(IGP) IAS Pre: GS -Paper-1 - Polity - Indian Polity & Governance : Parliament System Amendment Procedure

Amendment : is any type of change in the constitution, includes any type, addition, modification, substitution, repealing of any article of constitution.

Purpose of Amendment:

• Constitution is a mean & Man is an end.
• Constitution must be in a position to meet the changing aspiration of the people. Constitution must revolve under changing circumstances.

The Theory of Amendment can be linked with the thoughts of Thomas Paine “Future Generation can’t be limited by the contract entered into by previous generation.”

According to Nehru: “If you stop the Amendments, you are stopping the Growth of Nation.”

For Ambedkar also:

Constitution must have enough flexibility. According to Mulford Sebley: “Unamendable Constitution is the worst tyranny of its type.”

If constitution are not amended they have to be changed.

(Amendment are peaceful ways of bringing revolution.)

Indian Context

The nature of Amendments in Constitution of India

India has incorporate the features of 2 political systems i.e. Parliamentary Soverignity of the British type & Constitutional Supremacy of US. Indian as a flexible systems. The federal principle bring rigid procedure. Thus, the Indian constitution is a fine balance of the rigid - flexible type.

In Indian context, we see 3 set of procedure:

• Certain sections can be amended by a Simple Majority (Article 3).
• Certain cases regarding a Special majority (Article 13).
• Special Majority of II type i.e. Ratification of 1/ 2 of State Legislatures. (Article 54).

Different procedure were adopted according to different needs.

Politics of Amendment

The issue of Amendment procedure &scope of the amending power of Parliament has been a matter of debate in the Indian context.

The controversies of Procedure & Power of Amendment are:

• From angle of Centre-State relations, it is said that the procedure of amendment initiate amendment. The large part of constitution can be amended even without ratification by States.
• The territorial integrity of States is not insecure.
• The Union Parliament can change the territories of Status by a simple majority.
• The original Constitution only talks of the procedure of Amendment, not power
• The constitution creates the scope of Judicial review. Article 13 gives Judicial the power to review the legacy enactments in context of FR.
• Article 131, (Original Jurisdiction of SC) also gives power to interpret scope of legacy authority of Union Parliament & State legacy.

The above provision show that in Indian context the principles of Parliament Sov. does not exist. However, DPSP at times create the conditions. that may result into line. of fund rights. Constitution also mentions the implement. of Directives is the duty of state.

Indian constitution also does not mention clear cut judiciary but only talks about the procedure establish by law. Courts can enquire legacy acts basis on of procedure. The concept of due process of laws was not found in Indian Constitution. Article 21 of Constitution of India systems that “No person shall be deprived of his life or personal lib. except according to procedure establish by law”.

The above prov. created the complicated sit. This has resulted into confl. bet two branches of govt. The two major cases in initial period, that bought issues regarding. A power of Parliament & nature of Judiciary review were:

(1) Shankari Prasad Case
(2) A.K. Gopalan vs State of Madras (1951)

In Shankari Prasad case, SC, held that the turn, “law” used in 13(2) does not include the Amendments. Hence by amending the constitution  the Parliament can bring the necessary changes to bring effect to DPs.

In A.K.Gopalan case, it was held that the procedure establish by law is the principle Judiciary cannot question the policy aspect D.P. of Law is not the feature of Indian Constitution.

Judiciary has changed its opinion in 1967 in the Golak Nath Case.

• Parliament does not have unlimited power of Gover.
• The term “Law” under 13(2) covers “Amendments”.
• The Amending Power of Parliament does not come from Article 368.

• Article 368 only tells about the procedure of Amendment so the amending power emg. from the same set of provision meant for ord. set of legacy eg. Article 245, 246, 248.

Response of Govt.

Govt. responded by passing 24th & 25th A acts.

Keshavanand Bharti Case (Details).

Thus judiciary has establish that the amending power of Parliament is sully to lin. of the Basic STR of Consitituion of India.

Verdict of KB Case was reaff. in the Minerva Mills Case.

Wrt of issue of the proc. establish by law & due process of law, the Judiciary has changed its opinion in Menka Gandhi vs. Union of India case, 1978.

According to this judgment, the concept of DPL is implicit in PEL & law has to confirm both the principles. From this case, the concept of Natural Justice came to be establish in Indian Context.

The DPL also limits the powers of parliament. The DPL principle was further reaffirmed in Sunial Batra vs Delhi Administration (1978).
Assessment of Amendments

In Indian context, the amendment process has helped in bringing socio-Eco-Pol. revolution. The amendment process shows Indian Constitution is a living document.

The Amendment process has evolved in 3 major areas:

(1) Political Evolution:

• 7th Aa that bought necessary changes emerging due to state reorganisation.
• 52nd AA 1985, introduced Anti Defection Law by adding 10th Scheduled attempt to stop Political corruption & decline of Parliament.
• 73, 74h—introduced the 3rd tier in India Polity Systems & gave constitution status to Panchayati Raj.
• 91st Aa 2003 limit no. of minimum in council of minimum in order to check political corruption negative tendency religion to coalition form of govt.

(2) Social

• 1st Aa, 1951 allowed state to give res. for SC/ STs
• 44th AA, 1978, abolished RT prop.
• 86th AA, RT education as a FR
• 93 Aa, 2002 spl. prov. for social & education backward in education institution.

(3) Economic

• 1st helped in bringing
• 4thland reforms and
• 17th other economic reforms.
• 44th

Conclusion

Amendments are necessary to overcome challenges that keep emerging in any polity systems. If amendment is not allowed, people will take extra constitution means, The Amendment procedure must be a fine bal bet flexibility and rigidity. If too rigid, there’s a danger of revolution, but if too easy, it becomes a plaything in hands of Ruling Party & questions the sanctity of constitution..

Indian Constitution representative this find balance. Amendments have acted as a safety value, however there are limit in the way they are made in Constitution of India.

Amending Device should not be invoked for each & every purpose. Frequent amendments dilute the sanctity of constitution. It should not be used as a political device. It should be done only when it becomes absolutely necessary.

Amendment process stops the growth of healthy conventions.

According to some scholars, we do not require and for Women Reservation. If Parties are really common tow it, they can further this goal even without bringing amendments.

Process of Amendments in Indian context also comes underwrite because there is no construction provision that allows state to lineate amendments. The procedure does not specify the time limit for states to rectify. There is no provision of Joint sitting in case of Amendment. There is a lot of scope for individual judiciary in Political sphere.

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