Constitutional Amendments in India: Procedure and Limitations

Abstract:

The Amendment of the Constitution containing in Part XX of the Constitution under Article 368. It conferred  power to the Union Parliament to amend the Constitution. The constituent power to amend the Constitution by way of adding certain laws or repeal any provision of the Constitution . The Constitutional Law of the country shall be flexible and serve the contemporary needs of the people.

Keywords under this Article: Constitutional Amendments in India, Necessity, Procedure, Limitation.

Introduction:

With the changing of time, the life of a nation also changes as the time is not static. The social, economic and political conditions of the people go on changing. So the mechanism to serve according to the changing needs of the people is the Amendment of the Constitution of the country. The Amendment of the Constitution is made with a view to overcome the difficulties which may encounter in future in the working of the Constitution. If no provisions for Amendment of Constitution were made, there would be constant danger of method like revolution to change the Constitution. The provision of the Amendment of the Constitution is detailed under Article 368 of the Part XX of the Constitution.

Constitutional Amendments in India –

Meaning:

The constitutional Amendments is the mechanism to serve the changing needs of the society by way of addition, variance and repeal of any provision of the Constitution. The Amendment of the Constitution is made by not destroying or abrogate the basic structure or framework of the Constitution.

Necessity:

The necessity of the Amendment of the Constitution is that it can overcome the difficulties which may encounter in future in working of the Constitution. The framer of the Indian Constitution were keen to avoid excessive rigidity, as they were anxious to have a document which could grow with a growing nation, adapt itself to the changing need and circumstances of a growing people. There should be certain flexibility in Constitution. If the Constitution is rigid and permanent then there would be stop of nation growth. In any event the Constitution must not be so rigid that it cannot be adopted to changing conditions. It is neither too rigid to admit necessary amendments, nor flexible for undesirable changes. Hence the purpose for providing for the amendment of the Constitution is to make it possible gradually to change the Constitution in as the changes in social condition make it necessary to change the fundamental law to correspond with such social changes . The Constitutional-makers have, therefore kept balance between the danger of having non-amendable Constitution and a Constitution which is too easily amendable.

Amendment of various Articles of the Constitution are divided into three categories:

1. Amendment by Simple Majority: Articles 4, 169 and 239-A can be amended by Parliament by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed in Article 368.
2. Amendment by Special Majority: Articles of the Constitution which can be amended by special majority , all Constitutional Amendments other than Amendments under Simple Majority, come within this category and must be effected by a majority of not less than 2/3 of the members of that House present and voting.
3. By Special Majority and Ratification by States: This class of Articles consist of amendments which seek to make any change in the provisions mentioned in Article 368.

The Articles which require such Ratification by the States are Article 54, 55, 73 162, 241, 279A, 124 to 147, 214 to 231, 241, 245 to 255, 279A, any of list of the VII Schedule, and Representation of States in Parliament IV Schedule.

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 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 a Bill is passed by both Houses it shall be presented to the President for his assent who shall give his assent to Bill and there upon the Constitution shall stand amended.

Most of the provision 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.

Limitation of Amendment of the Constitution:  

Under Article 368 the Amendment of the Constitution  should not alter the basic structure or framework of the Constitution. The Basic Structure has been, thus held, to be a limitation on the amending power of the Parliament. Basic structure are the systematic principles underlying and connecting provisions of the Constitution. 

Case laws:                                                           

Minerva Mills v. Union of India, 1980 AIR 1789, 1981 SCR (1) 206:

The Supreme Court  by 4 to 1 majority struck down Section 55 of the Constitution (42^nd Amendment) Act which had inserted clauses (4) and (5) of Article 368on the ground that these clauses were destructive of essential features or the basic structure of the Constitution. The Court, however, held that the doctrine of basic structure is to be applied only in judging the validity of amendments of the Constitution and it does not apply for judging the validity of ordinary laws made by legislature.

Indira Gandhi v. Raj Narain AIR 1975 SUPREME COURT 2299, 1976 2 SCR 347 ,the Supreme Court emphasized that the rule of law is the foundation of democracy and judicial review is a fundamental part of the Constitution of India that cannot be removed.

Kesavananda Bharti v. State of Kerala AIR 1973 SUPREME COURT 1461, 1973 4 SCC 225:

The Supreme Court formed a bench of 13^th judges to make a decision in this matter, this case established that certain principles, including the basic structure of the Constitution or framework of the structure should remain intact. However the Parliament have amending power, it was not permissible to alter the basic institutional pattern. And the right to a fair hearing, cannot be altered or removed by Constitutional Amendments, as they are essential to the democratic and legal framework of India. This case also challenged the validity of 24^th and 25^th Constitutional Amendments along with the 29^th Constitutional Amendment and contended that such Amendments were directly in violation of their Fundamental Rights. The

Court upheld the validity of the 24^th Amendment entirely, while it found the first part of the 25^th Amendment to be valid but declared the second part ultra vires.

Important Amendments in the Indian Constitution: 

1. 1^st Amendment Act of 1951: Added provisions for the advancement of any socially and educationally backward class or for the Schedule Caste and Schedule Tribe. Added Schedule 9 to protect against law that are contrary to the Constitutional Fundamental Rights.
2. 42^nd Amendment Act 1976: Added Fundamental Duties in the Constitution and added three term in the Preamble that is socialist, secular, and integrity.
3. 44^th Amendment Act 1978: Article 19(1)(f) right to property was omitted . Provides for human rights safeguard and mechanisms to prevent abuse of legislative and executive authority.
4. 61^st Amendment Act 1988: It lower the voting age from 21years to 18 years.
5. 73^rd Amendment Act 1992: Statutory provisions for Panchyat Raj as third level of Administration in village.
6. 74^th Amendment Act 1992: Statutory provisions for local Administrative as third level of administration in urban areas such as town and cities.
7. 86^th Amendment Act 2002: Provides right to education until the age of 14years.
8. 97^th Amendment Act 2012: The Amendment gave Constitutional status to the cooperative societies.
9. 102^nd Amendment Act 2018: Constitutional status to National Commission for Backward Classes.
10. 103^rd Amendment Act 2019: It provides 10% reservation for Economically Weaker Section.

Conclusion:

Constitutional Amendments makes adapt according to the changing scenario of the society. These Amendments reflects India evolving socio-political and economic landscape balancing flexibility with the need to maintain the fundamental structure of the Constitution.

Reference List: 

1. Constitutional law of India by Dr. J.N. Pandey, CENTRAL LAW AGENCY
2. Minerva Mill v. Union of India 1980 https://indiankanoon.org>doc
3. Indira Gandhi v. Shri Raj Narain,1975 https://indiankanoon.org.>doc
4. Kesavananda Bharati Sripadagalvaru vs. State Of Kerala And Anr on 24 April,1973 https://indiankanoon.org>doc
5. https://en.m.wikipedia.org/wiki/List of amendments of the Constitution of India

This article has been written by Jirmi Kropi, currently pursuing B.A.LL.B (hons) 9th semester from Jnanadabhiram Barooah Law College Guwahati.