Constitutional Amendments

The Indian Constitution, unlike many others, is a unique blend of flexibility and rigidity, allowing for amendments to adapt to changing times while safeguarding its core principles. Article 368 in Part XX specifically outlines the Parliament's power to amend the Constitution and the procedure thereof. However, it's crucial to understand that not all amendments fall under the purview of Article 368. The Constitution can be amended in three distinct ways:

1. Amendment by Simple Majority of Parliament: A significant number of provisions can be amended by a simple majority (more than 50% of members present and voting) in each House of Parliament. These amendments are not considered amendments for the purposes of Article 368. Examples include the admission or establishment of new states (Article 2), formation of new states and alteration of boundaries (Article 3), abolition or creation of legislative councils in states (Article 169), provisions relating to the Second Schedule, quorum in Parliament, and salaries/allowances of MPs.

2. Amendment by Special Majority of Parliament (Article 368): The majority of the Constitution's provisions require a 'special majority' for amendment. This means a majority of the total membership of each House and a majority of two-thirds of the members of each House present and voting. This category includes Fundamental Rights (Part III), Directive Principles of State Policy (Part IV), and all other provisions not covered by the first and third categories.

3. Amendment by Special Majority of Parliament and Ratification by States (Article 368): Provisions related to the federal structure of the Indian polity require not only a special majority in Parliament but also the ratification by the legislatures of at least half of the states by a simple majority. This ensures federal consent for changes affecting state powers. Examples include the election of the President (Articles 54, 55), the extent of the executive power of the Union and states, the Supreme Court and High Courts, the Seventh Schedule, and Article 368 itself.

Exam Angle: UPSC often tests the distinction between amendments under Article 368 and those outside it. Remember that 'simple majority' amendments are not constitutional amendments under Article 368. Also, the President's role is critical: he must give assent to a constitutional amendment bill, a provision solidified by the 24th Amendment Act, 1971. There is no provision for a joint sitting of Parliament for constitutional amendment bills, nor can states initiate such a bill (except for legislative councils). The 'Basic Structure Doctrine' (Kesavananda Bharati case, 1973) acts as a judicial check on Parliament's amending power, preventing it from altering the fundamental features of the Constitution.

Definition

Constitutional amendments are formal changes or additions to the text of the Constitution of India. They are crucial for adapting the Constitution to changing societal needs and political realities, ensuring its dynamism and relevance. Article 368 in Part XX of the Constitution outlines the power of Parliament to amend the Constitution and the procedure for doing so.

Key Facts

India's Constitution has been amended over 100 times, reflecting its adaptability. Some amendments are particularly significant for their far-reaching impact on governance, fundamental rights, and the federal structure.

• First Amendment Act, 1951: This was the first major amendment, necessitated by judicial pronouncements. It empowered the state to make special provisions for the advancement of socially and economically backward classes, added the Ninth Schedule to protect land reform laws from judicial review, and added new grounds for restricting freedom of speech and expression (public order, friendly relations with foreign states, incitement to an offence).

• 42nd Amendment Act, 1976: Often called the ‘Mini-Constitution’ due to its comprehensive nature, enacted during the Emergency. It added three new words to the Preamble – Socialist, Secular, and Integrity. It added Fundamental Duties (Part IV-A, Article 51A), made the President bound by the advice of the cabinet, curtailed the power of judicial review and writ jurisdiction of the High Courts, and gave primacy to Directive Principles over Fundamental Rights.

• 44th Amendment Act, 1978: Enacted by the Janata Party government to undo many of the changes made by the 42nd Amendment. It restored some of the powers of the Supreme Court and High Courts, replaced the term ‘internal disturbance’ with ‘armed rebellion’ for national emergency, and made the Right to Property a legal right (Article 300A) instead of a Fundamental Right.

• 73rd Amendment Act, 1992: Granted constitutional status and protection to Panchayati Raj Institutions. It added a new Part IX (The Panchayats) and the Eleventh Schedule, containing 29 functional items, mandating regular elections, reservation of seats for SCs, STs, and women (not less than one-third).

• 74th Amendment Act, 1992: Granted constitutional status and protection to Urban Local Bodies (Municipalities). It added a new Part IX-A (The Municipalities) and the Twelfth Schedule, containing 18 functional items.

• 86th Amendment Act, 2002: Made elementary education a Fundamental Right. It inserted Article 21A, declaring that the State shall provide free and compulsory education to all children of the age of six to fourteen years. It also changed the subject matter of Article 45 and added a new Fundamental Duty under Article 51A.

• 91st Amendment Act, 2003: Limited the size of the Council of Ministers to 15% of the total strength of the Lok Sabha (and state assemblies), and disqualified defectors from holding ministerial office.

• 99th Amendment Act, 2014: Established the National Judicial Appointments Commission (NJAC) for the appointment of judges to the Supreme Court and High Courts. However, the Supreme Court declared this amendment unconstitutional and void in 2015, restoring the collegium system.

• 101st Amendment Act, 2016: Paved the way for the introduction of the Goods and Services Tax (GST) regime. It conferred concurrent taxing powers upon Parliament and State Legislatures to make laws for levying GST, replacing multiple indirect taxes.

• 103rd Amendment Act, 2019: Provided for a 10% reservation in government jobs and educational institutions for Economically Weaker Sections (EWS) among general categories. It amended Articles 15 and 16.

• 106th Amendment Act, 2023: Provided for 33% reservation of seats for women in the Lok Sabha, State Legislative Assemblies, and the Legislative Assembly of the National Capital Territory of Delhi. Its implementation is contingent on delimitation after the next census.

Exam Angle

UPSC often asks about the specific provisions of these key amendments, their year of enactment, and their impact on constitutional principles like federalism, fundamental rights, and judicial review. Understanding the context and consequences of each amendment is crucial.

