Amendment to the Constitution of India

The legislature is the organ of the government responsible for making the laws for regulating society and no legislature can make a law that will be able to fulfill the needs of society for an indefinite time. As the law is implemented to regulate the behavior of human beings in society and society is dynamic and keeps on changing with the changing circumstances so it is imperative for the law also to change itself according to the changing society.

The constitution is the supreme law of the land made to protect basic fundamental rights, establish a responsible government, provide for the power and functions of the organs of the government and their limits therein, and so on. Even the framer of the constitution knew that due to changing societal values constitution also needs to be amended with the changing society's needs and requirements so the constitution also contains the provisions for the amendment of the constitution included under Article 368 of the Indian Constitution. To understand the constitutional provisions of the constitution amendment, the topic has to be studied in two scenarios: before the 24th amendment to the constitution and after the 24th amendment to the constitution.

Before the 24th Constitutional Amendment

Part XX Amendment Of The Constitution

Procedure for amendment of the Constitution as provided originally under article 368.

Article 368.

"An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a 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, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.

Provided that if such amendment seeks to make any change in:

1. article 54, article 55, article 73, article 162 or article 241, or
2. Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
3. any of the Lists in the Seventh Schedule, or
4. the representation of States in Parliament, or
5. the provisions of this article,

The amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent."

Before the passing of the 44th amendment to the constitution, more change was introduced in the constitution by The Constitution (Seventh Amendment) Act 1956 sub-clause (30) passed in relation to The state reorganization act of 1956 which omitted "specified in Parts A and B of the First Schedule" as the classification of stated in part A, B, C, and D. was ended by the act of 1956.

As per Article 368, the constitution can be amended in three ways:

1. Amendment by simple majority: By simple majority means that the provisions of the constitution can be amended like ordinary law and the provisions that can be amended by simple majority includes Article 5, 169, and 239A.
2. Amendment by the special majority: Apart from provisions that can be amended by a simple majority and the provisions included in the proviso to article 368 all other provisions of the constitution can be amended only by a special majority. Amendment by special majority included two essentials:
   
   1. Majority of the total membership of that house of parliament.
   2. 2/3rd majority of the members present and voting of that house.
   For instance, if an amendment is to be passed by the House of people, then in the case of the special majority such amendment is to be passed by a majority of the total membership of that house of parliament which is 276 members voting in its favor of the total membership of 550 members and also the two-third majority of the members present and voting suppose if 531 members are present at the time of voting when the bill is presented for voting in the house of people then 354 members to vote in favor of the bill. If both the requirements are fulfilled then only a bill to amend the constitution will be considered approved and then will be presented to the president for his assent and upon receiving such assent the amendment will stand amended as per the terms of the bill.
   
3. Amendment by the special majority and rectification by half of the states: if a bill consists of provisions for the amendment of the provisions of the constitution dealing with article 54: Election of president, article 55: Manner of election of president, article 73:Extent of executive power of the union, article 162: Extent of executive power of the state, article 241: high courts for union territory, chapter IV of part V: Union Judiciary, chapter V part VI: High Courts in the state, Chapter I Part XI: Legislative relations.
   
   Any of the list in the schedule VII, Representation of states in parliament (Lok Sabha and Rajya Sabha), or the provision of this article the bill so passed by the parliament with the special majority to be laid before the state legislature and will only be presented to the president for his assent if half of the states rectify for such bill.
   
   The basic reason behind this provision is that the constitution has established separation of power and independence of union and state in their respective domain and by virtue of the bill to amend the constitution if any changes are to be implemented to change that situation then the states should also have an authority to decide whether a such amendment to be made or not.
   
   Also, India is a federal nation and the distribution of power between union and state is established by the constitution if by virtue of amendment to the constitution, any changes that are to be made to change such a situation bill has to be passed only if the half of the state legislature agrees to the same. So before such a bill can be presented to the president for assent, half of the state legislatures have to rectify the bill.

Judicial interpretation of the power to amend the constitution

The case that led to the passing of the 24th constitutional amendment is the Golaknath case but before discussing that case two important cases have to be discussed one is the Shankri Prasad case and the other is the Sajjan Singh case. In both the Shankri prasad and Sajjan Singh cases, the supreme court held a similar viewpoint that the power to amend the constitution is a constituent power and only ordinary legislative power is subject to judicial review.

Constituent power means the power to amend the constitution without any limitation and if the framers of the constitution wanted to keep the amending power under check provisions were to be incorporated while framing the constitution. So as per the rule laid down in both cases, the parliament has unlimited power to amend the constitution in whatever manner they desire.

But the situation changed after the decision of the supreme court in the Golak Nath case in which it is interpreted by the supreme court that Article 368 of the Indian Constitution only talks about the procedure to amend the constitution and is silent on the power to amend the constitution and also the parliament do not have any constituent power in it.

The constituent power enjoyed by the constituent assembly to frame the constitution in whatever manner they require came to an end after the framing and implementation of the constitution and the constitution is the supreme law of the land and no authority can go beyond the constitutional limit.

