Political science Project

Amendment Procedures
A general study on the importance and purpose of Constitutional Amendments.

Shruthi Srivastava - 0554 Shruti Srivastava - 0556 Srinivas Atreya - 0519

Political Science Project Amendments and its Procedures

Introduction A brief overview (or) The Features of a Constitution Constitutional Amendments: Their Purpose and Importance in a Democracy The Constitution of India: An Overview Amendment Procedures in the Constitution of India Notable Constitutional Amendments Amendment Procedures from Across the World Amendments in the United States of America: A special emphasis The Present Scenario: The Validity of Constitutional Amendments Conclusion: The Need for a more effective Amendment Mechanism

Introduction
A constitution is a set of rules for government, which is often codified as a written document. Fundamentally, the constitution enumerates and establishes the powers and functions of a political entity. In the case of countries and autonomous regions of federal countries the term refers specifically to a constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government. 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 existed before the development of modern codified constitutions. Constitutions concern different levels of political organization as they exist at national (e.g., codified Constitution of Canada, uncodified Constitution of the United Kingdom), regional (e.g., the Massachusetts Constitution), and sometimes lower levels. They also define many political and other groups, such as political parties, pressure groups, and trade unions. Non-political 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. Etymologically, the term constitution comes from a Latin term denoting an important law, usually one proclaimed by the Roman emperor ("constitutiones principis": the edicta, mandata, decrera and rescripta). Later, the term was widely used in canon law for an important determination, especially by the Pope, which is now referred to as apostolic constitutions. The earliest written constitution still governing a sovereign nation today may be that of San Marino. The Leges Statutae Republicae Sancti Marini was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers and the powers assigned to them. The remaining books cover criminal and civil law, judicial procedures and remedies. Written in 1600, the document was based upon the Statuti Comunali (Town Statute) of 1300, itself influenced by the Codex Justinianus, and it remains in force today.

Features of a Constitution
A constitution is a complex set of rules that acts as a mechanism-cal guideline and every modern constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abides by the said constitution's limitations. According to the renowned political thinker Scott Gordon, a political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority." In most but not all modern states the constitution has supremacy over ordinary statute law. In 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 quo warranto. Key features Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government

departments/ministries, executive agencies and a civil service/bureaucracy. Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. It is thus the most basic law of a territory from which all the other laws and rules are hierarchically derived; in some territories it is in fact called "Basic Law." The following are features of democratic constitutions that have been identified by political scientists to exist, in one form or another, in virtually all national constitutions.

Codification 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 constitution Most states in the world have codified constitutions and Codified 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 context driving this fundamental change. The legitimacy (and often the longevity) 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. In addition, exceptional procedures are often required to amend a constitution. These procedures may include: convocation of a special constituent assembly or constitutional convention, requiring a supermajority 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. Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a so-called unconstitutional constitutional law. Codified 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 a

reference to God and/or to fundamental values of the state such as liberty, democracy or human rights. Uncodified constitution As of 2010 only three states have uncodified constitutions: Israel, New Zealand, and the United Kingdom. Uncodified constitutions (also known as unwritten constitutions) are the product of an "evolution" of laws and conventions over centuries. By contrast to codified constitutions, in the Westminster tradition that originated in England, uncodified constitutions include written sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources (like constitutional conventions, observation of precedents, royal prerogatives, custom and tradition In states using uncodified constitutions there is no entrenchment of constitutional provisions and thus constitutional law as such: laws of constitutional significance can be created, altered, or repealed by the legislative body in the same was as any statute. Entrenchment The presence or lack of entrenchment is a fundamental feature of constitutions. An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws, but can only be amended by a different and more onerous procedure. There may be a requirement for a special body to be set up, and the proportion of favorable votes of members of this body may be required to be higher to pass an amendment than for statutes. Some constitutions contain entrenched clauses, i.e. articles stating that certain modifications are either more difficult to make than normal modifications, or may never be made under any circumstances. Entrenchment is an inherent feature in most codified constitutions. A codified constitution will incorporate the rules which must be followed for the constitution itself to be changed. The US constitution and the Indian Constitution are examples of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched (or codified). In some states the text of the constitution may be changed; in others the original text is not

