Amending Powers of the Constitution: An important part for Indian Democracy
Author: Prateek Raghuvanshi
ISSN: 2582-3655
Abstract:
The Indian Constitution stands as a robust framework that guides the world’s largest democracy. One of its crucial elements is the provision for amendment, reflecting the foresight of the framers who recognized the need for adaptability in a rapidly changing world. This abstract delves into the significance of amending powers within the Indian Constitution, elucidating its role in preserving and strengthening the nation’s democratic fabric. The Constitution of India, adopted in 1950, laid the foundation for a diverse and dynamic democratic nation. It enshrined the principles of justice, liberty, equality, and fraternity, providing a comprehensive framework to govern the country. However, the framers of the Constitution were well aware that societal needs and circumstances would evolve over time, necessitating adjustments and amendments to keep pace with progress. The amending powers of the Indian Constitution are articulated in Article 368, which delineates the procedures for modifying its various provisions. This feature distinguishes the Indian Constitution from many others around the world, underscoring its adaptability to the changing needs and aspirations of the populace. It ensures that the Constitution remains relevant, effective, and reflective of the democratic ethos of the nation.
Amendment in the Indian context is a complex and deliberate process, balancing the need for change with the preservation of core democratic values. A crucial aspect of this process is the requirement for a two-thirds majority in both houses of Parliament or a special majority in the case of certain provisions. This ensures that amendments are not made hastily but rather after careful consideration, protecting against arbitrary alterations that could undermine the democratic structure. The ability to amend the Constitution is a potent tool for addressing emerging challenges and rectifying past injustices. Over the years, India has witnessed several amendments that have played a pivotal role in shaping its democratic landscape. The 73rd and 74th Amendments, for instance, devolved powers to local self-governing bodies, empowering grassroots democracy and fostering decentralization. Furthermore, amendments like the 42nd Amendment Act of 1976 aimed to protect the Constitution from undue interference during periods of political instability. These instances highlight how the amending powers have been instrumental in responding to the evolving needs of Indian democracy. However, the power to amend the Constitution is not without its controversies and challenges. Critics argue that it can be misused by the ruling majority to consolidate power and undermine democratic principles. Therefore, a balance must be struck between the need for flexibility and the necessity to safeguard the Constitution’s core values.
- Introduction
The Constitution of India is one of the most fascinating documents on this planet. No other country has a constitution as comprehensive as ours and is the largest constitution in the world. But despite being so comprehensive, the reason why this document is so interesting is since it is extremely flexible. The fathers of our constitution made it so, they wished that the constitution would not only aid the country to grow but it would also grow alongside it. Thus, the government can amend the constitution depending on various issues brought up. These powers are given by Article 368[1]But one must ask the question, isn’t it the constitution that gives power to the government? If that is so, how can the Government have such a power over a document which gives its authority?In this article, we will be exploring the extent to which the government can amend, the process of amendment, the essential judicial questions pertaining to it, and various landmark cases in hopes of answering these questions. There is a reason why the fathers of our constitution made the constitution as flexible as it is today. This is to ensure that the document evolves and grows along with the nation. Thus, under Article 368, the powers of the Parliament to amend the constitution is unrestricted with regards to sections of the constitution they wish to amend.But the Parliament having absolute power over amending the constitution is dangerous. Instead of being the backbone of our democracy, the constitution will be reduced to a tool to establish Parliament’s totalitarianism. The government will amend various provisions to make sure its powers are unfettered.While this is a scary thought, it is not far away from the truth. The government in multiple amendments such as the 39th Amendment and in the second clause of the 25th Amendment has tried to establish a state where the legislative is supreme.That is why the judiciary through various landmark cases has established The Basic Structure Doctrine of The Indian Constitution. The abuse of amending power during emergency such as 38th, 39th and 42nd Amendments added a new dimension to the controversy.[2]
- History of Amending Powers
