Q. 1. Discuss in brief the procedure for the amendment of the Indian Constitution.
Ans. The method of amending the Constitution of India is neither very difficult nor so easy. The framers of the Indian Constitution adopted the middle path and made the Indian Constitution neither too rigid nor too flexible. The procedure of amendment is mentioned in Article 368. There are three types of procedure for amending the Indian Constitution:
1. Amendment by the Parliament by a Simple Majority. There are certain articles of the Constitution which can be amended by a simple majority. The articles which can be amended in this way are concerned with matters like the admission of new States into India, creation of new States, to change the territory boundary or make of any State, consequential changes in the first and fourth schedules required because of the above given amendments, etc.
Similarly, the Parliament may, by simple majority, create or abolish a legislative council on the recommendation of the Legislative Assembly of the State. The Parliament has the authority to increase the jurisdiction of the Supreme Court. It may create High Courts for the Union Territories. It may entrust additional functions to the Public Service Commission.
The Parliament is also empowered to lay down some more qualifications of the Parliament and the State Legislatures. The pay and allowances of the members of Parliament and the central ministers are fixed by the Parliament. But the laws made concerning subjects are not considered amendments of the Constitution according to Article 368 of the Constitution. In fact, the right of making changes in the Constitution is given to every Parliament and those changes are not considered amendments of the Constitution.
2. Amendment by the Parliament by a 2/3rd Majority. The process of amending the Constitution is given in the Article 368. The article or subjects which are not given in this article, can be amended by the Parliament alone with a special majority. The bill for such an amendment may be introduced in any one of the two Houses. If both the Houses pass it with absolute majority and 2/3rd majority of the members present and voting, it will be sent to the President. The Constitution will stand amendment on that point, when that bill is signed by the President.
3. Amendment by the Special Majority of Parliament and Ratification by State Legislature.
If an amendment is concerned with the article and the subjects given in the Article 368, it must be approved by 50% of the States after being passed by both the Houses with an absolute majority and 2/3rd majority of the members present and voting. The amendment will come into force after being signed by the President. The subjects given in Article 368 are as follows:
(a) Election of the President,
(b) The manner and election of the President,
(c) Extent of executive power of the Union,
(d) Extent of executive power of the States,
(e) High Courts for Union Territories,
(f) Union Judiciary,
(g) The High Courts in the states,
(h) Legislative relations between the Centre and States,
(i) List of VII Schedule,
(j) The representation of States in Parliament, and
(k) Article 368 itself.
It is quite clear that most important provisions of the Constitution cannot be amended by the Parliament itself rather than the consent of half the States is required.
Blend of Flexibility and Rigidity. The Indian Constitution is a blend of flexibility and rigidity. It is neither flexible like the British Constitution nor rigid like the American. British Constitution is very flexible whereas American Constitution is very rigid. But our Constitution is changeable according to the needs of the time. Till today, 99 amendments have been made in the Constitution.
Criticism. The method of amending the Constitution suffers from certain defects also. Method of amendment is criticised on the following grounds:
1. States have no Initiative for Constitutional Amendment. The power of initiating an amendment lies only with the Parliament. The States have not been given any such power of initiating amendment.
Besides, the approval of the States is not essential for all the amendments.
2. No Time Limit Fixed for Ratification by States. The procedure suffers from another defect that no time limit is fixed in the Constitution for the approval of the States. They may take as much time as they like. There is no constitutional limitation on their power of delay.
3. Disagreement of two Houses of Parliament over a Constitutional Amendment. There is no method of resolving the differences between the two Houses regarding a bill concerning the constitutional amendment. But this criticism is baseless because a bill concerning an amendment of the Constitution will be considered an Ordinary Bill, the procedure of which is clearly given in the Constitution. A joint sitting of both the Houses will be called to resolve the differences regarding the bill.
4. Assent of the President over Constitutional Amendments. Nothing about the veto power of the President is given in the procedure of amendment. It is also not mentioned in the Constitution that an amendment which is approved by the States requires the assent of the President or not.
5. Some Notable Provisions. There are certain provisions in the Constitution which can be changed even without introducing the amendment bill in the Constitution. Article 253 is of this nature. The Parliament can make laws in order to enforce any treaty or agreements made with a foreign country.
6. Constitutional Protection. According to Dr. Jennings, “It is quite obvious that there are clauses which don’t need to be constitutionally protected. An example taken at random is Article 22, which empowers a retired Judge to sit in a High Court. If the provision is of such constitutional importance that it needs to be constitutionally protected and be incapable of amendment except with the approval of 2/3rd of the members of each House, sitting and voting in the Union Parliament.”