changed, and amendments are passed which add to and may override the original text and earlier amendments. Procedures for constitutional amendment vary between states. In a nation with a federal system of government the approval of a majority of state or provincial legislatures may be required. Alternatively, a national referendum may be required. Details are to be found in the articles on the constitutions of the various nations and federal states in the world. Absolutely unmodifiable articles The strongest level of entrenchment exists in those constitutions that state that some of their most fundamental principles are absolute, i.e. certain articles may not be amended under any circumstances. An amendment of a constitution that is made consistently with that constitution, except that it violates the absolute non-modifiability, can be called an unconstitutional constitutional law. Ultimately it is always possible for a constitution to be overthrown by internal or external force, for example, a revolution (perhaps claiming to be justified by the right to revolution) or invasion. Distribution of sovereignty Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty according to the degree of centralisation of power: unitary, federal, and co federal. The distinction is not absolute. In a unitary state, sovereignty resides in the state itself, and the constitution determines this. The territory of the state may be divided into regions, but they are not sovereign and are subordinate to the state. A federal state has a central structure with at most a small amount of territory mainly containing the institutions of the federal government, and several regions (called states, provinces, etc.) which comprise the territory of the whole state. Sovereignty is divided between the centre and the constituent regions. A confederal state comprises again of several regions, but the central structure has only limited coordinating power, and sovereignty

is located in the regions. Co federal constitutions are rare, and there is often dispute to whether so-called "co federal" states are actually federal. Separation of powers Constitutions usually explicitly divide power between various branches of government. The standard model, described by the Baron de Montesquieu, involves three branches of government: executive, legislative and judicial. Some constitutions include additional branches, such as an auditory branch. Constitutions vary extensively as to the degree of separation of powers between these branches. Lines of accountability In presidential and semi-presidential systems of government, department secretaries/ministers are accountable to the president, who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election. In parliamentary systems, ministers are accountable to Parliament, but it is the prime minister who appoints and dismisses them. State of emergency Many constitutions allow the declaration under exceptional 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 rightssee the article on state of emergency.

Constitutional Amendments: Their Purpose and Importance in a Democracy

Demands for constitutional reform may emerge whenever alternative procedures or constraints appear to advance the first three goals more effectively than existing ones or whenever a more or less temporary majority believes that it can improve its own situation

through constitutional reform. Political interests are not constant over time, nor are all institutional structures equally effective at advancing the shared interests of the electorates. A nations citizenry may want to modify their system of governance as they learn about unintended, unexpected, and unwanted consequences of their present institutions. Voters may also wish to modify core procedures and constraints of governance as their values and goals change through time, as with womens suffrage and religious and racial tolerance, or as constitutional innovations are found to deliver more effective governance. Major 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.

Constitutional Design and the Demand for Constitutional Reform

Formal constitutional documents describe the law for making laws. Constitutions, consequently, include some of the most fundamental rules of the game in a society. Most constitutions include rules on the machinery of government as well as more or less extensive and general specifications of the rights of citizens. These procedure and constraints enable societies to make collective decisions to achieve outcomes that require coordination and joint action while reducing the risks of collective action. Constitutional law differs from most other laws, because it also includes normally includes procedures for changing its own required procedures and constraints. However not all constitutions are democratic.

Four general objectives can be ascribed to democratic constitutions. First, there is the practical convenience of having standing collective decision-making routines to adjust the existing laws and services to better advance citizen interests as economic and political conditions change through time. The standing routines of modern democratic governments include competitive elections to select representatives, who in turn select among policy options, and a largely apolitical bureaucracy that implements the policies chosen. Second, democratic constitutions attempt to assure majority rule rather than minority rule. Representative democracy requires

delegation, and there is always the risk that the agents employed will fail to act on the electorates behalf. An important task of a constitut ional arrangement is to prevent delegation of authority from turning into abdication. Any agent may have an incentive to shirk, as long as the interests of principals and agents are not completely identical. The institutional problem, then, is to align the agents interests with those of their principals. Democratic constitutions accomplish this alignment through provisions that assure competitive and open elections. Protections for the press and political speech also help to assure open policy debates, which simultaneously improves the quality of policy choices and reduces opportunities for malfeasance among elected officials. Amendment procedures and similar rules also restrain a temporary majority from abusing its power by manipulating electoral rules and the management of elections. For example, constitutional provisions that establish maximal times between elections reduce legislative opportunities for governments that have outlived their majorities.

