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Amendments Under Indian Constitution With Landmark Cases

Meaning Of Amendment:
Amendment, is, an addition or alteration made to a constitution, statute, or legislative bill or resolution. Amendments can be made to existing constitutions and statutes and are also commonly made to bills in the course of their passage through a legislature.

Provision Under Indian Constitution

Article 368 contains the provisions for the Amendment of the Indian Constitution.

Article 368 in The Constitution of India 1949
368. Power of Parliament to amend the Constitution and procedure therefore:
  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 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:
    1. Article 54, Article 55, Article 73, Article 162 or Article 241, or
    2. Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
    3. any of the Lists in the Seventh Schedule, or
    4. the representation of States in Parliament, or
    5. the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution 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 Part XXI Temporary, Transitional And Special Provisions.

Three Ways Of Amendment:

  1. Amendment By Simple Majority

  2. Amendment By Special Majority

  3. Amendment By Special Majority And Ratification By States

Article 368 contains the provisions for the Amendment of the Indian Constitution. The Constitution provides three ways for amendment.

Amendment by Simple Majority:
Articles that can be amended by Parliament by simple majority and that required for passing of any ordinary law. templated in article 5, 169 and 239-A can be made by simple majority. these articles are specifically excluded from the purview of the procedure described in article 368.

Amendment by Special Majority:
Articles which require amendment by special majority come under the ambit of Article 368. The Articles which require amendment by special majority shall be brought into effect by a majority of the total members of each House of the Parliament and by majority of not less than 2/3 of the members of that House who are present and voting.

Amendment by Special Majority and Ratification by States:
Articles which require, in addition to the special majority mentioned above, ratification by not less than 1/2 of the state legislatures. The states are given an important voice in the amendment of these matters. These are the fundamental matters where States have important power under the constitution and any unilateral amendment by Parliament may vitally affect the fundamental basis of the system built up by the constitution.

Some Articles require Amendment by Special Majority as well as ratification by not less than ½ of the State Legislatures. The States have an important role in the amendments of these matters.

The following provisions require ratification by the States:
  • Election of President – Articles 54, Article 55
  • Extent of Executive powers of the Union and States – Article 73, Article 162
  • Articles dealing with Judiciary, Supreme Court, High Court in the States and Union Territories – Articles 124 to 147, Article 214 to 231, Article 241
  • Distribution of Legislative powers between the Centre and the State – Article 245 to Article 255
  • Any of the Lists of Seventh Schedule
  • Representation of States in Parliament Forth Schedule
  • Article 368 (Amendment)
     

Procedure For Amendment

A Bill in order to amend the Constitution may be introduced by any House of the Parliament and must be passed by each House by a majority of the total membership of that House and by a majority of not less than 2/3 of the members of that House who are present and are voting. After being passed by both the Houses, it shall be presented to the President and he shall give his assent to the Bill. In this process the Constitution is amended.

Amendment Of Fundamental Rights And The Theory Of Basic Structure

(A limitation on Amending Power)

Explained With The Help Of Landmark Cases

The topic of amendment of Fundamental Rights arose in the case of

Shankari Prasad V Union of India AIR 1951.
In this case the validity of constitution (1st amendment),1951 , especially the inclusion of article 31 A and 31 B was challenged under a petition under article 32. It was alleged, inter alia, that as Article 13(2) Prohibited making of laws abridging fundamental rights, it prohibited such abridgement even by an amendment because an amendment was also a law.

Rejecting the argument the court held that the power to amend the constitution including the fundamental rights was contained in Article 368 and that the word law in article 13(2) did not include an amendment of the constitution which was made in the exercise of constituent and not legislative power. Therefore, a Constitutional Amendment will be valid even if it abridges or takes away any of the fundamental rights.

Sajjan Singh V State of Rajasthan AIR 1965
In this case the validity of the constitution (17th Amendment) Act 1964 was challenged. The supreme court approved the majority judgement given in Shankari Prasad case and held that the words amendment of the Constitution means amendment of all the provisions of the constitution. Gajendragadkar, C.J. said that if the constitution makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in that behalf.

In the subsequent case that is the Court approved its previous decision and held that Fundamental Rights can also be amended.

Golak Nath V State of Punjab AIR 1967
In the Golaknath case the court decided that the constitution did not provide for a specific power to take away or abridge the fundamental rights enshrined in Part III of the Constitution even by an amendment under Article 368 and suggested that a constituent assembly could be summoned for this purpose by parliament in the exercise of its residuary power contained in entry 97 or of list 1 of the seventh schedule read with article 248 this decision led to the passing of the Constitution 24th Amendment Act 1971 which made significant changes in Article 368.

The Supreme Court held that Part III of the Constitution cannot be amended and Parliament cannot abridge the fundamental rights of the citizens.

24th Amendment Act, 1971

In order to remove the difficulties created by the decision of Supreme Court in Golaknath case Parliament enacted the constitution 24th Amendment Act the amendment made the following amendments:

A new clause (4) was added to Article 13 which stated that ‘nothing in this Article shall apply to any amendment of this Constitution made under Article 368’.
The marginal heading of Article 368 was changed to ‘Power of Parliament to amend the Constitution and Procedure, therefore’ from ‘Procedure for amendment of the Constitution’.

Article 368 was provided with a new sub-clause (1) which read ‘notwithstanding anything in this Constitution, Parliament may, in the 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’.

President was put under an obligation to give assent to any Bill amending the Constitution by changing words from ‘it shall be presented to the President who shall give his assent to the Bill and thereupon’ to ‘it shall be presented to the President for his assent and upon such assent being given to the Bill’.

A reassuring clause (3) was also added to Article 368, which again clarified that ‘nothing in Article 13 shall apply to any amendment made under this Article’.

Thus the constitution 24th Amendment Act 1971 not only resorted the amending power of the Parliament but also extended its scope by adding the words “to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in this Article”

Conclusion
With the development of the State in every sphere, amendment has become necessary. The Constitution should be able to serve the needs of the society. The framers of the Constitution were anxious to have a document which could grow with a growing nation, adapt itself to the changing need and circumstances of growing people.

Award Winning Article Is Written By: Ms.Aditi Bhardwaj
Awarded certificate of Excellence
Authentication No: JL34681360113-05-0721

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