Before 1947, India was divided into two main entities – The British India which consisted of 11 provinces and the Princely states ruled by Indian princes under subsidiary alliance policy. The two entities merged together to form the Indian Union, but many of the legacy systems in British India is followed even now.
The historical underpinnings and evolution of the India Constitution can be traced to many regulations and acts passed before Indian Independence.
INDIAN SYSTEM OF ADMINISTRATION
Indian democracy is a Parliamentary form of democracy where the executive is responsible to the Parliament. The Parliament has two houses – Loksabha and Rajyasabha. Also, the type of governance is Federal, i.e. there is separate executive and legislature at Center and States. We also have self-governance at local government levels. All these systems owe their legacy to the British administration. Let us see the historical background of Indian Constitution and its development through years.
A. CONSTITUTIONAL DEVELOPMENT
REGULATING ACT 1773
- The first step was taken by the British Parliament to control and regulate the affairs of the East India Company in India.
- It designated the Governor of Bengal (Fort William) as the Governor-General (of Bengal).
- Warren Hastings became the first Governor-General of Bengal.
- Executive Council of the Governor-General was established (Four members). There was no separate legislative council.
- It subordinated the Governors of Bombay and Madras to the Governor-General of Bengal.
- The Supreme Court was established at Fort William (Calcutta) as the Apex Court in 1774.
- It prohibited servants of the company from engaging in any private trade or accepting bribes from the natives.
- Court of Directors ( the governing body of the company) should report its revenue.
AMENDING ACT 1781
- Supreme Court to have jurisdiction over all the citizens of Calcutta and to take into consideration religious & social customs.
- For cases involving below £ 5000, the Governor General in council was highest court of appeal.
PITTS INDIA ACT, 1784
- Distinguished between commercial and political functions of the company.
- Court of Directors for Commercial functions and Board of Control for political affairs.
- Reduced the strength of the Governor General’s council to three members.
- Placed the Indian affairs under the direct control of the British Government.
- The companies territories in India were called “the British possession in India”.
- Governor’s councils were established in Madras and Bombay.
THE ACT OF 1786
- Governor General was made commander in chief and was given the power to override his council in extraordinary cases.
THE CHARTER ACT OF 1793
- The power of Governor General to override his Council was extended to all future Governor-generals.
- During the absence of Governor General from Bengal, he was to appoint a vice President from civilian members of the council to act for him.
- All the members in future to be paid salaries out of the Indian revenue.
- All laws were translated into Indian languages.
CHARTER ACT 1813
- Monopoly of trade with India was ended but monopoly of tea trade with China was allowed.
CHARTER ACT 1833
- Monopoly of tea trade with China was abolished .Company was only to have political functions.
- President of Board of Council became the Minister for Indian affairs.
- A law member without power to vote was added to the Executive Council of Governor general (Lord Macvallay was 1st law member).
- Competition exams were introduced for recruitment to the coveted services.
- Rs.1 lakh to be spent on education in India.
- It made the Governor-General of Bengal as the Governor-General of India (Lord William Bentinck was the first Governor-General of India).
CHARTER ACT 1853
- The legislative and executive functions of the Governor-General’s Council were separated.
- 6 members in Central legislative council. Four out of six members were appointed by the provisional governments of Madras, Bombay, Bengal and Agra.
- It introduced a system of open competition as the basis for the recruitment of civil servants of the Company (Indian Civil Service opened for all).
The British Crown assumed the sovereignty over India from the East India Company in 1857 and the British Parliament enacted the first statute for the government of India under the direct rule of the British government.
GOVERNMENT OR INDIA ACT, 1858
- The rule of Company was replaced by the rule of the Crown in India.
- The powers of the British Crown were to be exercised by the Secretary of State for India
- He was assisted by the Council of India, having 15 members
- He was vested with complete authority and control over the Indian administration through the Viceroy as his agent
- The Governor-General was made the Viceroy of India.
- Lord Canning was the first Viceroy of India.
- Abolished Board of Control and Court of Directors.
GOVERNMENT OF INDIA ACT 1861
- It introduced for the first time Indian representation in the institutions like Viceroy’s executive+legislative council (non-official). 3 Indians entered Legislative council.
