LAWET

Kaustav Ghosh

“I am not an advocate for frequent changes in laws and constitutions but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened as new discoveries are made, new truths discovered and manners and opinions change with the change of circumstances, institutions must advance also to keep pace with the times”.

Thomas Jefferson

Jefferson, Thomas. Thomas Jefferson: His Words and Vision. N.p.: Peter Pauper Press, Incorporated, 1998.

I) Introduction:- On 28^th May2015, the then President of India Pranab Mukherjee gave assent to the Constitutional Amendment Bill. It is the 100^th  amendment of the Constitution of India. This amendment of the Constitution gives effect to the acquiring of territories by India and transfer of certain territories to Bangladesh in pursuance of the agreement and its protocol entered into between the Governments of India and Bangladesh. India and Bangladesh share a 4,096 km land boundary covering West Bengal, Assam, Tripura, Meghalaya and Mizoram. This is the largest amongst the international boundaries that India shares with her neighbours. On this international boundary line, some 50,000-100,000 people reside in so called Chitmahals or Indo-Bangladeshi enclaves.  There are 102 Indian enclaves inside Bangladesh and 71 Bangladeshi ones inside India. Inside those enclaves there are 28 counter-enclaves and one counter-counter-enclave, called Dahala Khagrabari. This ambiguity has resulted in extreme misery in the life of the residents of these enclaves. They are unable to get the basic government services because they are isolated from their own country by strips of foreign land. This issue was pending ever since Bangladesh got independence in 1971.
This act envisages a notional transfer of 111 Indian enclaves to Bangladesh in return of 51 enclaves to India. The area transferred to India is less than that transferred by India to Bangladesh.

This amendment not only save the life of millions, but also gave a new meaning to their billion dollar dream of leading a peaceful life. Like this amendment every amendment is brought into effect to our constitution to secure better livelihood for the people of India. That’s why it is not only an amendment of constitution of India but also a magical instrument to make the life better of the people of India.

The 1^st amendment of our constitution was brought into effect on 18^th June,1951 for securing constitutional validity of zamindari abolition laws. Zamindari system had a  bad impact on the Indian society due to the greedy and tormentous mentality of all Zamindars. So we can see that from the very beginning of our Independence, amendment  was brought to the constitution to fulfill the need of the time and society.

II)Amendment of  Constitution of India : how it took place–

“It is said that the provisions contained in the Draft make amendment difficult. It is proposed that the Constitution should be amendable by a simple majority at least for some years. The argument is subtle and ingenious. It is said that this Constituent Assembly is not elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while the latter has been denied the same right. It is paraded as one of the absurdities of the Draft Constitution. I must repudiate the charge because it is without foundation. To know how simple are the provisions of the Draft Constitution in respect of amending the Constitution one has only to study the provisions for amendment contained in the American and Australian Constitutions. Compared to them those contained in the Draft Constitution will be found to be the simplest. The Draft Constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or a referendum … It is only for amendments of specific matters—and they are only few—that the ratification of the State Legislatures is required. All other Articles of the Constitution are left to be amended by Parliament. The only limitation is that it shall be done by a majority of not less than two-thirds of the members of each House present and voting and a majority of the total membership of each House. It is difficult to conceive a simpler method of amending the Constitution.

What is said to be the absurdity of the amending provisions is founded upon a misconception of the position of the Constituent Assembly and of the future Parliament elected under the Constitution. The Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind. In considering the Articles of the Constitution it has no eye on getting through a particular measure. The future Parliament if it met as Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it.”

-B.R.Ambedkar speech in the Constituent Assembly on 4th November 1948¹

Amendment of the Constitution of India is a complex process as laid down in Part XX (Article 368) of the Constitution of India for making changes to the nation’s supreme law. This procedure was introduced to keep a check on arbitrary power of the Parliament of India. The amendment to the Constitution of India can be described as partly flexible and partly rigid. The Constitution provides  a variety in the amending process. An amendment of the Constitution can be initiated only by the introduction of a Bill in either House of Parliament.

A)The process:

First, the bill which intends to amend the part or provision of the constitution is to be passed by both the Houses of the Parliament by a majority of total membership and a 2/3rd majority of members present and voting in each House. Secondly,  the bill has to secure ratification from at least half of the several State Legislatures.

 There is no provision for a joint sitting in case of disagreement between the two Houses of the law making body of India. The Bill, passed by the required majority, is then presented to the President who shall give his final assent to the Bill. If the amendment seeks to make a change or multiple changes in any of the provisions mentioned in the provision to article 368, it must be ratified by the Legislatures of not less than one-half of the States. Although, there is no prescribed time limit for ratification, it must be completed before the amending Bill is presented to the President for his assent. Only after passing of all this requirements it will be incorporated as a part of the Constitution when the President puts his signature on the bill.

