Abstract
“Constitution is for the people, people are not for the constitution. Change it for the betterment of the common man”
The constitution is the supreme law of the country. All laws, rules, and regulations that are enforced in a country are required to align with the constitution. Yet, the constitutions are not perfect. As time passes by it is essential to make changes to it so it stays relevant. That is why almost all the written constitutions have provided for amending the constitution. This paper is an attempt to understand the procedure and scope amendments in India and compare them with the procedure and scope of the constitutional amendment in Bangladesh, and USA.
Keywords
Constitutional amendments, rigidity, flexibility, procedure,
Introduction
Constitutional amendments are passed to address the lacunae in the supreme law and ensure that it is in consonance with present societal values. Article 368[1]of the Indian constitution describes the procedure of amending the constitution. The scope of such changes has been explained by the honorable supreme court in a string of cases which shall be discussed in detail further. It was the ingenuity of the constitution-makers that India was blessed one of the lengthiest written constitutions. The scope of every provision has been explained in detail by the constitution-makers. Yet over a period of time 105 amendments have been made to the constitution. Some of them have been very superficial such as changing the voting age [2] to as drastic as moving elections to the office of prime minister outside the scope of judicial review[3]. It has been decided that parliament can amend any part of the constitution but the basic structure. What constitutes basic shall be decided from time to time by the judiciary[4].This basic structure doctrine has also inspired the judges in Bangladesh and even the parliamentarians have incorporated the same in the constitution. [5]
The basic provisions of the constitution are unchangeable. South Africa on the other hand proposes different methods for different chapters of the constitution. The constitution has thus provided required flexibility to the parliamentarians to make amends. In America so far 27 amendments have been made. The first ten amendments from the bill of rights while remaining discuss some major limitations on the constitution. The process amendment is relatively easy because when the constitution of America was being drafted there were several aspects on which lawmakers could not agree. Therefore To prevent America from slipping into anarchy it was essential to have a workable constitution so the lawmakers agreed for such an arrangement in which changes could be made later on. Furthermore, the process of making changes is very cumbersome. In such scenarios often the informal method of constitutional amendment is used. The interpretation of the text changes although the text superficially remains the same. Conventions and judicial decisions are two ways through which the effect of a particular provision can be altered. [6]
Research Methodology
Analytical method of research has been used in this research paper. Various resources have been critically examined and analyzed throughout the article. An attempt has been made to understand the provision of constitutional amendments throughout and compare them with the Indian position.
Review of Literature
M.P. Jain Indian Constitutional Law, 7th Edition
The book is a thoughtful commentary on the Indian Constitution it provides an in-depth analysis of various provisions of the constitution and critically examines the case laws on the same. The author opines that Supreme Court has made a splendid contribution to the cause of constitutionalism in India by enunciating the doctrine of the inviolability of the basic structure of the constitution. The doctrine restricts the government to deprive the constitution of its spirit and making changes to suit political expediency.
The Procedure Of Amendment Of Constitution In India
The parliament derives the power to make changes in the constitution from Article 368 of the Indian Constitution. It may add, alter or repeal any provision in the constitution[7] provided that a member of parliament introduces in either the Rajya Sabha or the Lok Sabha a bill for this purpose and that bill is passed by each house of the parliament by a special majority of the total membership of the house present and voting. Special majority means at least 2/3rd of the members present and voting to support the bill. . Further the bill is sent to the president for his approval[8]. However, if the parliamentarians want to modify
(a) Article 54 (election of the president), Article 55(Manner of election of the president), Article 73(Extent of the executive power of the union), Article 162(Extent of the executive power of the state), or Article 241(High Courts for Union territories), or
(b) Chapter IV of Part V (union Judiciary), Chapter V of Part VI (High Courts in The States), or Chapter I of Part XI (Panchayats), or
(c) Any of the Lists in the Seventh Schedule, or
(d) The representation of States in Parliament, or
(e) The provisions of this article,
Then such a bill shall be ratified by legislatures of at least half of the states as well before it is assented to by the president. [9]
In addition to this, nothing in Article 13 shall apply to any amendment made under this article.[10]
The constitution under Article 13 states that all post and pre-constitutional laws are void to the extent of inconsistency with fundamental rights[11]. The judiciary has distinguished ordinary legislative powers from amendment powers and has kept amendment acts out of the scope of Article 32. However, the amendment power has been regulated by the judiciary through the basic structure doctrine. The parliament cannot by way of an amendment destroy the essence of the constitution. Over the years, the judiciary has altered its position from according supremacy to parliament to acting as a protector of the constitution to often interfering into the sphere of the legislature through basic structure doctrine. The judiciary should uphold the essence of the constitution while recognizing that parliament is the supreme law-making body of the constitution. It should not transcend its boundaries while upholding fundamental rights.
