Amendment Procedure : Necessity or an Overriding Tool?

My submission is this that no harm can be done to democracy and to democratic Constitution if our Constitution was amended – Dr. B.R. Ambedkar

Abstract

Amendment of the Constitution refers to the formal change in the text of the written constitution of a nation or a state. A constitution must serve the growing needs and adapt to the circumstances of  growing people of any nation. Hence, whether amendment is required for the nation or not is a question of time. If a constitution is too rigid it is likely to break with the burden , and if it is too flexible it will result in lawlessness. Now, the question stands that since amendments are so important are they just a necessity or the most important tool in the entire constitution?

Keywords: Amendmentprocedure ,rigidity, flexibility, ratification, legislation, supermajority, constitutional law

Introduction

Webster dictionary defines amendment as :“ the process of altering or amending a law or document (such as a constitution) by parliamentary or constitutional procedure.”[1] In simple words the term  means “ a minor change or addition designed to improve a text, piece of legislation, etc.”

A constitutional amendment is a modification of the Constitution of a polity, organization or of any given entity. Constitutional Amendments are often made to improve the constitution in such a way that it accords itself according to the changing norms and views of the society. As society changes and grows the definition of what is acceptable and what is not changes with time , hence we need constitutional amendments. Over the world various amendment procedures are followed, perspective and approach for the same differs from place to place.

International Perspective

It is said that the constitution of the United States is one of the hardest constitutions to be amended, given its rigidity. Article V of the US constitution lays down the amendment procedure for the country, which is done by the process of convention of states and state ratification. In the leading case of MacLeod V. United States[2] it was ruled that if the legislature would accept a given custom and make it into a law only if it is valid and benefiting the society in one way or the other.

On the other hand we have states such as the United Kingdom and New Zealand, which both rely on the principle of parliamentary sovereignty. This means the final legal authority on all constitutional matters is ultimately the legislature.

In contrast, the constitution of U.S. of Alabama has been amended more than 928 times. However, there are counties where a few or no amendments namely Australia and Japan respectively, have been accepted.

There are various design options for the amendment procedures, below listed are the options and the countries that follow the procedures mentioned. [3]

  1. Legislative supermajority : Supermajority means “a number that is much more than half of a total, especially in a vote” e.g. In India 2/3rd of votes cast are required for amendment, but these must form up at least absolute majority (i.e. 50+1) of the total membership.
  2. Bicameral Legilature :in Bhutan , a ¾ majority of the members of parliament in a joint session is needed in order to make any amendment in the constitution.
  3. Reference to the people (Referendum):
  4. Australia , Denmark, Ireland and Japan are countries which demand a referendum for all amendments no matter how little or inconsequential they may be
  5. Australia, Jamaica, Latvia, Spain demand Referendum if fundamental provisions are to be amended.
  6. In countries like Switzerland and Kenya, legislature follows a procedure for referendum.Given that the changes made are not controversial or are recognized as urgent.
  7. In countries like Canada and India there is Reference to states provinces or regions for the purpose of ratification.
  8.  In countries like Italy, Estonia and Jamaica a proposed amendment is to be passed twice , as it was in the first time, in an interval of usually 3 months or 90 days. This is commonly known as Double Decision Rules

Indian Perspective

The Indian Constitution provides for three categories of amendments.[4] For this purpose various Articles of the constitution are divided into three categories :

  1. Amendment by Simple Majority ( Art 5,169 and 239-A)
  2. Amendment by Special Majority(Articles which can be amended by Article 368)
  3. Amendment by Special Majority and Ratification by States  (Special Majority + ratification by ½ of the state legislature). Provisions can be passed by a majority of 2/3rd in the Parliament, and there is a small set of entrenched provisions which require ratification of at least half of the states in the Union along with special majority.

