Amendment under the Indian Constitution

Amendment under the Indian Constitution

By: Sanika Kulkarni

“Change is the only constant”

To Amend means to add something necessary or to subtract something unnecessary from a motion, bill, constitution etc. But today is all about constitutional amendments. In 1951, India was finally free from the dominance of the British.  There was an utmost need for social and economical equality and thus, there was a need for equal land distribution. But as soon as the government brought Zamindaar abolition laws, people used to challenge them constitutionally. This had to stop somewhere. To officially get rid of all these problems, the constitution was amended for the first time ever. This was called the First Constitution Amendment, which came into being on 10th May 1951 and began the never-ending series of amending the constitution.

Necessity of amendment

 Why can`t the laws still be the same? The answer is,  The way people are governed is changed accordingly. There was no digitalization, no cybercrimes not even fundamental duties when the constitution was brought into force. The architects of our constitution were very well aware of this fact and provided us with a reasonable amount of flexibility in our constitution to cope up with these future changes.  Changing the constitution for the betterment of the masses is the first and the foremost necessity of amending the constitution. Nevertheless, we should amend the constitution only in crucial times.

“While we want this constitution to be as solid and permanent as we can make it, there is no permanence in the constitution. There should be certain flexibility. If you make anything rigid and permanent you stop the nation’s growth, of a living vital, organic people”

-Pandit Nehru.

Procedure

Amendments are made with a view to overcoming the difficulties in future in the working of the constitution.  The amending process of Indian constitution is partly rigid and partly flexible. And when we talk about amending the constitution article 368 becomes the highlight.

  1. To initiate an amendment a bill should be passed by any house of the parliament.
  2. This must be passed by a majority of the total membership of that house.
  3. This majority should not be less than 2/3 of the members of that house who are present and voting.
  4. After being passed by both houses, it shall be presented to the president.
  5. President should sign and give his assent to the bill.

Basic-structure

“The constitution would not be itself without fundamental freedom and directive principles”

-Jaganmohan Reddy.

The whole discussion of basic structure is actually a tussle for power between the supreme court and parliament. Started with Shankari Prasad case which questioned whether or not article 368 can amend fundamental rights, further this theory was followed by,

1.Sajjan Singh case.

2. Golaknath case

3.  The government came up with the 24th amendment, changed the article`s  heading to ‘the power of the parliament to amend the constitution and the procedure thereof’

4. Then came Keshavnanda Bharati case which questioned the ‘scope of the amendment. SC said that increase and decrease should be such that it should not authorize the legislature to destroy the basic features of the constitution.

“India`s supreme court and parliament have battled for decades, with parliament passing multiple constitutional amendments to respond to various supreme court rulings”

-Gardiver Harris.

Are there any remedies if the basic-structure violated?

We are offered with various rights, but unless they are protected we cannot enjoy them properly and here comes the power of writs. Article 13, 359,32 and 226 do the work of protecting our FR`s. article 32 gives us the power to approach SC and 226 to approach HC. The actual meaning of writ is a type of remedy so we are offered with five of them.

  • Habeas corpus- ‘to have a body’ (Rudul shah v. the state of Bihar)
  • Mandamus–‘we command’ (Guj state financial corp. v. lotus hotels)
  • Certiorari– ‘to be certified’ (AK. Kripak v. UOI)
  • Prohibition- ‘to forbid’
  • Quo warranto- ‘by what authority’

“Constitutional is a precious heritage and one should not destroy its identity”

Case laws

  • Sankari Singh v. UOI, AIR 1951 SC 458 – This case was the beginning of the series of amendment
  • Sajjan Singh v. State of Rajasthan 1965 1 SCR 933-
  • Golaknath v. state of Punjab 1967 2 SCR762- stated article 386 is limited to restrictions
  • Keshavnanda Bharati v. State of Kerala AIR 1971 SC 1461- included preamble in the constitution and stated the scope of the amendment.
  • Indira Nehru v. Raj Narain AIR 1975 SCC 2299
  • Minerva Mills v. UOI 1980 3 SCC 625

Conclusion

We live in a society which is not stagnant, which keeps on changing from time to time.  yes, we need amendments for the smooth regulation of our country, but they should be limited and not absolute. A lot has changed since the 1st amendment of zamindar laws till 103rd amendment of provisions for EWS. The greatest power of amendment was used when the 42nd amendment took place which is also known as ‘mini-constitution’. To conclude we can say that none is above the constitution, not even parliament or the judiciary. However, the main purpose of amending the constitution is to cope up with changing laws and make provisions accordingly, because as we said at the start ‘change is the only constant’

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