The process of formulating draft Constitution began with a questionnaire prepared by B.N. Rau and circulated to the members on March 17, 1947. Among the other provisions the procedure for amendment was also given with a note wherein were given amending procedures of the Constitution of U.K., Canada, Australia, U.S.A., Switzerland, and Ireland. To this questionnaire among other members K. T. Shah gave detailed suggestions demanding a rigid and complicated procedure for amendment. He also favoured referendum. But his idea did not receive much support.[3] The Rau’ s draft proposals for amendment contained a transitional provision as well to enable Parliament to direct that the Constitution would have effect subject to such adaptation and modification as might be necessary to provide for difficulties that might arise in the transition from the Government of India Act, 1935 to those of the Constitution.K. M. Munshi also supported Rau’ s proposals and justified them on the ground that in framing a Constitution, there were likely to be left several defects, and that it was not necessary to have a very elaborate and rigid scheme for amending its provisions.[4] The draft Article as modified by the Drafting Committee as its meeting on February 10, 1948 was incorporated in its Draft Constitution submitted to the Constituent Assembly on February 21. Cause (1) of Draft Article 304 (now Article 368) provided that an amendment of the Constitution might be initiated by the introduction of a Bill in either House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present at the time of voting. It would be presented to the President for his assent and upon such assent being given to the Bill, the Constitution would stand amended in accordance with the terms of the Bill. The proviso said that if such amendment sought to make any change in:
1. any of the lists in the seventh Schedule.
2. the representation of States in Parliament; and
3. the powers of the Supreme Court, the amendment would also require to be ratified inter alia, by the Legislatures of not less than one-half of the States.
Draft Article 304 came for deliberations before the Constituent Assembly on September 17, 1949. P. S. Deshmukh, a member of the Constituent Assembly, moved three motions suggesting simple procedure for amending the Constitution and for the first three years just by a bare majority. He wanted to avoid two-third majority as well as the double check technique. But at the same time, he preferred to save all kind of personal and property rights from the amending process Another member, Brajeshwar Singh, also proposed two motions. Through first motion he proposed to replace two-third majority by simple majority. In second motion he advocated for referendum in place of ratification by State Legislatures.[5] An amendment was proposed by H. V. Kamath that following new clause (1) be inserted in draft Article 304, “Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this Article.[6] Kamath moved another amendment to the effect that Presidential assent to an amending Bill should be mandatory and not discretionary. In draft Article 304 he proposed to substitute the following words, “It shall upon presentation to the President receive his assent.” Both these amendments were not accepted by the majority of the members of Constituent Assembly.[7] Ambedkar clarified the position that all the Articles could be amended. However, an additional requirement of ratification by State Legislatures was required in some cases. He said, “It is only for amendments of specific matters, and they are only few, that the ratification of State Legislatures is required. All other Articles of the Constitution are left to be amended by the Parliament. The only limitation is that it shall be done by a majority of not less than two-thirds of members of each House present and voting and most of the total membership of each House.”[8] On September 17, 1949, Ambedkar while speaking on draft Article 304, said, “We divided Articles of the Constitution under three categories. The first category is one which consists of articles which can be amended by Parliament by a bare majority. The second set of Articles is Articles which require two-third majority. If the future Parliament wishes to amend any Article which is not mentioned in Part Ill or Article 304 all that is necessary for them is to have two-third majority. Then they can amend itcertain Articles in a third category where for the purpose of amendment mechanism is somewhat different or double. It requires two-third majority plus ratification by the States.”[9]
- Amendments Provisions
Toamendment, the various Articles of the Constitution are divided into three categories:
a) Amendment by Simple Majority: Articles that can be amended by Parliament contemplate in Articles 5, 169 and 239-A, can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed in Article 368.
b) Amendments by Special Majority: Articles of the Constitution which can be amended by special majority as laid down in Article 368. All constitutional amendments other than those referred to above, come within this category and must be affected by a majority of the total membership of each House of Parliament as well as by a majority of not less than two-third of the members of that House present and voting.
c) Amendment by Special Majority and Ratification by States:Article which require, in addition to the special majority mentioned above, ratification by not less than one-half of the State legislatures. The States are given an important voice in the amendment of these matters. These are fundamental matters where Sates have important power under the Constitution and any unilateral amendment by Parliament may vitally affect the fundamental basis of the system built up by the Constitution. This class of Articles consists of amendments, which seek to make any change in the provisions mentioned in Article 368.
