only by the process of 'amendment' which is prescribed in Art. 368. But a differentiation has been again made in the procedure for amendment, according to the nature of the provisions sought to be amended.
While in all cases of amendment of the Constitution, a Bill has to be passed by the Union Parliament by a special majority, in the case of certain provisions which affect the federal structure, a further step is required, viz., a ratification by the Legislature of at least half of the States, before the Bill Is presented to the President for his assent.
But even in these latter group of cases, the law which eventually effects the amendment is a law made by Parliament, which is the ordinary legislative organ of the Union. There is thus no separate constituent body provided for by our Constitution for the amending process.
An amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority (i.e., more than 50%) of 'the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.
If, however, such amendment seeks to make any change in the following provisions, namely.-
The manner of election of the President [Arts. 54. 55]; (b) Extent of the executive power of the Union and the States [Arts. 73, 162]; (c) The Supreme Court and the High Courts [Art. 241] (d) Distribution of legislative power between the Union and the Slates [Chap. I of Part XI]; (e) Any of the Lists in the 7th Schedule; Representation of the States in Parliament ; (g) Provisions of Art 368 itself
The amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
It is clear from the above that the amending process prescribed by our Constitution has certain distinotive features as compared to Constitutions of the world. The procedure for amendment must be classed as 'rigid' insofar as it requires a special majority and In some cases, a special procedure for amendment as compared with the procedure prescribed for ordinary legislation.
But the procedure is not as complicated or difficult as in the U.S.A. or in any other rigid Constitution
Subject to the special procedure laid down in Art. 368, our Constitution vests constituent power upon the ordinary legislature of the Union, i.e., the Parliament (of course, acting by a special majority), and there is no separate body far amending the Constitution, as exists in some other Constitutions (e.g., a Constitutional Convention).
The State Legislatures cannot Initiate any Bill or proposal for amendment of the Constitution. The only mode of Initiating a proposal for amendment is to introduce a Bill in either House of the Union Parliament.
Subject to the provisions of Art. 368, Constitution Amendment Bills are to be passed by the Parliament in the same way as ordinary Bills. In other words, they may be initiated in either House, and may be amended like other Bills, subject to the majority required by Art. 368. But for the special majority prescribed, they must be passed by both the Houses, like any other Bill.
There is another important point on which the passage of a Constitution Amendment Bill differs from the procedure relating to the passage of a Bill for ordinary legislanon. Art. 108 provides that if there is a disagreement between the two Houses of Parliament regarding the passage of a Bill, the deadlock may be solved by a joint session of the two Houses.
But its clear from Art. 108, that the procedure for joint session is applicable only to Bills for ordinary legislation which come under Chap. 2 of Part V of the Constitution, and not to Bills for amendment of the Constitution, which are governed by the self- contained procedure contained in Art. 368(2).
The requirement of a special majority in both Houses, in Art. 368(2) would have been nugatory had the provision as to joint session been available in this sphere.
The previous sanction of the President is not required for introducing in Parliament any Bill for amendment of the Constitution.
he requirement relating to ratification by the State Legislatures is more liberal than the corresponding provisions in the American Constitution. While the latter requires ratification by not less than three- fourths of the States, under our Constitution ratification by not less than balf of them suffices.
In the case of an ordinary Bill when the Bill, after being passed by both Houses of Parliament, is presented to the President, he may, instead of assenting to it, declare that he 'withholds assent therefrom'.
In the latter case, the Bill carmot become an 'Act', But the amendment of Art. 368 in 1971 has made it obligatory for the President to give his assent to a Bill for amendment of the Constitution, when it is presented to him after its passage by the Legtslature.
Though the formality of the President's assent has been retained in the case of an amendment of the Constitution, in order to signify the date when the amendment Bill becomes operative as a part of the Consti- tution, the President's power to veto a Bill for amendment of the Constitution has been taken away, by substituting the words 'shall give his assent' in Art. 368, as it stands after the Constitution (24th Amendment) Act, 1971.