Every constitutional amendment is formulated as a statute. The first amendment is called the “Constitution (First Amendment) Act”, the second, the “Constitution (Second Amendment) Act”, and so forth. Each usually has the long title “An Act further to amend the Constitution of India”.

B)Basic Structure Doctrine:-

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament of India.  The basic structure doctrine applies only to constitutional amendments. Independence of judiciary, Fundamental Rights, Principle of separation of powers, rule of law are one of the basic features of Indian constitution.

C)Constitutional Amendment:-

Amendment is usually made after learning from past mistakes and to give better future to the people of all sects in India. Amendment is usually introduced to meet the social need of the country. India during British rule suffered a lot from barbaric torture of zamindars. That’s why 1^st amendment was brought on 1951 to abolish barbaric zamindari system. Sir John Acton said- “Power tends to corrupt, and absolute power corrupts absolutely”. Because whatever  may be the right or power or freedom anything more is very much injurious to the society.  The 1^st amendment gave reasonable restriction to the ‘Freedom of speech’ which was a need of the time. The 4^th amendment brought in 1955  provided a reasonable restriction on property rights to achieve the goal of socialism, the dream which was sown by our first Prime Minister Pandit Nehru. Several amendment was brought for the adjustment of the Indian territory and its border. The 10^th  and the 12^th amendment ensured the incorporation of Dadra, Naga ,Haveli and Goa, Daman, Diu as Indian Territory consequent to acquisition from Portugal. The 13^th amendment ensured the formation of the state Nagaland with special protection under Article 371A of the Indian Constitution.  The 15^th amendment laid the provision to raise the retirement age of High court judges from 60 to 62. The 19^th amendment abolished the Election Tribunal. Some amendments were made to include some of the dialects as official language. The 22^nd amendment laid down the provision to form the then autonomous state of  Assam. The 26^th amendment incorporated in 1971 abolished the Privy Purses. The Then Prime Minister of India Indira Gandhi argued the case for abolition based on equal rights for all citizens and the need to reduce the government’s revenue deficits.

After this, several amendment was enacted for the purpose of land reforms. Land reform was the then burning issue in India. Land reform was a major political issue of every political party irrespective of their idealism. Land reform was need of that time to ensure public peace. There are four main categories of reforms:

• Abolition of intermediaries (rent collectors under the pre-Independence land revenue system);
• Tenancy regulation (to improve the contractual terms including security of tenure);
• A ceiling on landholdings (to redistributing surplus land to the landless);
• Attempts to consolidate disparate landholdings.

Sikkim was a kingdom which was a  protectorate of British Kingdom in1890. From 1922 Sikkim became a member of Chamber of Princess. In 1947, when India became independent, a popular vote rejected Sikkim’s joining the Indian Union, although a treaty was made between India and Sikkim in 1950. That Indo-Sikkim treaty gave Sikkim an Indian protectorate status. India controlled its external affairs, defence, diplomacy and communications, but Sikkim had its other administrative autonomy. On 16th May 1975, Sikkim became the 22nd state of the Indian Union, and the monarchy was abolished through the people’s vote. First, the 35th amendment of the Constitution laid down a set of conditions that made Sikkim an “Associate State”, a special designation not used by any other state. The 36th Amendment repealed the 35th Amendment, and made Sikkim a full state, adding its name to the First Schedule of the Constitution. So we can see how constitutional amendments are both important and instrument for accession of new land, state and Kingdom.

                  Another thing which I will like to  include in this list to draw everyone’s attention is some of the amendments which ensured the formation of legislative Assembly of a few states(37^th amendment formed Arunachal Pradesh Legislative Assembly).

The 38^th amendment enhances the powers of the President and the Governors to pass ordinances.

The 42^nd amendment passed in 1976 during internal emergency provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a “Socialist Secular” Republic. The 42nd Amendment is regarded as the most controversial constitutional amendment in the Indian history. It attempted to reduce the power of the Supreme Court and High Courts to pronounce upon the constitutional validity of laws.

Effect of the 42^nd amendment:- 

Almost all parts of the Constitution, including the Preamble and amending clause, were changed by the 42nd Amendment, and some new articles and sections were inserted. Some of these changes are described below.

1)The Parliament was given unrestrained power to amend any parts of the Constitution, without judicial review. The amendment’s fifty-nine clauses stripped the Supreme Court of many of its powers and moved the political system towards  parliamentary sovereignty. The 42nd Amendment also restricted the power of the courts to issue stay orders or injunctions. The 42nd Amendment revoked the courts’ power to determine what constituted an office of profit.

