Procedure for amending the Indian Constitution

 Discuss various methods of amending the Indian Constitution

 Answer:

   

      The framers of the Indian Constitution were not in favour of making the Indian Constitution too flexible.  Too flexible would be inconsistent with India's federal structure;  Again, if it is made too rigid, it will not be able to keep pace with the changes of the age.  So they wanted to reconcile the two so that the necessary dynamism of the constitution could be maintained, while at the same time harmonizing with the Indian federal structure.  MP Sharma, in his book The Government of the Indian Republic, remarked that the Indian constitution reflected a combination of the constitutional amendment system prevalent in both the monolithic and federal states.

      Not all parts of the Indian Constitution can be changed in the same way.  The Constitution of India can be amended with the help of three methods. Article 368 of the Constitution mentions two methods and one method is discussed sporadically in different parts of the Constitution.

 The first method: -

      Article 368 (1) of the Constitution states that Parliament may, by exercising its 'constitutional powers', add, delete or change the Constitution.  Article 368 (2) of the Constitution states that a proposal to amend the Constitution may be raised in any House of Parliament in the form of a Bill.  Article 368 (2) further states that the bill shall be sent to the President for approval after approval by a majority of the total members of each chamber of Parliament and two-thirds of the voting members present.  The amendment takes effect once the President signs it.  According to this method, the fundamental rights mentioned in the third part of the constitution, the directive principles described in the fourth part can be changed about 80% of the constitution.

 The second method: -

       There are several issues in the Constitution that need to be amended. After the first procedure is approved in both Houses of Parliament, the amendment proposal is sent to the Legislature of the States for approval.  With the support of at least half of the state legislatures, the proposal is sent to the President for approval.

 1) Presidential election and election system (catch No. 54 and 55).

 2) Governance relations between the Center and the States (Articles 63 and 162),

 3) Formation of High Court for Union Territories (Section 241),

 4) Matters relating to the Supreme Court as described in Chapter IV of Part V of the Constitution, matters relating to the composition, functions and jurisdiction of the High Court described in Chapter V of Chapter VI,

 5) The Seventh Schedule and the distribution of power among the States,

 6) Representation of States in Parliament,

 7) The method of amending the constitution is described in section 368.

 Article 24 of the Constitution Amendment Act of 1971 states that Article 13 of the Constitution shall not apply to amendments to the Constitution organized by Article 368.  The 42nd Amendment to the Constitution Act of 1976 states that no question can be raised in the court about the parts of the Constitution which are amended by Article 368.

 Third method: -

     There is no need to follow any special procedure for the issues that are amended according to the third method of amending the constitution.  All these parts can be amended in the form of general legislation with the support of the general majority in both the Houses of Parliament to create new states or state reorganizations.  These include changing the boundaries or names of the old states, creating or abolishing second chambers in the states, privileges of Parliament, salaries and allowances, rules on 'quorum' in Parliament, official language, an extension of the jurisdiction of the Supreme Court.

 The 24th Amendment to the Constitution, enacted in 1981, states that any constitutional amendment bill sent to the President must be complied with.  However, if there is a disagreement between the two chambers of Parliament over the Constitution Amendment Bill, it is cancelled;  In this case, there is no joint session.

 Evaluation: -

     Analyzing the method of amending the Constitution of India, the following features are observed ---

 First, the third of the three methods mentioned above are extremely common;  The first and second methods are relatively complex.  The constitution has been kept in abeyance where states have vested interests.  Therefore, the Constitution of India cannot be said to be as flexible as the Constitution of Britain, nor can it be said to be as inflexible as the Constitution of the United States.  The Indian Constitution has made a compromise between flexibility and inflexibility.  Professor Carey praised the coordination process, saying "The Constitution of India strikes a balance."

    However, judging from the reality, the Constitution of India can be called a change.  The US Constitution has been amended only 27 times in its 200-year history;  In that case, the Indian Constitution has been amended eight six times in just 45 years.

 Second, the method of amending the Constitution of India is not consistent with the federal policy, as (1) the State Legislatures have no role in raising the Constitution Amendment Bill.  (2) Parliament has the final say on the name of the state, change of boundaries, formation of the state, reorganization, etc.  (3) States have no role in amending most constitutions except for a few.

 Third, the Constitution is silent on the number of days that bills must be submitted to state legislatures for approval.

 Fourth, there is no end to the debate over whether fundamental rights can be amended.  The main point of contention is Article 13 (2) of the original constitution and the various contradictory judgments given by the Supreme Court in this regard at different times.  Article 13 (2) of the original constitution stated that if a law was enacted in a way that violated fundamental rights, that law would be considered null and void.  The Supreme Court, while passing judgments in the Shankariprasad case (1952) and Sajjan Singh (1965), commented that the fundamental rights deserved to be amended.  But it overturned the Supreme Court's ruling in the 1967 Golkanath case, saying parliament did not have the power to amend fundamental rights.  The Supreme Court's judgment in the Bharati case in 1973 goes back to its earlier state, saying that Parliament can change any part of the Constitution by its constitutional powers, but it cannot change the basic structure of the Constitution.  In the Keshbananda Bharati case (1973) and later in the Minerva case (1980), the Supreme Court recognized that fundamental rights were amendable.

    According to many, the concept of the basic structure of the constitution is confusing. There can be no such thing as the basic structure of the constitution.  And the bullets that seem to be fundamental may no longer be fundamental as conditions change in the future.  In this context, the famous statement of the Constituent Assembly Jawaharlal Nehru can be recalled: "There is no permanence in the constitution .... If you make anything rigid and permanent you stop a nation's growth."