Open Access Research Article
Importance Of Amendment And Its Criticism
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Importance Of Amendment And Its Criticism
Authored By - Navdeep Kaur
Abstract
An amendment is a procedure to make
changes in the existing Laws as we all know that time is not static, it is
dynamic. As time passes the requirements of society also change, so with the
change in the requirements the change in the earlier system also requires.
Amendment has an important role to play to meet the needs of the society, that
is why much importance has been attached to the Amendment under Article 368 of
the Constitution of India. Indian constitution provides for a distinctive
amendment process as compared to the constitution of the world. It may be
described as partly rigid and partly flexible. some amendments of the
constitution take effect by simple majority, some by special majority, and some
by ratification.
A bill to amend the constitution may
be introduced in either house of the parliament. It must be passed by each
house by a majority of not less than 2/3rd of the members of that
house present and voting. When both houses pass a bill it shall be presented to
the president for his assent who shall give his assent to the bill and
thereupon the constitution shall stand amended. But a bill that seeks to amend
the provisions mentioned in article 368 requires in addition to the special
majority mentioned above the ratification by the ½ of the states.
In my research paper, I will be
discussing the procedure of the Amendment and criticism of the same
Introduction:
The amendment is an important
procedure due to which it is easy to cope with the new requirements is possible
as time is not static. Article 368 of the Constitution of India prescribes two
types of procedures for the Amendment.
Amendment by Simple Majority:
Article that can be amended by parliament by a simple majority as that
required for the passing of an ordinary law the amendments contemplated in
articles 5, 169, and 239 can be amended by simple majority. These articles are
specifically excluded from the purview of the procedure prescribed in article
368.
Amendment by Special Majority: Articles of the constitution that
can be amended by the 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 2/3rd
of the members of that house present and voting.
A bill to amend the constitution may
be introduced in either of the houses of the parliament. It must be passed by
each house by a majority of the total membership to that house and by a
majority of not less than 2/3 of the members of that house present and voting.
When both houses pass a bill it shall be presented to the president for his
assent who shall give his assent to the bill and thereupon the constitution
shall stand amended. But a bill that seeks to amend the provision mentioned in
article 368 requires in addition to the special majority mentioned above the ratification
by the ½ of the states.
Amendment by special majority and ratification
by states:
Articles that require in addition to
the special majority mentioned above ratification by not less than ½ of the
state legislatures. The states are given an important voice in the amendment of
these matters. These are fundamental matters where states have important power
under the constitution and any unilateral amendment by the parliament may
vitally affect the fundamental basis of the system built up by the constitution.
This class of articles consists of amendments that can seek to make any change
in the provisions mentioned in article 368. The following provisions require
such ratification by states:
Election of presidents-article 54 and
55.
The extent of executive powers of the
union and states articles – articles 73 and 162.
Article dealing with judiciary,
supreme court, the high court in the states and union territories-article
124,147,214,231,241.
Distribution of legislative power
between centre and state – art 245 to 255.
Any of the list of 7th
schedule.
Representation of states in
parliament 4th schedule.
Article 368 itself.
Analysis of the amendment procedure:[1]
Indian constitution provides for a
distinctive amendment process as compared to the constitution of the world. It
may be described as partly rigid and partly flexible. some amendments of the
constitution take effect by simple majority, some by special majority, and some
by ratification.
A bill to amend the constitution may
be introduced in either house of the parliament. It must be passed by each
house by a majority of not less than 2/3rd of the members of that
house present and voting. When both houses pass a bill it shall be presented to
the president for his assent who shall give his assent to the bill and
thereupon the constitution shall stand amended. But a bill that seeks to amend
the provisions mentioned in article 368 requires in addition to the special
majority mentioned above the ratification by the ½ of the states.
Criticism:
During the 50
years of the Constitution, more than 80 amendments have taken place. The
founding fathers of the Indian constitution who granted more rights to the
people without balancing them with their duties perhaps did not foresee the
emergence of the present political environment, wherein the political players
of various segments in the country are more interested in fulfilling their
individual aspirations than the aspirations of the people. There is an element
of truth in this criticism. The fact is that the ease in the amending process
of the Indian Constitution is due to the one-party dominance both at the Centre
and the State. Yet, on close examination, it will be seen that there were
compelling circumstances that led to the constitutional amendments. While some
amendments were a natural product of the eventual evolution of the new
political system established under the Constitution in 1950, there were others
necessitated by practical difficulties. The first amendment! took place in June
1950.
