Political science Project Amendment Process of Indian Constitution

CHANAKYA NATIONAL LAW UNIVERSITY

SUBMITTED TO : Dr. S.P.SINGH sir

SUBMITTED BY : ANKIT ANAND

ROLL NO. : 917, 1 st SEMESTER

AIMS AND OBJECTIVE:

The researcher aims to 1. Stud the constitution briefly. 2. Study the various process of amendments. 3. Study the importance of amendments.

Hy ot!esis
The researcher hypotheses is that the amendments to the constitution are necessary because day by day the world is changing and to meet the changing situation some provisions of the constitutions need to be amended.

"esearc! Met!odo#o$y
As the research work for this topic is confined to the library and books and no field work has been done. Hence researcher in his research work has opted the doctrinal methodology of research .!or doing the research work various sources has been materials is also helpful source for the research . used . "esearcher in the research work has relied upon the sources like various books and online

A%NO&'ED(EMENT
The present pro#ect on the $Amendment process of %ndian constitution& has been able to get its final shape with the support and help of people from various 'uarters. (y sincere thanks go to all the members without whom the study could not have come to its present state. % am proud to acknowledge gratitude to the individuals during my study and without whom the study may not be completed. % have taken this opportunity to thank those who genuinely helped me. )ith immense pleasure % e*press my deepest sense of gratitude to +r.S. ,. S%-.H S%" !aculty for ,olitical Science /hanakya -ational 0aw 1niversity for helping me in my pro#ect. % am also thankful to the whole /hanakya -ational 0aw 1niversity family that provided me all the material % re'uired for the pro#ect. -ot to forget thanking to my parents without the co2operation of which completion of this pro#ect would not had been possible. % have made every effort to acknowledge credits but % apologies in advance for any omission that may have inadvertently taken place. 0ast but not least % would like to thank Almighty whose blessing helped me to complete the pro#ect.

CONTENT
Introduction A )rief o*er*ie+ ,or- T!e .eatures of a Constitution Constitutiona# Amendments: T!eir Pur ose and Im ortance in a Democracy T!e Constitution of India: An O*er*ie+ Amendment Procedures in t!e Constitution of India Nota)#e Constitutiona# Amendments

T!e Present Scenario: T!e Va#idity of Constitutiona# Amendments

Conc#usion: T!e Need for a more effecti*e Amendment Mec!anism Bi)#io$ra !y

Introduction
A constitution is a set of rules for government which is often codified as a written document. !undamentally the constitution enumerates and establishes the powers and functions of a political entity. %n the case of countries and autonomous regions of federal countries the term refers specifically to a constitution defining the fundamental political principles establishing the structure procedures powers and duties of a government. and The term

constitution can be applied to any overall system of law that defines the functioning of a government. This can also include several uncodified historical constitutions that e*isted before the development of modern codified constitutions.

/onstitutions concern different levels of political organi3ation as they e*ist at national 4e.g. codified /onstitution of /anada uncodified /onstitution of the 1nited 5ingdom6 regional 4e.g. the (assachusetts /onstitution6 and sometimes lower levels. They also define many political and other groups such as political parties pressure groups and trade unions. -on2political entities such as corporations and voluntary associations whether incorporated or not often have what is effectively a constitution often called memorandum and articles of association. 7tymologically the term constitution comes from a 0atin term denoting an important law usually one proclaimed by the "oman emperor 4"constitutiones principis"8 the edicta mandata decrera and rescripta6. 0ater the term was widely used in canon law for an important determination especially by the ,ope which is now referred to as apostolic constitutions.1 The earliest written constitution still governing a sovereign nation today may be that of San (arino. The Leges Statutae Republicae Sancti Marini was written in 0atin and consists of si* books. The first book with 92 articles establishes councils courts various e*ecutive officers and the powers assigned to them. The remaining books cover criminal and civil law #udicial procedures and remedies. )ritten in 19:: the document was based upon the Statuti Comunali 4Town Statute6 of 13:: itself influenced by the Codex Justinianus and it remains in force today.