This arose a situation where if there is no constituent power in the parliament to amend the constitution then from where the power to amend the constitution is derived because there can be no legislative or executive exercise of the power if it is not backed by a constitutional or legislative authority.

The answer to the same is also provided by the supreme court in the Golak Nath case and it is held that the power to amend the constitution is derived from Article 245 read with Schedule VII List I Entry 97 (Residuary powers) and as the power to amend the constitution is derived from a List provided under the Schedule VII it is an ordinary legislative exercise of power and being an ordinary legislative power it will be included under the definition of law provided under article 13 of the constitution and will be subject to Judicial review and scrutiny for being constitutionally valid or not.

After the 24th Constitutional amendment

After the Golakanth case, the parliament responded by incorporating the 24th amendment to the constitution rendering the judgment of the supreme court nullified and the changes that are introduced in the 24th constitutional amendment are as follows:

1. Changes in Article 368
   
   1. Heading of article 368 changed from "Procedure for amendment of the constitution" to "Power of Parliament to amend the Constitution and procedure thereof": The parliament made this change so that amendment to the constitution can be kept outside the preview of article 13 as in the case of Golaknath it was held that the article 368 only contains the procedure to amend the constitution and not the powers so parliament explicitly provided that the Article 368 also includes the power to amend the constitution.
   2. Article 368 (1) Provided that the parliament while exercising its power to amend the constitution has the power to amend by way of addition, variation, or repeal any provision of this constitution in accordance with the procedure laid down in this article. So not only the heading was changed but also the powers which can be exercised are also provided and includes the power of addition, variation, or repeal the provision of the constitution.
   3. Article 368 (2) article 368 was renumbered as article 368 (2) and the words "it shall be presented to the president for his assent and upon such assent being given to the bill" substituted for "it shall be presented to the president who shall give his assent to the bill" so it is made compulsory for the president to give assent to the bill to amend the constitution.
   4. Article 368 (3) was added providing that "nothing in article 13 shall apply to any amendment under this article" so it is explicitly provided that article 13 does not apply to article 368 meaning thereby that the court will not have the power to judicial review any amendment done under 368.
2. Changes introduced under article 13: under article 13 clause (4) was added and it provided " nothing in this article shall apply to any amendment of this constitution under article 368" so not only in article 368 the provision for non-application of article 13 were provided in the article 13 also provision was added that there is no application of article 13 over the article 368.

The 24th amendment made by parliament was challenged in the Kesavananda Bharti case and in this case, the supreme court held the 24th constitutional amendment valid but developed the doctrine of basic structure and it is provided by the supreme court that although there will be no limitation on the parliament powers to amend the constitution in the manner they desire but no amendment can be made to take away or violate the basic structure of the constitution. Basic structure means the constitutional values that are enshrined in the constitution and forms the soul of the Indian constitution.

These values can be equated to constitutionalism. Constitutionalism simply means the objectives and principles the constitution wants to achieve and some of the values that will form part of the basic structure of the constitution that are provided were a democratic form of government, judicial review, fundamental rights, and secularism.

It is also provided that the values that are enumerated by the court in its decision forming part of the basic structure are only explanatory and not exhaustive and the constitutional courts can provide for further values that will form part of the basic structure and in subsequent cases, various high courts and the supreme court provided different values such as free and fair election, speedy trial, free legal aid, independence of the judiciary to be forming part of basic structure.

One of the notable effects of the development of the doctrine of basic structure was that the power of courts of judicial review is now beyond the limits of article 13 meaning that if a constitutional amendment is considered ordinary legislation under article 13 the power of the court to judicially review that amendment would only be limited to the violation of part III as provided under article 13 but now the court has to see whether the amendment is violating the basic values of the constitution or not and the whole constitution will be included while determining the basic values and the power of the court in regards to judicial review specifically in case of constitutional amendment is further strengthened to a greater extent.

After the Kesavananda Bharti case, the parliament by the 42nd amendment to the constitution added two more clauses to article 368 as clauses (4) and (5). Clause (4) provided that any amendment to the constitution made after the 42nd amendment came into force cannot be called into question in any court of law. Clause (5) provided that there will be no limitation on the power of parliament to amend the constitution whatsoever.

In the case of Minerva Mills both clauses (4) and (5) were held unconstitutional as being interfering with the independence of the judiciary and power of judicial review which forms part of the basic structure of the Indian constitution and even the immunity of laws as enjoyed by inclusion in the Ninth Schedule of the Constitution was also made subject to judicial review if such law is included on or after 23rd April 1973 the date on which judgment of basic structure doctrine was passed by the supreme court.

To conclude, it is observed that although initially even the supreme court agreed that there is no limitation on the parliamentary power to amend the constitution and even fundamental right comes under the power of parliament for being amendable but gradual development in the subsequent decision of the supreme court has curtailed the power of parliament to amend the constitution and the role of the judiciary in the protection of the constitution is strengthened to a greater extent.

Written By:

• Mr. Rahul Shamota, Working at Trinity Institute of Professional Studies, New Delhi and
• Ms. Yashika Sharma, Working at Trinity Institute of Professional Studies, New Delhi