Amendment Of The indian Constitution Flashcards
Amendment of the Indian constitution
Like any other written constitution, the constitution of India also provides for its amendment.
So that it can adjust itself to the changing conditions and needs.
However, the condition laid down in the constitution are not as easy as Britain or as hard as The USA.
The parliament cannot a man the basic structure of the constitution.
The basic structure doctrine limits amending power of the parliament.
Procedure for amendment
Article 368
An amendment can be initiated in either houses of the parliament
It can be introduced by the minister or a private member without prior permission of the president
The bill must be passed each house by special majority
Each house must pass double separately. And in case of disagreement, there is no provision for a joint setting.
In case of change in the federal structure, state rectification is needed
After this bill is presented to the President of India, the president must give his assent to the bell and then it becomes an act.
Criticism of the amendment Act of article 368
There is no provision for a special body like the constitutional assembly to amend the constitution
Legislature cannot initiate the amendment (unlike the US)
Major part of the constitution can be amended by parliament alone
Does not prescribed the time frame
No provision for a joint setting
States are not consulted while amending the constitution.
Majority
The simple majority:
More than 50% members present and voting
Also called working majority
It is used for the admission or establishment of a new state.
It is also used in the formation of new state and alteration of areas, boundaries, or the names of existing States.
It is also used to pass a no-confidence motion, confidence motion, adjournment motion, and censure motion.
It is also used to pass the money bill, finance bill, ordinary bill or budget.
It is used as a vote of thanks to the president or government.
It is also used to proclaim financial emergency or for revoking national emergency.
Absolute majority:
Majority with more than 50% of the total strength of the house.
Effective majority:
More than 50% of the effective strength of the house i.e. the vacancies are not taken into account
It is used for the removal of the vice president in rajya sabha (chairman), for the removal of the deputy chairman of the rajya sabha, for the removal of the speaker of the lok sabha or the removal of the deputy speaker of the lok sabha.
Vacancies arise due to death, resignation, expulsion or disqualification.
Special majority:
Type 1: as per the article 249 it requires 2/3rd members present & voting. It is used to pass the rajya sabha resolution to empower the parliament to make laws in the state list. It is valid up to 1 year but can be extended any number of times.
Type 2: As per the article 368, it requires majority of the 2/3rd members present & voting and supported by 50% of the total strength of the house. Its uses are for constitutional amendment Bill (unless it harms the federal structure), removal of supreme court or High court judge, election commission, and CAG or to approve our national emergency.
Type 3: As per the article 368 + state rectification, special majority as per the article 368 + supported by more than 50% of state legislatures by simple majority. It’s used for the GST or the constitution amendment Bill which affects the federal structure.
Type 4: As per the article 6, it requires a majority of 2/3rd members of the total strength of the house. It’s used to impeach a president.
Basic structure of the constitution
Article 13 states that the state shall not make any law which can take away the fundamental right of any individual.
For example, the shankari Prasad case of 1951, the golaknath case of 1967, Keshavananda Bharti case of 1973, Indira Gandhi case of 1975, the 42nd amendment act, the Minerva mill case of 1980, the Vaman Rao case of 1981, etc.
Principles of the basic structure
Supremacy of the constitution,
Secular character of the constitution,
Separation of power,
Federal character,
Unity and integrity of the nation,
Judicial review,
Rule of law,
Principle of equality,
Free and fair election,
Independence of judiciary.
Criticism of the basic structure
The basic structure finds no mention anywhere in the constitution
The doctrine accords judiciary a power to impose its philosophy over democratically elected government
According to Arun Jaitley it’s the tyranny of the unelected. It’s cruel, unreasonable and arbitrary.
Basic structure is sacrosanct
The parliament is the creation of the constitution
It could not make changes that had the effect of overthrowing the constitution itself
The article 368 grants parliament the power to amend the constitution
The article 368 says that the constitution shall stand amended and thus, changes to article 368 cannot create a new constitution.
What could emerge out of an amendment is only an altered form and an altogether new and radical constitution
Constitutions are not like ordinary laws
The literal meaning of an amendment is, any minor change or addition design to improve a text.
After an amendment, the constitution must continue to possess in its essence those features that were foundational to it even at its conception.