Until the case of Golak Nath case, the Supreme Court had been holding that no part of our Constitution was unamendable and that Parliament might, by passing a Constitution Amendment Act, in compliance with the requirements of Art. 368, amend any provision of the Constitution, including the Fundamental Rights and Art. 368 itself.
It was held that 'law' in Art. 13 (2) referred to ordinary legislation made by Parliament as a legislative body and would not include an amendment of the Constitution which was passed by the Parliament in its constituent capacity.
But, in Golak Nath case," a majority of six Judges in a special Bench of eleven overruled the previous decisions and took the view that though there is no express exception from the ambit of Art. 368, the Fundamental Rights Included in Part III of the Constitution cannot, by their very nature, be subject to the process of amendment provided for in Art. 368 and that if any of such Rights is to be amended, a new Constituent Assembly must be convened for making a new Constitution or radically changing it
The majority, in Golak naths case," rested its conclusion on the view that the power to amend the Constitution was also a legislative power conferred by Art. 245 by the Constitution, so that a Constitution Amendment Act was also a 'law' within the purview of Art. 13(2).
After the Golak Nath decision, Parliament sought to supersede it by amending Art 368 itself, by the Constitution (24th Amendment) Act, 1971, as a result of which an amendment of the Constitution passed in accordance with Art. 368, will not be 'law' within the meaning of Art. 13 and the validity of a Constitution Amendment Act shall not be open to question on the ground that it takes away or affects a fundamental right
Even after this specific amendment of the Constitution, the controversy before the Supreme Court did not cease because the validity of the 24th Constitution Amendment Act itself was challenged in a case from Kerala (Keshavananda Bharti v. State of Kerala), which was heard by a Full Bench of 13 Judges. The majority of the Full Court upheld the validity of the 24th Amendment and overruled the case of Golak Nath.
The question has thus been settled in favour of the view that a Constitution Amendment Act, passed by Parliament, is not 'law' within the meaning of Art. 13. The majority, in Keshavananda's case upheld the validity of Cl. (4) of Art 13 [and a corresponding provision in Art. 368(3)), which had been inserted by the Constitution (24th Amendment) Act, 1971
In the result, fundamental rights in India can be amended by an Act passed under Art. 368, and the validity of a Constitution Amending Act cannot be questioned on the ground that that Act invades or encroaches upon any Fundamental Right
Though the majority in Keshavananda's cases has overturned the majority view in Golak Nath that Fundamental Rights cannot be amended under Art 368, it has affirmed another proposition asserted by the majority in Golak Nash's case," namely, that
There are certain basic features of the Constitution of India, which cannot be altered in exercise of the power to amend the constitution. Therefore if an amendment seeks to alter the basic structure or framework of the Constitution, the Court would be entitled to annul it on the ground of ultra vires, because the word 'amend', in Art. 368, means only changes other than altering the very structure of the Constitution, which would be tantamount to making a new Constitution.
Applying this doctrine that judicial review is a basic feature of the Constitution of India, the majority In Keshvananda case held the second part of Constitution (25th Amendment) Act, 1971, relating to Art. 31C, as invalid. The portion so Invalidated read- "and no law containing a declaration that It is for giving effect to such policy shall be called In question in any Court on the ground rhat it does not give effect to such policy".
In other words, by adding a declaration to an Act, the Legislature was empowered by the 25th Constitution Amendment Act, to deprive the Courts of their power to determine the validity of the Act on the ground that it contravened some provision of the Constitution. The majority held that Art. 368 did not confer any such power to take away judicial review, in the name of 'amending' the Constitution.
Article 31C, which was introduced by the 25th Amendment Act, provided-(a) that if any law seeks to implement the Directive Principle contained in Art. 39(b)-(c) i.e., regarding socialistic control and distribution of the material resources of the country, such law shall not be void on the ground of contravention of Art. 14 or 19
It further provided that if anybody challenges the constitutionality of any such law, the Court would be precluded from entering even into the preliminary question, namely, whether such law is, in fact, a law, 'giving effect to' Art. 39(b) or (c), if on the face of the Act, there was a declaration of the Legislature that it is for giving effect to such Directive policy.
