Q. Write an explanatory note on Constitutional amending powers of parliament, by describing its procedure, with the help of decided case laws.

Answer

 

Introduction

The constitution of India is one of the most fascinating, and longest written constitution of the world. But it doesn’t mean that it is a perfect document, and requires no change with the passage of time.

Our constitution makers, while framing this document, encountered with a difficulty. Whether our constitution should be rigid as US constitution or it should be as flexible as British constitution. After having so much debate on this issue, they have decided to keep it as rigid as well as flexible, means it is the mixture of the both.

So far, 104 amendments are already done in our Constitution.

 

Procedure for Amendment

Article 368 of Indian Constitution deals with amending process and powers of the parliament. The amending process can briefly be summed up as:

A.      A bill for the Amendment can be introduced in any house of the Parliament.

B.      That bill can be introduced as a Government Bill or a Private Member Bill.

C.      Prior recommendation of the President not needed, accept in the case of money bill.

D.      Bill must be passed from both the houses by simple/Special majority, or special plus ratification by the at least half of the state, process.

Tip:

I.                     Simple majority: This refers to the majority of more than 50% of the members present and voting.

II.                   Special majority: special majority refers to a majority of the total membership of each House, and a majority of not less than two-thirds of the members present and voting in each House.

III.                 Special majority plus ratification of half of the states, this method is only used when the amendments are being made under article 368, which impacts the federal nature of the Indian polity.

 

Restrictions on the parliament’s amendment Power

The framers of the Constitution were so intellect that they know that if they choose flexible Amendment procedure, the ruling party can use that procedure as their weapons, so they adopted a middle course. They made the procedure neither too rigid nor too flexible. if the parliament wants to make any changes or amend the Constitution, they have to propose the bill in the parliament and after the voting if the bill gets the majority, the bill will be sent to the president for his consent. After the consent of the president, if the bill got passed from both the houses, then the Amendment completes. but this power is not absolute. It is clear that the majority will be of the ruling party and somewhere the ruling party have the dominance over the president. While keeping this thing in mind, the framers gave some powers to the judiciary as well, in the form of Judicial review.

In Shankari Prasad v. Union of India: for the very first-time question was raised on the Amendment of fundamental rights i.e. whether the FR can be amended under Article 368 or not. In this case the validity of the First Amendment through which Article 31A and 31B were added in the Constitution, challenged.

The five judges bench stated that Article 368 provides general and strict power to the parliament to amend the Constitution by following proper procedure. The word ‘Law’ mentioned in article 13 does not include constitutional amendments.

In Sajjan Singh v. the State of Rajasthan, the 17^th amendment was challenged, and courts have to deal again with the similar question i.e. whether parliament has unlimited powers to amend constitution?

The court answered in affirmatively and upheld the reasoning of Shankari Prasad case.

In I.C. Golaknath v. the State of Punjab: In this case, the validity of first, Seventeenth, and fourth Amendment were challenged. This time from the eleven judges bench, the majority of six judges decided that the parliament has no power to amend part 3 of the Constitution. On the other hand, the court considered that the judiciary has a duty to correct the errors in the law, therefore adopted the doctrine of prospective overruling through which the 3 Amendments discussed were continued to be valid but in future, the parliament has no power to amend the part III of the Constitution.

In this case, the judges significantly also held that article 368 only deals with the procedure to amend the constitution, but not the powers to amend it.

After the judgment of Supreme Court in this case, a series of Amendments were passed in 1971, and made a significant change in Article 13 and 368.

In context of question asked, only 24^th Constitutional amendment is relevant here.

I.                     A new clause added in Article 13 which says; nothing in this Article apply to Amendment in the Constitution under Article 368.

II.                   New clauses were also added in Article 368:

A.      A new heading was introduced as; Parliament’s power to amend the Constitution and procedure therefore.

B.      Parliament may change, add, repeal any provision of this Constitution in accordance with the procedure provided.

 

Kesavanand Bharati v. State of Kerala

This case was considered as the historical landmark case, where for the first-time Supreme Court recognized the basic structure concept. In this case, the validity of the 24^th, 25th and 29^th Constitutional amendments were challenged. The court by majority overruled the judgement of Golaknath case.

It was held that even before the 24th Amendment the parliament has the limited power to amend the Constitution by following the proper procedure. The Supreme Court also declared that Article 368 of the Constitution does not allow the parliament to change, damage the basic structure of the Constitution.

The court has not given any specific names that what basic features are, but held that it will be decided on the case to case basis. Some of the features are listed below:

I.                     Independence of judiciary,

II.                   Separation of powers,

III.                 Sovereign, secular, democratic nature of the constitution,

IV.                Republic,

V.                  Fundamental rights,

 

In Indira Nehru Gandhi v. Raj Narayan:

This was the first case, where this doctrine used after its evolution in Keshvanand Bharti case. The SC deleted a clause of constitutional amendment which immunized the judicial review of election of the certain elite posts.

In Minerva Mills v. Union of India

In this case, the validity of the 42nd Amendment was challenged, as it destroyed the basic structure of the Constitution and regarding clause 4 and 5 of Article 368. The Supreme Court by majority struck down the Clauses added by the 42nd Amendment and stated that the limited power of the parliament is in the basic structure itself.

 

Conclusion

After dealing with the all cases, we can conclude it as:

I.                     Parliament has power to amend the constitution,

II.                   While amending the Constitution, the parliament has to follow theory of implied restrictions, or in other words, by the way of amendments, parliament is not authorized to alter the basic structure of Constitution.

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Also Read:

1. Write a note on 'Doctrine of basic structure'.
2. Define judicial activism and its implications in India.
3. Explain “Citizenship by Domicile”.
4. State the provisions related to citizenship of India provided in the Indian Constitution.
5. Explain the objectives enshrined in the Preamble. Can the Preamble be amended?
6. Describe special features of the Indian Constitution.

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