THE CONSTITUTIONAL AMENDMENTS THAT CHANGED THE COURSE OF INDIA (By- Nirupama Mahapatra & Kriteeka Agrahari)
The constitution is the fundamental
law within which the government must operate. Through various amendments the
constitution of India has developed several distinctive features. India has a
parliamentary democracy and it provides fundamental rights which are
justifiable. The Directive Principles of state policy give a concrete shape to
the welfare concept. The preamble of the constitution sets out the aim and
aspirations of the people of India and these have been translated into various
provision of the constitution as a welfare state as India is committed to the
welfare and development of the state. Social scenarios are always
changing.Hence, every constitution needs amendment because these amendments are
like updates as they fix the issues, add new features which are needed, and
remove features which are no longer relevant. It is important as they protect
our one of the most important freedoms and make us to overcome with the hurdles
or shortcomings in the future.
One such case regarding the 99th
amendment was of Supreme Court advocate on record association, which was held
unconstitutional as it violated the’ Basic Structure’ of the constitution
because it compromise judicial independence. This judgment does not make a
persuasive case as to why the constitution requires judicial primacy in
appointments. The constitutional texts and constitutional assembly debates also
failed to provide any support for this position. It also fails to explain how
judicial primacy forms a part of the unamendable Basic Structure. The judgment
does not explain why judicial primacy promotes or secures judicial
independence. The NJAC judgment represents the Indian judiciary’s reluctance to
seed its supremacy to the executive and legislative branches. With reference to
constitutional Assembly debates several member of constituent assembly proposed
amendment to the provision of draft article 103 which closely resembles the
present article 124 regarding the judicial appointment process.
Dr. B. R Ambedkarsaid that there
could be no question that the judiciary must me both “Independent of the
executive” and yet competent in its own right. In the NJAC judgment the Supreme
Court largely relied on Ambedkar in its analysis of the term ‘consultation’.
However, Ambedkar’s statements do not support that ‘consultation’ essentially
requires the president to follow the ‘Chief Justices’ advice.
Justice Khehar was of the view that
Ambedkar was skepticalof proposal that vested appointment authority solely in
the executive or jointly in the executive and legislature because of the
political influence.
In contrast the finance minister back
then was of the opinion that Doctrine of basic structure including elected
government and parliament’s sovereignty, cannot be ‘dismantled’ to save only
independence of judiciary and favored reconsideration of the verdict.