1 Encyclopaedia of Social Sciences, -ew ;ork 1<=1 >ol. %% p. 21.

.eatures of a Constitution3

A constitution is a comple* set of rules that acts as a mechanism2cal guideline and every modern constitution confers specific powers to an organi3ation or institutional entity established upon the primary condition that it abides by the said constitution?s limitations. According to the renowned political thinker Scott .ordon a political organi3ation is constitutional to the e*tent that it @contains institutionali3ed mechanisms of power control for the protection of the interests and liberties of the citi3enry including those that may be in the minority.@ %n most but not all modern states the constitution has supremacy over ordinary statute law. %n such states when an official act is unconstitutional i.e. it is not a power granted to the government by the constitution that act is null and void. Another important feature of the constitution is to provide for legal remedies or writs. Historically the remedies for such violations have been petitions for common law writs such as uo !arranto. %eyfeatureA (ost commonly the term constitution refers to a set of rules and principles that define the nature and e*tent of government. (ost constitutions seek to regulate the relationship between institutions of the state in a basic sense the relationship between the e*ecutive legislature and the #udiciary but also the relationship of institutions within those branches. !or e*ample e*ecutive branches can be divided into a head of government government departmentsBministries e*ecutive agencies and a civil serviceBbureaucracy.= (ost constitutions also attempt to define the relationship between individuals and the state and to establish the broad rights of individual citi3ens. %t is thus the most basic law of a territory from which all the other laws and rules are hierarchically derivedC in some territories it is in fact called @Dasic 0aw.@ The following are features of democratic constitutions that have been identified by political scientists to e*ist in one form or another in virtually all national constitutions.

2 A.>. +icey8 "ntroduction to t#e Study of t#e La! of t#e Constitution,1<=2 p. 12E.
3 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law . National Book Trust,
India..

A "Constitution of India". Ministry of Law and Justi

! of India. July "##$. %!tri!&

5 Principles of Constitutional Design, 'onald S. Lut( )"##*+ ISBN #,-".,$*.*$,/

Codification9 A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document consisting of several different sources which may be written or unwritten. Codified constitutionE

(ost states in the world have codified constitutions and /odified constitutions are often the product of some dramatic political change such as a revolution. The process by which a country adopts a constitution is closely tied to the historical and political conte*t driving this fundamental change. The legitimacy 4and often the longevity6 of codified constitutions has often been tied to the process by which they are initially adopted. States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is if there is any conflict between a legal statute and the codified constitution all or part of the statute can be declared ultra vires by a court and struck down as unconstitutional.F %n addition e*ceptional procedures are often re'uired to amend a constitution. These procedures may include8 convocation of a special constituent assembly or constitutional convention re'uiring a superma#ority of legislators? votes the consent of regional legislatures a referendum process and other procedures that make amending a constitution more difficult than passing a simple law. /onstitutions may also provide that their most basic principles can never be abolished even by amendment. %n case a formally valid amendment of a constitution infringes these principles protected against any amendment it may constitute a so2called unconstitutional constitutional la!.<

6 he New Oxford American Dictionary, S! ond 0dn., 0rin M K!an )!ditor+, "#-. pa1!s, May "##-, 23ford 4ni&!rsity
5r!ss, ISBN #,.6,-.7#77,*.

7 5yl!!, M.8. ).667+. India's Constitution. S. Chand 9 Co. p. /. ISBN $.,".6,#:#/,;. 8 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust, India.
p. /.ISBN 67$,$.,"/7,#7/:,..

9 onstitution )politi s and law+ , 0n y lop!dia Britanni a. Britanni a. o<. %!tri!&!d on "#./,#7,.".

/odified constitutions normally consist of a ceremonial preamble which sets forth the goals of the state and the motivation for the constitution and several articles containing the substantive provisions. The preamble which is omitted in some constitutions may contain reference to .od andBor to fundamental values of the state such as liberty democracy or human rights.

/ncodified constitution1: As of 2:1: only three states have uncodified constitutions8 %srael -ew Gealand and the 1nited 5ingdom. 1ncodified constitutions 4also known as unwritten constitutions6 are the product of an @evolution@ of laws and conventions over centuries.11 Dy contrast to codified constitutions in the )estminster tradition that originated in 7ngland uncodified constitutions include written sources8 e.g. constitutional statutes enacted by the ,arliament and also unwritten sources 4like constitutional conventions observation of precedents royal prerogatives custom and tradition12 %n states using uncodified constitutions there is no entrenchment of constitutional provisions and thus constitutional law as such8 laws of constitutional significance can be created altered or repealed by the legislative body in the same was as any statute.

