Above: Dr BR Ambedkar (seated, centre), chairman of the drafting committee of the Constitution, with other members
Since it came into being, the Constitution of India has been amended more than 100 times but the “holy book” has stood the test of time, largely due to judicial vigilance
By Vivek K Agnihotri
India celebrates 70 years of the existence of its Constitution on November 26, 2019. The Constituent Assembly for drafting the Constitution held its first sitting on December 9, 1946. On November 26, 1949, the final version of the Constitution received the signature of the president of the assembly and was declared as passed. The provisions relating to citizenship, elections, provisional parliament, temporary and transitional provisions were given immediate effect from November 26, 1949. The rest of the Constitution came into force on January 26, 1950, and that date is referred to in the Constitution as the Date of its Commencement.
The Constitution of India has the distinction of being the most lengthy and detailed constitutional document in the world. Even though the original text of the Constitution had 395 Articles, that number has reached 466 due to several amendments. In addition, there are 13 Schedules.
Typically, a constitution places restrictions on the exercise of political authority. However, it can’t remain static and, hence, normally, also makes provision for amendments, as and when the need arises, to deal with emerging situations. In the past 70 years, the Constitution has been amended 103 times but it has stood the test of time, largely due to judicial vigilance.
The procedure to amend the Constitution in India is not as rigid as, for instance, in Australia, Switzerland and the US. In Australia and Switzerland, any amendment has to be submitted for the approval of electors through a referendum. In the US, the constitutional amendments must go through the House of Representatives and the Senate and require ratification by three-fourths of the states.
The amending powers of the Indian Constitution are enshrined in Article 368. For the purpose of amendment, various Articles of the Constitution are divided into three categories. First, there are Articles (5, 169, 239-A, and the consequential changes to the Schedules, if any) that can be amended by Parliament through a simple majority and are excluded from the rigour of Article 368. Amendments to other Articles must be effected by a special majority of the total membership of each House as well as by a majority of not less than two-thirds of the members of that House, present and voting. There is no provision for a joint sitting of the two Houses in case of a disagreement on a proposed amendment, as is the case in respect of routine legislation, except the Money Bills. The Amendment Bill must be passed by the two Houses independently, or else it will fail.
In the second category, there is a sub-set which requires ratification by not less than half of the state legislatures. These relate to election of the president (Articles 54 and 55), extent of the executive powers of the Union and states (Articles 73, 162, and 241), distribution of legislative powers between the centre and states (Articles 245 and 255), and Articles dealing with the judiciary, and Article 368 itself, among others.
Are there any limits to Parliament’s power to amend the Constitution? Constitutions often provide the power of judicial review. Courts can strike down a law on the ground that it violates the Constitution. The matter regarding Parliament’s power to amend the Constitution assumed significance in Golak Nath vs State of Punjab (1967) in which the Court held that a constitutional amendment could not infringe upon fundamental rights. Parliament struck back and sought to assert its supremacy through the 24th Constitutional Amendment Act (1971) by inserting Clause (4) in Article 13, which provided that “nothing in this article shall apply to any amendment of this Constitution made under Article 368”. Article 368 was also amended and now expressly permits Parliament to amend or repeal “any provision” of the Constitution. Alongside, Parliament also enacted the 25th Constitutional Amendment Act (1971) and limited the applicability of certain fundamental rights to land reform laws.
However, in the Kesavananda Bharati vs State of Kerala (1973), the Supreme Court had an opportunity to revisit the issue of limits to amending the Constitution. A 13-judge bench set forth the famous “basic structure doctrine”. An amendment to the Constitution can amend its provisions, but no change can destroy its character. However, Parliament, through the 42nd Constitutional Amendment Act (1976), added two new Clauses, (4) and (5), to Article 368 to ensure that “no constitutional amendment shall be called in question in any court on any ground”. The Supreme Court responded in Minerva Mills vs Union of India (1980) and these clauses were struck down on the grounds that they sought to destroy the basic structure of the Constitution.
In Kesavananda Bharati (supra), the apex court had enumerated certain essentials of the basic structure, such as supremacy of the Constitution, democratic form of government, secularism, federal character and separation of powers. Over the years, through several other judgments, many other shades have been added—rule of law, judicial review, harmony and balance between fundamental rights and directive principles of state policy and so on.
The saga of amendments to the Constitution has had its highs and lows. Some of the periodic amendments relate to extending reservation of seats in the legislatures for Scheduled Castes and Scheduled Tribes (Article 334) every 10 years, creation of states and UTs and their legislatures, three amendments on setting up and bifurcation of the National SC and ST Commission, and the 102nd (2018) which set up the National Backward Classes Commission.
Some of the landmark constitutional amendments include the 52nd (1985), which added the Tenth Schedule (anti-defection law); 61st (1989) that reduced the voting age to 18; 73rd and 74th (1993) that gave constitutional status to rural and urban local bodies; 91st (2003) that limited the number of ministers in the council of ministers; 101st (2016) that introduced the GST; and 103rd (2019), which introduced 10 percent reservation in jobs and educational institutions for the economically weaker sections.
What stands out is a movement away from liberal values towards affirmative action, social and economic progress, balancing action between Parliament and the judiciary, as well as a certain amount of hurry and ad hocism, at times.
—The writer is a former Secretary-General of the Rajya Sabha