- Limitations on Amendment
To what extent the Constitution can be amended is the most crucial problem which was engaged the highest attention and great interest of Parliamentarians and jurists during the last fifty years. The controversy regarding the power of Parliament and under the Article 368 vis-a-vis the Supreme Court through the theory of basic structure of the Constitution is a subject of debate all the time.
The battle between the Parliament and Supreme Court on nature and scope of amending power of Parliament began even before the first elected Parliament could come into being. The ruling of Patna High Court in Kameswar Singh v. State of Bihar[10] declaring Bihar Land Reforms Act, 1950 as ultra vires, raised severe storm in the House. To undo the effect of this ruling Prime Minister Nehru moved First Amendment Bill.
Speaking on the occasion, Nehru said,
“While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in the Constitution. There should be certain flexibility. If you make anything rigid and permanent you stop the nation’s growth, the growth of living vital organic people. In any event, we could not make this so rigid that it cannot be adapted to changing conditions. When the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow.”[11]
5)Procedure for Amendment
A Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by majority of the total membership to that House and by a majority of not less than two-third of the members of that House present and voting. When a Bill passed by both Houses it shall be presented to the President for his assent who shall give his assent to Bill and thereupon the Constitution shall stand amended.[12]But a Bill which seeks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by the half of the States. Article 368, however, does not constitute the complete Code. The process of amending the Constitution is the legislative process governed by the rules of that process.Most of the provisions of Constitution can be amended by an ordinary legislative process. Only a few provisions, which deal with the federal principle, require a special majority plus ratification by the States. The procedure to amend these provisions is in conformity with the federal principle. The procedure to amend the Constitution is, however, not as difficult as in America or Australia. The difficult procedure of referendum followed in Australia and Switzerland, or constitutional convention followed in America, have not been adopted in Indian Constitution.
The special majority can amend most of the provisions of the Indian Constitution. Though different from the ordinary Legislative process, the special majority rules do not result in very rigid method of amendment as is clear from the fact that the Constitution has been amended as many as 83 times within the period of 50 years. Even the procedure to amend the constitution with the consent of the States, through more rigid than the special majority rule, is not as difficult as that of American or Australian procedure to amend that Constitution.
The framer of the Indian Constitution has sought of find a via media, between the two extremes-extreme flexibility and extreme rigidity m order to fulfil the needs of a developing society. Frequent amendments did not destroy the basic structure of the Constitution.
It is required that both Houses of Parliament must pass the Constitutional Amendment Bill separately. Unless both the Houses agree, the Constitution cannot be amended in case of a deadlock between the two Houses. There is no provision for a joint sitting. In 1970, the Rajya Sabha rejected the 24th Amendment Bill which provided for the derecognition of the princes and again in 1978, as many as five out of forty-nine clauses of the 45th Amendment Bill were rejected by the Rajya Sabha. The Lok Sabha had no alternative but to delete those five clauses.[13]Regarding the expression ‘majority of total membership’ means that it is not most of the actual membership of the House but the majority of the total prescribed strength of the House notwithstanding the vacancies therein. In fact, the 7th, 17th, and 22nd Amendment Bills could not be introduced because they failed to get the two-third majority of the total membership of the House. When on the 71th1 Amendment Bill of 1955 regarding reorganization of the States, a motion was moved that it should be referred to a Select Committee; it got 246 votes in favour and 2 against. The Speaker ruled that the motion was not carried because it did not get 50 percent of the total strength of the House which at that time was 499. On April 28, 1964, the 17th Amendment Bill got 206 votes in favour and 19 against and could not be introduced because it was less than the simple majority of the total membership of 510 of the Lok Sabha. This Bill was to protect several land reforms enactments.[14]There is also an emphasis on special majority at every stage of the passing of the Bill. This issue arose in 1951 at the time of the First Amendment Bill whether the special majority is needed at the time of final voting on the Bill or even on the earlier stages of the Bill. The Speaker G.V. Mavlankar referred the question to the Attorney General of India who expressed the opinion that, “the expression ‘when the Bill is passed in each House’ has reference to the passing of the Bill at the final stage. The majority insisted upon by Article 368 is, therefore, applicable only to the voting at the final stage. It is better to err on the safer side and take a stricter view insisting on the requisite majority at all stages of the Bill.” This advice has been strictly followed since then.