The question of
whether Fundamental Rights can be amended under Article 368 came for
consideration of the Supreme Court in Shankari
Prasad v. Union of India. It challenged the validity of the 1st amendment
to the Constitution. In this case, it was held that a constitutional amendment
will also be held valid even it abridges or takes away any of the fundamental
rights. A similar decision was given by the hon’ble Supreme Court in Sajjan Singh v. State of Rajasthan
which challenged the validity of the 17th Amendment. In Golaknath v. State of
Punjab, the validity of the Constitution (17th Amendment) Act, 1964 was again
challenged, which inserted certain State Acts in Ninth Schedule. The Supreme
Court in its landmark decision overruled the decision given in the Shankari Prasads and Sajjan Singhs case. It held that
the Parliament had no power from the date of this decision to amend Part III of
the Constitution so as to take away or abridge the Fundamental rights. Eleven
judges participated in this decision with the ratio being 6: 5. The judges were
worried about the numerous amendments made to abridge fundamental rights since
1950. It apprehended that if the courts were to hold that the Parliament had
the power to take away fundamental rights, a time might come when these rights
are completely eroded. The Chief Justice applied the doctrine of Prospective
Overruling and held that this decision will have only prospective operation
and, therefore, the 1st, 4th and 17th Amendments will continue to be valid.
It means that
all cases decided before the Golaknaths case shall remain valid. In order to
remove difficulties created by Golaknaths decision parliament enacted the 24th
Amendment.
The amendment has made the following
amendments:
(1) it added a new
clause (4) to Article 13 which provides that nothing in this Article shall
apply to any amendment of this constitution made under Article 368.
(2) it submitted a new heading to Article 368 power of Parliament to ame,nd the Constitution and Procedure therefore. Instead of Procedure for amendment of the Constitution.
(3) It inserted a new sub section (1) in Article 368 which provides that notwithstanding anything in the Constitution, Parliament may, in exercise of its constituent power may amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in the Article. Thus the 24th amendment restored the amending power of the Parliament. The validity of the 24th amendment was challenged in the case of Keshavnand Bharati v. State of Kerala . It challenged the validity of the Kerala Reforms Act, 1963. but during the pendency of the petition the Kerala Act was placed in the Ninth Schedule by the 29th Amendment. The question involved was the extent of the amending power conferred by Article 368 of the Constitution. A Special bench of 13 judges was constituted to hear the case. The Court by majority overruled the Golaknaths case which denied Parliament the power to amend fundamental rights of citizens. It held that the 24th amendment merely made explicit which was implicit in the unamended Article 368. The Court held that under the Article 368 Parliament is not empowered to amend the basic structure or framework of the Constitution. After the decisions of the Supreme Court in Keshavnand Bharati and Indira Gandhi cases the Constitution (42nd Amendment) Act, 1976, was passed which added two new clauses , namely, clauses
(2) it submitted a new heading to Article 368 power of Parliament to ame,nd the Constitution and Procedure therefore. Instead of Procedure for amendment of the Constitution.
(3) It inserted a new sub section (1) in Article 368 which provides that notwithstanding anything in the Constitution, Parliament may, in exercise of its constituent power may amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in the Article. Thus the 24th amendment restored the amending power of the Parliament. The validity of the 24th amendment was challenged in the case of Keshavnand Bharati v. State of Kerala . It challenged the validity of the Kerala Reforms Act, 1963. but during the pendency of the petition the Kerala Act was placed in the Ninth Schedule by the 29th Amendment. The question involved was the extent of the amending power conferred by Article 368 of the Constitution. A Special bench of 13 judges was constituted to hear the case. The Court by majority overruled the Golaknaths case which denied Parliament the power to amend fundamental rights of citizens. It held that the 24th amendment merely made explicit which was implicit in the unamended Article 368. The Court held that under the Article 368 Parliament is not empowered to amend the basic structure or framework of the Constitution. After the decisions of the Supreme Court in Keshavnand Bharati and Indira Gandhi cases the Constitution (42nd Amendment) Act, 1976, was passed which added two new clauses , namely, clauses
(4) provided that no
constitutional amendment (including the provision of Part III) or purporting to
have been made under Article 368 whether before or after the commencement of
the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any
ground. Clause
(5) removed any doubts about the scope of the amending power. It declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. Thus by inserting this clause it was made clear that the basic structure of the Constitution could be amended. In Minerva Mills v. Union of India, the Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby! conferred an unlimited amending power, it was destructive of the basic structure of the Constitution. The judgment of the Supreme Court thus makes it clear that the Constitution not the Parliament is supreme in India. The Parliament owes its existence to the Constitution and it cannot take priority over the Constitution. Therefore, this landmark decision ended the long controversy between the Courts and the Executive.