10 ^ Blaust!in, =lb!rt )January .66/+. Constitutions of the

orld. >r!d B. %oth<an 9 Co<pany. ISBN 67$,#,$/77,#/*",*.

11 ^ Instru<!nt of ?o&!rn<!nt )0n1land @.*-/A+ , 0n y lop!dia Britanni a. Britanni a. o<. %!tri!&!d on "#./,#7,.". 12 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust,
India. p. /.ISBN 67$,$.,"/7,#7/:,..

/ncodified constitution13 As of 2:1: only three states have uncodified constitutions8 %srael -ew Gealand and the 1nited 5ingdom. 1ncodified constitutions 4also known as unwritten constitutions6 are the product of an @evolution@ of laws and conventions over centuries.1A Dy contrast to codified constitutions in the )estminster tradition that originated in 7ngland uncodified constitutions include written sources8 e.g. constitutional statutes enacted by the ,arliament and also unwritten sources 4like constitutional conventions observation of precedents royal prerogatives custom and tradition1= %n states using uncodified constitutions there is no entrenchment of constitutional provisions and thus constitutional law as such8 laws of constitutional significance can be created altered or repealed by the legislative body in the same was as any statute.

13 ^ Blaust!in, =lb!rt )January .66/+. Constitutions of the

orld. >r!d B. %oth<an 9 Co<pany. ISBN 67$,#,$/77,#/*",*.

14 ^ Instru<!nt of ?o&!rn<!nt )0n1land @.*-/A+ , 0n y lop!dia Britanni a. Britanni a. o<. %!tri!&!d on "#./,#7,.". 15 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust,
India. p. /.ISBN 67$,$.,"/7,#7/:,..

/ncodified constitution19 As of 2:1: only three states have uncodified constitutions8 %srael -ew Gealand and the 1nited 5ingdom. 1ncodified constitutions 4also known as unwritten constitutions6 are the product of an @evolution@ of laws and conventions over centuries.1E Dy contrast to codified constitutions in the )estminster tradition that originated in 7ngland uncodified constitutions include written sources8 e.g. constitutional statutes enacted by the ,arliament and also unwritten sources 4like constitutional conventions observation of precedents royal prerogatives custom and tradition1F %n states using uncodified constitutions there is no entrenchment of constitutional provisions and thus constitutional law as such8 laws of constitutional significance can be created altered or repealed by the legislative body in the same was as any statute.

Se aration of o+ers /onstitutions usually e*plicitly divide power between various branches of government. The standard model described by the Daron de (ontes'uieu involves three branches of government8 e*ecutive legislative and #udicial. Some constitutions include additional branches such as an auditory branch. /onstitutions vary e*tensively as to the degree of separation of powers between these branches. 'ines of accounta)i#ity1< %n presidential and semi2presidential systems of government department secretariesBministers are accountable to the president who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election. %n parliamentary systems ministers are accountable to ,arliament but it is the prime minister who appoints and dismisses them.

16 ^ Blaust!in, =lb!rt )January .66/+. Constitutions of the

orld. >r!d B. %oth<an 9 Co<pany. ISBN 67$,#,$/77,#/*",*.

17 ^ Instru<!nt of ?o&!rn<!nt )0n1land @.*-/A+ , 0n y lop!dia Britanni a. Britanni a. o<. %!tri!&!d on "#./,#7,.". 18 Kashyap, Subhash. Our Constitution-An introduction to India's Constitution and Constitution Law. National Book Trust,
India. p. /.ISBN 67$,$.,"/7,#7/:,..

19 C.$. %eb., >ol. >%% F -ovember 1<AF pp. 3222323

State of emer$ency2: (any constitutions allow the declaration under e*ceptional circumstances of some form of state of emergency during which some rights and guarantees are suspended. This deliberate loophole can be and has been abused to allow a government to suppress dissent without regard for human rightsHsee the article on state of emergency.