- Legislative councils were established in Center and provinces.
- It provided that the Viceroy’s Executive Council should have some Indians as the non-official members while transacting the legislative businesses.
- It accorded statutory recognition to the portfolio system.
- Initiated the process of decentralisation by restoring the legislative powers to the Bombay and the Madras Provinces.
INDIAN COUNCIL ACT, 1892
- It introduced the principle of election but in indirect manner.
- Though the majority of official members were retained, the non official members of the Indian Constitution council were to be nominated by the Bengal Chamber of commerce and the Provincial Legislative councils while the non - official members of the Provincial Councils were to be nominated by certain local bodies such as universities, district boards, municipalities.
- The councils were to have the powers of discussing the annual statement of revenue and expenditure and of addressing questions to the Executive.
THE MINTO-MORLEY REFORMS AND THE INDIAN COUNCIL ACT, 1909
- Direct elections to legislative councils; first attempt at introducing a representative and popular element.
- It changed the name of the Central Legislative Council to the Imperial Legislative Council.
- The member of Central Legislative Council was increased to 60 from 16.
- Introduced a system of communal representation for Muslims by accepting the concept of ‘separate electorate’.
- Indians for the first time in Viceroys executive council. (Satyendra Prasad Sinha, as the law member)
THE MONTAGUE- CHELMSFORD REPORT AND THE GOVERNMENT OF INDIA ACT, 1919
- This Act is also known as the Montague-Chelmsford Reforms.
- The Central subjects were demarcated and separated from those of the Provincial subjects.
- The scheme of dual governance, ‘Dyarchy’, was introduced in the Provincial subjects.
- Under dyarchy system, the provincial subjects were divided into two parts – transferred and reserved. On reserved subjects, Governor was not responsible to the Legislative council.
- The Act introduced, for the first time, bicameralism at center.
- Legislative Assembly with 140 members and Legislative council with 60 members.
- Direct elections.
- The Act also required that the three of the six members of the Viceroy’s Executive Council (other than Commander-in-Chief) were to be Indians.
- Provided for the establishment of Public Service Commission.
GOVERNMENT OF INDIA ACT 1935
- The Act provided for the establishment of an All-India Federation consisting of the Provinces and the Princely States as units, though the envisaged federation never came into being.
- Three Lists: The Act divided the powers between the Centre and the units into items of three lists, namely the Federal List, the Provincial List and the Concurrent List.
- The Federal List for the Centre consisted of 59 items, the Provincial List for the provinces consisted of 54 items and the Concurrent List for both consisted of 36 items
- The residuary powers were vested with the Governor-General.
- The Act abolished the Dyarchy in the Provinces and introduced ‘Provincial Autonomy’.
- It provided for the adoption of Dyarchy at the Centre.
- Introduced bicameralism in 6 out of 11 Provinces.
- These six Provinces were Assam, Bengal, Bombay, Bihar, Madras and the United Province.
- Provided for the establishment of Federal Court.
- Abolished the Council of India.
INDIAN INDEPENDENCE ACT, 1947
- Abolition of the Sovereignty and Responsibility of the British Parliament.
- The Crown no longer be source of authority
- The Governor-general and provincial Governors as constitutional heads.
- Sovereignty of the Dominion Legislature:- The Central legislature of India ceased to exist on 14 August 1947.It was constituent assembly which was to function also as the legislature.
POINTS TO BE NOTED:
- Laws made before Charter Act of 1833 were called Regulations and those made after are called Acts.
- Lord Warren Hastings created the office of District Collector in 1772, but judicial powers were separated from District collector later by Cornwallis.
- From the powerful authorities of unchecked executives, the Indian administration developed into a responsible government answerable to the legislature and people.
- The development of portfolio system and budget points to the separation of power.
- Lord Mayo’s resolution on financial decentralization visualized the development of local self-government institutions in India (1870).
- 1882: Lord Ripon’s resolution was hailed as the ‘Magna Carta’ of local self-government. He is regarded as the ‘Father of local self-government in India’.