The Indira Government sought to arrest these implications of Keshavananda case and cut the fetters sought to be imposed on the sovereignty of Parliament (as a constituent body), by inserting two Cls. (4)-(5) in Art 368, by the 42nd Amendment Act, 1976.
Clause (5) declares that "there shall be no limitation" "on the constituent power of Parliament to amend" the provisions of this Constitution and that at any rate, the validity of no Constitution Amendment Act "shall be called in question in any court on any ground".
The foregoing attempt to preclude judicial review of Constitution Amending Acts has, however, been nullified by the Supreme Court, by striking down Cls. (4)-(5) as inserted in Art. 368 by the 42nd Amendment Act, by its decision in the Mineroa Mills case. on the ground that judicial review is a 'basic feature' of the Indian Constitutional system which cannot be taken away even by amending the Constitution.
As a result, Art 368, as so interpreted by the highest Court, would lead to the following propositions:
Any part of the Constitution may be amended after complying with the procedure laid down in Art. 368.
No referendum or reference to Constituent Assembly would be required to amend any provision of the Constitution.
But no provision of the constitution or anK part thereof can be amended if it takes away or destroys any of the basic features' of the Constitution. Thus, apart from the procedural limitation expressly laid down in Art. 368, substantive limitation founded on the doctrine of 'basic features', has been introduced into our Constitution, by judicial innovation.
It is evident that, instead of being rigid, as some critics supposed during the early days of the Constitution, the Amendment procedure for amendment has rather proved to be too flexible in view of the ease with which as many as 94 amendments have been made during the first 59 years of the working of the Constitution.
So long as the Party in power at the Centre has a solid majority in Parliament and in more than half of the State Legislatures, the apprehension of impartial observers should be not as to the difficulty of amendment but as to the possibility of its being used too often either to achieve political purposes or to get rid of judicial decisions which may appear to be unwholesome to the party in power.
Judges may, of course, err but as has already been demonstrated, even the highest tribunal is likely to change its views in the light of further expertence.
In the absence of serious repercussions or emergent circumstances or a special contingency (e.g., to admit Sikkim-by the 35th and 36th Amendments), therefore, the process of constitutional amendment should not be resorted to for the purpose of overriding unwelcome judicial verdicts so often as would generate in the minds of the lay public an irreverence for the Judiciary,thus shaking the very foundation of constitutional government
Indian Constitution is neither rigid [needing special procedure to amend like USA etc.] nor flexible [can be amended as ordinary laws]. It is a synthesis of both. Article 368 deals with matters regarding amendment to the constitution. After the Keshavnanda bharati case, SC ruled that parliament can’t amend the “basic structure of the constitution” [a judicial innovation].
A bill to amend the constitution
must be introduced either by private member or
minister. This doesn’t need
assent of the president. It can be done in any house. It
must be passed by a
special majority i.e. a majority (that is, more than 50
per cent) of the total
membership of the House and a majority of two-thirds of
the members of the
House present and voting.
The same procedure is repeated in other house and then it is sent to the president for assent. President must give assent to it compulsorily.
If an amendment is to the federal features of the constitution, half the state legislatures should approve it by simple majority, then it is sent for president’s assent. A constitution amendment can’t be made by ordinance. Also no provision for joint sitting is available in case of disagreement.
· · Election of the President and its manner.
· Extent of the executive power of the Union and the states.
· Supreme Court and high courts.
· Distribution of legislative powers between 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).
Thus the constitution has been kept flexible so as to be able to adapt itself to change.
No amendment can originate from
states. Some parts can be amended as a normal legislation.
No time limit given
to states for approval.
There is a wide scope for judicial review in
the
process due to the amendment procedure being sketchy.
Only half the states need to be consulted for amending parts related to federal structure.
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