Amendment of the Constitution of India
Amending the Constitution of India is the process of making changes to the nation's fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.
However, there is another limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power.
This has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala.
Constituent Assembly debates
The framers of the Constitution were neither in favor of the traditional theory of federalism, which entrusts the task of constitutional amendment to a body other than the Legislature, nor did they favor a rigid special procedure for such amendments. They also never wanted to have a British-style system where Parliament is supreme. The framers, instead, adopted a combination of the "theory of fundamental law", which underlies the written Constitution of the United States with the "theory of parliamentary sovereignty" as existing in the United Kingdom. The Constitution of India vests constituent power upon the Parliament subject to the special procedure laid down therein.During the discussion in the Constituent Assembly on this aspect, some members were in favor of adopting an easier mode of amending procedure for the initial five to ten years. Explaining why it was necessary to introduce an element of flexibility in the Constitution, Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948, "While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation's growth, the growth of a living, vital, organic people. Therefore, it has to be flexible... while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I think it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote – man and woman – the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so – under this Constitution of course it will have the right to do anything – should have an easy opportunity to make such changes as it wants to. But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible..."
Dr. P.S. Deshmukh believed that the amendment of the Constitution should be made easier as he felt there were contradictory provisions in some places which would be more and more apparent when the provisions were interpreted, and that the whole administration would suffer, if the amendment to the Constitution was not made easy. Brajeshwar Prasad also favored a flexible Constitution so as to make it survive the test of time. He was of the opinion that rigidity tends to check progressive legislation or gradual innovation. On the other hand, H.V. Kamath favored ensuring procedural safeguards to avoid the possibility of hasty amendment to the Constitution.
Explain the provinces for constitutional amendments
The Constitution of India provides for a distinctive amendment process when compared to the Constitutions of other nations. This can be described as partly flexible and partly rigid. The Constitution provides for a variety in the amending process. This feature has been commended by Australian academic Sir Kenneth Wheare who felt that uniformity in the amending process imposed "quite unnecessary restrictions" upon the amendment of parts of a Constitution. An amendment of the Constitution can be initiated only by the introduction of a Bill in either House of Parliament. The Bill must then be passed in each House 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. This is known as special majority. There is no provision for a joint sitting in case of disagreement between the two Houses. The Bill, passed by the required majority, is then presented to the President who shall give his/her assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the provision to article 368, it must be ratified by the Legislatures of not less than one-half of the States. Although there is no prescribed time limit for ratification, it must be completed before the amending Bill is presented to the President for his/her assent.Every constitutional amendment is formulated as a statute. The first amendment is called the "Constitution Act", the second, the "Constitution Act", and so forth. Each usually has the long title "An Act further to amend the Constitution of India".
Types of amendments
The original constitution provided for three categories of amendments. The first category of amendments are those contemplated in articles 4, 169, 239A, 239AA, 243M, 243ZC, 244A, 312, para 7 of Schedule V and para 21 of Schedule VI. These amendments can be effected by Parliament by a simple majority such as that required for the passing of any ordinary law. The amendments under this category are specifically excluded from the purview of article 368 which is the specific provision in the Constitution dealing with the power and the procedure for the amendment of the Constitution. Article 4 provides that laws made by Parliament under article 2 and article 3 effecting amendments in the First Schedule or the Fourth Schedule and supplemental, incidental and consequential matters, shall not be deemed to be amendments of the Constitution for the purposes of article 368. For example, the States Reorganisation Act, 1956, which brought about the reorganization of the States in India, was passed by Parliament as an ordinary piece of legislation. In Mangal Singh v. Union of India, the Supreme Court held that power to reduce the total number of members of Legislative Assembly below the minimum prescribed under article 170 is implicit in the authority to make laws under article 4. Article 169 empowers Parliament to provide by law for the abolition or creation of the Legislative Councils in States and specifies that though such law shall contain such provisions for the amendment of the Constitution as may be necessary, it shall not be deemed to be an amendment of the Constitution for the purposes of article 368. The Legislative Councils Act, 1957, which provided for the creation of a Legislative Council in Andhra Pradesh and for increasing the strength of the Legislative Councils in certain other States, is an example of a law passed by Parliament in an exercise of its powers under article 169. The Fifth Schedule contains provisions as to the administration and control of the Schedule Areas and Scheduled Tribes. Para 7 of the Schedule vests Parliament with plenary powers to enact laws amending the Schedule and lays down that no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368. Under Para 21 of the Sixth Schedule, Parliament has full power to enact laws amending the Sixth Schedule which contains provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. No such law will be deemed to be an amendment of the Constitution for the purposes of article 368.The second category includes amendments that can be effected by Parliament by a prescribed ‘special majority'; and the third category of amendments includes those that require, in addition to such "special majority", ratification by at least one-half of the State Legislatures. The last two categories are governed by article 368.
Ambedkar speaking in the Constituent Assembly on 17 September 1949, pointed out that there were "innumerable articles in the Constitution" which left matters subject to laws made by Parliament. Under article 11, Parliament may make any provision relating to citizenship notwithstanding anything in article 5 to 10. Thus, by passing ordinary laws, Parliament may, in effect, provide, modify or annul the operation of certain provisions of the Constitution without actually amending them within the meaning of article 368. Since such laws do not, in fact, make any change whatsoever in the letter of the Constitution, they cannot be regarded as amendments of the Constitution nor categorized as such. Other examples include Part XXI of the Constitution—"Temporary, Transitional and Special Provisions" whereby "Notwithstanding anything in this Constitution" power is given to Parliament to make laws with respect to certain matters included in the State List ; article 370 which empowers the President to modify, by order, provisions of the Constitution in their application to the State of Jammu and Kashmir; provisos to articles 83 and 172 empower Parliament to extend the lives of the House of the People and the Legislative Assembly of every State beyond a period of five years during the operation of a Proclamation of Emergency; and articles 83 and 172 provide that the Council of States/Legislative Council of a State shall not be subject to dissolution but as nearly as possible one-t