PROVISIONS REGARDING CONSTITUTIONAL AMENDMENT IN INDIA, USA AND SOUTH AFRICA- A COMPARATIVE ANALYSIS BY - SAGAR PURUSHOTTAM BAGDE
“PROVISIONS REGARDING
CONSTITUTIONAL AMENDMENT IN INDIA, USA AND SOUTH AFRICA- A COMPARATIVE ANALYSIS”
AUTHORED BY -
SAGAR PURUSHOTTAM BAGDE
ABSTRACT
Time is not
static; it continues to change. It also changes the lives of
a country. The social,
economic and political conditions of the People are constantly changing.
Law, especially the Constitutional Law of the Country, must
also be changed to meet
changing needs, changing
philosophy and changing life of
the people. Consequently, legislation requires some mechanisms to meet the needs of the people at
present. Such a mechanism is known as the ‘Amendment of the Law’ or the
‘Amendment of the Constitution of the Country’. Broadly Speaking about the
Amendment Procedures, there are generally two methods of Constitution Amendment
given namely as – Informal (De facto) Method & Formal (De jure) Method. Under the Informal Method, the letter of the law does not change,
it remains unchanged but
its meaning and importance changes. This method includes Amendments by changing the Provisions of the Constitution
with the Interpretation.
Conversely, Under the Formal Method, the provisions of the law are amended by, modification,
addition or abolition, which is
the written text of the Constitution. In this Research Paper, I attempted to conduct a
Research which is Comparative in nature of Amendments Procedure of the Constitutions of India, the Constitution of the United States
of America and the Constitution of the Republic of South Africa, 1996 for the
purpose to understand the difference
between their different Governance
Systems. The Research also explored the various limitations of the other country’s Amendment Process
specifically, the Constitution of the United States of America and the
Constitution of the Republic of South Africa, 1996.
Keywords: Amendment, Law, the Constitutions of India, the
Constitution of the United States of America and the Constitution of the Republic
of South Africa, 1996.
LIST OF STATUTES
The Constitution of India ……………………………………………………………………6
The Constitution of the United States of America ……………………………………………9
The Constitution of the Republic of South Africa, 1996…….………………………………11
LIST OF CASES
Golak Nath v. State of Punjab
(1967) …………...……………………………………………8
Kesavananda v. State of Kerala
(1973) ………………………………………………………8
National Prohibition Cases (1920)
…………………………………………………………10
Collins v. Minister of the Interior Case (1957)
(Coloured Vote Case) ……………………12
CHAPTER-I
INTRODUCTION
“What makes the Indian Constitution so rigid is that, in addition to a
somewhat complicated process of amendment, it is so detailed and covers so vast
a field of law that the problem of constitutional validity must often rise”.
- Sir, Ivor Jennings[1]
The term ‘amendment’ is deduced from the Latin term ‘amendere’ that means ‘to
change’ or ‘to correct any fallacy’.
As per an Oxford Dictionary, an ‘Amendment’
indicates the idea of ‘Correction or
Repair or Improvement’.
Garner’s Black Law
Dictionary defines “amendment as a formal revision or addition proposed or
made to a statute, construction, pleading, order or other instrument, a change
made by addition, deletion or correction specially an alteration of wording”.[2]
The Constitution Framers includes the provisions of the amendments
to address possible difficulties
in the future. Like time, the
law doesn’t stagnate, it continues to appear. The political, social and economic conditions of the people are continuously changing, so the Constitution
of the Country can be helpful to the
adaptation of those who are
changing and switching
their lives as a respective of
Development of the Nation. If no Constitutional provisions were to be amended, people would need to use anti-constitutional strategies.
For ordinary persons, an amendment includes the
modification, alteration or deletion of a provision or text. Formal declarations of changes to legal regulations are called
as ‘Legislative Amendments’. The objectives of this amendment is now to
improve things. It can take the forms of adding or amending or removing any part of the law for the interest or
well-being of the community
in its social structure.
If it is better to revive the law
than to create a new one, amendments
are frequently used.
1.1. Statement
of Problem
This Research Paper talks about the
Statement of the Problem which is related to the Absolute Powers of Parliaments
and their Limitations which are imposed on the Procedures while Amending the Constitution
of India, the USA and South Africa respectively and relatively.