Third, democratic constitutions address the classical constitutionalist concern of protecting individual and minority. Democratic constitutions, consequently, include lists of fundamental rights that specify policy domains in which policies must or must not be made. Such constitutional constraints on the domain of government policy reduce the ability of simple majorities to transgress individual rights and the rights of permanent ethnic, religious, linguistic, or other identifiable minority groups. For example, equal protection clauses protect individuals and groups from discriminatory legislation, and takings clauses protect personal property by requiring compensation to be paid to those whose property is taken to advance public purposes.

Fourth, democratic constitutions address dynamic problems involving the stability and flexibility of the constitutional regime itself. Modesty on the part of constitutional designers requires them to acknowledge that even their best efforts may need to be adjusted to take account of new circumstances, new ideas, or new information. However, a constitution that is too flexible ceases to serve as rules of the game for day-to-day politics, which can undermine a

constitutions ability to advance the first three objectives. A democratic constitutions amendment process has to allow reforms that advance broad interests to be adopted, without undermining its practical value as a standing routine for advancing majority interests and protecting minorities.

How Amendments affect the Stability of the Constitution

Changes in constitutional text can serve as a useful first approximation for constitutional stability, insofar as all formal changes in the constitution require changes in constitutional language, and all formal changes to a nations written constitution i n principle change related unwritten parts of the constitution as well. It bears noting, however, that to the extent that other unwritten parts of a nations constitution change as a consequence of other factors, the true underlying stability of a politys constitution will be somewhat understated by this approach.

The Constitution of India: An Overview

The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens. Passed by the Constituent Assembly on 26 November 1949, it came into effect on 26 January 1950. It declares the Union of India to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty and to promote among them all fraternity. It is the longest written constitution of any sovereign country in the world, containing 395 articles in 22 parts, 14 schedules and 94 amendments, for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation. The Constitution effectively replaced the Government of India Act 1935 as the governing document of India. Being the supreme law of the country, every law enacted by the government must conform to the constitution.

The constitution of India is divided into several parts. Fundamentally, parts are the individual chapters in the Constitution, focused in single broad field of laws, containing articles that addresses the issues in question.

Preamble Part I - Union and its Territory Part II - Citizenship. Part III - Fundamental Rights Part IV - Directive Principles and Fundamental Duties.

Part XII - Finance, Property, Contracts and Suits

Part XIII - Trade and Commerce within the territory of India

Part XIV - Services Under the Union, the States and Tribunals

Part V - The Union. Part VI - The States. Part VII - States in the B part of the First schedule (Repealed).

Part XV - Elections Part XVI - Special Provisions Relating to certain Classes.

Part XVII - Languages Part XVIII - Emergency Provisions Part XIX - Miscellaneous Part XX - Amendment of the Constitution Part XXI - Temporary, Transitional and Special Provisions

Part VIII - The Union Territories Part IX- Panchayat system and Municipalities.

Part X - The scheduled and Tribal Areas

Part XI - Relations between the Union and the States.

Part

XXII

Short

title,

date

of

commencement, Authoritative text in Hindi and Repeals

Part XXIII - Temporary, Transitional and Special Provisions

Part XXIV - Temporary, Transitional and Special Provisions

Schedules Schedules are lists in the Constitution that categorizes and tabulates bureaucratic activity and policy of the Government.

First Schedule (Articles 1 and 4) States and Union Territories This lists the states and territories on of India, lists any changes to their borders and the laws used to make that change.

Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186 and 221) Emoluments for High-Level Officials This lists the salaries of officials holding public office, judges, and Comptroller and Auditor-General of India.

Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219) Forms of Oaths This lists the oaths of offices for elected officials and judges.

Fourth Schedule (Articles 4 and 80) This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory.

Fifth Schedule (Article 244) This provides for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions).

Sixth Schedule (Articles 244 and 275) Provisions for the administration of tribal areas in Assam.

Seventh Schedule (Article 246) The union (central government), state, and concurrent lists of responsibilities.

Eighth Schedule (Articles 344 and 351) The official languages. Ninth Schedule (Article 31-B) - This covers land and tenure reforms; the accession of Sikkim with India. It may be reviewed by the courts[17].

Tenth Schedule (Articles 102 and 191) "Anti-defection" provisions for Members of Parliament and Members of the State Legislatures.