(5) removed any doubts about the scope of the amending power. It declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. Thus by inserting this clause it was made clear that the basic structure of the Constitution could be amended. In Minerva Mills v. Union of India, the Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby! conferred an unlimited amending power, it was destructive of the basic structure of the Constitution. The judgment of the Supreme Court thus makes it clear that the Constitution not the Parliament is supreme in India. The Parliament owes its existence to the Constitution and it cannot take priority over the Constitution. Therefore, this landmark decision ended the long controversy between the Courts and the Executive.
The amendment process was
incorporated in the Constitution by the Draftsmen of the Constitution to help
India adapt itself to the changing circumstances. Society is never stagnant. It
is ever- changing. Therefore, the amending procedure was made partly flexible
so as to make it easy for the Legislature. But the Parliament started thinking
that it has unlimited amending power. It assumed itself to be the supreme law
when the Constitution is the supreme law of the land. The Parliament started making
amendments which were destroying the basic structure of the Indian
Constitution. But after the landmark decisions of Keshavananda Bharati and
Minerva Mills the Court by its power of judicial review has curtailed the
amending power of the Parliament. The amendments made by the Parliament can no
more affect the basic structure of the Constitution. But, looking at the ease
with amendments can take place depending on the whims and fancies of the ruling
government and the POLITICS IN THE POLITICS OF INDIA we cannot say how long the
rights of the citizens are safe and unobstructed.[2]
Conclusion:
Change is a
process. Laws are made to facilitate the working of society. A law can remain
into force till it satisfies the needs of th society. In order to maintain this
aspect, it has to undergo change as the society progresses and acquire new
shape according to the present day to day demands so as to provide solution to
the complexities. The term amendment mean, a minor change or addition designed
to improve a text, piece of legislation, etc. A change or addition to a legal document which, when properly signed,
has the same legal power as the original document.[3]Times
are not static , time changes and therefore the life of a nation is not static
but dynamic, living and organic.; its political , social and economic
conditions change continuously . Social mores and ideals change from time to
time creating new problems and altering the complexion of old ones. It is
therefore, quite possible that a constitution drafted in one era and in a
particular context, may be found inadequate in another era and another context.
So in these cases amendment needed. there is various procedure for amendment it
is informal formal etc. There are also many drawbacks During the 50 years of
the Constitution, more than 80 amendments have taken place. The founding
fathers of the Indian constitution who granted more rights to the people
without balancing them with their duties, perhaps did not foresee the emergence
of present political environment, wherein the political players of various
segments in the country are more interested in fulfilling their individual
aspirations than the aspirations of the people. There is an element of truth in
this criticism. The fact is that the ease in the amending process of the Indian
Constitution is due to the one party dominance both at the Centre and the
State. Yet, on close examination it will be seen that there were compelling
circumstances which led to the constitutional amendments. While some amendments
were a natural product of the eventual evolution of the new political system
established under the Constitution in 1950, there were others necessitated by
practical difficulties. The first amendment took place in June, 1950.
[1]
Jain MP, Indian constitutional law, lexis nexis buttersworth, wadhwa Nagpur,
2011, p:1744.
[3] Retrieved from<http://www.investorwords.com/191/amendment.html#ixzz2tgPLc0PQ> last visited on 05-1-23..
Article Information
Importance Of Amendment And Its Criticism
Authors: Navdeep Kaur
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/04
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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