Constitutiona# Amendments: T!eir Pur ose and Im ortance in a Democracy

+emands for constitutional reform may emerge whenever alternative procedures or constraints appear to advance the first three goals more effectively than e*isting onesHor whenever a more or less temporary ma#ority believes that it can improve its own situation through constitutional reform. ,olitical interests are not constant over time nor are all institutional structures e'ually effective at advancing the shared interests of the electorates. A nationIs citi3enry may want to modify their system of governance as they learn about unintended une*pected and unwanted conse'uences of their present institutions. >oters may also wish to modify core procedures and constraints of governance as their values and goals change through time as with womenIs suffrage and religious and racial tolerance or as constitutional innovations are found to deliver more effective governance. (a#or realignments in the political arena may also generate relatively narrow partisan pressures for institutional reforms. However one must understand that not every demand for constitutional reform attempts to advance broad interests as illustrated in many instances across the political world.

20 "bid. >ol. %J 1E September 1<A< pp. 19AA2199E.

Ho+ Amendments affect t!e Sta)i#ity of t!e Constitution21

/hanges in constitutional te*t can serve as a useful first appro*imation for constitutional stability insofar as all formal changes in the constitution re'uire changes in constitutional language and all formal changes to a nationIs written constitution in principle change related unwritten parts of the constitution as well. %t bears noting however that to the e*tent that other unwritten parts of a nationIs constitution change as a conse'uence of other factors the true underlying stability of a polityIs constitution will be somewhat understated by this approach.

.edera# Structure22
Kne of the most important features of the %ndian constitution is that it provides for separation of powers between the 1nion and the States. %t enumerates the powers of the ,arliament and State 0egislatures in three lists namely 1nion list State list and /oncurrent list. Sub#ects like national defense foreign policy issuance of currency are reserved to the 1nion list. ,ublic order local governments certain ta*es are e*amples of sub#ects of the State 0ist on which the ,arliament has no power to enact laws in those regards barring e*ceptional conditions. 7ducation transportation criminal law are a few sub#ects of the /oncurrent list where both the State 0egislature as well as the ,arliament have powers to enact laws. The residuary powers are vested with the 1nion. The upper house of the ,arliament the "a#ya Sabha which consists of representatives of States is also an e*ample of the federal nature of the government.

21 "bid, >ol. >%% A -ovember 1<AF pp. A32AA. 22 S r myneni, political science,Allahabad law a ency,13 th reprint,2011,p !342

,arliamentary +emocracy The ,resident of %ndia is elected by the ,arliament and State 0egislative Assemblies and not directly by the people. The ,resident is the Head of the State and all the business of the 7*ecutive and 0aws enacted by the ,arliament are in hisBher name.23 However these powers are only nominal and the ,resident must act only according to the advice of the ,rime (inister and the /ouncil of (inisters.2A The ,rime (inister and the /ouncil of (inisters en#oy their offices only as long as they en#oy a ma#ority support in the 0ok Sabha the lower house of the ,arliament which consists of members directly elected by the people. The ministers are answerable to both the houses of the ,arliament. Also the (inisters must themselves be elected members of either house of the ,arliament. Thus the ,arliament e*ercises control over the 7*ecutive. A similar structure is present in States where the directly elected 0egislative Assembly en#oys control over the /hief (inister and the State /ouncil of (inisters.

%ndependent Ludiciary The Ludiciary of %ndia is free of control from either the e*ecutive or the ,arliament. The #udiciary acts as an interpreter of the constitution and an intermediary in case of disputes between two States or between a State and the 1nion. An act passed by the ,arliament or a 0egislative Assembly is sub#ect to #udicial review and can be declared unconstitutional by the #udiciary if it feels that the act violates some provision of the /onstitution. /onstitutional remedy against any action of the government is available in a High /ourt or the Supreme /ourt if the action violates any of the fundamental rights of an individual as enumerated in the /onstitution.

23 It is oft!n ar1u!d that f!d!ral stat!s wh!r! th! !ntral 1o&!rn<!nt has th! onstitutional authority to susp!nd a onstitu!nt
stat!Bs 1o&!rn<!nt by in&okin1 1ross <is<ana1!<!nt or i&il unr!st, or to adopt national l!1islation that o&!rrid!s or infrin1! on th! onstitu!nt stat!sB pow!rs by in&okin1 th! !ntral 1o&!rn<!ntBs onstitutional authority to !nsur! "p!a ! and 1ood 1o&!rn<!nt" or to i<pl!<!nt obli1ations ontra t!d und!r an int!rnational tr!aty, ar! not truly f!d!ral stat!s.