Eleventh Schedule (Article 243-G) Panchayat Raj (rural development). Twelfth Schedule (Article 243-W) Municipalities (urban planning).

System of government The basic form of the Union Government envisaged in the Constitution was introduced by Dr. Ambedkar as follows,

A democratic executive must satisfy three conditions: 1. It must be a stable executive, and 2. It must be a responsible executive. 3. It must be impartial to all religion, caste and community. Unfortunately, it has not been possible so far to devise a system which can ensure both conditions in equal degree. ..... The daily assessment of responsibility, which is not available in the American system is, it is felt, far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the parliamentary system of Executive has preferred more responsibility to stability.[18]

Federal Structure One of the most important features of the Indian constitution is that it provides for separation of powers between the Union and the States. It enumerates the powers of the Parliament and State Legislatures in three lists, namely Union list, State list and Concurrent list. Subjects like national defense, foreign policy, issuance of currency are reserved to the Union list. Public order, local governments, certain taxes are examples of subjects of the State List, on which the Parliament has no power to enact laws in those regards, barring exceptional conditions. Education, transportation, criminal law are a few subjects of the Concurrent list, where both the State Legislature as well as the Parliament have powers to enact laws. The residuary powers are vested with the Union. The upper house of the Parliament, the Rajya Sabha, which consists of representatives of States, is also an example of the federal nature of the government.

Parliamentary Democracy The President of India is elected by the Parliament and State Legislative Assemblies, and not directly by the people. The President is the Head of the State, and all the business of the Executive and Laws enacted by the Parliament are in his/her name. However, these powers are only nominal, and the President must act only according to the advice of the Prime Minister and the Council of Ministers. The Prime Minister and the Council of Ministers enjoy their offices only as long as they enjoy a majority support in the Lok Sabha, the lower house of the Parliament, which consists of members directly elected by the people. The ministers are answerable to both the houses of the Parliament. Also, the Ministers must themselves be elected members of either house of the Parliament. Thus, the Parliament exercises control over the Executive. A similar structure is present in States, where the directly elected Legislative Assembly enjoys control over the Chief Minister and the State Council of Ministers. Independent Judiciary The Judiciary of India is free of control from either the executive or the Parliament. The judiciary acts as an interpreter of the constitution, and an intermediary in case of disputes between two States, or between a State and the Union. An act passed by the Parliament or a Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the judiciary if it feels that the act violates some provision of the Constitution. Constitutional remedy against any action of the government is available in a High Court or the Supreme Court, if the action violates any of the fundamental rights of an individual as enumerated in the Constitution.

Amendment Procedures in the Constitution of India

According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. The founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Hence Parliament was invested with the power to amend the Constitution. Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. However, this power is not absolute in nature and the Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not distort damage or alter the basic features of the Constitution under the pretext of amending it. The phrase 'basic structure' itself cannot be found in the Constitution.

The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973. The Supreme Court has since been recognized as the interpreter of the Constitution and the arbiter of all amendments made by Parliament. Its worth noting that the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence

The pre-Kesavanada position

The Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951. 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 Congress party's electoral promise of implementing the socialistic goals of the Constitution [contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required equitable distribution of resources of

production among all citizens and prevention of concentration of wealth in the hands of a few. Property 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 Constitution. Piqued by the unfavorable judgments, the Parliament placed these laws in the Ninth Schedule of the Constitution through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively removing them from the scope of judicial review.

The Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951 as a means of immunizing certain laws against judicial review. Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule pertaining to acquisition of private property and compensation payable for such acquisition cannot be challenged in a court of law on the ground that they violated the fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created with the primary objective of preventing the judiciary - which upheld the citizens' right to property on several occasions - from derailing the Congress party led government's agenda for a social revolution. Property owners again challenged the constitutional amendments which placed land reforms laws in the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the Constitution. Article 13 (2) provides for the protection of the fundamental rights of the citizen. Parliament and the state legislatures are clearly prohibited from making laws that may take away or abridge the fundamental rights guaranteed to the citizen. They argued that any amendment to the Constitution had the status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v. Union of India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court rejected both arguments and upheld the power of Parliament to amend any part of the Constitution including that which affects the fundamental rights of citizens. Significantly though, two dissenting judges in Sajjan Singh v. Rajasthan case raised doubts whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.