- 1921: Railway Budget was separated from the General Budget.
- From 1773 to 1858, the British tried for the centralization of power. It was from the 1861 Councils act they shifted towards devolution of power with provinces.
- 1833 Charter act was the most important act before the act of 1909.
- Till 1947, the Government of India functioned under the provisions of the 1919 Act only. The provisions of 1935 Act relating to Federation and Dyarchy were never implemented.
- The Executive Council provided by the 1919 Act continued to advise the Viceroy till 1947. The modern executive (Council of Ministers) owes its legacy to the executive council.
- The Legislative Council and Assembly developed into Rajyasabha and Loksabha after independence.
B. THE MAKING OF THE CONSTITUTION
In 1938, Pandit Nehru formulated his demand for a constituent Assembly, which was resisted by the British government until the outbreak of World war –II when external circumstances forced them to realise.
In March 1942, they sent Sir Stafford Cripps (Cripps mission) a member of the cabinet with a draft declaration of the proposals of the British government which were to be adopted at the end of the war provided that:
- The Constitution of India was to be framed by an elected constituent Assembly of the Indian people.
- India would be given Dominion Status.
- There should be one Indian Union comprising all the provinces and Indian states but any province which was not prepared to accept the constitution would be free to retain its constitutional position.
Both Congress and Muslim League rejected it and Muslim League urged that India should be divided into two autonomous states on communal lines and there should be separate Constituent Assembly to build Pakistan.
After it, Cabinet mission was sent who put forward his own proposals on 16 May 1946.The broad features of the scheme were:
- There would be a union of India comprising both British India and States.
- The Union would have an Executive and a legislature constituted of representatives of the provinces and States.
- The proposal also contained a plan to elect constituent Assembly by indirect elections, to frame constitution.
For forming the Constituent Assembly election were held which were joined by Muslims League. On 9th December 1946, first meeting of Constituent Assembly was held which was not attended by Muslim league and the assesmbly began to function without the Muslim members. The Muslim league urged for the dissolution of the constituent assembly on the ground that it was not fully representative of all sections of people of India.
On the other hand the British government on 20th Feb 1947 declared-that British rule in India would in any case end by 30th June 1948.
Then Lord Mountbatten succeeded Lord Wavell as Governor general. He brought the Congress and Muslim league into an agreement that the two problem provinces of Punjab and Bengal would be partitioned as to form absolute Hindu and Muslim majority blocks within the provinces which were derived by cabinet mission and league would get its Pakistan. The actual decision of partition of the two provinces was left to the vote of the members of the legislative Assemblies of these provinces. It was also proposed that there would be a referendum in the N.W.F.P and in the Muslim majority districts of Sylhet as to whether they would join India of Pakistan.
On 26th July 1947 the Governor general announced the setting of a separate constituent assembly for the Pakistan. On the basis of above plan the British government passed the Indian Independence Act, 1947, which provided that from 15 August 1947 in place of India there would be set up two independent Dominions to be known as India and Pakistan and gave unlimited power to the constituent assembly of each dominion to frame and adopt any constitution and to repeat any act of the British Parliament including the India Independence Act. So the constituent assembly was reassembled on 14 August 1947 as the sovereign Constituent Assembly of dominion of India. It had been elected by indirect election by the members of the provincial legislative Assemblies to elect 292 members while the Indian states were allotted a maximum of 93 seats.
As a result or partition under the plan of June 3rd, 1947, the representative of Bengal, Punjab, Sind, N.W.F.P, Baluchistan and Sylhet district of Assam ceased to members of the Constituent Assembly of India and there was a fresh election in new provinces of West Bengal and East Punjab. So the membership of the House was reduced to 299.Of these 284 were actually present on 26th November 1949 and signed the constitution finally.
C. PASSING OF THE CONSTITUTION:-
The Drafting Committee was appointed on 29th August 1947 with B.R Ambedkar as its chairman with six other members which were N.Gopalswami Ayyangar, Alladi Krishnaswmi Ayyar, K.M.Munshi, Mohd. Sadullah, B.L.Mittar (replaced by N.Madhav Rao), D.P.Kaithan (died in 1948 and replaced by T.T.Krishnamachari).
