Introduction –
The amendment power of the Indian Parliament, enshrined in Article 368 of the Constitution of India, is a cornerstone of the nation’s democratic governance. It bestows upon the elected representatives the authority to modify and adapt the Constitution to the evolving needs and aspirations of a diverse and dynamic nation.
This power has played a pivotal role in shaping the course of India’s constitutional development since its adoption in 1950. However, it is not without its complexities and debates, as it balances the imperative for flexibility with the necessity to protect the Constitution’s core principles and values.
In this context, exploring the amendment power of Parliament requires a comprehensive examination of its historical significance, the procedures involved, the limitations imposed, and the impact it has had on India’s constitutional evolution.
This introduction sets the stage for a deeper exploration of the intricate facets of Parliament’s authority to amend the Constitution, a power that reflects India’s commitment to democracy, rule of law, and responsiveness to the ever-changing demands of its diverse citizenry.
What are the Amendment power of Indian Parliament?
The Indian Parliament, consisting of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States), possesses the authority to amend the Constitution of India. The power to amend the Constitution is detailed in Article 368 of the Indian Constitution. Here are the key aspects of the amendment power of the Indian Parliament:
- Amendment Procedures: Article 368 outlines the procedures for amending the Constitution. Amendments can be made by a special majority of Parliament, which means:
- A majority of the total membership of each House (Lok Sabha and Rajya Sabha) must vote in favor of the amendment.
- The amendment must be supported by a two-thirds majority of the members present and voting in each House.
- Special Procedures for Certain Amendments: Some amendments require additional procedures:
- Amendments related to certain fundamental rights (e.g., Article 15, Article 19, and Article 31) require not only a special majority but also ratification by at least half of the state legislatures.
- Amendments that affect the federal structure of the Constitution or the powers and representation of states in Parliament require ratification by a majority of state legislatures.
- Scope of Amendment: While the Indian Parliament has the authority to amend various parts of the Constitution, including fundamental rights and directive principles of state policy, there are certain “basic structure” doctrines laid down by the Supreme Court of India. These doctrines imply that there are limits to the power of Parliament to amend the Constitution. Parliament cannot alter the “basic structure” of the Constitution, which includes features like federalism, secularism, democracy, and the independence of the judiciary.
- Limitations on Amendment Power: There are certain provisions in the Constitution that cannot be amended at all. These include:
- The supremacy of the Constitution (Preamble).
- The establishment of a federal structure with a division of powers between the center and the states.
- The democratic and republican nature of the Indian state.
- The power of the President to refer certain bills for the opinion of the Supreme Court.
- The election of the President and the manner of choosing the President.
In summary, the Indian Parliament possesses the power to amend the Constitution through a special majority, subject to certain procedural requirements and limitations. While it has the authority to make changes to various parts of the Constitution, certain core principles and features, as defined by the Supreme Court, remain unalterable to preserve the essence and integrity of the Indian Constitution.
What are the Limitations on Amending Power?
In India, while the Parliament has the authority to amend the Constitution, there are certain limitations on its amending power. These limitations are designed to preserve the basic structure and fundamental principles of the Constitution. Here are the key limitations on the amending power of the Indian Parliament:
- Basic Structure Doctrine: The most significant limitation on the amending power of Parliament is the “basic structure doctrine.” This doctrine, established by the Supreme Court of India, holds that there are certain features and principles of the Constitution that cannot be amended because they constitute the “basic structure” of the Constitution. These features include:
- The supremacy of the Constitution.
- The democratic and republican nature of the Indian state.
- The separation of powers between the executive, legislature, and judiciary.
- Federalism, which includes the division of powers between the center and the states.
- Secularism.
- Rule of law.
- Judicial review.
Any amendment that seeks to alter or destroy the basic structure of the Constitution is considered unconstitutional and invalid.
- Fundamental Rights: While Parliament can amend fundamental rights, certain fundamental rights are considered “eternal” and cannot be amended. These include the right to equality before the law, the right to protection of life and personal liberty, and the right to protection against double jeopardy and self-incrimination. Amendments that abrogate or take away these rights can be challenged in court.