As per the context of the Indian constitution, The Keshavananda Bharti V. State of Kerela Case provides for the best explanation as to the scope and definition of the word Amendment. It purported that A broad definition of the word Amendment will include any alteration or change. The word amendment when used in connection with the Constitution may refer to the addition of a provision on a new and independent subject, 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 a rticle or clause.

Amending Procedure
The Constitution of India provides for amendment mainly in Article 368 and in some other parts as specified therein in a formal manner. For the purpose of amendment, the various Articles of the Constitution are divided into three categories. The first category is out of the purview of Article 368 whereas the other two are a part and parcel of the said Article. The various categories of amendment to the Constitution can be summarized as follows:

Amendment by Simple Majority As the name suggests, an article can be amended in the same way by the Parliament as an ordinary law is passed which requires simple majority. The amendment contemplated under Articles 5-11 (Citizenship), 169 (Abolition or creation of Legislative Councils in States) and 239-A (Creation of local Legislatures or Council of Ministers or both fir certain Union Territories) of the Indian Constitution can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed under Article 368.

Amendment by Special Majority Articles which can be amended by special majority are laid down in Article 368. All amendments, except those referred to above come within this category and must be affected by a majority of total membership of each House of Parliament as well as 2/3rd of the members present and voting. Amendment by Special Majority and Ratification by States Amendment to certain Articles requires special majority as well as ratification by states. Proviso to Article 368 lays down the said rule. Ratification by states means that there has to be a resolution to that effect by one-half of the state legislatures. These articles include Article 54 (Election of President), 55 (Manner of election of President), 73 (Extent of executive power of the Union), 162 (Extent of executive power of State), 124-147 (The Union Judiciary), 214-231 (The High Courts in the States), 241 (High Courts for Union Territories), 245-255 (Distribution of Legislative powers) and Article 368 (power of the Parliament to amend the Constitution and procedure thereof) itself. Any list of seventh schedule or representation of states in Parliament as mentioned in the fourth schedule is also included. Procedure For Amendment U/A 368 A Bill to amend the Constitution may be introduced in either house of the Parliament. It must be passed by each house by a majority of the total membership of that house and by a majority of not less than 2/3rd of the members present and voting. Thereafter, the bill is presented to the President for his assent who shall give his assent and thereupon the Constitution shall stand amended.In case, ratification by state is required it has to be done before presenting it to the President for his/her assent.

Notable Constitutional Amendments in India

Shankari Prasad V. Union of India (AIR 1951 SC 458) The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to abridge the fundamental Rights under Part 3 of the Constitution of India. Supreme Court held that the power to amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law within the meaning of Article 13(2). Article 13(2) states that 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 extent of the contravention, be void. An amendment is valid even if it abridges any fundamental Right. Sajjan Singh V. State Of Rajasthan (AIR 1965 SC 845) The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview of Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court approved the judgment in Shankari Prasad case and held that on Article 13 (2) the case was rightly decided. Amendment includes amendment to all provisions of the Constitution.

Golaknath V. State Of Punjab (AIR 1967 SC 1643) The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend part 3 of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it may be declared void.

24th Amendment Act, 1971 Golaknaths case created a lot of difficulties and as a result the Parliament enacted 24th Amendment act, 1971 whereby it changed the old heading of Article 368 Procedure for Amendment of the Constitution to a new heading Power of the Parliament to Amend the Constitution and Procedure Therefor. To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and extended the scope of power of Parliament to amend the Constitution 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 Further, the amendment provided that Nothing in Article 13 shall apply to any amendment made under this article by way of an addition of Clause 3 to Article 368. Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461) One of the various questions raised in this case was the extent of the power of the Parliament to amend under Article 368. A 13 Judge Constitutional bench was formulated under Chief Justice Sikri in order to evaluate the intricacies of Golaknaths case. The Supreme Court overruled its decision in Golaknaths case and held that even before the 24th Amendment, Article 368 contained power as well as procedure for amendment. The majority held that there are inherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroy the Basic Structure of the Constitution. Basic Structure The Theory of basic structure very effectively proved to be a limitation on the amending power of the Parliament. The Basic Structure doctrine applies only to the Constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just its basic structure. The eminent judges during the course of the case gave their opinion on the crux of the matter.