Amendments become even more important when the country follows a federal system. In most of the written constitutions, the power to amend the Constitutions is either vested in the ordinary Legislature or special provisions given to the legislature. In the landmark judgment of KesavanandaBharti v. State of Kerala[5] it was quoted “If no provisions for amendment were provided, there would be constant danger of revolution…”

CASE LAWS

  • In the case of Golaknath v. State of Punjab[6] SC over ruled Shankri Prasad’s case[7]and  held that the Fundamental rights can not be amended in order to enforce DPSP on citizens. The case cleared that the Parliament can notamend Part III of the constitution in any way which would result curtailment of  fundamental rightsof the citizens. The Chief Justice applied the doctrine of Prospective Overruling and held that this decision will have only prospective operation and, therefore the 1st , 4th and 17th Amendment will continue to be valid. It means that all cases decided before this case shall remain valid. [8]
  • In Minerva Mills v. Union of India[9] the Supreme Court made the doctrine of basic structure more strong and the changes made by the 42nd Amendment, 1976 were declared void, in reference to KesvanandaBharti Case[10]. The Supreme Court laid down as to what were the basic features of the Constitution such as limiting the power of the constitution and strengthened the doctrine of Basic Structure. The court also held that social welfare laws should not infringe with Fundamental Rights.  Independence of judiciary was made as the part of the basic structure and the foundation of judicial review was laid.

It was in the Minerva Mills case the Supreme court struck down two clauses of art.368 ie. Cl (4) and (5) , which were passed and added by the 42nd Amendment Act, 1976. The above said clauses removed all limitations on the amending powers and were a destructive of the basic features of the Constitution.

Conclusion

In reference to the above analysis we can say that the procedure of amendment is an extreme necessity of any country’s constitution and its citizens. Nevertheless, there are relatively few constitutional democracies that set a higher threshold for amending the constitution.

However, we can not say that one part is more important than the other. To support this, we have seen in n number of Indian cases that the “Basic Structure” can not be amended by the legislature.

It is the procedure of amendments which keep the constitution alive and growing, given that the constitution changes with the ever-growing concerns and the changing mindsets of the people. As we saw in the case of NALSA v. Union of India[11] where the SC recognized the transgender community as the “third gender” and affirmed them fundamental rights.

There is a thin line separating amendments to be a necessity or an overriding tool. Where the procedure starts to have an overriding effect, it stops being a necessity. Anyhow, the makers of the constitution have served us with a balanced document which shall always be the guiding light to us and amendments will always be the need of the hour and savior of any democracy.

References

  • Statues

The Constitution of India (103rdAmendment ) Act, 2019.

  • Books

Dr. J.N. Pandey, Constitutional Law Of India (Dr. SurendraSahaiSrivastava , 55th ed. 2018) of publication).

  • Online Sources
  • Richard Albert, Amending constitutional amendment rules, International Journal of Constitutional Law, Volume 13, Issue 3, July 2015, Pages 655–685, https://doi.org/10.1093/icon/mov040
  • Tom Ginsburg, James Melton, Does the constitutional amendment rule matter at all? Amendment cultures and the challenges of measuring amendment difficulty, International Journal of Constitutional Law, Volume 13, Issue 3, July 2015, Pages 686–713, https://doi.org/10.1093/icon/mov041
  • Top of Form

[1]https://www.merriam-webster.com/dictionary/amendment#:~:text=1a%20%3A%20the%20process%20of,act%20of%20amending%20something%20%3A%20correction

[2] 1913229 U.S  416

[3]https://www.idea.int/sites/default/files/publications/constitutional-amendment-procedures-primer.pdf

[4]Shankri Prasad v. Union Of India, AIR 1951 SC 455.

[5]AIR 1973 SC 1461.

[6]1967 AIR 1643, 1967 SCR (2) 762.

[7] id pg3

[8]Dr. J.N. Pandey, Constitutional Law Of India 806 (Dr. SurendraSahaiSrivastava , 55th ed. 2018) of publication)

[9]AIR 1980 SC 1789.

[10]id.

[11]AIR 2014 SC 1863

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