Amendment and Basic Structure— AM 3 — Constitutional Law 1 © Prepared by Ahmed Ali b = symbiosis Law School, NoidaAmendment under the Indian Constitution: = While Constitetions are generally couched in language amenable to interpretation suited to adapt provisions to changed excumitances, on oceasions 1 definitive chaage in the language i ust needed. Tes in order to deal with such citcumstinces that written constitutions require some formil mechanism to boeing about the desired change. The Indian Constitution provides soch mechanism vide Article 368, © Power to Anjenc: The bare text of the article 368 makes it abundantly clear that formal amendment cin ‘only be madé through Parkiament Any limitation on the substantive power of Patiament to make such amendments is conspicuously absent. A careful reading of the just the bare text makes that appasent, given cause 1 of artide 368. A forther reacing of clause 3 puts any remaining doubts in respect of the fandamental oghts to rest. It must be noted hese that clauses 1 and 3 were inserted vide the 24th Amendment Act in 1971, as was classe 4 of article13 — which corroborates clause 3 of 368. And since they remain valid even after the rendering of the judgment in Kesaranands Bharti v State of Kerala, 1973 SCC 225, it would be safe to say as a matter of principle that Paskament’s powes to amend runs even to the detriment of fundamentil ights However, this does mean that the power to amend conferred on Parliament is uotrammelled So while clause 3 of 368 is valid, clauses 4 and 5, inserted by the 42 Amendment, have been invalidated by the Court in the case of Minerva Mis ¥ Union of India,(1980) SCC 225. This then leads to the following logical inference. The substantive power to amend a: enjored by Parlament though not shackled by the text, including past three ic, the fondamental rights, is yet not consummate or untrammelied |Amendment under the Indian Constitution: © Procedure for Amendment: The procedure for amendment under the Indian Constitution is soxt Of graded. It provides varied entrenchment in respect of different provisions of the Constitution. Amendment procedure under the Indian Constitution may be subsumed under three heads: At the outset and not of present concern for us are those that can be made by simple majority as required for the passing of an ordinary law The amendments envisaged in articles 4, 169 and 239-A fall within this head To be sure they are by virtue of the provisions themselves deemed not be amendments under article 368. These provisions may be considered as exceptions to the general rule on amendments contained in article 368, Then, there is the formal procedure envisaged by article 368. These are amendments that cin be made by a special majosty as laid down in Article 3682). Constitutional amendments other than those referred to above come within this category and must be effected by a majority of the total membership of each House of Parliament as well as by 2 mujosity of not less than two-thied of the members of that House present and voting And finally there are those as envisaged by the proviso to article 3682). These requite, in addition to the special majority as described above, ratification by resolution passed by not less than one-half of the State Legislatures —Amendment under the Indian Constitution: > To put matters in perspective, this is what Dr Ambedkar had to say about the procedure for amendment in the Indian Constitution, “The provisions relating to Amendment of the Constitution ave come ‘for avirulent attack at the bands of the critics of the Drapt Concttution It ix naid that the provisions contained tn the Draft make Amendment dificult. It ix proposd that the Constitution should be ammdable by a simple ‘majority at leact for some year, The argument is :ubte and ingenion. It ts eaid that this Contitwent Accembly is et elced om aut suffrage while the sure Parkamens will be elcid on aul fags and yet tbe former bas ben geen the sight 10 pass the Conctitation by simple majurty abile the letter bas buen desgned the zame right. It te (paraded as one of the absurdities of the Drajt Constitution, I must repudiate the charge bcause it is without fundation. To know bow simple are the provisions for Anmndoment cntained ix the American and Australian Constittions. Compared 10 them thas contained in the Draft Constitution atl! be found to be the simplest. The ‘Drift Cancion bat elminated te claboranlaed difhcih procires ‘cha deckleeby 6 cnamntin or ferent. The posers of Aneendovent are left sith the Legislature central and provincial I is for amendments of specific matters and they are omy fea - that ratification of the state Legislatures is mguired. All ether Articles of the Constitution are left to be amenced by Pavikareent. The oniy imitation is tat it chal! be done by a majority of mot ‘hes than tvo-third of the members of each Flows present and voting and a maori of the total membership, —Amendment under the Indian Constitution: What ts said to be the absurdity of the ameading provision is founded pon a misconaption of the pastion of the Constituent Ausembly and of the future Parkaneent ced und the Constitution, The Constituent Assomby im eaking a Constiation has wo partiax mative. Beyond secring a geod and workable Constitution it bas mo axe to grind. In considering the Articles of the Constitution tt as no ee on geting through a particular measure, The future Parkamest, fH met as a Constitunt Ascemi, tx members will be acting at partians scking t0 carry amendments 10 the Constitution 10 factitate the passing of party mcacures which tbey have filed to get throagh Parliament by reasons of some Arricle of the Comstuton wich has acted as am obctacie i their way. Parkament ill have an aoe o gried while the Constituent Aszomiy bas none. Toat isthe diffrence betaren the Constituent Accertily and the future Parkamext ‘That explains uby the Constituent Assomby though eecid om Bmited franchise cam be trusted to pass the Constitution by simple major and why the Parkament though elected on adut suffrage cannot be tracted with the same pooer to amend a I