Chief Justice Sikri indicated that Basic structure is: 1. The supremacy of Constitution 2. The republican and democratic forms of government 3. The secular character of Constitution 4. Maintenance of separation of power 5. The federal character of the Constitution

Justices Shelat and Grover added another three: 1. The mandate to build a welfare state contained in the Directive Principles of State Policy 2. Maintenance of the unity and integrity of India 3. The sovereignty of the country Justices Hegde and Mukherjea listed the following: 1. The Sovereignty of India 2. The unity of the country 3. The democratic character of the polity 4. Essential features of individual freedoms 5. The mandate to build a welfare state Justice Jaganmohan Reddy referred the Preamble only: 1. A sovereign democratic republic 2. The provision of social, economic and political justice 3. Liberty of thought, expression, belief, faith and worship 4. Equality of status and opportunity

42nd Amendment Act, 1976 and Article 368 The 42nd Amendment Act, 1976 was passed by the Parliament soon after. The Amendment added clause 4 and clause 5 to Article 368. Article 368(4) provided that no Constitutional Amendment shall be called in any court on any ground. Article 368(5) provided that there shall be no limitation whatsoever on the constituent power of the Parliament. Minerva Mills V. Union Of India (AIR 1980 SC 1789) Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment. Justification for the deletion of the said clauses was based on the destruction of Basic Structure. The Court was satisfied that 368 (4) and (5) clearly destroyed the Basic Structure as it gave the Parliament absolute power to amend Constitution. Limitation on the amending power of the Parliament is a part of the Basic Structure explained in Kesavanandas case. The Constitutional validity of Article 323A and the provisions of the Administrative Tribunals Act was challenged on the ground that it excluded the jurisdiction of High Court under Article 226 and 227. Supreme Court held that Article 323A and Administrative Tribunals Act was valid as it has not excluded Judicial Review under Article 32 and 136. It was not proved beyond reasonable doubt that Article 323A and Administrative Tribunals Act destroyed the basic structure and the Court upheld their validity. L. Chandra Kumar V. Union Of India (AIR 1997 SC 1125) The Supreme Court struck down clause 2(d)of Article 323A and clause 3(d) of Article 323B as they excluded the jurisdiction of High court under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 as they damage the power of Judicial Review which is a basic feature of Constitution.

The Amendbility of The Indian Constitution

According to the eminent jurist V P. Sarathi, there will never be a conflict between Legislature and Judiciary and these two powerful organs will be better capable of guiding the third branch i.e. Executive, if the following view for the purpose of amendment is accepted. Article 368 can be interpreted in the following manner: A) The power of the Parliament to amend Constitution is absolute and there are no limits on that power. B) Parliament should not, however, take away the power of the courts to strike down ordinary legislation as tested against the amended Constitution. One can relate to what Shakespeare said in Measure for Measure: O, it is excellent To have a giants strength; but it tyrannous To use it like a giant.

The elementary question in controversy has been whether Fundamental Rights are amendable so as to take away the basic rights guaranteed by the Constitution. Another controversy deals with the extent, scope and authority of Parliament to amend Constitution. The answer has been given by the Supreme Court from time to time, sometimes under immense pressure and can be understood in the light of the cases previously discussed.

Constitutional Amendments: A Global Perspective

The study of constitutional design is of interest, in large part, because constitutions can be amended from time to time. Not every constitutional procedure or constraint will stand the test of time, and most constitutional designers take this into account by including constitutional procedures for changing the fundamental rules of the political game. Almost all national constitutions include articles that provide for partial or total change of their

constitutions. Only less than 4 percent of the worlds constitutions lack articles on formal amendment procedures.

In this respect, constitutions differ from rules governing some informal game (or sport) rule insofar as the latter do not include rules for changing the rules. Other less formal methods for reforming constitutional practice are also commonplace. Constitutional procedures and constraints may also be altered by judicial interpretation and political adaptation, and by irregular (nonlegal or unconstitutional) means. In democratic systems, constitutional developments are often gradual or incremental, although replacement of the entire document is also a possibility.

However the scope of amending procedures is somewhat limited. But this is not because amendment procedures are unimportant or a secondary matter in democratic constitutional design. For instance, if variations in the details of constitutional design have important effects on public policies and welfare within a polity, changes in the procedures by which constitutions may be changed are obviously important as well. Moreover, amendment processes may contribute to both the stability and durability of a constitutional regime, which may themselves have significant effects on welfare insofar as prosperity, health, and trust are promoted by stable public policies. Indeed, the age of a particular constitution is often measured by the period in which its rules of amendment are followed, rather than by the period in which particular political procedures and constraints have been in place.