In Shankari Prasad V. Union of India[12] validity of the Constitutional amendment (first amendment) Act, 1952 was challenged because it restricted the fundamental right of property under Article 31. It was contended that word law shall include any law even constitutional amendments
It was held that concerning Art. 13 the word law shall be understood as rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Art. 13(2) do not affect amendments made under Art. 368. The parliament can amend the Fundamental rights by virtue of Article 368
Both Articles 13 and 368 are widely phrased and conflict in operation with each other. To avoid conflict, the principle of harmonious construction was applied. Accordingly, Article 13, was held to be subject to Art. 368. Thus it was held that Art 13(1) does not affect Article 368.
In Sajjan Singh V. State of Rajasthan[13], 17th constitutional amendment was challenged with a 3:2 majority, it was ruled that the pith and substance of the amendment was only to amend fundamental rules. The position of Shankari Prasad was upheld in this case as well. It was decided that parliament has complete authority to amend each and every part of the constitution.
Justice Hidyatullah and Mudholkar expressed dissent former said he would require stronger reasons to accept that Fundamental rights were meant to be within the powers of the amendment without the concurrence of states. The latter argued that every constitution has certain fundamental features which could not be changed.
In both these cases, the judiciary accorded supremacy to the amendment powers of the parliament over the fundamental rights. This judiciary was very cautious of crossing its domain. However, the approach defies logic since fundamental rights are essential for the citizens. If the amending power is unfettered the parliament can very much amend the constitution in its entirety and take away the rights of the citizens. It can insidiously amend various provisions – one step at a time and change the nature of the constitution. Hence the judiciary needs to nip such an attempt in the bud.
Further in IC Golaknath[14], the appellant again challenged the 17th constitutional amendment. The majority overruled previous cases and held that Fundamental Rights occupy a” transcendental” position no authority even under art 368 is competent to amend Fundamental rights. The amendment is included within the definition of ‘law; under Article 13(2); The majority located the amending power in Art. 248 which only grants legislative power to annihilate the distinction between ‘legislative’ and ‘constituent’ power
Golak Nath raised an acute controversy in the country. One school of thought applauded the majority decision as a vindication of the Fundamental Rights, while the other school criticized it as creating hindrances in the way of enactment of socio-economic legislation required to meet the needs of a developing society.
Thus we say that by 1967 the judiciary understood that the constitution cannot be left to the whims and fancies of the parliament and it is essential to check the amending powers of the constitution. The judiciary was very activist in its approach. It came forth as the protector of the fundamental rights of the citizens. However, this approach is quite unbalanced and raises several questions like is it reasonable that parliament can amend other equally important provisions of the constitution which form its heart and soul of the constitution? Moreover, there can be circumstances in which we amending fundamental may be necessary. However, this judgment took away any such scope.
24TH AMENDMENT [15]
This amendment was brought in to nullify the effect of IC Golaknath and to assert the supremacy of parliament. The bill enacted in 1971 modifies art 13 and 368 to include FR within amending powers
- A clause was added to Art. 13 declaring that Article. 13 shall not apply to any constitutional amendment made under Art. 368.