- Federal Structure: Amendments that alter the federal structure of the Constitution or change the powers and representation of states in Parliament require ratification by a majority of state legislatures. This ensures that the federal character of the Constitution is not undermined without the consent of the states.
- Certain Provisions: There are specific provisions in the Constitution that cannot be amended at all. These include provisions related to the:
- Supremacy of the Constitution (Preamble).
- Establishment of a federal structure.
- Democratic and republican nature of the Indian state.
- Power of the President to refer certain bills for the opinion of the Supreme Court.
- Election of the President and the manner of choosing the President.
- Judicial Review: Courts in India, particularly the Supreme Court, have the authority to review and strike down amendments that violate the Constitution’s basic structure or other fundamental principles. The judiciary acts as a guardian of the Constitution’s integrity.
These limitations on the amending power of Parliament are essential to maintain the core principles and values enshrined in the Indian Constitution. They ensure that the Constitution remains true to its fundamental ideals even as it evolves to meet the changing needs of society.
What are the Important Amendments of Parliament?
The Indian Parliament has passed numerous amendments to the Constitution of India since its adoption in 1950. These amendments have been made to address various issues, adapt to changing circumstances, and introduce reforms. Here are some important amendments to the Indian Constitution:
- First Amendment Act (1951): This amendment introduced several changes, including restrictions on freedom of speech and expression to prevent abuses of these rights, and added the Ninth Schedule to protect laws from judicial review on the grounds of violating fundamental rights.
- Seventh Amendment Act (1956): It reorganized states in India on linguistic lines, marking a significant step in the reconfiguration of India’s political map.
- Twelfth Amendment Act (1962): This amendment established the state of Nagaland and provided special provisions for it.
- Twenty-Fourth Amendment Act (1971): It sought to curtail judicial review of amendments to the Constitution and reinforced Parliament’s power to amend any part of the Constitution.
- Forty-Second Amendment Act (1976): Often referred to as the “Mini-Constitution,” this comprehensive amendment introduced several changes, including the addition of fundamental duties, the extension of the term of the Lok Sabha and state legislatures during emergencies, and the proclamation of a state of internal emergency on the grounds of “internal disturbance.”
- Forty-Third Amendment Act (1977): This amendment restricted the power of judicial review in matters related to property rights and land reform laws.
- Forty-Fourth Amendment Act (1978): It nullified some of the provisions introduced by the Forty-Second Amendment, restoring the power of judicial review and reducing the extended term of the Lok Sabha and state legislatures during emergencies.
- Fifty-Second Amendment Act (1985): This amendment clarified the anti-defection law, disqualifying Members of Parliament (MPs) or Members of Legislative Assemblies (MLAs) if they voluntarily give up the membership of their party or violate party discipline.
- Seventy-Third Amendment Act (1992): This amendment introduced provisions related to Panchayati Raj institutions, giving constitutional status to local self-governance at the village, intermediate, and district levels.
- Seventy-Fourth Amendment Act (1992): It extended similar provisions to urban local bodies, granting constitutional status to municipalities.
- Ninety-First Amendment Act (2003): This amendment introduced provisions for the reservation of seats for Scheduled Castes and Scheduled Tribes in Lok Sabha and state legislatures, ensuring their adequate representation.
- One Hundredth Amendment Act (2015): This amendment facilitated the introduction of the Goods and Services Tax (GST) in India, which replaced a complex system of indirect taxes with a unified tax regime.
These are just a few of the significant amendments to the Indian Constitution. The amendments reflect India’s evolving political, social, and economic landscape, as well as the ongoing efforts to uphold the principles of justice, equality, and democracy outlined in the Constitution.
What are the Supreme Court Landmark Judgements for Amendments of Parliament?