The Draft Constitution of India was published in Feb, 1948, the assembly next met in Nov. 1948 to consider the provisions of the Draft. The second reading was completed by the 17th October 1949 and third on 14th November 1949.On the 26th November 1949, on which date the constitution received the signature of the President of the Assembly and was declared PASSED.
According to Article 394, provisions relating to the citizenship elections, provisional Parliament and temporary and transitional provisions contained in Articles 5, 6, 7, 8, 9, 60,324,366,367,379,380,388,391, 392 and 393 came into force on the day of adoption (i.e. 26 November 1949) of the Constitution and the remaining provisions of the Constitution came into being on the day of the commencement (i.e. 26 January 1950) of the Constitution. According to Article 395, the Government of India Act of 1935 and the Indian Independence Act of 1947 got replaced with the commencement of the Constitution of India.
D. SALIENT FEATURES OF THE INDIAN CONSTITUTION
1.Written, Lengthy and Detailed Constitution
Our Constitution is written, lengthy and detailed. Written constitution is that which is based on written laws duly passed by a representative body elected for this very purpose. In other words, a written constitution is an enacted constitution.
An unwritten constitution, on the other hand, is an evolved constitution. It is primarily based on unwritten conventions, traditions and practices. The Constitution of the U.S.A. is another example of a written constitution and that of England of an unwritten one.
The Constitution of India is an elaborate document and is the most voluminous Constitution in the world. Our Constitution originally consisted of 395 Articles and eight Schedules. During the last fifty eight years of its operation, ninety four Amendments have been made to the Constitution. Four new Schedules have also been added, resulting in a further increase in its size and volume.
An important reason for the extraordinary volume of the Constitution is that it contains detailed provisions regarding numerous aspects of governance. This was done to minimize confusion and ambiguity in the interpretation of the Constitution, another reason for its unusual lengthy is the incorporation of the good points of various constitutions of the world.
The vastness of our country and its peculiar problems has also added to the bulk of the Constitution. Thus, for example, the Indian Constitution envisages laws for the governance of the States too.
Detailed provisions regarding the working of the Union Government and the State Governments have been given with a view to avoiding any constitutional problem which the newly-born Democratic Republic might experience in the working of the Constitution.
2. Partly Rigid and Partly Flexible Constitution
A flexible constitution is that which can be amended like an ordinary law of the country, i.e. by a simple majority of Parliament. On the other hand, a rigid constitution is the one which prescribes a difficult procedure for its own amendment.
The Constitution of the U.S.A. is the best example of rigid constitution because it can be amended only if a proposal for constitutional amendment is passed by a two-third majority in each House of the Congress (the US Parliament) and ratified by at least three-fourths of the federating states.
The Constitution of Great Britain, on the other hand, is highly flexible. This is so because it can be amended by a simple majority of its Parliament, much like the ordinary laws of the country.
The Indian Constitution is neither very flexible nor very rigid. Some provisions of the Constitution can be amended by a simple majority of Parliament, like ordinary laws of the land while most of the provisions can only be amended by a two-thirds majority of Parliament.
For very important provisions of the Constitution, such as the manner of election of the President and the extent of the legislative powers of the Union and the States, an amendment passed by a two-thirds majority of Parliament should also be ratified by at least one-half of the State legislatures.
The Indian Constitution thus combines the flexibility of the British Constitution and the rigidity of the American Constitution. Jawaharlal Nehru, while justifying this nature of the Constitution, said, "0ur Constitution is to be as solid and permanent as we can make it, yet there is no permanence in a constitution. There should be a certain amount of flexibility. If you make anything rigid and permanent, you stop the nation's growth, the growth of a living vital organic people."
3. Partly Federal and Partly Unitary
- Our Constitution declares India a Union of States (federation). It prescribes dual set of governments-the Union Government and the State Governments.
- The subjects of administration have also been classified into three lists-the Union List, the State List and the Concurrent List. Whereas subjects of national importance like currency, defense, railways, post and telegraph, foreign affairs, citizenship, survey and census have been assigned to the Union Government and placed under the Union List.
