Constitutional Amendments
A Constitution is a dynamic document.
It should grow with a growing nation and should suit the changing needs and
circumstances of a growing and changing people. Sometimes under the impact of
new powerful social and economic forces, the pattern of government will require
major changes. If the Constitution stands as a stumbling block to such
desirable changes, it may under extreme pressure, be destroyed.
Jawaharlal
Nehru has rightly said “………The Constitution cannot and should not be changed
frequently. Obviously also, it can and must be changed when the situation
requires it to be changed.”
Mulford has rightly said, “An
unamendable constitution is the worst tyranny of time or rather the very
tyranny of time”
A Constitution to be living must be
growing; must be adaptable; must be flexible, must be changeable. Indeed, any
amendment of the constitution should be justified by compelling reasons and
circumstances.
Amendment Process In The Indian Constitution:
Federal Constitutions as a rule are
rigid as most of them have extremely difficult and even complicated procedures
of amendment. Amending a federal constitution like that of the U.S.A. and
Australia is perhaps the most difficult. In Contrast, the Constitution of India
presents a much simpler process.
The procedure for amendment is
detailed under Article 368 of the Constitution. Article 368 (1), inserted by
the Constitution (Twenty- fourth Amendment) Act, 1971, empowers the Parliament
to amend by way of addition, variation or repeal, any provision of the
Constitution, in accordance with the procedure, laid down in this Article.
Article 368 (2) prescribes the
following procedure for amendment of the Constitution, according to this, there
are three ways of amending the Constitution:
1.
Amendment by Simple
Majority:
There are a good number of Articles
in the Constitution which are of transitory nature. Though they can be changed
by Parliament by passing a law by simple majority, technically speaking changes
made therein, are not to be considered as amendment of the constitution. By
simple majority is meant, simple majority of the members present and voting.
For example, changes in the names and
boundaries of the states, creation or abolition of the Legislative Councils in
the States, salaries and allowances of the President, Governors and Judges of
the Supreme Court and High Courts, etc., can be amended by passing a law by
simple majority.
2.
Amendment by Special
Majority:
An amendment of the Constitution may
be initiated only by the introduction of a Bill for the purpose in either House
of Parliament. When the Bill is passed in each House by a majority of the total
membership of that House and by a majority of the total membership of that
House and by a majority of not less than two-thirds of the members of that
House present and voting, it shall be presented to the President for his
assent. When the President gives his assent, the Constitution stands amended in
accordance with the terms of the Bill.
3.
Ratification By The
State Legislatures:
For the amendment of certain other
provisions of Constitution, a Bill has to be passed by each House of Parliament
by a majority of total membership of that House and by a majority of not less
than two-thirds of the members present and voting, then the amendment must be
ratified by the Legislatures of not less than one-half of the States by
resolutions to that effect is required before the amendment Bill is presented
to the President for assent.
The Following provisions fall under
this category:
·
Election
of President (Art. 57)
·
Extent
of Executive power of the Union (Art. 73)
·
Extent
of Executive power of States (Art. 162)
·
Union
Judiciary (Chapter IV of Part V)
·
High
Courts in the States (Chapter V of Part VI)
·
Any
of the Lists in the Seventh Schedule
·
The
Representation of States in Parliament; and
·
Provisions
dealing with amendment of the Constitution.
Substantive Amendments and Relevant Case Laws
v
The
Constitution (Fourth amendment) Act, 1955:
The
Constitution (Fourth amendment) Act, 1955, effected momentous changes in the
Constitution with effect from April 27, 1955.
Objectives: Restrictions on property rights and
inclusion of related bills in Schedule 9[1]
of the Constitution.
It amended
Article 31 and substituted Articles 31-A[2]
and 305 with a view to overcoming the decisions and observations of the Supreme
Court in cases like the State of West
Bengal v. Bella Banerjee.
In the above cases, the Supreme Court enunciated the
doctrine
1. That an owner must be paid full market value, as a compensation, in every
case of compulsory deprivation of property, and
2.
That the Court of Law is competent to
determine whether or not the quantum of compensation was adequate.
In that case,
it would have been impossible for the Government to carry out great schemes of socio-economic
reforms, which the state had planned to undertake. This necessitated the
amendment of the relevant provisions of the Constitution.
The Constitution Fourth amendment)
Act, 1955 provided that-
§ Article 13(2), which poses an
adequacy of the compensation, was made no longer justiciable in any court of
law.