The Supreme Court of India has delivered several landmark judgments related to amendments of Parliament, particularly in cases where amendments have been challenged on the grounds of violating the basic structure or fundamental rights of the Constitution. Here are some significant Supreme Court judgments related to constitutional amendments:
- Kesavananda Bharati v. State of Kerala (1973): This is one of the most crucial cases related to constitutional amendments. In this case, the Supreme Court established the “basic structure doctrine,” holding that while Parliament has the power to amend the Constitution, it cannot alter its basic structure. This doctrine limits the amending power of Parliament, ensuring that certain core features of the Constitution, such as democracy and federalism, remain intact.
- Indira Nehru Gandhi v. Raj Narain (1975): Although not directly related to a constitutional amendment, this case is significant as it led to the declaration of a state of emergency in India. During this period, several constitutional amendments were made to extend the term of the Lok Sabha and state legislatures. The Supreme Court, in subsequent cases, examined the validity of these amendments and imposed limitations on the power of Parliament to amend certain provisions during emergencies.
- Minerva Mills Ltd. v. Union of India (1980): In this case, the Supreme Court held that the 42nd Amendment Act, which had made significant changes to the Constitution, was valid in some respects but invalid in others. The judgment clarified that while Parliament has amending powers, it cannot destroy or damage the basic structure of the Constitution.
- Waman Rao v. Union of India (1981): This case affirmed the basic structure doctrine and emphasized that Parliament’s amending power cannot be exercised in a manner that would alter or damage the Constitution’s basic features.
- I.R. Coelho v. State of Tamil Nadu (2007): In this judgment, the Supreme Court reiterated the basic structure doctrine and held that amendments made under Article 31B (laws placed in the Ninth Schedule) could be subject to judicial review if they violated fundamental rights. This judgment reinforced the principle that constitutional amendments are not immune from judicial scrutiny.
- K. Puttaswamy v. Union of India (2017): While not related to amendments directly, this landmark case upheld the right to privacy as a fundamental right under the Constitution. This judgment has implications for the scope of amendments that may infringe on an individual’s privacy rights, emphasizing the need to balance fundamental rights with state interests.
These landmark judgments by the Supreme Court have played a crucial role in shaping the interpretation of the amending power of Parliament and the limits placed on it, particularly concerning the preservation of the Constitution’s basic structure and fundamental rights. They underscore the principle that the Constitution is the supreme law of the land and that amendments must not undermine its core principles and values.
What are the Key features of Amendment Power of Parliament?
The amendment power of the Parliament of India, as outlined in Article 368 of the Indian Constitution, has several key features:
- Special Majority: To amend the Constitution, Parliament must pass the amendment by a special majority. This means that a majority of the total membership of each House (Lok Sabha and Rajya Sabha) must vote in favor of the amendment.
- Two-Thirds Majority: In addition to a majority of the total membership, the amendment must also be supported by a two-thirds majority of the members present and voting in each House. This ensures that there is a broad consensus in favor of the amendment.
- Ratification by States: Some amendments, particularly those that affect the federal structure of the Constitution or the powers and representation of states in Parliament, require ratification by a majority of state legislatures. This ensures that the interests of states are taken into account.
- Amendment of Any Part: Parliament has the power to amend any part of the Constitution. There are no restrictions on which articles or provisions can be amended, with a few exceptions such as the basic structure doctrine.
- Elasticity: The procedure for amending the Constitution is flexible and allows for changes to be made as per the needs of the nation. This flexibility has been used to adapt the Constitution to changing circumstances and needs.
- No External Limitation: The Constitution does not place any external limitation on Parliament’s amending power. However, it is subject to the basic structure doctrine and certain fundamental principles and values of the Constitution.
- Judicial Review: While Parliament has the power to amend the Constitution, the judiciary has the authority to review and strike down amendments that violate the basic structure or other fundamental principles of the Constitution. This ensures a system of checks and balances.
- Limitations on Amendment: While Parliament can amend most parts of the Constitution, there are certain limitations. The basic structure of the Constitution, as defined by the Supreme Court, cannot be altered. Additionally, certain fundamental rights are considered “eternal” and cannot be amended.