In March 1969, the 22nd Amendment Bill relating to the reorganization of Assam for the formation of an autonomous Hill State within Assam was lost when it failed to get this requisite majority. At the time of vote on Clause I as many as 284 MPs voted but at the time voting on Clause 2, only 26 MPs voted, out of 535 voted in the Lok Sabha. Hence, the Bill was lost. In 1969, the 24th Amendment Bill regarding the abolition of privy purses could not be introduced because the requisite majority did not support it. It means special majority is needed at the passing of every stage of the Bill.[15] 1s Certain Amendment Bills must be ratified by one-half of the State Legislatures by passing resolutions in that respect. The expression ‘State Legislature’ does not include the legislatures of the Union Territories. If the State legislature once ratifies a particular amendment, it cannot withdraw that ratification by subsequently passing a resolution of rescinding it. However, if a State legislature has once refused to ratify the amendment it can subsequently revise its decision and ratify it. When the procedure is completed, the Bill is presented to the President for his assent which the President cannot refuse. It seems that before the passing of the 24th Amendment Act, 1971, the President has some discretion in this respect.The constituent power conferred by Article 368 on Parliament could be exercised both prospectively and retrospectively.
6) Conclusion
Thus, in the end it can be said that Though the Constitution should command respect and regard from all, it should be amended as and when the nation needs to amend it. If the law or the Constitution fails to respond to the required changes, they would gain nothing but disrespect and disregard. Changing the Constitution is a very important matter. It needs to be considered at length by a lot of people in this country. These are not matters which need to be considered by the Parliament elite alone. They need to be discussed by the country. What is needed is not just a conspiracy by politicians, but an extended discussion amongst the people as a whole – a real national debate. This, inevitable, helps a responsive government. While an attempt has been made in this work to examine the dynamics of judicial process in questioning the constitution amending power through the Basic Structure Doctrine,it necessarily involves the discussion on the power of amendments and procedure regarding amendments, basic jurisprudential concepts relating to fundamental law of a country. It also checks and safeguards against the abuse of government power.The framers of the Constitution were of the adage which is often quoted in connection with the U.S. Constitution namely that “Constitution is what the Supreme Court says it is”. Thus, with recognition of amendments in the Supreme Court is the mirror and image of the constitutional conscience of a nation in country.
[1] Power of the Parliament to amend the Constitution.
[2] A. Lakshminath, Indian Constitution:Trends, and Issues 144 (Deep and Deep Publishing, New Delhi,1978)
[3] K.M. Munshi, Indian Constitutional Documents,193 (Vidya Bhavan, Bombay,1967).
[4] Constituent Assembly Debates. Vols. I-IV, p. 546.
[5] CAD. Vol. IX, p. 1643.
[6]Ibid p.1646
[7]Ibid. p.1649
[8] By the Constitution Twenty-Fourth Amendment Act 1971, both these amendments were inserted though in a different phraseology in Article 368.
[9] CAD, vol. VII, p. 43.
[10] A.I.R 1965 S.C. 845
[11]Parliamentary; Debates, vols. XII-XIII, Part II, 1951, pp. 9616- 17.
[12]The Constitution (24th Amendment) Act 1971
[13] J.R.Siwach, Dynamics of Indian Government and Politics 331(New Delhi: Sterling,1990).
[14]Asian Recorder, May 20-26, 1964.
[15]Ibid