§ Moreover, the obligation to pay
compensation, under article 31(2), was restricted only to two classes of cases,
namely, “acquisition and requisition” of
property.
§
Finally,
Article 31-A was broadened in its scope, in order to enable the Government to
attain the socialistic pattern of society, which has been declared to be the
goal of our constitution.
In short,
1.
Made the scale of
compensation given in lieu of compulsory acquisition of private property beyond
the scrutiny of courts.
2.
Authorized the state to
nationalize any trade.
3.
Included some more acts in
the Ninth Schedule.
4.
Extended the scope of
Article 31-A.
v
The
Constitution (Sixteenth Amendment)Act, 1963:
The
Constitution (Sixteenth Amendment) Act, 1963, effected changes in the
Constitution with effect from October 5, 1963.
v Objectives: Make it obligatory for seekers of public office to swear their
allegiance to the Indian Republic and prescribe the various obligatory
templates.
It amends
Articles 19, 84 and 173. Amends schedule 3.
§ The Act seeks to enable Parliament to
make laws providing penalty for any person questioning the sovereignty and
integrity of India.
§
Under
the provisions of this amendment, a person shall not be qualified to be chosen
to fill a seat in Parliament or in the Legislature of a State unless, inter-alia, he makes or subscribes
before a person authorized by the Election Commission an oath or affirmation
that he will bear true faith and allegiance to the Constitution and will uphold
the sovereignty and integrity of India.
In short,
1.
Empowered the state to
improve further restriction on the rights to freedom of speech and expression,
to assemble peaceably and to form associations in the interests of sovereignty
and integrity of India.
2.
Included sovereignty and
integrity in the forms of oaths or affirmations to be subscribed by contestants
to the legislatures, members of the legislatures, ministerts, judge and CAG of
India.
v The Constitution
(Twenty Fifth Amendment)Act, 1971:
The
Constitution (Twenty-Fifth Amendment) Act, 1971, effected changes in the
Constitution with effect from April 20, 1972.
v Objectives: Restrict property rights and compensation in case the state
takes over private property.
It amends
Article 31 and inserts 31-C
It amended
article 31(2) and provided that anybody’s property may be acquired on payment
of “amount” instead of “compensation”. The intention was that
the citizen’s right to property should be transformed into the State’s right to
confiscation and the state should be able to deprive anyone of any property, in
return for any amount, payable at any time, on any terms, and the executive
action, however arbitrary, or, irrational, should not be subjected to the
Court’s scrutiny.”
The Constitution
(Twenty-Fifth Amendment) Act, 1971 bars the jurisdiction of courts over
acquisition laws in regard to the adequacy of the amount paid in lieu of take
over. The word “compensation” in the case of takeover is deleted and the word
“amount” is substituted.
Finally, it inserted Article 31-C, which provides
that “no law giving effect to the policy of the State towards securing the
principles, specified in clause (b), or, clause (c) of Article 39, shall be
deemed to be void on the ground that it is inconsistent with, or, takes away,
or abridges any of the rights, conferred by Article 14, Article 19, or, Article
31; and no law containing a declaration that it is for giving effect to such
policy shall be called in question, in any court, on the ground that it does
not give effect to such policy.
Upto 1971, the position
was that fundamental rights prevailed over the directive principles of State
Policy and that a law enacted to implement a directive principle could not be
valid if it conflicted with a fundamental right. Article 31-c sought to change
this relationship to some extent by conferring primacy on Articles 39(b) and
39(c) over articles 14, 19, and 31.
In Short,
1.
Curtailed the fundamental
right to property.
2. Provide that any law made to give effect to the Directive
Principles contained in Article 39 (b) or (c) cannot be challenged on the
ground of violation of the right guaranteed by Articles 14, 19, and 31.
v
The
Constitution (Forty-second Amendment)Act, 1976:
The most
comprehensive amendment made so far to the Constitution; it is known as ‘Mini- Constitution’;
it gave effect to the recommendations of Swaran Singh Committee.
The
Constitution (Forty-Second Amendment) Act, 1976, effected changes in the
Constitution with effect from December 18, 1976.
