Constitutional Law Unit IV

Emergency Provisions

Constitutional Law Unit IV

Amendment of Constitution 

Provision for amendment of the Constitution is made with a view to overcome the difficulties which may encounter in future in the working of the Constitution.

“It has been the nature of the amending process itself in federation which has led political scientist to classify federal Constitution as rigid. A federal Constitution is generally rigid in character as the procedure of amendment is unduly complicated. The procedure of amendment in American Constitution is very difficult.

So is the case with Australia, Canada and Switzerland. It is a common critism of federal Constitution that is too conservative, too difficult to alter and that it is consequently behind the times.”

The framers of the Indian Constitution were keen to avoid excessive rigidity. They were anxious to have a document which could grow with a growing nation, adapt itself to the changing need and circumstances of a growing people. The nature of the ‘amending process’ envisaged by the framers of our Constitution can best be understood by referring the following observation of the late Prime Minister Pt.Nehru, “While we want this Constitution 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……In any event, we could not make this Constitution so ‘rigid’ that it cannot be adopted to changing conditions. 

But the framers of Indian Constitution were also aware of the fact that if the Constitution was so flexible it would be a playing of the whims and caprices of the ruling party. They were, therefore, anxious to avoid flexibility of the extreme type. Hence, they adopted a middle course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable changes.

The machinery of amendment should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order setting in motion, an accumulation of force sufficient to explode it. The Constitution-makers have, therefore, kept the balance between the danger of having non-amendable Constitution and a Constitution which is too easily amendable.

For the purpose of amendment the various Articles of the Constitution are divided into three categories: (1) Amendment by Simple Majority, (2) Amendment by Special Majority and (3) By Special Majority and Ratification by States.

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Constitutional Law Unit IV

Procedure for Amendment 

A Bill to amend the Constitution may be  introduced in either House of Parliament. It must be passed by each House by a majority of the total membership to that House and by a majority of not less than 2/3 of the members of that House present and voting. When a Bill is passed by both Houses it shall be presented to the president for his assent who shall give his assent to Bill and thereupon the Constitution shall stand amended. But a Bill which seeks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by the ½ of the States.

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Constitutional Law Unit IV

Doctrine of Basic Structure

Theory of Basic Structure of the Constitution – A limitation on amending power:

The Judges have enumerated certain essentials of the basic structure of the Constitution, but they have also made it clear that they were only illustrative and not exhaustive. They will be determined on the basis of the facts in each case.

The validity of the Constitution (24th Amendment) Act, 1971, was challenged in Keshvananda Bharati Vs State of Kerala, popularly known as the Fundamental Right’s case the petitioners had challenged the validity of the Kerala Land Reforms Act 1963. But during the pendency of the petition the Kerala Act was amended in 1971 and was placed in the Ninth Scheduled by the 29th Amendment Act. The petitioners were permitted to challenge the validity of Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment to the Constitution also.

The question involved was as to what was the extent of the amending power conferred by Article 368 of the Constitution? On behalf of the Union of India it was claimed that amending power was unlimited and short of repeal of the Constitution any change could be effected. On the other hand, the petitioner contended that the amending power was wide but not unlimited. Under Article 368 Parliament cannot destroy the “basic feature” of the Constitution. A Special Bench of 13 Judges was constituted to hear the case.

The Court by majority overruled the Golak Nath’s case which denied Parliament the power to amend fundamental rights of citizens. The majority held that Article 368 even before the 24th Amendment contained the power as well as the procedure of amendment.

The Court held that underArt.368 Parliament is not empowered to amend the basic structure or framework of the Constitution.

Constitutional Law Unit IV

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By Hassham

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