- As a matter of abundant caution, a similar clause was added to Art. 368 as well
- The marginal note to Art. 368 were changed from “Procedure for Amendment of the Constitution” to “Power of Parliament to amend the Constitution and Procedure, therefore”.
- A clause was added to Art. 368 saying that “Notwithstanding anything in this Constitution, Parliament may in the exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution as per the procedure laid down in this Article”.
- It was now clarified that once a Constitution Amendment Bill is passed by both Houses of Parliament by the requisite majority as per the procedure laid down in Art. 368, the President would have no option but to give his assent to it.
Thus, we see how the parliament has sought to destroy the validity of the judicial decision to assert its supremacy over parliament. This amendment can be seen as the beginning point of the tussle between parliament and judiciary. It is apparent that parliament if given unrestricted power to amend will become capricious. It may pass such laws, which in effect might deny citizens their basic rights and regulations.
Ultimately in Kesavananda Bharati V. State Of Kerala, the basic structure doctrine was given.
The validity of the of 24th constitutional amendment was challenged under Art 32
Kesavananda did not recognize an unrestricted amending power to Parliament under Art. 368. The amending power was now subjected to one very significant qualification, viz., that the amending power cannot be exercised in such a manner as to destroy or emasculate the basic or Fundamental Features of the Constitution. A constitutional amendment that offends the basic structure of the Constitution is ultra vires.
It recognized the distinction between ordinary legislative power and amendment powers.
It is for the courts to decide as and when a question arises whether a particular amendment of the Constitution affects any ‘basic’ or “fundamental” feature of the Constitution or socio-economic program.
In the seminal Kesavananda case, SIKRI, C.J., mentioned the following as the “basic foundation and structure” of the Constitution: (1) Supremacy of the Constitution; (2) Separation of Powers between the legislature, the executive, and the judiciary[16]; (3) Republican and democratic form of Government; (4) Secular character of the Constitution. (5) Federal Character of the Constitution. Sikri, C.J., maintained that the above features are easily discernible not only from the Preamble but the whole scheme of the Constitution.
Other Judges mentioned in addition to the above three more basic features: (6) The dignity of the individual secured by the various Fundamental Rights and the mandate to build a welfare state contained in the directive principles; (7) The unity and integrity of the nation[17]. (8) Parliamentary system.[18]
This case is one of the most significant cases in the history Indian constitution. The basic structure provision allowed the judiciary time and again to keep a check upon whims of the legislature and protect fundamental rights while limiting its scope in deciding upon the validity of the amendments. However the same was not taken in a very good spirit by the government for a very long time. It kept on making attempts to snatch powers from the judiciary. For example, post the decision of the Supreme Court in the infamous election case[19], the 42nd Amendment was passed which sought to ensure that it cannot be challenged in any case whatsoever. It was held invalid in the Minerva Mills case because it amounted to a violation of fundamental rights and that it is the function of the Judges, nay their duty, to pronounce upon the validity of laws.
Thus, to conclude judiciary can review an amendment via inherent powers of judicial review. However, over time it has crossed its boundary and interfered with the function of the legislature.
The power of judicial review comes within the inherent powers of the judiciary which the legislature cannot take away. The fundamental rights are indeed one of the most important parts of the constitution and represent the spirit of the constitution. At the same they are unalterable. It might be essential to amend them to uphold the interests of the citizens at times. For example, the right to property was declared not to be a fundamental right through an amendment to implement the land redistribution policies. Therefore, there must be flexibility in the approach of the judiciary while dealing with this question.
Now, let’s move to the second part of this paper a comparison with the procedure and scope of amendment in other countries.