1.2. Research
Objectives
The various Objectives of this Research Paper are given as
follows:
i)
To
study the Concept of Amendment Procedure in the Constitution of India in
accordance with its Requirements;
ii)
To
examine the Absolute Powers of Parliament in relation to the Constitutional
Amendments and their Limitations;
iii)
To
analyze this Comparative Study of Indian Constitution with the Constitutional
Amendment Procedures of American and South African Constitution;
1.3. Research
Hypothesis/ Question
In order to attained the above-mentioned
objectives, the following Research Hypotheses and Research Questions has been
formulated-
1.3.1. Research Hypotheses
a)
Each
Country follows different Amendment Procedures with the Limitations.
b)
Amendment
provides the Basic Structure of the Government, but does not address all
possible questions or problems between the different organs of the Government.
c)
The
Amending Procedure is comparatively difficult & rigid in the USA than the
other two countries.
1.3.2. Research Question
As we all know that the Constituent Assembly took 2 years, 11 months and
18 days to prepare the Constitution of India. Now, if we think about it, the question may arise that if we
make such a great effort, this means
almost 3 years to build
our Indian Constitution then –
1)
What are the reasons,
why we need to add Constitutional
Amendment provisions to our Constitution?
2)
Whether the power granted to
the Parliament to amend the Constitution is absolute or not? If yes, what are these limitations.
3) Are there similar problems in other countries such as the American and South African Constitution?
1.4. Review
of Literature
Several Authors/Researchers have done research in the field of Constitutional Law. As a result, many literatures in this field can be found in Books,
Journals, Articles, Dissertations and Reports.
Adem Kassie
Abebe, the Author in the Article, “The
Substantive Validity of Constitutional Amendments in South Africa”[3],
points out that the Constitution does not recognized substantive limitations on
the Power of Amendments of the Constitution.
Prithivi Raj and Murtaza S. Noorani
in their Article, “Constitutional
Amendment: A Critical Analysis”[4],
critically analyze the “Basic Structure
Doctrine”, as well as other
safeguards in various countries, to protect the essential parts of the Constitution. The authors
of this paper clearly realized the problems from different
viewpoint, taking into account the
diversity of the
stakeholders affected by
the amendment. The author also proposes and proceeds to a convincing solution to the problems
associated with amendment and its
long-term process.
Eesha Sharma and Asmit Chitransh in
their Article, “Amending Constitution
Comparative Study of India, United Kingdom and the United States of America”[5],
tries to compare various methods of amendment procedure to understand current situations of its
requirement and critically analyses the
three countries' amendment procedures
and provides the best amendment procedures in each country.
Shubhangi
Baranwal in her Article, “Amendment of the Constitution- A Comparative Study between South Africa,
UK, India & USA”[6], address the concept of amendment with its significance and need in the Constitution. The author of
this paper also talks about Comparison Studies of various forms of government in the United States, South Africa and India and their amendment
procedures.
Chirag Patel RS in his Article, “Amendment of The Constitution in India and
US: A Comparative Study”[7],
analyze the comparisons between
the Constitution of India and
the United States with its advantages
and disadvantages that add
to the points of constitutional
amendment.
Dr. Santosh Kumar in his Article, “Comparative Analysis of Constitutional
Amendment Processes: A Worldwide Investigation”[8], provides a comparative analysis of the
constitutional amendment processes in the UK, the USA, China, France, South Africa, Russia, Canada,
Australia and India. It explores the main features and procedures of the amendment process in each country and highlights similarities and differences. This
article examines the role of parliament,
the special requirements of
the majority, the popular referendum
and the ratification of the State in the amendment process.
Rajas Jani,
the Author in the Article, “Comparative
Analysis of Amendment Procedure of Constitution of India and USA”[9],
discuss the amendment procedures
of the Indian and American Constitutions.
The document also compares the amendment process
to the Indian Constitution and the
United States Constitution specifically focuses on the limits imposed on the procedure during the constitutional amendment in India and the USA.
1.5. Rationale of the Research
The
reason behind doing a comparative study is to understand the discrepancies
between different
governance systems. Furthermore,
it helps to understand the
advantages and disadvantages of adding amendments to various laws and
acts. Amendments have been made to protect the
constitution in the times of disputes over its validity.