2)The amendment to article 368 prevented any constitutional amendment from being “called in question in any Court on any ground”. It also declared that there would be no limitation whatever on the constituent power of Parliament to amend the Constitution.

3). Article 74 was amended and it was explicitly stipulated that “the President shall act in accordance with the advice of the Council of Ministers“. Governors of states were not included in this article. 

4) The 42nd Amendment added new Directive Principles, viz Article 39A, Article 43A and Article 48A. The 42nd Amendment gave primacy to the Directive Principles, by stating that “no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights”

Now I will moved to 44^th amendment which was passed by  Janta Government after revocation of emergency in 1978.  It provides for human rights safeguards and mechanisms to prevent abuse of executive and legislative authority. It annuls some Amendments enacted in Amendment Bill 42^nd.

Some amendment also became instrumental for extending reservation of  SC,ST and other backward classes. Some amendment gave some special status to specific or backward states. 52^nd amendment introduces anti defection law. 54^th amendment increased the salary of Chief Justice of India & other Judges and to provide for determining future increases without the need for constitutional amendment.60^th amendment increased the professional tax amount to maximum Rs 2500/- from minimum Rs250/-. 61^st amendment reduced the voting right from 21 to 18 year. It has a great significance Indian political system. The need and call of the time was Universal Adult Suffrage. To maintain equilibrium with the world politics the then Indian Prime Minister Rajib Gandhi introduced it to involve younger generation into politics because they are the future of the country.

75^th amendment laid down the provision for Rent Control Tribunals.86^th amendment provides Right to Education until the age of fourteen and early childhood care until the age of six. 91^st amendment restricted the size of council of ministers to 15% of legislative members & to strengthen Anti Defection laws.

8^th,23^rd, 45^th,51^st, 62^nd,65^th ,77^th,79^th,81^st,82^nd,85^th,89^th,93^rd,94^th, 95^th either increased the reservation or laid down several welfare and protection measure for their employment, education.

96^th amendment in 2011 amended the schedule 8 of the constitution to substitute “Odia” for “Oriya”. 97^th amendment aimed at encouraging economic activity of cooperatives which in turn help progress of rural India. It is expected to not only ensure autonomous and democratic functioning of cooperatives, but also the accountability of the management to the members and other stakeholders.

National Judicial Appointments Commission (NJAC) was a proposed body which was  responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was established by amending the Constitution of India through the 99^th constitution amendment. On 16 October 2015, the Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and struck down the NJAC as unconstitutional.

III) Conclusion– We have completed the amendment of our constitution 127th times and completed 76th year of Independence in this year of 2022.

Pandit Nehru said regarding the amendment provision-

“ That while we want this Constitution to be as solid and as permanent as a structure we can make it nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop the Nation’s growth, the growth of a living, vital organic people………Today when the world is in turmoil and we are passing through a very swift period of transition, what we may do to-day may not be wholly applicable tomorrow.”²

Amendment is the part of that process which intends to fix all the error and tries to cope up with the need of the hour. Amendment can said to be the process of purifying itself by removing some unnecessary part and introducing something new to meet the aspiration of the people. We have already discussed that the process to amend the provisions of the Constitution of India is partly rigid and partly flexible. By that means the framers of our Constitution did not want to put a wall for bringing any change. As we all know change is the only constant but it was necessary to protect our constitution from the changes which will be detrimental to the public and satisfy the needs of any ruler. It was necessary to protect the basic structure of our constitution. To make it happen provision of the Article 368 was introduced in the Constitution.

Every constitution intends to fulfill some object and for this Constitution of India is not an exception. The aim is to ensure “JUSTICE, social, economic and political, LIBERTY of thought, expression, belief, faith and worship, EQUALITY of status and of opportunity and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation” so that India can be SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC in the true sense of the term. I want to conclude this article by quoting Thomas Paine-

“When it can be said by any country in the world, my poor are happy, neither ignorance nor distress is to be found among them, my jails are empty of prisoners, my streets of beggars, the aged are not in want, the taxes are not oppressive, the rational world is my friend because I am the friend of happiness. When these things can be said, then may that country boast its constitution and government. Independence is my happiness, the world is my country and my religion is to do good.”³

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1)https://web.archive.org/web/20131203013055/http://164.100.47.134/intranet/CAI/1.pdf

2) Introduction to the Constitution of India by brij kishore sharma

3)Chaturvedi, D. C.. Indian Fundamental Rights. India: Saru Publishing House, 1992.