Briefly the
Amendment brings about changes in the following provisions of the Constitution:
Preamble; Fundamental Rights (Article 31 and Article 32); Directive Principles
of State Policy (Articles 32,43 and 48); a new part IV-A entitled “Fundamental
Duties”, Union Executive (Articles 55,74 and 77); Parliament (Articles
81,82,83,100,102,103,105, and 118); Union Judiciary (Articles 131,139,144 and
145); CAG of India(Article 150); State Executive (166); State Legislature
(Articles 170, 172,189,191,192,194 and 208); High Courts (Articles 217,226,227,
and 228); relations between the Union and the States (Article 257); Civil
Services (Articles 311 and 312); a new part entitled “Tribunals” (Article 323);
Emergency Provisions (Article 352,353, 356,357,358 and 366); Amendment of the
Constitution (Article 368); Seventh
Schedule (Union List, State List and the Concurrent List).
The Act
inter-alia gave preponderance to the DPSP over the Fundamental Rights,
established the supremacy of parliament and curtailed the powers of Judiciary.
The Act was first of its kind. The Amendment was meant to enhance enormously
the strength of the Government.
§ Preamble:
The
characterization of India as ‘Sovereign Democratic Republic’ has been changed
to ‘Sovereign Socialist Secular Democratic Republic’. The words ‘Unity of the
nation’ have been changed to ‘‘Unity and Integrity of the nation’.
§ Parliament and State Legislatures:
The life of
the Lok Sabha and State Legislative assemblies was extended from 5 to 6 years.
§ Executive:
It amended
Article 74 to state explicitly that the President shall act in accordance with
the advice of the Council of Ministers in discharge of his functions.
§ Judiciary:
·
The
42nd Amendment Act inserted Article 32A in order to deny the Supreme
Court the power to consider the Constitutional validity of a State law.
·
Another
new provision, Article 131A, gave the Supreme Court and exclusive jurisdiction
to determine question relating to the constitutional validity of a Central Law.
·
Article
144A and Article 128A, the creatures of Constitutional Amendment Act made
further innovation in the area of judicial review of the constitutionality of
legislation. Under Article 144A the minimum number of judges of the Supreme
Court to decide a question of a Constitutional validity of a Central or State
law was fixed as at least seven and further, this required two-thirds majority
of the judges sitting to declare a law as unconstitutional. While the power of
the High Court to enforce fundamental rights remained untouched, several
restrictions were imposed on its power to issue writs ‘for any other purpose.’
§ Federalism:
The Act added
Article 257A in the Constitution to enable the Centre to deploy any armed force
of the Union, or any other force under its control, for dealing with grave
situation of law and order in any state.
§ Fundamental Rights and Directive Principles:
A major change
that was made by 42nd Constitutional Amendment was to give primacy
to all directive principles over the fundamental rights contained in articles
14, 19 or 31. The 42nd Constitutional Amendment added a few more
directive principles free legal aid, participation of workers in management of
industries, protection of environment and protection of forests and wildlife of
the country.
§ Fundamental Duties:
The 42nd
Amendment Act inserted Article 51-A to create a new part called IV-A in the
Constitution which prescribed the Fundamental Duties to the citizens.
§ Emergency:
Prior to 42nd
Amendment Act, the President could declare emergency under Article 352
throughout the country and not in a part of the country alone. The Act
authorized the President to proclaim emergency in any part of the country.
The domain thrust of the Amendment
was to reduce the role of courts, particularly that of the High Courts. It also
sought to strengthen Parliament in various ways which in effect, added to the
power of the Central Government. It drew enormous criticism particularly for it
was pushed through during Emergency.
v
The
Constitution (Forty-Fourth Amendment)Act, 1979:
The Constitution
(Forty-Fourth Amendment) Act, 1979, effected changes in the Constitution with
effect from 30th April, 1979. It was enacted by
the Janata Government mainly to nullify some of the other distortions
introduced by the 42nd Amendment Act, 1976.
§ It reduced the life of the Lok Sabha
and State Legislative assemblies again to five years and thus restored the status quo ante.
§ It cancelled the 39th
amendment which had deprived the Supreme Court of its jurisdiction to decide
disputes concerning election of the President and the Vice-President.
§ A new provision was added to Article
74(1) saying that the President could require the Council of Ministers to
reconsider its advice to him, either generally or otherwise and the President
should act in accordance with the advice tendered after such reconsideration.
§ Article 257A[3]
was omitted.
§ It has been provided that an
Emergency can be proclaimed only on the basis of a written advice tendered to
the President by the Cabinet.
§ Right to Property has been taken out
from the list of Fundamental Rights and has been declared a legal right.