The Process Of Constitutional Amendment In Bangladesh
The provisional constitutional order set up a parliamentary system in Bangladesh. A National Assembly was established. This Assembly formed the parliament of the country and the members of the national assembly also acted as constituent assembly members. It approved the Constitution on the 4th of November 1972. The main features of the Constitution are a chapter on principles of State policy which are based on four elements, namely nationalism, socialism, democracy, and secularism. Fundamental rights are guaranteed including the right of property. Bangladesh is a parliamentary democracy with a Cabinet form of government. The Parliament is unicameral. The Constitution provides also an independent judiciary as guardian of the constitutional rights[20]
According to the constitution, a bill for constitutional amendment shall expressly be named so in the Long Title of the bill and must be passed by 2/3rd of the total members of the president. Further, the president of the country shall approve the bill within seven days, or else it shall be considered to be passed. The judiciary of Bangladesh was deeply inspired by the basic structure doctrine promulgated by the Indian judiciary. Therefore in Anwar Hossain Chaudhary v. Bangladesh [21]
, they referred to the basic structure doctrine. In this case, the 8th amendment to the constitution of Bangladesh was challenged by the appellant The Constitution Act 1988 amended Article 100 of the Constitution and thereby setting up six permanent Benches of the High Court Division exterior the capital and authorizing the President to fix by noticing the territorial jurisdiction of the permanent Benches. [22] The powers of the parliament were derived from Article 7 of the constitution. The Parliament and judiciary are fundamental to the constitution. The impugned amendment in a subtle manner by creating ‘permanent benches have destroyed the structural pillar of the judiciary, therefore, this amendment was ultra vires[23]. The same was incorporated into the constitution via the 15th amendment which was inserted in 2011. Article 7B prohibits amendments to the provisions which could be identified with the basic features of the Constitution.[24]
Bangladeshi Supreme Courts see amendment powers as secondary or derivative constituent power which is higher than the legislature’s constituted power of ordinary law-making but lower than the peoples’ original constituent power of repealing or replacing the constitution or altering its essential basic characteristics[25]. However, as opposed to the situation in Bangladesh, the Indian Constitution has not defined the basic structure doctrine. This doctrine must be given constitutional recognition in India as well because the law of the country cannot vary the political party. This doctrine shall act as an effective inhibition upon the parliamentarians and assure that they always respect the spirit of the constitution.
THE PROCESS OF CONSTITUTIONAL AMENDMENT IN USA
In USA an amendment can be initiated in two ways- [26]
- By the vote of the 2/3rds members of each house or
- By the constitutional conventions in 2/3rd of the states i.e.
Only the first method has been employed so far to initiate an amendment while the other amendment has not been applied. After the initiation, an amendment needs to be ratified. If it is voted for by the legislatures 3/4th of the states or by the constitutional conventions in 3/4th of the states then it is said to be ratified. Congress has complete discretion to choose the amendment.[27]
Therefore we see that the process of constitutional amendment is quite difficult in the sense that it requires the consent of states as well. This is in stark contrast to India where consent of states is required in very limited. The different positions are reflective of the highly centralized constitution in India and a federal constitution in America. It would not be appropriate to say that states are not affected by anything beyond the limited number of articles provided for by the constitution. Yet it was the intention of the drafters of the constitution that India shall have a strong center.
So far in America, around 27 amendments have been ratified. In the words of Finer “It was intended to make change difficult, it has made it unattainable.”[28]Quite paradoxically the first 10 amendments to the constitution of the US constitute the ‘Bill of Rights’ and were passed within the first two years. [29]
They provide for freedom of speech, the right to possess arms, the right to judicial trials in civil as well as criminal matters, etc the 9th and 10th Amendments specifically recognize that rights acknowledged under the bill of rights are not the only rights protected by the constitution. It protects all the natural rights of the man. Some other amendments made to the constitution include limiting the term of the president, procedure for appointing interim president, vice president, etc., and so on. Overall, it is very difficult to amend the constitution of USA
Suggestions
The procedure of constitutional amendments suffers from various lacunae and shortcomings in India. First of all the constitutional provision is very vaguely worded and the parliament can single-handedly amend almost any part of the constitution. Such erratic provision has resulted in alteration of the constitution according to the policy of the ruling government. A constitution cannot be so erratic. Therefore there is a need that political actors in the country to self-reflect and add a clause to Article 368 limiting their powers. As stated earlier, a convention shall be made to consult the states as well while amending the constitution.