24 23ford 0n1lish 'i tionary

Amendment Procedures in t!e Constitution of India

According to the /onstitution ,arliament and the state legislatures in %ndia have the power to make laws within their respective #urisdictions. The founding fathers wanted the /onstitution to be an adaptable document rather than a rigid framework for governance. Hence ,arliament was invested with the power to amend the /onstitution. Article 39F2= of the /onstitution gives the impression that ,arliament?s amending powers are absolute and encompass all parts of the document. However this power is not absolute in nature and the /onstitution vests in the #udiciary the power to ad#udicate upon the constitutional validity of all laws. %f a law made by ,arliament or the state legislatures violates any provision of the /onstitution the Supreme /ourt has the power to declare such a law invalid or ultra vires.29 )ith the intention of preserving the original ideals envisioned by the constitution2makers the ape* court pronounced that ,arliament could not distort damage or alter the basic features of the /onstitution under the prete*t of amending it. The phrase ?basic structure? itself cannot be found in the /onstitution. The Supreme /ourt recognised this concept for the first time in the historic &esavananda '#arati case in 1<E3. The Supreme /ourt has since been recogni3ed as the interpreter of the /onstitution and the arbiter of all amendments made by ,arliament. %ts worth noting that the Supreme /ourt has acted as a brake to the legislative enthusiasm of ,arliament ever since independence

T!e re0%esa*anada osition2E

25 http"##www$constit%tion$or #cons#india#a1$html 26 http"##www$preser&earticles$com#201104235908#proced%re'(or'amendment'o('the'constit%tion'o(' india$html 27 .*:..##.:7../:Cintran!tCC=ICC=DNatur!.pd

The ,arliament?s authority to amend the /onstitution particularly the chapter on the fundamental rights of citi3ens was challenged as early as in 1<=1. After independence several laws were enacted in the states with the aim of reforming land ownership and tenancy structures. This was in keeping with the ruling /ongress party?s electoral promise of implementing the socialistic goals of the /onstitution Mcontained in Article 3< 4b6 and 4c6 of the +irective ,rinciples . production among all citi3ens and prevention of concentration of wealth in the hands of a few. ,roperty owners adversely affected by these laws petitioned the courts and the courts struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the /onstitution. ,i'ued by the unfavorable #udgments the ,arliament placed these laws in the -inth Schedule of the /onstitution through the !irst and !ourth amendments 41<=1 and 1<=2 respectively6 thereby effectively removing them from the scope of #udicial review. The ,arliament added the -inth Schedule to the /onstitution through the very first amendment in 1<=1 as a means of immuni3ing certain laws against #udicial review. 1nder the provisions of Article 31 which themselves were amended several times later laws placed in the -inth Schedule pertaining to ac'uisition of private property and compensation payable for such ac'uisition cannot be challenged in a court of law on the ground that they violated the fundamental rights of citi3ens. This protective umbrella covers more than 2=: laws passed by state legislatures with the aim of regulating the si3e of land holdings and abolishing various tenancy systems. The -inth Schedule was created with the primary ob#ective of preventing the #udiciary 2 which upheld the citi3ens? right to property on several occasions 2 from derailing the /ongress party led government?s agenda for a social revolution. ,roperty owners again challenged the constitutional amendments which placed land reforms laws in the -inth Schedule before the Supreme /ourt saying that they violated Article 13 426 of the /onstitution. Article 13 426 provides for the protection of the fundamental rights of the citi3en. ,arliament and the state legislatures are clearly prohibited from making laws that may take away or abridge the fundamental rights guaranteed to the citi3en. They argued that any amendment to the /onstitution had the status of a law as understood by Article 13 426. %n 1<=2 4San(ari )rasad Sing# %eo v. *nion of "ndia6 and 1<== 4Sa++an Sing# v. Ra+ast#an6 the Supreme /ourt re#ected both arguments and upheld the power of ,arliament to amend any part of the /onstitution including that which affects the fundamental rights of citi3ens. Significantly though two dissenting #udges in Sa++an Sing# v. Ra+ast#an case raised doubts whether the fundamental rights of citi3ens could become a plaything of the ma#ority party in ,arliament.