Most important
reason for this study of Constitutional amendment is to adapt to the changes in times and needs of
society. When we look back on
history, it is easy to interpret that the old constitution cannot be used in today’s
society. Therefore, changes
or amendments are an important part of its
governance.
1.6. Research Methodology
The methodology I use in this Project is the “Doctrinal Research Method”,
where I had referred to the Primary Sources of Information as statutory legal
materials like Bare Acts, Subordinate Legal Materials, Case Laws etc. and the Secondary Sources of Information as Textbooks, Legal Articles, Parliamentary
Debates, Journals etc. to analyze
the review of the Judicial
viewpoint to the comparative study of amendment procedures in various
countries such as the USA and South Africa.
1.7. Nature of Research
As, it
is a type of Interpretative
Research (that is “Doctrinal Research”),
which provide a detailed
and complete description of the
constitutional amendment procedure
of the above-mentioned countries
and then critically analyze
them to understand which systems
are best suited for today’s
needs of society.
1.8. Scope and Limitations of the
Research
The concept behind the difficult
amendment procedures was to avoid Political Conflicts and introduce a Stable
Government. Another reason for the need to amend the Constitution is that provisions on constitutional amendments are made by constitutional framers in order to overcome future
difficulties.
Since the beginning of the
Constitution, constitutional battles has been held in this respect of both in
the Courts and the Parliament.
Parliament appears to have asserted its supremacy, as the British
Parliament had, but the Supreme Court interpreted Parliament as a
constitutional creature, exercising powers within the framework of the
Constitution and not outside it.
Although the Constitution explicitly
grants power of amendment to the Parliament, the Hon’ble Supreme Court
ultimately has to interpret the scope of this power and impose, if applicable,
limits on that power of amendment.
CHAPTER-II
MEANING OF AMENDMENT AS PER THE PROVISIONS OF THE CONSTITUTION OF INDIA
2.1. Introduction
One of
the most interesting and remarkable features of Article
368 is that Fundamental
Rights are not included in the provisions
of this article. In our
Constitution, the term ‘amendment’
or ‘amend’ is used in
both the broad and narrow senses, as follows: The opening words of Art.
4 (1) read as:
“Any law referred to in Article 2 or Article 3 shall contain
such provisions for the amendment of the First Schedule and the Fourth Schedule
as may be necessary to give effect to provisions of the law.”[10]
In
this case, the term “amendment” is narrowly
defined and the terms “law” in Art.3 and Art.4 must comply with the democratic model established
in the Constitution and the powers of Parliament shall not exceed the Constitution. Accordingly,
without the effective legislative,
executive and judicial bodies provided for in Art.4, the
legislature cannot create, grant or establish a State by law under Art. 4.
Art.169 (2) of the Constitution
of India provides as:
“Any law referred to in clause (1) shall contain such
provisions for the amendment of this Constitution as may be necessary to give
effect to the provisions of the law and may also contain such supplemental,
incidental and consequential provisions as Parliament may deem necessary.”[11]
The word “amendment”
used in this article
clearly conveys a more limited
meaning, but “para 7 of Part D of Fifth Schedule” which contains the word “amend”, is also of a broader
meaning. It provides:
“Parliament may from time to time by law amend by way of
addition, variation or repeal any of the provisions of this Schedule and when
the Schedule is so amended, any reference to this Schedule in this Constitution
shall be construed as a reference to such schedule as so amended.”[12]
2.2. Concluding Remark
From
this discussion it seems that the word “amendment”
is used in different senses in
different parts of the Constitution. But there is a clear point that the makers of the Constitution of India do not want the whole Constitution to be
abolished.
CHAPTER-III
AMENDMENT PROCEDURE UNDER THE CONSTITUTION OF INDIA
3.1. “Art. 368. Power of Parliament to amend the Constitution and procedure
therefor-
(1) 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.
(2) An amendment of this 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 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 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—
(a) article 54, article 55, article 73, article 162, article 241 or article
279A; or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or
(c) any of the Lists in the Seventh Schedule; or
(d) the representation of States in Parliament; or
(e) the provisions of this article,
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.
(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.”[13]
3.2. Procedure
of Amendment in the Constitution of India
The Constitution of India provides
three ways of amending its provisions namely given as follows:
3.2.1. Amendment by Simple Majority
3.2.1. (i) Amendment by the Parliament-
Some provisions of the Constitution can be amended by a Simple Majority of the present members of Parliament and by means of votes in both houses.