Conclusion
In the nutshell, we can say that the amending powers of the government have been regulated by the judiciary. However, it is fraught with risks. Relying on a set of unelected judges to decide the validity of changes being made to the constitution may well encourage the judiciary to go beyond its scope of inquiry and interfere in the working of the legislature. Even well-intended amendments may be objected to by the judiciary. Therefore the power of the constitutional amendment must be restricted. It cannot be said that having a stricter method of amendment shall be a panacea to such problems. Both Bangladesh and USA deal with their own set of problems. Yet a restricted power shall be better than the present situation in which our country is.
[1] The Constitution of India, 1950, Article 368
[2] The constitution ( Sixty-First Amendment ) Act, 1988, s 2
[3] The Constitution ( Thirty Nine Amendment) Act, s 4
[4] Kesavnanda Bharati v. State of Kerala AIR 1973 SC 1461
[5] The Constitution of the People’s Republic of Bangladesh, s 7B
[6] MP Jain, Indian Constitution Law, (7th Edition, Lexis Nexis, 2014) Part VII Chapter XLI Amendment of the constitution, A. Informal Methods,1
[7] The Constitution of India, 1950 Article 368 (1)
[8] The Constitution of India, 1950, Article 368(2)
[9]The Constitution of India, 1950, Article 368(2)
[10] The Constitution of India, 1950, Article 368(3)
[11] The Constitution of India, 1950, Article 13
[12] Shankari Prasad V, Union Of India AIR 1951 SC 458 [LNIND 1951 SC 56].
[13] Sajjan Singh V. State of Rajasthan AIR 1965 SC 845
[14] L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643
[15] Constitution (Twenty Fourth) Amendment Act, 1971
[16] State of Bihar v. Bal Mukund Shah, AIR 2000 SC 1296
[17] Raghunath Rao v. Union of India, AIR 1993 SC 1267
[18] AIR 1973 SC at 1535, 1603, 1628, and 1860.
[19] Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 :
[20] Sen, S. C. “THE CONSTITUTION OF BANGLADESH AND A SHORT CONSTITUTIONAL HISTORY.” Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, vol. 7, no. 3, Nomos Verlagsgesellschaft mbH, 1974, pp. 257–73, http://www.jstor.org/stable/43111220.
[21] Anwar Hossain Chaudhary v. Bangladesh 41 DLR(AD) (1989) 165
[22] All Answers ltd, ‘Summary of Amendments to the Bangladesh Constitution’ (Lawteacher.net, January 2022) <https://www.lawteacher.net/free-law-essays/administrative-law/bangladesh-constitution-and-basic-structure-doctrine-administrative-law-essay.php?vref=1> accessed 8 January 2022
[23] Anwar Hossain Chaudhary v. Bangladesh 41 DLR(AD) (1989) 165
[24] Kawser Ahmed ‘ARTICLE 7B, OR THE DEATH OF THE BASIC FEATURE DOCTRINE?’, The Daily Star ( June 12, 2018
[25] M. Jashim Ali Chowdhury and Nirmal Kumar Saha ‘AMENDMENT POWER IN BANGLADESH: ARGUMENTS FOR THE REVIVAL OF CONSTITUTIONAL REFERENDUM’ IJCL https://ijcl.nalsar.ac.in/wp-content/uploads/2020/08/9IndianJConstL38_ChowdhurySaha.pdf
[26] Constitution of United States, Article 5
[27] Constitution of United States, Article 5
[28] THEORY AND PRACTICE OF MODERN GOVT., 128 (1965)
[29] MP Jain, Indian Constitution Law, (7th Edition, Lexis Nexis, 2014) Part VII Chapter XLI Amendment of the constitution, B) Formal Methods (a)
Author:- Vidushi Soin
National Law University Jodhpu