Constitutional Amendments in India | The Law Communicants

Constitutional Amendments in India – Present Constitutional Scenario – Strategies for Change”

Written By: Naveen Talawar

Introduction

It is necessary to change the constitution as a fundamental law of the country with social changes. By this, the possible danger of the overthrow of our political institutions would be prevented said the supreme court in the famous Kesavananda Bharthi case.

As the constitution is a fundamental law of the land it cannot be regarded as permanent and immutable. The laws cannot remain stagnant with the changing norms of the society, changes in the society influence the changes in the law and hence amendment from time to time is necessary.

While drafting the framers of our constitution have laid great stress on the concept of constitutional dynamics for framing the amending clause., The amending procedures of the constitutions of the USA., Canada, Australia, the UK, South Africa, Switzerland, and Ireland were considered for formulating the amending mechanism. And accordingly, Article 368 was incorporated under our constitution which speaks about “the power of parliament to amend the constitution”

Amendment procedure

To amend the constitution a bill may be introduced in either house of the parliament and it must be passed by each house by the 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., and after passing from both the houses it shall then be presented to the president for his assent and if the assent is given the constitution stands amended.

Can fundamental rights be amended by the parliament

Since the commencement of the constitution, there has been controversy concerning the scope of amending power of the parliament, the whole controversy about the chapter of Amendment mainly arises because of one question I.e whether the parliament has unlimited power in amending the constitution by taking away or abridging the fundamental rights provided by the constitution itself.

The first case which came before the court in this respect was Shankari Prasad v. Union of India., wherein the constitutional validity of the 1st Amendment Act 1951 which introduced Article 31-A and 31-B was challenged on the ground that the amendment deprives right to property. The court in this case held that the parliament can amend any part of the constitution including the fundamental rights and it was further observed that amendments to the constitution are not included under Article 13, it only includes ordinary laws. The same stance was also upheld in the case of Sajjan Singh v. State of Rajasthan, but this stance was overturned in the case of Golaknath v. State of Punjab where the court held that the parliament had no power to amend part III of the constitution. After this case many amendments were made to the constitution, all those amendments were challenged in the case of Kesavananda Bharati v. State of Kerala, the court, in this case, held that the parliament can amend any part of the constitution including fundamental rights but it should not alter the basic structure while amending the constitution. It was this case that gave birth to the basic structure theory.

Major amendments to the constitution and their present scenario

There have been 105 Amendments to the constitution of India as of October 2021. some of the major amendments are as follows :

42nd Amendment Act;1976

It is referred to as the mini-constitution, this amendment Act has introduced several changes in the constitution some of which happened to be of great significance. The words socialist, secular, and integrity were added to the preamble of the constitution,10 fundamental duties were also added through this Amendment and the Amendment Act also laid down that no constitutional amendments could be questioned in any court of law, however, the court in Minerva Mills case observed that judicial review being part of the basic structure doctrine, it cannot be curtailed by any amendments by the parliament and presently all the laws are subject to judicial review.

44th Amendment Act; 1978

This Amendment Act invalidated the various provisions that were brought by the 42nd Amendment Act. It removed the right to property from the category of fundamental rights and made it a right that can be regulated by ordinary law. Articles 31A,31B, and 31C as well as Article 300A are the existing constitutional provisions regarding private property. Article 300 was added by the 44th amendment Act.

61st Amendment Act;1989

This Amendment Act reduced the voting age from 21 to 18 for both Loksabha and legislative assemblies.

86th Amendment Act;2002

This Amendment Act has introduced the right to have free and compulsory education to the children between 6 to 14 years and also inserted the new fundamental duty under Article 51 A, which states that “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, as the case may be, ward between the age of six and fourteen years”

93rd Amendment Act,2005

This Amendment was enacted to nullify the judgment of P.A.Inamdar and others v. State of Maharastra, where the supreme court held that the state cannot impose the reservation policy on minority and non-minority unaided private colleges including professional colleges. This amendment empowered the government to make special provisions to the laws relating to socially and economically backward classes or the scheduled castes and scheduled tribes in educational institutions including private educational institutions.

This amendment was upheld by the supreme court in Ashoka Kumar Thakur v. Union of India and it was directed the government to exclude the ‘creamy layer among the OBCs while implementing the law.

101st Amendment Act, 2016

This amendment came up with the implementation of the goods and services tax (GST) to present the idea of one nation, one tax. The taxes that are imposed while purchasing the goods will include both the central and as well as state government’s taxes.

102nd Amendment Act, 2018

This amendment provides constitutional status to the national commission for backward classes and also inserted articles 338B and 342A, it also brought certain changes in article 366.

Article 338B provides the authority to the national commission for backward classes to examine the complaints and welfare measures regarding SEBC’s and Article 342A empowers the president to specify SEBC’s in various states and union territories.

The recent decision of the supreme court in Dr. Jaishri Laxmanrao Patil v. The Chief Minister and others also referred to as Marata quota judgment observed that after the 102nd Amendment act the states have lost their power to identify backward classes under their territory and only the president has the power to notify a particular caste as SEBC’s. Taking this background, to avoid this judgment the constitutional 105th Amendment Act was brought which amends Article 338B,342, and 366 of the constitution of India. It is aimed at restoring the power of the states to identify SEBC’s which were taken away 102 Amendment Act.

Suggestions

The first measure concerning the amending procedure under Article 368 of the constitution is that the fundamental law of the land should not be amended casually just for the sake of flexibility, although limited amending power is itself a feature of basic structure, we have witnessed that the parliament has amended the constitution to show its supremacy.
The requirement of the ratification of the state legislatures must be made mandatory to all the amendments to the constitution.
As there is no provision of a constitutional convention for a special body like constitutional assembly for amending the constitution as it is present in the U.S., it is, therefore, necessary to have a provision for a referendum for the process of amending the constitution. etc

Conclusion

The constitution of the country has been called an organic document that must live and change with the felt and needs of people, as changes in society influence the change in the law, amendments are necessary in order to meet the development needs of the people., however, this does not mean that the constitution could be amended casually.

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