STRUCTURE
Introduction – A short introduction to Amendment procedure ( 15 words)
Body – list out the amendment procedure and explain their limitations (120 words)
Conclusion – Mention a short conclusion with way forward(15 words)
ANSWER
Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law.
- The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.
- The case of Kesavananda Bharati v. State of Kerala (Kesavananda Bharati) is perhaps the most well-known constitutional decision of the Supreme Court of India (Supreme Court). While ruling that there is no implied limitation on the powers of Parliament to amend the Constitution, it held that no amendment can do violence to its basic structure (the “Basic Structure Doctrine”).
BASIC STRUCTURE DOCTRINE
The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.
The judgement listed some basic structures of the constitution as:
Supremacy of the Constitution
- Unity and sovereignty of India
- Democratic and republican form of government
- Federal character of the Constitution
- Secular character of the Constitution
- Separation of power
- Individual freedom
- Rule of law
- Judicial review
- Parliamentary system
- Rule of equality
- Harmony and balance between the Fundamental Rights and DPSP
- Free and fair elections
- Limited power of the parliament to amend the Constitution
- Power of the Supreme Court under Articles 32, 136, 142 and 147
- Power of the High Court under Articles 226 and 227
In addition the following are the criticisms of the Amendment procedure:
- Basic structure doctrine gives extra power to court to review and strike down any constitutional amendments and act enacted by the Parliament.
- Parliament has limited powers to amend the constitution.
- Parliament cannot damage or destroy the basic features of the Constitution.
- The Procedure prescribed for the amendment is mandatory. Noncompliance with it will result in invalidity of the amendment.
- Clauses (4) and (5) inserted in Art. 368 by the 42nd Amendment Act are invalid because they take away the right of judicial review.
- Parliament cannot increase its amending power by amending Art. 368.
- The State Legislatures have a mere voice in the Amendment procedure.
- India lacks the provision of seeking public opinion on any Constitutional Amendment.
- Any time limit regarding ratification by States has not been provided. As a result such amendments can be killed if the States take no action.
- An amendment in order to be valid should be passed by both the Houses. There may be differences in opinion between the Houses but any procedure regarding solving it has not been provided in the Constitution.
So, one can conclude that Parliament is free to enact any number of constitutional amendments in any given year. Although Parliament must preserve the basic framework of the Constitution, there is no other limitation placed upon the amending power, meaning that there is no provision of the Constitution that cannot be amended.
