Indian Constitution: An Evergreen Document
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A Constitution is a body of fundamental principals according to which a state is to be governed. The Constitution of India came into being with effect from 26 January, 1950. Since then, the same Constitution continues to provide the framework within which our government operates.
Does it mean that our Constitution is so good that it needs no change?
It is true that our Constitution is very forceful and the fundamental structure of our Constitution is much appropriate to our country. Framers of our Constitution have gained the understanding from all the known Constitutions of the world. They were attentive to the problems faced in the working of these constitutions. They wanted to integrate the good provisions of those constitutions in order to avoid the defects and ambiguities that might come in future in the working of the Indian Constitution.
But no matter how good a constitution is, it can never provide for all the contingencies. No document can be of such character that it needs no change. Therefore, our Constitution acknowledges the requirement of amendments according to changed circumstances.
A unique blend of rigidity and flexibility:
A constitution can either be rigid or flexible. The framers of our Constitution were eager to shun extremely rigid Constitution. They wanted to have a document which could grow with a growing nation, acclimatize itself to the changing needs of the society. But they were also aware of the fact that if the constitution was so flexible it would become an instrument to play with, by parties in power for fulfilling their selfish motives. Hence, they chose to adopt a middle path. Our Constitution is neither too rigid nor too flexible. The purpose of providing the provisions for amending the Constitution is to modify the Constitution according to the needs of the society without changing the Constitution itself.
In Fundamental Rights case, the honorable Supreme Court held:
“If no provisions were made for the amendment of the Constitution, the people would have recourse to the extra-constitutional method like the revolution to change the Constitution.”
For the rationale of Amendment, the different Articles of the Constitution are divided into three categories:
• Amendment by Simple Majority- Simple majority refers to the majority of more than 50% of members present and voting. Several Articles of the Constitution are of such nature which can be amended by a simple law of parliament. Such Article’s amendment is no different from an ordinary law made by parliament. The amendment of Article 2, Article 3, Article 5, Article 169 and Article 239-A can be made by Simple Majority.
• Amendment by Special Majority- A majority is said to be Special Majority when it is caused by a majority of the total membership of each House of Parliament as well as by a majority of not less than 2/3 of the members of that house present and voting. All constitutional amendments, other than those referred above, get affected by Special Majority. For Impeachment of President or for declaring Emergency etc, the special majority is required.
• Special Majority and Ratification by States- For amending certain Articles ratification by not less than half of the states is required apart from the special majority. These sets of Articles are mention in Article 368. States are given a very vital role for the amendment of these matters and any sole amendment by Parliament may crucially affect the fundamental basis of our Constitution.
Following are the provision which requires State’s ratification:
1. Election of the President- Articles 54 and 55
2. Extent of the Union’s and State’s Executive power- Article 73 and 162
3. Articles relating to judiciary, Supreme court, High Courts in States and Union Territories- Articles 124-147, 214-231, 241
4. Distribution of Legislative power between the Centre and the State- Articles 245-255
5. Any list of Seventh Schedule
6. Representation of States in Parliament Fourth Schedule
7. Article 368 itself
Procedure for Amendment:
Article 368 provides the procedure to make Constitutional amendments. A Bill to amend the Constitution may be introduced in either House of Parliament. Then it must be passed by each House by a majority of the total membership of that House and by a majority of not less than 2/3 of the members of that House present and voting. After that, the Bill is presented to the President for his assent who shall give his assent to the Bill and the Constitution shall stand Amended. A Bill which is expected to amend the provisions mentioned in Article 368 requires ratification by 1/2 States.
Constitutional Amendments and Judiciary:
The question whether Fundamental Rights can be amended or not came for the consideration of the Supreme Court in Shankari Prasad Case. The Supreme Court held that the power of Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. In Sajjan Singh v. State of Rajasthan the Supreme Court followed the majority judgment given in Shankari Prasad Case.
In Golak Nath v. State of Punjab the validity of Constitution’s (17th Amendment) Act, 1964 was challenged. The Supreme Court overruled its earlier decisions and held that Parliament had no power from the date of this decision to amend Part-3 of the Constitution so as to take away or abridge the Fundamental Rights.
In order to rectify the difficulties created by the decision in Golak Nath (supra), the Parliament enacted the (24th Amendment) Act, 1971. The amendment made several changes in Article 13 and Article 368 this ended up making Article 368 an exception to Article 13. Thus 24th Amendment Act not only restored the amending power of the Parliament but also widened its scope.
Keshvanand Bharati: A Landmark Case-
The validity of the constitution (24th Amendment) Act, 1971, was challenged in Keshvanand Bharati v. Union of India. During the pendency of the petition, the Kerala Act was amended and was placed in the Ninth Schedule by the 29th Amendment Act. In the following case, the petitioner challenged the validity of the constitutional 24th, 25th, and 29th Amendment Acts. The question involved was, what is the extent of Parliament's power to amend the Constitution under Article 368? Union of India claimed that the power is unlimited and any change could be effected while the petitioner contended that Parliament’s power is wide but not unlimited and it cannot mold the “basic feature” of the Constitution.
The Court by 7:6 majorities overruled the Golak Nath’s decision which denied Parliament to amend the fundamental rights. The court held that the Parliament can amend any part of the Constitution under Article 368 but it is not empowered to amend the “Basic Structure” of the Constitution.
To ratify the limitations entailed by the Supreme Court in Keshvanand Bharti, the Parliament passed the Constitutional (42nd Amendment) Act, 1976. By adding Clause 4 in Article 368, Supreme Court’s power of Judicial Review was done with and Clause 5 removed limitation on amending power. Parliament claimed that the theory of Basic Structure is Vague and will create difficulties.
In Minerva Mills v. Union of India the Supreme Court by 4:1 majority struck down clause 4 & 5 of Article 368 added by 42nd Amendment. The ruling of Supreme Court made it clear that our Constitution is highest, not the Parliament.
Constituents of Basic Structure:
One after the other, the rulings of the Supreme Court expanded the ambit of the Basic Structure of our Constitution. Following are the constituents of Basic Structure:
• Supremacy of the Constitution
• Sovereign, Democratic and Republican nature
• Constitution’s Secular character
• Separation of power between Legislative, Executive and Judiciary
• Federal character of the Constitution
• Nation’s unity and integrity
• Parliamentary system
• Welfare State
• Judicial Review
• Freedom and dignity of the individual
• Rule of Law
• Harmony and Balance between Fundamental Rights and Directive Principals
• Free and Fair Elections
• Independent Judiciary
• Limited power of Parliament to amend the Constitution
• Effective access to Justice
• Principle of Reasonableness
• Supreme Court’s powers under Articles 32, 136, 141 and 14. So it is proved by Supreme Court’s verdicts that the Parliament does not have unlimited power to mold the constitution as per it’s sweet will.
‘Freedom is not worth having if it does not include the freedom to make mistakes’
The famous quote by Mahatma Gandhi is relevant to the facts that even a document as sacred as our Constitution cannot be free from mistakes. It is true that Indian Constitution is the ‘supreme law’ of land which reflects the aspiration and goals of our society. It must also be kept in mind that this instrument is created by humans for their society and no generation has the monopoly of wisdom. In other words, it could be stated that our Constitution is not a stagnant document; it is an Evergreen document, a Living document which will change with changing society.
Author: Himani Bansal
College: Rajasthan University
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