It is the procedure adopted for making ordinary act. A Bill for this reason may be initiated in any of the Houses of the Parliament, at the request of the Central Government or at the request
of the States. Amendments
to these provisions are expressly excluded from Article
368 (Refer Art.2 to Art. 4).
3.2.1. (ii) Amendments at the States Instances -
Some provisions of the Constitution of India
can be amended by the Parliament by enacting laws, at the instance or
names of the States (Refer Art.169) and
some other provisions can also be amended by or after a discussion with the States (Refer Art.3).
3.2.1. (iii) Amendments by State Legislatures-
Some provisions of
the Constitution of India can be
amended by legislation passed by the State Legislature by Simple Majority. A
law enacted by the State Legislature for the purposes of Art.164 (5),
Art. 186 & Art.195 also
affects the corresponding amendments
in Schedule II.
3.2.2. Amendments by Special Majority (Art.368)
The provisions of the Constitution
may be amended in addition to the above-mentioned provisions by means of the
procedure laid down in Art.368 as follows:
a) Amendments of the Constitution of
India can only be initiated by Introducing Bills in any one of the two houses of the Parliament of the Union.
b) After
the Bill is passed in each House of the
Parliament by a majority of all members of the House, i.e.by a majority of not less than two thirds of the Members of the House present and voting, it shall be presented
to the President’s assent.
c) After receiving the assent of the
President, The Constitution stands
amended in accordance with the terms
of the Bill.
3.2.3. Amendment by Special Majority Plus
Ratification by States
This category includes provisions
specifically mentioned in Cl.2
of Article 368, if the
Amendment Bill mentioned above, seeks to make any change in the provisions under
items (a) to (e), then such
a Bill having been passed by Special Majority in each House of the Parliament,
shall not be presented to the President for his assent to it, until the Bill
has been ratified by the Legislatures of not less than one-half of the States,
by passing resolutions to that effect.
The
reasons for the
constitution of these articles
were presented by Dr. Babasaheb Ambedkar to the Constituent Assembly.
He explained,
“If members of the
House who are interested in this are to examine the Articles that have been put
under the proviso, they find that they refer not merely to the Centre but to
the relations between the Centre and the Provinces (States). We cannot forget the
fact that we have in a large number of cases invaded provincial autonomy, we
still intend and have as a matter of fact seen to it that the federal structure
of the Constitution remains fundamentally unaltered.”[14]
3.3.
Limitation on Amending Power under the Constitution
of India
Under the Doctrine of the “Basic Structure”, the Constituent Assembly, which represents the
sovereignty of the people, provides for
the amendment of the Constitution in Art.368 & the mechanisms that can exercise this power.
Of Course, in the Kesavananda Case[15],
none of the Advocates of the Doctrine of the “Basic Features” appears to have suggested the process by which
such “Basic Features” can be amended,
if they cannot be amended according to Art.368.
However, the alternative of a Constituent
Assembly would arise if we assumed that such features are not amendable under
Art.368 and that the country would not welcome a revolution to make changes to
such “Basic Features”, as pointed out
by HIDAYATULLAH J. in his separate opinion in Golak Nath Case[16].
“This question involves two facets:
1)
Is there any part of the Constitution
which is excluded from the amending provision in Art.368?
2)
If so, how can it be amended, can it
be done through the people themselves at a Referendum or through another Constituent
Assembly?”
3.4.
Concluding Remark
No
amendment to the Constitution of India can be made by any authority other than what is prescribed
in Art. 368 or otherwise than in
the manner prescribed therein.
It is Patentable that Art.368 does not excluded or contain any part of the Constitution outside
the scope of Article 368
explicitly.
I
regret being constrained to
point out that no part of such amending power is vested, either directly or indirectly in the Judiciary.
CHAPTER-IV
AMENDMENT PROCEDURE UNDER THE CONSTITUTION OF THE UNITED STATES OF
AMERICA
4.1. Article V
“The
Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal Suffrage in the Senate.”[17]
4.2. Procedure
of Amendment in the Constitution of the United States of America
Article V of the Constitution of the
United States of America provides the formal amendment procedure into two
parts, namely –
4.2.1. Proposal for an Amendment
Amendments can be proposed in two ways
as:
1)
by two-third (2/3rd) of the votes in both the Houses of
Congress;
- This
is the only method used to propose amendments so far.
