Amendment of the Constitution of India
Encyclopedia
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
, and certain amendments must also be ratified by the states. The procedure is laid out in Part XX, Article 368, of the Constitution.
Despite these restrictions there have been over ninety amendments to the Constitution since it came into effect in 1950. The Indian Supreme Court
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
in Kesavananda v. State of Kerala
Kesavananda Bharati v. The State of Kerala
His Holiness Kesavananda Bharati v. The State of Kerala and Others is a landmark decision of the Supreme Court of India. It is the basis for the power of the Indian judiciary to review, and strike down, amendments to the Constitution of India passed by the Indian parliament which conflict with or...
has ruled that not every constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
is permissible; to be valid, an amendment must respect the immutable "basic structure
Basic structure
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...
" of the Constitution.
Procedure
A proposed amendment begins in Parliament where it is introduced as a billBill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
. It must then be approved by each House of Parliament. In each House it must be supported by (1) a two-thirds majority of members of that House and (2) half of the total number of members in Parliament should be present during voting. Certain amendments must then also be ratified by the legislatures of at least one-half of the states. Once all other stages have been completed an amendment receives the assent of the President of India
President of India
The President of India is the head of state and first citizen of India, as well as the Supreme Commander of the Indian Armed Forces. President of India is also the formal head of all the three branches of Indian Democracy - Legislature, Executive and Judiciary...
. The President can the passed bill once and send it back to the parliament for reconsideration. However, if the parliament passes the bill a second time, the President is required to give his assent.
Despite the super-majority requirement in the Constitution, it is one of the most frequently amended governing documents in the world; amendments have averaged about two a year. This is partly because the Constitution is so specific in spelling out government powers that amendments are often required to deal with matters that could be addressed by ordinary statutes in other democracies. As a result, it is the longest constitution of any sovereign nation in the world; it currently consists of over 117,000 words (448 articles plus 95 amendments).
Another reason is that the Parliament of India is elected by means of single seat districts, under the plurality
Plurality voting system
The plurality voting system is a single-winner voting system often used to elect executive officers or to elect members of a legislative assembly which is based on single-member constituencies...
(or "first past the post") system, as also used in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. This means that it is possible for a party to win two-thirds of the seats in Parliament without securing two-thirds of the vote. For example, in the first two Lok Sabha
Lok Sabha
The Lok Sabha or House of the People is the lower house of the Parliament of India. Members of the Lok Sabha are elected by direct election under universal adult suffrage. As of 2009, there have been fifteen Lok Sabhas elected by the people of India...
elections held under the Constitution, the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
party won less than one half of the national vote but roughly two-thirds of seats in the chamber.
In India every constitutional amendment is formulated as a statute. The first amendment is called the "Constitution (First Amendment) Act", the second, the "Constitution (Second Amendment) Act", and so forth. Each usually has the long title "An Act further to amend the Constitution of India".
Limitations on amendments
The Indian Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of Golakh Nath v. The State of PunjabI.C. Golak Nath and Ors. vs. State of Punjab and Anr.
In the famous case of Golaknath V. State Of Punjab, in the year 1967 the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.-Issues Involved:# Whether Amendment is a “law” under the meaning of Article 13?...
. An amendment was struck down on the basis that it violated Article 13 which states that "The State shall not make any law which takes away
or abridges the rights conferred by [the charter of Fundamental Rights]". The term "law" in this article was interpreted as including a constitutional amendment. Parliament responded by enacting the Twenty-fourth Amendment which declared that "nothing in Article 13 shall apply to any amendment of this Constitution".
The current limitation on amendments comes from Kesavananda v. State of Kerala
Kesavananda Bharati v. The State of Kerala
His Holiness Kesavananda Bharati v. The State of Kerala and Others is a landmark decision of the Supreme Court of India. It is the basis for the power of the Indian judiciary to review, and strike down, amendments to the Constitution of India passed by the Indian parliament which conflict with or...
. In that case the Supreme Court ruled that amendments of the constitution must respect the "basic structure
Basic structure
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine, which was first expressed by the Indian Supreme Court in Kesavananda Bharati v...
" of the constitution. This doctrine states that certain fundamental features of the constitution cannot be altered by amendment. Parliament attempted to remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that "there shall be no limitation whatever on the constituent power of Parliament to amend ...this Constitution". However this change was itself later declared invalid by the Supreme Court in Minerva Mills v. India.
Fundamental Rights
The most important and frequent reason for amendments to the Constitution is the curtailment of the Fundamental RightsFundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
charter. This is achieved by inserting laws contrary to the fundamental rights provisions into Schedule 9 of the Constitution. Schedule 9 protects such laws from Judicial review. The typical areas of restriction include laws relating to property rights, and affirmative action in favour of minority groups such as the "scheduled castes", "scheduled tribes", and other "backward classes"..
In a landmark ruling in January 2007 the Supreme Court of India confirmed that all laws (including those in Schedule 9) would be open to judicial review if they violate the basic structure of the constitution. Chief Justice Yogesh Kumar Sabharwal
Yogesh Kumar Sabharwal
-Career:Sabharwal worked as an advocate for Indian Railways from 1969 to 1981, as an advocate for Delhi administration from 1973 to 1976-1977, later as Additional Standing Counsel and then as Standing Counsel. He also served as Counsel to the Central Government from 1980 to 1986...
noted "If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated".
Territorial changes
Constitutional amendments have been made to facilitate changes in the territorial extent of the Republic of India due to the incorporation of the former French colony of Pondicherry, the former Portuguese colony of GoaGoa
Goa , a former Portuguese colony, is India's smallest state by area and the fourth smallest by population. Located in South West India in the region known as the Konkan, it is bounded by the state of Maharashtra to the north, and by Karnataka to the east and south, while the Arabian Sea forms its...
, and a minor exchange of territory with Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
. Amendments are also necessary with regard to littoral rights over the exclusive economic zone of 200 miles, and the formation of new states and union territories by the reorganization of existing states.
Transitional provisions
The Constitution includes transitional provisions intended only to remain in force for a limited period. These need to be renewed periodically. For example, for continuing reservation in parliamentary seats for scheduled castes and scheduled tribes an constitutional amendment is enacted once in every ten years.Democratic reform
Amendments have been made with the intent of reform the system of government and incorporating new "checks and balances" in the Constitution. These have included the following:- Creation of the National Commission for Scheduled Castes.
- Creation of the National Commission for Scheduled Tribes.
- Creation of mechanisms for Panchayati RajPanchayati RajThe panchayat raj is a South Asian political system mainly in India, Pakistan, and Nepal. "Panchayat" literally means assembly of five wise and respected elders chosen and accepted by the local community. Traditionally, these assemblies settled disputes between individuals and villages...
(local self governance). - Disqualification of members from changing party allegiance.
- Restrictions on the size of the cabinet.
- Restrictions on imposition of an internal emergency.
Text of Article 368 governing constitutional amendments
The following is the full text of Part XX or Article 368 of the constitution, which governs constitutional amendments. The provisions in italics were inserted by the Forty-second Amendment Act but have been declared invalid by the Supreme Court in the Minerva Mills case. The text is up-to-date as of July 2008.The wording of Section (1) resembles Article 46 of the Constitution of Ireland
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
, enacted in 1937, which states "Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article".
External links
- Full text of the Constitution of India (as of July 2008)