For instance, Norway has one of the oldest constitutions in the world, second only to the U.S. constitution and it was signed and sealed by the Constituent on May 17, 1814, a few weeks after elected delegates from all parts of Norway had assembled. Since 1814, however, more than 200 amendments to the constitution have been adopted. During that time, the balance of power within the Norwegian government and the nature of the electorate underwent substantial transformations. The authority to make public policies shifted from the King to

the parliament. Even in the case of India, there have been 94 amendments to the constitution since its inception in 1950.

If durability is measured by the existence of a stable amendment procedure rather than core features of political procedures and constraints, an important difference clearly exists between a constitutions durability and the stability of its associated pattern of governance. The fundamental rules and procedures of governance may change substantially as they have in Norway, the United States, and many other countrieswithout changing amendment procedures.

Formal Constitutional Amendment Procedures

Almost all constitutions specify procedures for rewriting or replacing the constitutional text, and they are almost always more stringent or demanding than ordinary legislative procedures. However, a wide range of formal amendment procedures potentially satisfy this condition, and, this allows the stringency of amendment processes to vary widely. More stringent amendment procedures help makes constitutional commitments stable and thus credible. Such procedures, consequently, help to create a higher legal system that will stand above and limit ordinary legislation. Less stringent amendment procedures allow constitutional mistakes to be readily corrected and institutional experimentation to be more readily conducted.

The stringency of a formal amendment process reflects a commitment by constitutional designers to entrench certain rules and procedures or specific programs and prohibitions. Often formal amendment procedures are quite complex, and in many cases different methods of amendment are stipulated for different provisions in the constitution or allowed in more or less urgent times.

The data shows the amendment procedures from countries across the world.

Conclusion
The frequency of lawful constitutional changes, unfortunately, cannot be understood by focusing on the number of veto players and degree of required 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. External 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. It 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.

Moreover, 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. For example, 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. Constitutions can beand often arechanged without altering the text of constitutional documents. Election laws can often be reformed through ordinary legislation. The courts may reinterpret formal constitutional documents as well as quasi -constitutional legislation. Moreover, not all constitutional reforms have the same effect on a nations fundamental procedures and constraints of governance. The constitutional reforms adopted in the first part of the twentieth century by many European parliaments included such radical changes as the adoption of universal male suffrage, womens suffrage, and proportional representation. Although the more recent constitutional histories of many countries include many dozens of reforms, relatively few of these affect such fundamental procedures or rights. Consequently, the number of formal changes to constitutional documents is a far from perfect measure of constitutional stability. Clearly, there may be much more to be learned about the

relationship between amendment rates and amendment procedures. We do not yet know

exactly how to strike a good balance between flexibility and rigidity; a unique optimal solution may not exist at all. (The variation in amendment rates among successful OECD nations is clearly greater than that of per capita income.) The new empirical analysis of constitutional stability remains very much a work in progress.

Nonetheless, the new empirical work clearly suggests that amendment procedures affect the stability of constitutional documents. Insofar as constitutional law and practice are similar in long-standing democratic states (an issue that we leave for further study), these results suggest that politics in both the large and small tends to be relatively more routinized and, consequently, more predictable in polities with relatively demanding amendment procedures.

From the Indian Perspective, The amendment process was incorporated in the Constitution by the Draftsmen of the Constitution to help India adapt itself to the changing circumstances. Society is never stagnant. It is ever- changing. Therefore the amending procedure was made partly flexible so as to make it easy for the Legislature adapt and mould laws according to the needs of the people. However, there have been instances where the Parliament started making amendments which were destroying the basic structure of the Indian Constitution. It was during this period that the supreme court through landmark decisions of Keshavnand Bharati and Minerva Mills by its power of judicial review has curtailed the amending power of the Parliament. The amendments made by the Parliament can no more affect the basic structure of the Constitution. But, looking at the ease with amendments can take place depending on the whims and fancies of the ruling government and the POLITICS IN THE POLITICS OF INDIA we cannot say how long the rights of the citizens are safe and unobstructed. In spite of all the constitutional reforms that have taken place over the years, there is an urgent need for a more effective amending mechanism.