2)
by a National Constitutional Conventions called by Congress on the
request of two-third (2/3rd) of the State Legislatures;
- This method of proposing
amendments, which Scholars have discussed for a long time, has never been used.
It
should be noted that when
applying the Convention, Congress is obliged to call the
Convention by calling for the
second alternative. It cannot refuse to do so.
4.2.2. Ratification for an Amendment
Amendments can be ratified
by two methods as:
1)
by the Legislatures of three-fourth (3/4th)
of the States;
2)
by the Special Conventions in three-fourth (3/4th)
of the States;
Whatever Method of Amendments Proposed,
Congress specifies which of the two Ratification procedures should be followed.
4.3.
Limitation on Amending Power under the Constitution
of the United States of America
Article V of the Constitution of the
USA itself provides for the following two express limitations on amending
powers of the Congress. The last two sentences of Article V make certain
subjects unamendable-
1)
The
first, prohibit amendments before 1808 that would affect the limitations of the
Constitution on the Power of Congress to -
a) restrict the slave trade; or b) levy
certain taxes on land or slaves.
2) The second, prohibits amendments that
would deprive States from exercising equal suffrage in the Senate without their
consent.
Bryce[18] and Willoughby[19]
have argued that the U.S. legal sovereignty resides in the amending body set up
by Art.V, because it has “the legal power
to determine its own competence as well as that of others”.
Therefore, there is, no limitation
upon the amending power conferred by Art.V of the Constitution of the USA other
than those expressly provided in the text of Art.V itself as explained in National Prohibition Cases[20]. It
is only public opinion acting upon these agencies which places any check upon
the amending power.
4.4.
Concluding Remark
Accordingly, constitutional amendments must be made strictly in accordance with the methods
provided for in the Constitution are
not tolerated if they are not amended even in order to determine the true wishes of the people on the matter and anything that may consider individuals or bodies to be better done by representatives of the
Constituent Assembly, a Convention
or other bodies is not of any really
important significance.
CHAPTER-V
AMENDMENT PROCEDURE UNDER THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA
5.1.
“S.74. Bills amending the Constitution
1. Section 1 and this subsection may be amended by a Bill passed by-
a. the National Assembly, with a supporting vote of at least 75 per cent of
its members; and
b. the National Council of Provinces, with a supporting vote of at least six
provinces.
2. Chapter 2 may be amended by a Bill passed by-
a. the National Assembly, with a supporting vote of at least two thirds of
its members; and
b. the National Council of Provinces, with a supporting vote of at least six
provinces.
3. Any other provision of the Constitution may be amended by a Bill passed-
a. by the National Assembly, with a supporting vote of at least two thirds
of its members; and
b. also by the National Council of Provinces, with a supporting vote of at
least six provinces, if the amendment-
i.
relates to a matter that affects the
Council;
ii.
alters provincial boundaries, powers,
functions or institutions; or
iii.
amends a provision that deals
specifically with a provincial matter.
4. A Bill amending the Constitution may not include provisions other than
constitutional amendments and matters connected with the amendments.
5. At least 30 days before a Bill amending the Constitution is introduced in
terms of section 73 (2), the person or committee intending to introduce the
Bill must-
a. publish in the national Government Gazette, and in accordance with the
rules and orders of the National Assembly, particulars of the proposed
amendment for public comment;
b. submit, in accordance with the rules and orders of the Assembly, those
particulars to the provincial legislatures for their views; and
c. submit, in accordance with the rules and orders of the National Council
of Provinces, those particulars to the Council for a public debate, if the proposed
amendment is not an amendment that is required to be passed by the Council.
6. When a Bill amending the Constitution is introduced, the person or
committee introducing the Bill must submit any written comments received from
the public and the provincial legislatures-
a. to the Speaker for tabling in the National Assembly; and
b. in respect of amendments referred to in subsection (l), (2) or (3) (b),
to the Chairperson of the National Council of Provinces for tabling in the
Council.
7. A Bill amending the Constitution may not be put to the vote in the
National Assembly within 30 days of-
a. its introduction, if the Assembly is sitting when the Bill is introduced;
or
b. its tabling in the Assembly, if the Assembly is in recess when the Bill
is introduced.