Q. 2. ‘Indian Constitution is a living document.’ Explain.
Ans. Indian Constitution is a living document. A good Constitution is dynamic and not static. Indian Constitution is also dynamic. The Constitution of India, though ready by November 26, 1949, came into operation on January 26, 1950. The Indian Constitution is a living document because it has changed with the changed circumstances. It is almost like a living being. But the very basis of the Constitution has not changed. The basic structure of the Constitution is still the basis of our fundamental laws.
But at the same time it is a hard fact that the Indian Constitution has necessarily changed as the nation has changed. “It is a living thing that has not put any obstacle in the progress of the nation.” Like the British Constitution, Indian Constitution has also been changing with the change of time and has been meeting the requirements of the nation. Today, Indian Constitution is not what it was in 1950. It meets the requirements of modern India. Following factors are responsible for the change and development of the Indian Constitution.
3. Judicial Decisions
5. Political Parties
1. Amendments. Constitutional amendments are an important means to change and develop the Constitution. These amendments have affected fundamental changes in the structure of the government and developed the Constitution according to the need of time. The 24th Amendment (1971) authorised Parliament to amend any provision of the Constitution according to the procedure laid down in Article 361.
The 36th Amendment (1975) made Sikkim the 22nd State of the Union. The 42nd Amendment (1976) provided for the supremacy of Parliament and gave primacy to the Directive Principles over Fundamental Rights. A set of ten Fundamental duties for the citizens was enumerated in the Constitution.
The 44th Amendment of 1978 limited the power of the government to proclaim internal emergency. The Right to Property was removed as a Fundamental Right and it was made only a legal right. The 73rd Amendment of 1992 added Part IX to the Constitution and provided for the Panchayats in every state at the village, intermediate and districts levels. The 74th Amendment of 1992 provided urban institution in the Constitution. The 86th Amendment of 2002 provided that the state shall provide free and compulsory education to all children of the age of 6 to 14 years.
The Right to Children to Free and Compulsory Education Act or Right to Education Act (RTE) came into force on April 1, 2010.
The 91st Amendment of 2003 provides that the total number of Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the People.
2. Laws. Laws passed by the Parliament from time to time have also developed the Indian Constitution.
Parliament laws have filled up the blanks and added a lot in the Constitution. Some important laws passed by the Parliament are as follows:
(1) Preventive Detention Act, 1950.
(2) Representation of People Acts, 1950, 1951.
(3) Finance Commission Act, 1951.
(4) Presidential and Vice-Presidential Election Act, 1951.
(5) Indian Citizenship Act, 1955.
(6) States Reorganisation Act, 1956.
(7) Supreme Court (Number of Judges) Act, 1956.
(8) Bombay Reorganisation Act, 1960.
(9) The Official Languages Act, 1963 (as amended in 1968).
(10) The Punjab Reorganisation Act, 1966.
(11) The Unlawful Activities Prevention Bill, 1967.
(12) Maintenance of Internal Security Act, 1971.
(13) Presidential and Vice-Presidential Poll Dispute Act, 1977.
(14) The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.
(15) National Security Act, 1980.
3. Judicial Decisions. According to Justice Holmes, “Judges do and must legislate.” Like the American Constitution, the Indian Constitution has also expanded due to the various judgements of the Supreme Court. The Supreme Court of India has been vested with the power and responsibility to safeguard the Constitution. Many of the Articles of the Constitution have been explained and interpreted by the various High Courts and the Supreme Court. In the case of Gopalan V/S State of Madras, the Supreme Court defined the scope of personal liberty.
In the case of Bengal Immunity Co. Ltd. V/S State of Bengal, the Supreme Court declared that it can overrule its previous decisions. Perhaps the most important decision is related to the Golak Nath case. In this case the Supreme Court held that the Parliament of India has no power to abridge in future the Fundamental Rights guaranteed under Part III of the Constitution. In the Keshvanand Bharti case the Supreme Court held that the Parliament had the power to amend all provisions of the Constitution, including those related to Fundamental Rights but had no power to change the basic structure of the Constitution.
4. Conventions. Ever since the Indian Constitution came into operation, many conventions have grown and developed. One such example is about the appointment of a Governor. A convention has grown that before making the appointment of a Governor, Chief Minister of the concerned State is invariably consulted.
5. Political Parties. Political parties have considerably changed the nature of the Constitution.
Political parties are responsible for the growth of the Indian Constitution.
Thus, we can conclude safely that Indian Constitution is a living document.