- Subjects of local importance like agriculture, law and order, health and entertainment have been assigned to the States and form a part of the State List.
- Both the Union Government and the State Governments operate within the spheres of their authority. The Union Parliament and the State Legislatures enjoy co-equal powers to make laws in regard to the Concurrent subjects. These subjects are of common importance such as marriage and divorce, adoption, succession, transfer of property, preventive detention, education, civil and criminal law, etc.
- However, if there is a conflict between a Union law and a law passed by one or many State Legislatures, the law made by the Union Parliament would prevail over the State law.
- The Indian Constitution possesses other features of a federation too, for example, supremacy of the constitution. This means that the Union and the State Governments both operate within the limits set by the Constitution. Both the governments derive authority from the Constitution itself.
- Similarly, in all federal countries, the authority of the Court is a well established fact. This means that in case of a dispute between the Union Government and State Governments or between two or more State Governments, the verdict of the Court will be final. Not only this, the Supreme Court is given the responsibility of interpreting the Constitution in case of dispute or confusion. The Supreme Court of India is the guardian of the Constitution and fulfils its role as a Federal Court too.
- The Indian Constitution, though federal in form, has a strong unitary bias. The Central Government possesses extensive powers compared to the State Governments. The exercise of these powers by the Centre gives the Constitution the strength of a unitary government. Let us look at those provisions of the Indian Constitution that make it partly unitary. The Union Government can supersede the authority of the States both in the normal and abnormal times. The President of India can declare three different types of emergencies. During the operation of an emergency, the powers of the State Governments are greatly curtailed and the Union Government becomes all in all.
- Even in normal times, the Union Parliament can legislate upon a subject given in the State List, if the Rajya Sabha passes a resolution by a two-thirds vote that such legislation is necessary in the national interest.
- Moreover, the Indian Constitution, unlike the US Constitution, does not provide for double citizenship, division of public services or of the judiciary.
- Similarly, the States in India do not enjoy the right to secede from the Union nor do they enjoy equality of representation in the Council of States (Rajya Sabha).
- Another unitary feature of our Constitution is that it gives Union Parliament the power to alter the boundaries of the existing States or to carve out new States out of the existing ones. It is on account of these features that the Indian Constitution is said to be federal in form but unitary in spirit.
Influence of Other Constitutions
E. The Preamble
- The Preamble to the Constitution sets out the main objectives which the Constituent Assembly intended to achieve.
- The 'Objective Resolution', proposed by Pandit Nehru and passed by the Constituent Assembly, ultimately became the Preamble to the Constitution of India.
- The Constitution (42nd Amendment) Act, 1976 amended the Preamble and added the words Socialist, Secular and Integrity to the Preamble.
- The Preamble is non-justiciable in nature, like the Directive Principles of State Policy, and cannot be enforced in a court of law.
- It can neither provide substantive power (definite and real power) to the three organs of the State, nor limit their powers under the provisions of the Constitution.
- The Preamble cannot override the specific provisions of the Constitution. In case of any conflict between the two, the latter shall prevail. So, it has a very limited role to play.
Purposes of the Preamble
- The Preamble declares that it is the people of India who had enacted, adopted and given the Constitution to themselves. Thus, sovereignty lies ultimately with the people.
- It also declares the ideals and aspirations of the people that need to be achieved.
The word 'Sovereign' emphasizes that there is no authority outside India on which the country is in any way dependent.
By the word 'Socialist', the Constitution means the achievement of socialistic pattern of society through democratic means.
- India is a 'Secular state' does not mean that India is non-religious or irreligious, or anti-religious, but simply that the State in itself is not religious and follows the ancient Indian principle of "Sarva Dharma Samabhava".
- It also means that the State shall not discriminate against the citizens in any way on the basis of religion.
Is it a part of Constitution?
- The Supreme Court in the Kesavananda Bharati vs. State of Kerala (1971) case overruled its earlier decision (Berubari case) of 1960 and made it clear that it is a part of the Constitution and is subject to the amending power of the Parliament as any other provisions of the Constitution, provided the basic structure of the Constitution as found in the Preamble is not destroyed. However, it is not an essential part of the Constitution.