8. If a Bill referred to in subsection (3) (b), or any part of the Bill,
concerns only a specific province or provinces, the National Council of
Provinces may not pass the Bill or the relevant part unless it has been
approved by the legislature or legislatures of the province or provinces
concerned.
9. A Bill amending the Constitution that has been passed by the National
Assembly and, where applicable, by the National Council of Provinces, must be
referred to the President for assent.”[21]
5.2.
Procedure of Amendment in the Constitution of the
Republic of South Africa
1)
The
provisions of S.1 of the
Constitution can only be
amended if at least six of the nine provinces are supported by the National Assembly and the
proposal is approved by 75% of the National Assembly.
2)
Provisions of Chapter 2
of the Constitution which includes
the Bill of Rights, also require
relatively strict amendment rules.
3)
The provisions on human rights can only be amended with the consent of at least 2/3rd of members
of the National Assembly & at least six of the nine provinces of the National Council of Provinces.
4)
All other provisions of the Constitution can be amended by a 2/3rd majority in the National Assembly.
5)
However, if an amendment concerns a problem affecting the National Council of Provinces
or if it affects the Boundaries,
Powers, Functions or Institutions or if it changes a
provision specifically dealing with a provincial matter, approval must also be obtained by at least six provinces in the National Council of
Provinces.
6)
In addition, if a proposed amendment affects only a particular provinces, the Legislative Council of the affected provinces must approve the proposed amendment.
5.3.
Limitation on Amending Power under the Constitution of
the Republic of South Africa
In the Case of Collins v. Minister of the Interior Case (1957) (Coloured Vote
Case), On 9 November the Appellate Division handed down a decision and
ruled that Parliament had the power to alter the composition of the Senate, a
power explicitly granted by the South Africa Act. However, the Constitution
does impose time limits on the submission of amendment proposals (a kind of ‘cooling-off” period). Persons or
committees wishing to introduce a constitutional amendment bill should publish
the proposed amendment in the Govt. Gazette for public comment at least 30 days
before it is presented to Parliament.
5.4.
Concluding Remark
The South African Constitution does
not explicitly prohibit any amendments to its provisions. In fact, the powers
of the Constitutional Court themselves are not exempt from constitutional
amendments.
CHAPTER-VI
COMPARATIVE PERSPECTIVES OF CONSTITUTIONAL AMENDMENT
6.1. Comparative
Study of the Constitutional Amendment Procedure
In order to compare the
process of amendments
of India, the USA and South Africa, we will discuss it separately in the following manner.
6.1.1. In the Context of Amendment Proposal
In the
United States of
America, the States plays a key
role and can propose
constitutional amendments. On the other hand, the states of India and South Africa cannot
propose constitutional amendments means they are unable to propose
constitutional amendment.
6.1.2. In the Context of the President Assent
It is interesting to note that the President in the
case of the Constitution of the United States of
America does not play any role
in the amendment process. It follows that, even if the
Constitution grants amendment powers to the Legislature, its exercise is not identified with the legislative function.
In
this case, the Supreme Court undoubtedly observed: “The negative of the President (i.e. the
veto power) applies only to the ordinary cases of legislation. He has nothing
to do with the proposition or adoption of amendments to the Constitution”.
Amendments, which are not legislative
acts, “are not officially submitted to
him at all”. Also, it does not require the Governors of the State to sign
the ratification instruments which an Integral part of the other two countries
Amendment Procedure.
On the contrary, the President’s approval
was already provided in the original text of Art.368 of the Constitution of
India, which stipulates that a bill amending the Constitution, when required by
Parliament and ratified by the State, where required, “shall be presented to the President for his assent and upon such
assent being given to the Bill, the Constitution shall stand amended”[22].
But the Constitution (24th Amendment Act, 1971)
drastically altered this stance by adding a new express word to Article 368 (2)
despite the need to file a Bill to amend the Constitution. – “who shall give his assent to the Bill”[23].
Therefore, the President of India cannot reject to give his assent to a Bill to amend the Constitution that has been presented to him.
