Amendment of the Constitution of India

India This article is part of the series: Constitution of India

Preamble PARTS Fundamental Rights PART I ∙ II ∙ III ∙ IV ∙ V ∙ VI ∙ VII VIII ∙ IX ∙ X ∙ XI  ∙ XII ∙ XIII ∙ XIV XV ∙ XVI ∙ XVII ∙ XVIII ∙ XIX ∙ XX ∙ XXI XXII SCHEDULES First ∙ Second ∙ Third ∙ Fourth ∙ Fifth Sixth ∙ Seventh ∙ Eighth ∙ Ninth Tenth ∙ Eleventh ∙ Twelfth APPENDICES I ∙ II ∙ III ∙ IV ∙ V AMENDMENTS List ∙ 1 ∙ 10 ∙ 38 ∙ 39 ∙ 42

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Number of constitutional amendments in India per decade.^[1]

Amendment of the Constitution of India is the process of making changes to the nation's fundamental law. Changes to the Indian constitution are made by the federal parliament. They must be approved by a super-majority in each house of the Parliament of India, and certain amendments must also be ratified by the states. The procedure is laid out in Part XX, Article 368, of the Constitution.

Despite these restrictions there have been over ninety amendments to the Constitution since it came into effect in 1950. The Indian Supreme Court in Kesavananda v. State of Kerala has ruled that not every constitutional amendment is permissible; to be valid, an amendment must respect the immutable "basic structure" of the Constitution.

Procedure

A proposed amendment begins in Parliament where it is introduced as a bill. It must then be approved by each House of Parliament. In each House it must be supported by (1) a two-thirds majority of members of that House and (2) half of the total number of members in Parliament should be present during voting. Certain amendments must then also be ratified by the legislatures of at least one-half of the states. Once all other stages have been completed an amendment receives the assent of the President of India, but this final stage is a formality.

Despite the super-majority requirement in the Constitution it is one of the most frequently amended governing documents in the world; amendments have averaged about two a year. This partly because of length and detail of the Constitution. It is the longest of any sovereign nation in the world, consisting of over 390 articles and 117,000 words. The document is very specific in spelling out government powers and so amendments are often required to deal with matters that could be addressed by ordinary statutes in other countries.

Another reason is that the Parliament of India is elected by means of single seat districts, under the plurality (or "first past the post") system, as also used in the United Kingdom and the United States. This means that it is possible for a group of MPs to win two-thirds of the seats in Parliament without securing two-thirds of the vote. For example, in the first two Lok Sabha elections held under the Constitution, the Indian National Congress party won less than one half of the national vote but roughly two-thirds of seats in the Lok Sabha (lower house).

In India every constitutional amendment is formulated as a statute. The first amendment is called the "Constitution (First Amendment) Act", the second, the "Constitution (Second Amendment) Act", and so forth. Each usually has the long title "An Act further to amend the Constitution of India".

Limitations on amendments

The Indian Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of Golakh Nath v. The State of Punjab. An amendment was struck down on the basis that it violated Article 13 which states that "The State shall not make any law which takes away or abridges the rights conferred by [the charter of Fundamental Rights]". The term "law" in this article was interpreted as including a constitutional amendment. Parliament responded by enacting the Twenty-fourth Amendment which declared that "nothing in Article 13 shall apply to any amendment of this Constitution".

The current limitation on amendments comes from Kesavananda v. State of Kerala. In that case the Supreme Court ruled that amendments of the constitution must respect the "basic structure" of the constitution. This doctrine states that certain fundamental features of the constitution cannot be altered by amendment. Parliament attempted to remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that "there shall be no limitation whatever on the constituent power of Parliament to amend ...this Constitution". However this change was itself later declared invalid by the Supreme Court in Minerva Mills v. India.

Subject of amendments

See also: List of amendments of the Constitution of India

Fundamental Rights

The most important and frequent reason for amendments to the Constitution is the curtailment of the Fundamental Rights charter. This is achieved by inserting laws contrary to the fundamental rights provisions into Schedule 9 of the Constitution. Schedule 9 protects such laws from Judicial review. The typical areas of restriction include laws relating to property rights, and affirmative action in favour of minority groups such as the "scheduled castes", "scheduled tribes", and other "backward classes"..

In a landmark ruling in January 2007 the Supreme Court of India confirmed that all laws (including those in Schedule 9) would be open to judicial review if they violate the basic structure of the constitution. Chief Justice Yogesh Kumar Sabharwal noted "If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated".^[2][3]

Territorial changes

Constitutional amendments have been made to facilitate changes in the territorial extent of the Republic of India due to the incorporation of the former French colony of Pondicherry, the former Portuguese colony of Goa, and a minor exchange of territory with Pakistan. Amendments are also necessary with regard to littoral rights over the exclusive economic zone of 200 miles, and the formation of new states and union territories by the reorganization of existing states.

Transitional provisions

The Constitution includes transitional provisions intended only to remain in force for a limited period. These need to be renewed periodically. For example, for continuing reservation in parliamentary seats for scheduled castes and scheduled tribes an constitutional amendment is enacted once in every ten years.

Democratic reform

Amendments have been made with the intent of reform the system of government and incorporating new "checks and balances" in the Constitution. These have included the following:

• Creation of the National Commission for Scheduled Castes.
• Creation of the National Commission for Scheduled Tribes.
• Creation of mechanisms for Panchayati Raj (local self governance).
• Disqualification of members from changing party allegiance.
• Restrictions on the size of the cabinet.
• Restrictions on imposition of an internal emergency.

Text of Article 368 governing constitutional amendments

The following is the full text of Part XX or Article 368 of the constitution, which governs constitutional amendments. The provisions in italics were inserted by the Forty-second Amendment Act but have been declared invalid by the Supreme Court in the Minerva Mills case. The text is up-to-date as of July 2008.^[4]

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) 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 who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

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

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, 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,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3) Nothing in article 13 shall apply to any amendment made under this article.

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Fortysecond Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

The wording of Section (1) resembles Article 46 of the Constitution of Ireland, enacted in 1937, which states "Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article".

See also

• List of amendments of the Constitution of India

References

1. ^ Sharma, Dinesh; Singh, Jaya; Maganathan, R.; et al. (2002). Indian Constitution at Work. Political Science, Class XI. NCERT. 
2. ^ BBC News - India court opens laws to review (Retrieved on 11 January 2007)
3. ^ Rediff.com - Laws violating Constitution's framework open to review: SC (Retrieved on 11 January 2007)
4. ^ Full text of the Constitution of India (as of July 2008)

External links

• Full text of the Constitution of India (as of July 2008)