- In the latest S.R. Bommai case, 1993 regarding the dismissal of three BJP Governments in MP, Rajasthan and Himachal Pradesh, Justice Ramaswamy said, "the Preamble of the Constitution is an integral part of the Constitution. Democratic form of government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution".
- The question arises as to why Preamble was amended when it is a basic feature. By the 42nd amendment, the Preamble was amended to include 'socialist',' secular' and 'integrity' as it was assumed that these amendments are clarifying and qualifying in nature. They are already implicit in the Preamble.
The term 'Democratic' means that the rulers are elected by the people, and they only have the authority to run the government.
The word 'Republic' means that there exist no hereditary ruler in India and all the Authorities of the State are directly or indirectly elected by the people.
The Preamble states that the objectives to be secured to every citizen are—
1. Justice: social, economic and political.
- Regarding justice, one thing is clear that the Indian Constitution expects political justice to be the means to achieve social and economic justice, by making the State more and more welfare oriented in nature.
- Political justice in India is guaranteed by universal adult suffrage without any sort of qualification.
- While social justice is ensured by abolishing any title of honour (Art. 18)
and untouchability (Art. 17), economic justice is guaranteed primarily through the Directive Principles.
2. Liberty: of thought, expression, belief, faith and worship
- Liberty is an essential attribute of a free society that helps in the fullest development of intellectual, mental, and spiritual faculties of an individual.
- The Indian Constitution guarantees six democratic freedoms to individuals under Art 19 and Right to freedom of religion under Arts 25-28.
3. Equality: of status, opportunity;
- The fruits of liberty cannot be fully realized until there is an equality of status and opportunity.
- Our Constitution makes it illegal, any discrimination by the State only on the basis of religion, caste, sex, or place of birth (Art. 15) by throwing open public places to all, by abolishing untouchability (Art. 17) and by abolishing titles of honour (Art 18).
- However, to bring the hitherto neglected sections of the society into the national mainstream, the Parliament has passed certain laws for the SCs, STs, OBCs (Protective Discrimination).
Fraternity as enshrined in the Constitution means a sense of brotherhood prevailing amongst all the sections of the people. This is sought to be achieved by making the State secular, guaranteeing fundamental and other rights equally to people of all sections, and protecting their interests. However, fraternity is an evolving process and by the 42nd amendment, the word 'integrity' was added, thus giving it a broader meaning.
KM Munshi termed it as 'the Political Horoscope'. Earnest Barker calls it the 'key to the Constitution'. Thakurdas Bhargava recognized it as the 'Soul of the Constitution'.
The term 'Socialistic pattern of society' was adopted as a goal of the Indian State by the Congress in 1955 in Avadi Session.
Indian constitution consists of 22 parts, 395 articles and 12 Schedules (initially 8 schedules were there) which are as follow: -
Parts of the constitution
Part I - Union and its Territory
Part II - Citizenship.
Part III - Fundamental Rights.
Part IV - Directive Principles and Fundamental Duties.
Part V - The Union.
Part VI - The States.
Part VII - States in the B part of the First schedule.
Part VIII - The Union Territories
Part IX - Panchayat system and Municipalities.
Part X - The scheduled and Tribal Areas
Part XI - Relations between the Union and the States.
Part XII - Finance, Property, Contracts and Suits
Part XIII - Trade and Commerce within the territory of India
Part XIV - Services Under the Union, the States and Tribunals
Part XV - Elections
Part XVI - Special Provisions Relating to certain Classes.
Part XVII - Languages
Part XVIII - Emergency Provisions
Part XIX - Miscellaneous
Part XX - Amendment of the Constitution
Part XXI - Temporary, Transitional and Special Provisions
Part XXII Short title, date of commencement, Authoritative text in Hindi and Repeals.
There are 12 Schedules in Indian Constitution. Schedules can be added to the constitution by amendment.