6.1.3. In the Context of Cooling-off Period
The Constitution of the Republic of
the South Africa provides a Cooling-off Period of at least 30 days as a time
limit for submitting amendment proposals. Such a types of time period limits
were not imposed by the Constitutions of the India and the Constitution of the United
States of America on amendment proposals.
6.1.4. In the Context of Rigidity/Flexibility
In comparison to constitutional amendment procedures in
India, the USA and South
Africa, the main difference
is the degree of flexibility. The Constitution of the United States of America was
regarded as being quite inflexible, requiring Approval of the Congress and State
Ratification, but the Constitution of India is thought to be more flexible and
occasionally permits the amendments by a simple majority in the Parliament. Also,
The Constitution of the Republic of the South Africa was relatively easier to amend than the Constitution of the United States of
America.
6.1.5. In the Context of Role of Supreme Court
The result is that the American
Supreme Court has no power of Judicial Review to veto an amendment of the
Constitution of the United States of America, on the ground of any substantive
limitation, because it would enable the Supreme Court “to veto the will of the people expressed in a constitutional amendment
without any possibility of the reversal of the court’s action except through
revolution”.[24]
Although, the three countries have a Judicial Review
System but the area to which the
Supreme Court can intervene in the process of amendment varies.
6.2. Significance
of the Research
The Study and Comparisons of the constitutional amendment procedures in different countries can help us to understand
the different roles played by the States and Parliaments in this process of
constitutional amendment.
6.3. Concluding
Remark
In a
Comparison, the amendment procedure of
the Constitution of India is thought to be more flexible than those in the
Constitution of the United States of America, whereas the amendment procedure of
the Constitution of the Republic of South Africa is comparable to those of
India but is less flexible overall due to its greater complexity and
involvement of provinces.
The key difference is that the Constitution of the United States
of America is significantly more rigid, requiring state approval in most
cases and that it is difficult to amend.
CHAPTER-VII
CONCLUSIONS AND SUGGESTION
To conclude this, in my point of view
that, despite being Democratic
Nations, the USA and India have quite distinct legislative frameworks, legal
systems and amendment processes. Unlike the USA, India does not have a specific
body for amending its constitution. Only the Indian Parliament has the authority
to modify the Country’s Constitution. In certain situations, the Indian
Parliament may alter the constitution with the consent of at least half of the
States, according to Article 368.
It is important to remember that neither the Constitution
of the United States of America nor the Constitution of the India stipulate a
period of time for verification; in contrast, the Constitution of the Republic
of South Africa provides a 30-days “cooling-off
period” for the proposal of constitutional amendments.
In the present context it would
suffice to summarize the lessons I have learnt from this Comparative Study, in
the preceding pages:
1.
Once
it is established that the makers of the Constitution have made an express
provision for amendment of the Constitution, any limitations upon that power
must be found from the text of the Constitution itself.
2.
Once
it is held that the Constitution has provided for its own amendment without any
restriction, the only seriousness or gravity of the subject of amendment
can-not give rise to any “implied
limitation”.
From the above study, I personally
suggest that, we may also adopt the mechanisms of the State Proposal for
Constitutional Amendment as provided in the Constitution of the United States
of America to established more friendly relations between the Central
Government and the State Government.
BIBLIOGRAPHY
Books:
1)
D D Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 4th
ed., 2013.
2)
Dr. Bhardwaj, R.C., CONSTITUTION AMENDMENT IN INDIA,
Lok Sabha Secretariat, New Delhi, 1995.
3)
Dr. Pandey, J.N., CONSTITUTIONAL LAW OF INDIA, Central
Law Agency, Allahabad, 2004.
4)
Jain, M.P., INDIAN CONSTITUTIONAL LAW, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2012.
5)
Shukla, V.N., CONSTITUTION OF INDIA, Eastern Book
Company, Lucknow, 2008.
6) Seervai,
Preface to Vol.II of the 2nd ed. of Constitutional Law of India.
7) Burdick,
LAW OF THE AMERICAN CONSTITUTION, p.48.
8) Ivor
Jennings: SOME CHARACTERISTICS OF THE INDIAN CONSTITUTION: 1953, Oxford
University Press.
9)
Garner,
‘BLACK LAW DICTIONARY’, 8th ed., p.89.
10) Constituent Assembly Debates (CAD),
Vol.III, 4323.