This is the power of the Higher Judiciary (Supreme Court and High Courts) to examine the validity of laws. If a law violates the Constitution or its Basic Structure, the Court can declare it 'void.' This acts as a check and balance on the power of the Parliament. Example: If a law says there will be no more elections, the Court will strike it down using Judicial Review.

Definition

The Basic Structure Doctrine is a judicial innovation by the Supreme Court of India that limits the Parliament's power to amend the Constitution. It posits that while Parliament has the power to amend the Constitution under Article 368, it cannot alter or destroy the fundamental features or the 'basic structure' of the Constitution.

Key Facts

• Origin: The doctrine emerged from a series of landmark Supreme Court judgments, culminating in the Kesavananda Bharati case in 1973.
• Shankari Prasad Case (1951): The Supreme Court initially ruled that Parliament's power under Article 368 included amending Fundamental Rights. It held that 'law' in Article 13 only referred to ordinary laws, not constitutional amendments.
• Golak Nath Case (1967): The Supreme Court reversed its earlier stand, declaring Fundamental Rights 'transcendental and immutable'. It ruled that Parliament could not abridge or take away Fundamental Rights, and a constitutional amendment act was also a 'law' under Article 13.
• 24th Amendment Act (1971): Parliament reacted to the Golak Nath verdict by enacting this amendment, which explicitly affirmed its power to amend any part of the Constitution, including Fundamental Rights, and stated that such amendments would not be considered 'law' under Article 13.
• Kesavananda Bharati Case (1973): This landmark judgment overruled Golak Nath. It upheld the 24th Amendment Act but simultaneously laid down the Basic Structure Doctrine. It stated that while Parliament could amend Fundamental Rights, it could not alter the 'basic structure' of the Constitution.
• Indira Nehru Gandhi Case (1975): The Supreme Court reaffirmed and applied the doctrine, invalidating a provision of the 39th Amendment Act (1975) that placed election disputes involving the Prime Minister and Speaker outside judicial review, as it affected the basic structure.
• 42nd Amendment Act (1976): Parliament again reacted by amending Article 368, declaring that there was no limitation on its constituent power and no amendment could be questioned in any court.
• Minerva Mills Case (1980): The Supreme Court struck down these provisions of the 42nd Amendment, reaffirming the basic structure doctrine and judicial review as basic features.
• Waman Rao Case (1981): The Court clarified that the basic structure doctrine would apply to constitutional amendments enacted after April 24, 1973 (the date of the Kesavananda Bharati judgment).

Mechanism

The doctrine acts as a check on the legislative power of Parliament. It implies that certain fundamental features of the Constitution, though not explicitly listed, are beyond the amending power of Parliament. Any amendment that seeks to destroy or alter these features can be struck down by the judiciary through its power of judicial review.

Exam Angle

Understanding the evolution of the basic structure doctrine through key cases (Shankari Prasad, Golak Nath, Kesavananda Bharati, Indira Gandhi, Minerva Mills, Waman Rao, I.R. Coelho) and related amendments (24th, 39th, 42nd) is crucial. UPSC often tests the chronology, the specific rulings, and the implications for the balance of power between the judiciary and Parliament.

This article gives the Parliament the power to amend the Constitution. Before the 1973 judgment, it was thought that this power was absolute. Now, Article 368 is seen as a limited power that must respect the Basic Structure. Example: Using Article 368, the government changed the Right to Property from a Fundamental Right to a simple Legal Right.

This concept was created by the Supreme Court in the 1973 Kesavananda Bharati case. It states that Parliament has the power to amend the Constitution, but it cannot change its basic features. These features include democracy, secularism, and the separation of powers. This doctrine acts as a check and balance. It prevents the government from becoming too powerful or destroying the spirit of the original document.

This is the most famous case in Indian history. A 13-judge bench, the largest ever, decided the case with a thin 7-6 majority. It introduced the 'Basic Structure Doctrine.' It ruled that while Parliament can amend any part of the Constitution, it cannot destroy its essential identity. Example: Parliament can modify laws about religion but cannot remove 'Secularism' entirely.

A special majority is required for most constitutional amendments. It has two conditions. First, more than 50% of the total strength of the House must support the bill. Second, at least two-thirds of the members present and voting must favor it. This ensures that a small group cannot change the supreme law. For example, if a House has 300 members, at least 151 must agree, and 2/3rd of those actually in the room must also vote yes.

The law provides an exception to prevent disqualification during party mergers. Originally, one-third of the members could split. Now, under the 91st Amendment, at least two-thirds of the members of a legislative party must agree to merge with another party. If this condition is met, neither the members who join the new party nor those who stay back face disqualification. For example, if a party has 30 MLAs, at least 20 must agree to the merger.

The Speaker (Lok Sabha) or Chairman (Rajya Sabha) is the authority who decides on defection cases. They do not take up cases on their own; a complaint must be made by another member of the house. While their decision was once final, it is now subject to 'Judicial Review.' This means a court can intervene if the decision is based on bad faith or violates natural justice. However, courts cannot intervene until the Speaker has made a final decision.

When an amendment changes the powers of the states, it is called a federal amendment. In this case, the bill needs approval from at least half of the states in India. The state legislatures pass this using a simple majority. Examples include changes to the election of the President or the distribution of taxes. This ensures that the central government does not unfairly take away the rights of the states.

A 'Whip' is an instruction issued by a political party to its members in the house. It tells them how to vote on specific issues. If a member votes against this instruction or stays away from voting without permission, they face disqualification. The member must be pardoned by the party within 15 days to avoid losing their seat. For example, if a party issues a 'Three-line Whip' for a budget vote, all members must attend and vote as told.