As per the conte*t of the %ndian constitution The 5eshavananda Dharti >. State of 5erela /ase provides for the best e*planation as to the scope and definition of the word NAmendmentI. %t purported that $A broad definition of the word NAmendmentI will include any alteration or change. The word NamendmentI when used in connection with the /onstitution may refer to the addition of a provision on a new and independent sub#ect complete in itself and wholly disconnected from other provisions or to some particular article or clause and is then used to indicate an addition to the striking out or some change in that particular article or clause&.

Amendin$ rocedure
The /onstitution of %ndia provides for amendment mainly in Article 39F and in some other parts as specified therein in a formal manner. !or the purpose of amendment the various Articles of the /onstitution are divided into three categories. The first category is out of the purview of Article 39F whereas the other two are a part and parcel of the said Article. The various categories of amendment to the /onstitution can be summari3ed as follows8

Amendment )y Sim #e Ma1ority

As the name suggests an article can be amended in the same way by the ,arliament as an ordinary law is passed which re'uires simple ma#ority. The amendment contemplated under Articles =211 4/iti3enship6 19< 4Abolition or creation of 0egislative /ouncils in States6 and 23<2A 4/reation of local 0egislatures or /ouncil of (inisters or both fir certain 1nion Territories6 of the %ndian /onstitution can be made by simple ma#ority. These Articles are specifically e*cluded from under Article 39F. the purview of the procedure prescribed

Amendment )y S ecia# Ma1ority

Articles which can be amended by special ma#ority are laid down in Article 39F. All amendments e*cept those referred to above come within this category and must be affected by a ma#ority of total membership of each House of ,arliament as well as 2B3rd of the members present and voting.

Amendment )y S ecia# Ma1ority and "atification )y States

Amendment to certain Articles re'uires special ma#ority as well as ratification by states. ,roviso to Article 39F lays down the said rule. "atification by states means that there has to be a resolution to that effect by one2half of the state legislatures. These articles include Article =A 47lection of ,resident6 == 4(anner of election of ,resident6 E3 47*tent of e*ecutive power of the 1nion6 192 47*tent of e*ecutive power of State6 12A21AE 4The 1nion Ludiciary6 21A2231 4The High /ourts in the States6 2A1 4High /ourts for 1nion Territories6 2A=22== 4+istribution of 0egislative powers6 and Article 39F 4power of the ,arliament to amend the /onstitution and procedure thereof6 itself. Any list of seventh schedule or representation of states in ,arliament as mentioned in the fourth schedule is also included.

Procedure .or Amendment /2A 345

A Dill to amend the /onstitution may be introduced in either house of the ,arliament. %t must be passed by each house by a ma#ority of the total membership of that house and by a ma#ority of not less than 2B3rd of the members present and voting. Thereafter the bill is presented to the ,resident for his assent who shall give his assent and thereupon the /onstitution shall stand amended. %n case ratification by state is re'uired it has to be done before presenting it to the ,resident for hisBher assent.

Nota)#e Constitutiona# Amendments in India S!an6ari Prasad V7 /nion of India ,AI" 89:8 SC ;:5The validity of the !irst Amendment Act to the /onstitution was challenged on the ground that it purported to abridge the fundamental "ights under ,art 3 of the /onstitution of %ndia. Supreme /ourt held that the power to amend the /onstitution including !undamental "ights is contained in Article 39F. An amendment is not a law within the meaning of Article 13426. Article 13426 states that O $The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention to this clause shall to the e*tent of the contravention be void&. An amendment is valid even if it abridges any fundamental "ight.

Sa11an Sin$! V7 State Of "a1ast!an ,AI" 894: SC 5;:The validity of the 1Eth Amendment Act 1<9A was challenged on the ground that one of the acts inserted by the amendment in the <th Schedule affected the petitioner on the basis that the amendment fell within the purview of Article 39F and the re'uirements in the proviso to Article 39F had not been complied with. Supreme /ourt approved the #udgment in Shankari ,rasad case and held that on Article 13 426 the case was rightly decided. AmendmentI includes amendment to all provisions of the /onstitution.