Articles:
1) Prithivi
Raj and Murtaza S. Noorani, “Constitutional Amendment: A Critical Analysis”,
INTERNATIONAL JOURNAL OF LEGAL SCIENCE AND INNOVATION, Vol.2, Issue 3,2020, pp.
83-115.
2) Eesha
Sharma and Asmit Chitransh, “Amending Constitution Comparative Study of India,
United Kingdom and the United States of America”, INTERNATIONAL JOURNAL OF
LEGAL SCIENCE AND INNOVATION, Vol.3, Issue 4, 2021, pp.745-760.
3) Shubhangi
Baranwal, “Amendment of the Constitution- A Comparative Study between South
Africa, UK, India & USA”, LEGAL DESIRE INTERNATIONAL JOURNAL ON LAW, 25th
ed., Vol. 8.
4) Chirag
Patel RS, ““Amendment of The Constitution in India and Us: A Comparative Study”,
INDIAN JOURNAL OF INTEGRATED RESEARCH IN LAW, Vol.II, Issue II.
5) Dr.
Santosh Kumar, “Comparative Analysis of Constitutional Amendment Processes: A
Worldwide Investigation”, INTERNATIONAL JOURNAL OF RESEARCH PUBLICATION AND REVIEWS,
Vol.5, Issue 5, May-2024, pp.5180-5184.
6) Rajas
Jani, “Comparative Analysis of Amendment Procedure of Constitution of India and
USA”, JOURNAL OF LEGAL STUDIES AND RESEARCH, Vol.7 Issue 1, January-2021,
pp.271-279.
7) Adem
Kassie Abebe, “The Substantive Validity of Constitutional Amendments in South
Africa”, pp.656-694.
[1]Ivor Jennings: “Some
Characteristics of the Indian Constitution: 1953, Oxford University Press”.
[2]Garner, “Black Law Dictionary”, 8th
ed., p.89.
[3]Adem Kassie Abebe, “The
Substantive Validity of Constitutional Amendments in South Africa”, pp.656-694.
[4]Prithivi Raj and Murtaza S.
Noorani, “Constitutional Amendment: A Critical Analysis”, INTERNATIONAL JOURNAL
OF LEGAL SCIENCE AND INNOVATION, Vol.2, Issue 3, 2020, pp. 83-115.
[5]Eesha Sharma and Asmit Chitransh,
“Amending Constitution Comparative Study of India, United Kingdom and the
United States of America”, INTERNATIONAL JOURNAL OF LEGAL SCIENCE AND
INNOVATION, Vol.3, Issue 4, 2021, pp.745-760.
[6]Shubhangi Baranwal, “Amendment of
the Constitution- A Comparative Study between South Africa, UK, India &
USA”, LEGAL DESIRE INTERNATIONAL JOURNAL ON LAW, 25th ed., Vol. 8.
[7]Chirag Patel RS, ““Amendment of
The Constitution in India and Us: A Comparative Study”, INDIAN JOURNAL OF
INTEGRATED RESEARCH IN LAW, Vol.II, Issue II.
[8]Dr. Santosh Kumar, “Comparative
Analysis of Constitutional Amendment Processes: A Worldwide Investigation”,
INTERNATIONAL JOURNAL OF RESEARCH PUBLICATION AND REVIEWS, Vol.5, Issue 5,
May-2024, pp.5180-5184.
[9]Rajas Jani, “Comparative Analysis
of Amendment Procedure of Constitution of India and USA”, JOURNAL OF LEGAL STUDIES
AND RESEARCH, Vol.7, Issue 1, January-2021, pp.271-279.
[10]D.D. Basu, “Commentary on the
Constitution of India”, 14-Lexis Nexis, Haryana, 4th ed. 2013.
11Supra
note 1.
12Supra
note 2.
[13]Article 368 of the Constitution
of India.
[14]Constituent Assembly Debates
(CADs), Vol.III, 4323.
[17]Article V of the Constitution of
the United States of America.
[18] Bryce, American Commonwealth,
Vol.I, p.366.
[19] Willoughby, Public Law;
Government of Modern States; Nature of the States, p.244.
[21]S.74 of the Constitution of the
Republic of South Africa.
[22]Article 368 of the Constitution
of India.
[23]Article 368 of the Constitution
of India.
[24]Burdick, Law of the American
Constitution, p.48.