- States and Union Territories;
- Emoluments for High-Level Officials;
- relates to different forms of Oaths;
- Allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory;
- Provisions for the administration and control of Scheduled Areas and Scheduled Tribes;
- Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram;
- Relates to three types of lists: The Union (central government), State, and Concurrent (dual) lists;
- The Official Languages Recognised under the constitution ( There are 22 languages in this schedule; English is not mentioned in this schedule).
- Article 31B-Validity excluded from Court’s Review (land and tenure reforms; the association of Sikkim with India). It was added by 1st Constitution Amendment Act in 1951. It is largest schedule of the constitution.
- Anti-Defection provisions for Members of Parliament and Members of the State Legislatures (added by 52nd Constitution Amendment Act in 1985).
- It relates to functions of Panchayats (Rural Development); added by 73rd Constitution Amendment Act in 1992.
- It relates to functions of Municipalities (Urban Planning); added by Constitution Amendment Act in 1992.
The method of amendment was borrowed from South African constitution.
Article 368 of the Constitution provides that amendments to the Constitution can take place in three ways. These are;
- By simple majority of the Parliament: Amendments in this category can be made by a simple majority of members present and voting, before sending them for the President's assent.
- By special majority of the Parliament: Amendments can be made in this category by a two-thirds majority of the total number of members present and voting, which should not be less than half of the total membership of the house.
- By special majority of the Parliament and ratification by at least half of the state legislatures by special majority. After this, it is sent to the President for his assent. This is required in the following conditions:
- Provision dealing with election of President
- Provision dealing with the executive powers of the Union and the State
- Provision dealing with Supreme Court, High Court and Court for UTs
- Provision dealing with distribution of Legislative powers
- Any change in Schedule IV or any list of the VII Schedule
- Amendment of Art 368 itself
Procedure: - The bill for Amendment of the constitution can be originated in either House of the Parliament. It is required to be passed by both the Houses of Parliament with the special majority and then it is presented to the President for his assent. The President is bound to give his assent when such a bill is presented to him (24th Constitution Amendment Act, 1971).
The Parliament by following the above procedure can amend any part of the constitution but can’t change its Basic Structure.
Whether Fundamental Rights Can be amended or not?
The Supreme Court in Shankari Prasad v/s UOI, 1951 and Sajjan Singh v/s State of Rajasthan, 1965, held that parliament can amend any part of the constitution including Fundamental Rights and there is no limitation on this power of the Parliament.
In Golakhnath v/s State of Punjab, 1967 the Supreme Court overruled its earlier above mentioned two judgments and held that Parliament has no power to amend any Fundamental Right as there is no distinction between the amending power and the legislative power of the Parliament and Art13 specifically prohibits the parliament to make any law inconsistent with Fundamental Rights.
In order to undo the effect of Golakhnath case, the Parliament introduced 24th
Amendment Act, 1971 by which the following changes were introduced:
- Art 13(4) was added which provided that nothing in this Article shall apply to any amendment under Art 368
- Art 368(3) was added in which it is provided that nothing in this Article shall apply to any amendment under Art 13
- The title of Art 368 was also changed to “Power to amend the Constitution and power therefore”
This 24th Amendment was upheld by the Supreme Court in Keshavnanda Bharti v/s State of Kerala, 1973, in which Supreme Court held that Parliament has the power to amend the constitution subject to the restriction that it can’t destroy the Basic Structure of the Constitution
In 1976 by 42nd Constitution Amendment (4) & (5) were added to art 368 in which it was provided that Parliament can amend any provision of the constitution and such amendment shall not be called in question in any court on any ground.
- These two new clauses were struck down by the Supreme Court in Minerva Mills v/s UOI, 1980
Basic structure of constitution cannot be amended by any means. The principles of Basic Structure and liberal interpretation of Fundamental Rights are well discussed in famous cases like - Keshvanand Bharti, Maneka Gandhi, Minerva Mills, Bonded Labour, Bhopal Gas tragedy case etc.
There have been a total of 94 amendments to the constitution of India, as of 2006. It has now crossed the 100th mark. One of the major amendments (73rd) was to reserve one third of PRI (Panchyati raj Institutions) seats for women. It was a landmark amendment legislating affirmative action for women. After 1994, more than a million women are able to enter politics to share power with men.