§ Gave constitutional protection to
publication in news paper of true reports of the proceedings of the Parliament
and the state legislatures.
§ Replaced the term ‘internal
disturbance’ by ‘armed rebellion’ in respect of national emergency.
v The Constitution
(Fifty-Second Amendment)Act, 1985:
The Constitution (Fifty-Second Amendment) Act, 1985 was
passed to curb defection of a Member of Parliament, or, State Legislature by
disqualification. It is popularly known as ‘Anti-Defection Law’.
It provided for disqualification of members of Parliament
and State legislature on the ground of defection and added a new Tenth Schedule
containing the details in this regard.
v The Constitution (Sixty-Second
Amendment)Act, 1990:
The Constitution (Sixty-Second Amendment) Act, 1990
extended the reservation of seats for the SC’s and ST’s and special
representation for the Anglo-Indians in the Lok Sabha and the State Legislative
Assemblies for the further period of ten years (i.e. up to 2000)
v The Constitution (Seventy-Third
Amendment)Act, 1992:
The Seventy-Third Constitutional Amendment Act, 1992 was
passed by the Parliament on December 22, 1992 which was notified by the Central
Government through Official Gazette on April 20, 1993 as it got ratification by
the State legislatures and was assented to by the President of India. After
notification the Panchayats Raj Institutions have now got constitutional
legitimacy.
After part VIII of the Constitution a separate part IX- ‘the panchayats’ has been
added to the Constitution with the addition in Article 243A and a fresh schedule called Eleventh schedule enumerating the powers and the functions of
panchayats Raj Institutions has been incorporated (29 functional items).
The Act provides for
Gram Sabha, a three-tier model of Panchayat Raj, Reservation of seats for SC’
and ST’s in proportion to their population and one-third reservation of seats
for women.
This is a landmark
Amendment of the Constitution, which provides for an elaborate system of
establishing Panchayats, as units of Self-government, for the first time in the
constitutional history of Independent India.
v The Constitution (Seventy-Fourth Amendment)Act, 1993:
The Constitution
(Seventy-Fourth Amendment) Act, 1993 provides constitutional status to urban
local bodies. After part VIII of the Constitution a separate part IXA- ‘the municipalities’ has been
added to the Constitution with the addition in Article 243A and a fresh Schedule called Twelfth schedule enumerating the powers and functions of urban
local bodies has been incorporated (18
functional items).
The Act provides Municipal Panchayat, Municipal Council,
Municipal Corporation, reservation of seats for SC’s and ST’s in proportion to
their population and one-third reservation of seats for women.
v The Constitution (Eighty-Sixth
Amendment)Act, 2002:
The
Constitution (Eighty-Sixth Amendment) Act, 2002 came into effect on 12th
December, 2002. It amends Articles 45, 51A and inserts Article 21A.
§ It made elementary education a
fundamental right. The newly- added Article 21-A declares that
“the State shall provide free and compulsory education to all children of the
age of six to fourteen years in such manner as the State may determine.”
§ Changed
the subject matter of Article 45 in Directive Principles. It now reads-“The
State endeavour to provide early childhood care and education for all children
until they complete the age of six years.”
§ Added
a new fundamental duty under Article 51-A which reads- “It shall be the duty of
every citizen of India who is a parent or guardian to provide opportunities for
education to his child or ward between the age six and fourteen years.”
v The Constitution (Ninety-Second
Amendment)Act, 2003:
The Constitution (Ninety-Second Amendment) Act, 2003 came
into effect on 7th January, 2004.
It amends Article 270, inserts Article 268A. It also
amends Schedule 7 and 8.
The Act makes provision for amendment of the Eighth
Schedule of the Constitution and includes Bodo, Dogri, Maithili and Santhali in
the Eighth Schedule. Now there are 22 languages in the Eighth schedule.
Reference:
1.
Pylee, M. V., Constitutional Government in India, S. Chand, New Delhi, 2011.
2.
Kashyap, Subhash, Our Constitution, National Book Trust, New Delhi, 2009.
3.
Fadia, B. L., Indian Government and Politics, sahitya Bhavan, Agra, 2010
4.
Laxmikanth, M., Indian Polity, TATA McGRAW HILL’S, New Delhi, 2009
5.
Bakshi, P.M., The Constitution of India, Universal Law Publication Co. New Delhi,
2007
6.
Wadhwani, M.R., Indian Political System, Sheth
Publications, Mumbai, 2006
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