(o#a6nat! V7 State Of Pun1a) ,AI" 894< SC 84;3The Supreme /ourt prospectively overruled its decision in Shankari ,rasad and Sa##an Singh cases and held that ,arliament had no power to amend part 3 of the /onstitution so as to abridge or take away any of the !undamental "ights. %t also added that Article 39F merely lays down the procedure for the purpose of amendment. !urther The /ourt said that an amendment is a law under Article 13426 of the /onstitution of %ndia and if it violates any fundamental right it may be declared void.

=;t! Amendment Act> 89<8

.olaknathIs case created a lot of difficulties and as a result the ,arliament enacted 2Ath Amendment act 1<E1 whereby it changed the old heading of Article 39FO $,rocedure for Amendment of the /onstitution& to a new heading O $,ower of the ,arliament to Amend the /onstitution and ,rocedure Therefor.& To the benefit of the 0egislators the 2Ath Amendment Act 1<E1 restored and e*tended the scope of power of ,arliament to amend the /onstitution by adding the words $amend by way of addition or variation or repeal any provision in accordance with the provisions laid down in this Article& !urther the amendment provided that $-othing in Article 13 shall apply to any amendment made under this article& by way of an addition of /lause 3 to Article 39F.

%esa*ananda B!arti V7 State Of %ere#a ,AI" 89<3 SC 8;48Kne of the various 'uestions raised in this case was the e*tent of the power of the ,arliament to amend under Article 39F. A 13 Ludge /onstitutional bench was formulated under /hief Lustice Sikri in order to evaluate the intricacies of .olaknathIs case. The Supreme /ourt overruled its decision in .olaknathIs case and held that even before the 2Ath Amendment Article 39F contained power as well as procedure for amendment. The ma#ority held that there are inherent limitations on the amending power of the ,arliament and Article 39F does not confer power so as to destroy the NDasic StructureI of the /onstitution.

The Theory of basic structure very effectively proved to be a limitation on the amending power of the ,arliament. The Dasic Structure doctrine applies only to the /onstitutionality of amendments and not to ordinary Acts of ,arliament which must conform to the entirety of the /onstitution and not #ust its basic structure.

;=nd Amendment Act> 89<4 and Artic#e 345 The A2nd Amendment Act 1<E9 was passed by the ,arliament soon after. The Amendment added clause A and clause = to Article 39F. Article 39F4A6 provided that no /onstitutional Amendment shall be called in any court on any ground. Article 39F4=6 provided that there shall be no limitation whatsoever on the constituent power of the ,arliament. Miner*a Mi##s V7 /nion Of India ,AI" 895? SC 8<59Supreme /ourt struck down clauses 4A6 and 4=6 of Article 39F inserted by the A2nd amendment. Lustification for the deletion of the said clauses was based on the destruction of NDasic StructureI. The /ourt was satisfied that 39F 4A6 and 4=6 clearly destroyed the NDasic StructureI as it gave the ,arliament absolute power to amend /onstitution. 0imitation on the amending power of the ,arliament is a part of the NDasic StructureI e*plained in 5esavanandaIs case. The /onstitutional validity of Article 323A and the provisions of the Administrative Tribunals Act was challenged on the ground that it e*cluded the #urisdiction of High /ourt under Article 229 and 22E. Supreme /ourt held that Article 323A and Administrative Tribunals Act was valid as it has not e*cluded Ludicial "eview under Article 32 and 139. %t was not proved beyond reasonable doubt that Article 323A and Administrative Tribunals Act destroyed the basic structure and the /ourt upheld their validity.

'7 C!andra %umar V7 /nion Of India,AI"899< SC 88=:The Supreme /ourt struck down clause 24d6of Article 323A and clause 34d6 of Article 323D as they e*cluded the #urisdiction of High court under Article 229 and 22E as well as #urisdiction of Supreme /ourt under Article 32 as they damage the power of Ludicial "eview which is a basic feature of /onstitution.