- Secularism and Democracy: Amendments that seek to undermine the secular and democratic character of the Constitution are not permitted.
- Federal Character: Amendments that affect the federal character of the Constitution require the consent of states through ratification.
These key features of the amendment power of Parliament are essential in maintaining the integrity and flexibility of the Indian Constitution. While Parliament has the authority to amend the Constitution, it is bound by the constitutional principles and values that form the bedrock of the Indian democratic system.
Critical Analysis of Amendment Power of Indian Paliament –
The amendment power of the Indian Parliament, as outlined in Article 368 of the Constitution, is a critical aspect of India’s constitutional framework. It allows for the adaptation of the Constitution to changing circumstances, but it also comes with its own set of strengths and limitations. Here’s a critical analysis of the amendment power of the Indian Parliament:
Strengths:
- Flexibility and Adaptability: The amendment power provides the Constitution with a degree of flexibility, allowing it to evolve over time. This has enabled India to make necessary changes to address emerging issues and societal needs.
- Democratic Process: Amendments are subject to a democratic process, requiring a special majority in Parliament. This ensures that significant changes to the Constitution have broad political support.
- Ratification by States: The requirement for ratification by state legislatures in certain cases ensures that the federal character of the Constitution is respected and that the interests of states are taken into account.
- Checks and Balances: The power of judicial review allows the judiciary to examine the constitutionality of amendments. This provides a vital check on any attempts to amend the Constitution in a manner that undermines its core principles.
Limitations:
- Basic Structure Doctrine: The doctrine that certain features of the Constitution form its “basic structure” and are beyond the reach of amendment has been both a strength and a limitation. While it protects the Constitution’s core principles, it leaves room for interpretation and potential disputes regarding what constitutes the basic structure.
- Erosion of Federalism: The amending power can, at times, be used to dilute the powers of states and centralize authority. This could potentially undermine the federal character of the Constitution, especially if amendments are made without adequate state consent.
- Political Exploitation: Amendments can be used for political gains, and there is a risk of amendments being pushed through for partisan reasons rather than in the best interest of the nation.
- Complexity and Length: Over time, the Indian Constitution has become quite complex and lengthy due to numerous amendments. This can make it difficult to navigate and understand.
- Potential for Abuse: There is the potential for abuse of the amendment power, particularly when it is used to curtail fundamental rights or weaken the constitutional principles of democracy and secularism.
In conclusion, the amendment power of the Indian Parliament is a crucial mechanism for ensuring that the Constitution remains relevant and adaptable. It reflects the commitment to democracy and the rule of law in India. However, it is not without its challenges and limitations, and its use should be guided by a deep respect for the Constitution’s fundamental principles and values. The balance between flexibility and the preservation of core constitutional principles is a constant challenge and subject to interpretation by the judiciary.
Conclusion –
In conclusion, the amendment power of the Indian Parliament is a double-edged sword within the country’s constitutional framework. On one hand, it offers the much-needed flexibility to adapt the Constitution to changing circumstances and societal needs, reflecting India’s commitment to a vibrant and evolving democracy. It allows for democratic processes and political consensus to shape the nation’s foundational document.
On the other hand, this power carries inherent risks and limitations. The introduction of the “basic structure doctrine” by the judiciary underscores the need to protect certain core values and principles of the Constitution, preventing them from being altered or undermined through amendments. While this doctrine safeguards the Constitution’s integrity, it also leaves room for interpretation and potential disputes.
Moreover, the amendment power can be exploited for political gains, potentially eroding the federal character of the Constitution or infringing on fundamental rights. Balancing the imperative to adapt with the necessity to protect the Constitution’s core values is a delicate task.
In practice, the amendment power should be exercised judiciously, with a profound respect for democratic principles, the rule of law, and the Constitution’s fundamental tenets. It requires a commitment to preserving the essence of the Constitution while addressing contemporary challenges—a challenge that underscores the enduring importance of a strong and independent judiciary to serve as a check and balance in the constitutional framework.