T!e Amend)i#ity of T!e Indian Constitution

According to the eminent #urist > ,. Sarathi there will never be a conflict between 0egislature and Ludiciary and these two powerful organs will be better capable of guiding the third branch i.e. 7*ecutive if the following view for the purpose of amendment is accepted. Article 39F can be interpreted in the following manner8 A6 The power of the ,arliament to amend /onstitution is absolute and there are no limits on that power. D6 ,arliament should not however take away the power of the courts to strike down ordinary legislation as tested against the amended /onstitution. Kne can relate to what S#a(espeare said in $(easure for (easure&8 $K it is e*cellent To have a giantIs strengthC but it tyrannous To use it like a giant.& The elementary 'uestion in controversy has been whether !undamental "ights are amendable so as to take away the basic rights guaranteed by the /onstitution. Another controversy deals with the e*tent scope and authority of ,arliament to amend /onstitution. The answer has been given by the Supreme /ourt from time to time sometimes under immense pressure and can be understood in the light of the cases previously discussed7

Conc#usion
The fre'uency of lawful constitutional changes unfortunately cannot be understood by focusing on the number of veto players and degree of re'uired consensus alone. The political demand for constitutional reform reflects economic political and cultural circumstances as well as the magnitude of unresolved problems at any given point in time. 7*ternal pressure for revision constitutional traditions and recent innovations in constitutional design as well as the cost of formal amendments will also affect the types of constitutional reforms proposed. %t would be useful to have a more complete model of the demand for constitutional reform so that the effects of $demand& can be clearly separated from those of $supply.& (oreover measures of constitutional reforms can clearly be improved insofar as formal constitutional documents do not include all of the core procedures and constraints of governance. !or e*ample election law is often not included in constitutional documents. That some core procedures and constraints are not fully specified by constitutional documents implies that some constitutional reforms may be lawfully adopted through other means. /onstitutions can beHand often areHchanged without altering the te*t of constitutional documents. 7lection laws can often be reformed through ordinary legislation. The courts may reinterpret formal constitutional documents as well as $'uasi2constitutional& legislation. (oreover not all constitutional reforms have the same effect on a nationIs fundamental procedures and constraints of governance. The constitutional reforms adopted in the first part of the twentieth century by many 7uropean parliaments included such radical changes as the adoption of universal male suffrage womenIs suffrage and proportional representation. Although the more recent constitutional histories of many countries include many do3ens of reforms relatively few of these affect such fundamental procedures or rights. /onse'uently the number of formal changes to constitutional documents is a far from perfect measure of constitutional stability. do not yet know /learly there may be much more to be learned about the relationship between amendment rates and amendment procedures. )e

e*actly how to strike a good balance between fle*ibility and rigidityC a uni'ue optimal solution may not e*ist at all. 4The variation in amendment rates among successful K7/+ nations is clearly greater than that of per capita income.6 constitutional stability remains very much a work in progress. -onetheless the new empirical work clearly suggests that amendment procedures affect the stability of constitutional documents. %nsofar as constitutional law and practice are similar in long2standing democratic states 4an issue that we leave for further study6 these results suggest that politics in both the large and small tends to be relatively more routini3ed and conse'uently procedures. more predictable in polities with relatively demanding amendment The new empirical analysis of

!rom the %ndian ,erspective The amendment process was incorporated in the /onstitution by the +raftsmen of the /onstitution to help %ndia adapt itself to the changing circumstances. Society is never stagnant. %t is ever2 changing. Therefore the amending procedure was made partly fle*ible so as to make it easy for the 0egislature adapt and mould laws according to the needs of the people. However there have been instances where the ,arliament started making amendments which were destroying the basic structure of the %ndian /onstitution. %t was during this period that the supreme court through landmark decisions of 5eshavnand Dharati and (inerva (ills by its power of #udicial review has curtailed the amending power of the ,arliament. The amendments made by the ,arliament can no more affect the basic structure of the /onstitution. Dut looking at the ease with amendments can take place depending on the whims and fancies of the ruling government and the ,K0%T%/S %- TH7 ,K0%T%/S K! %-+%A we cannot say how long the rights of the citi3ens are safe and unobstructed. %n spite of all the constitutional reforms that have taken place over the years there is an urgent need for a more effective amending mechanism7

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P The amending process and constitutional amendments in the %ndian /onstitution25./. (arkandan.

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P www$preser&earticles$com P www.ti<!:!du ation. o< P www.constitution.or1 P www$law$cornell$ed%