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I am author of the books Political Internet(Routledge, 2017), Intimate Speakers ( Fingerprint! 2017), has finished the typescript of three books—first, on Internet and sexuality; second, on the negative impacts of social media; and third, a novel—and is presently working on a narrative non-fiction with the working title Lovescape: Why India is afraid of love.

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Wednesday, November 9, 2011

Politics of Constitutional Amendments.




The Constitution of India is the supreme law of the land, which is fundamental in the governance of India. The Constitution of India was enacted on 26th November, 1949 and was adopted on 26th January, 1950. The Draftsmen of the Indian Constitution took inspiration from Constitutions all over the world and incorporated their attributes into the Indian Constitution. For example Part III on Fundamental Rights is partly derived from the American Constitution and Part 1V on Directive Principles of State Policy from the Irish Constitution.
A Constitution should be a dynamic document. It should be able to adapt itself to the changing needs of the society. Sometimes under the impact of new powerful social and economic forces, the pattern of government will require major changes. Keeping this factor in mind the Draftsmen of the Indian Constitution incorporated Article 368 in the Constitution
which dealt with the procedure of amendment. Due to Article 368 the Indian Constitution can neither be called rigid nor flexible but in fact it is partly rigid and partly flexible. Articles of the Indian Constitution can be amended by a simple majority in the Parliament (Second Schedule, Article 100(3), 105, 11, 124, 135, 81, 137), or by special majority that is majority of the total membership of each house and by majority of not less than two thirds of the members of each house present and voting , or by Ratification by the State Legislatures after special majority (Article 57, 73, 162, Chapter 1V of Part V, Chapter V of Part V1, Seventh Schedule, representation of the State in Parliament and provisions dealing with amendment of the Constitution).
During the last six decades  , there have been amendments to the Indian Constitution done for the purpose of variation, addition or cancellation of any provision made in the constitution. Since the enactment of the Constitution of India on 26 November 1949, there have been 94 amendments made to it till 2006.The last one has been - The Constitution (Ninety-fourth Amendment) Act, 2006: This Constitution Act came into force on 12 June 2006, with the assent of the President of India. Number of Bills are introduced before Lok Sabha and Rajya Sabha for further improving the Constitution.. By 2011 there has been 115the amendment bill being introduced in the house for amendment.
The founding fathers of the Indian constitution who granted more rights to the people without balancing them with their duties, perhaps did not foresee the emergence of present political environment, wherein the political players of various segments in the country are more interested in fulfilling their individual aspirations than the aspirations of the people. There is an element of truth in this  criticism.
The fact is that the ease in the amending process of the Indian Constitution is due to the one party dominance both at the Centre and the State .Yet, on close examination it will be seen that there were compelling circumstances which led to the constitutional amendments. While some amendments were a natural product of the eventual evolution of the new political system established under the Constitution in 1950, there were others necessitated by practical difficulties. The first amendment! took place in June, 1950.
The question whether Fundamental Rights can be amended under Article 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India . It challenged the validity of the 1st amendment to the Constitution. In this case it was held that a constitution amendment will also be held valid even it abridges or takes away any of the fundamental rights.
A similar decision was given by the honourable Supreme Court in Sajjan Singh v. State of Rajasthan which challenged the validity of the 17th amendent. In Golaknath v. State of Punjab , the validity of the Constitution (17th Amendment) Act, 1964 was again challenged, which inserted certain State Acts in Ninth Schedule. The Supreme Court in its landmark decision overruled the decision given in the Shankari Prasads and Sajjan Singhs case. It held that the Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge the Fundamental rights. Eleven judges participated in this decision with the ratio being 6 : 5. The judges were worried about the numerous amendments made to abridge the fundamental rights since 1950. It apprehended that if the courts were to hold that the Parliament had power to take away fundamental rights, a time might come when these rights are completely eroded. 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 conti!nue to be valid.
It means that all cases decided before the Golaknaths case shall remain valid. In order to remove difficulties created by Golaknaths decision parliament enacted the 24th Amendment.
The amendment has made the following amendments :
it added a new clause (4) to Article 13 which provides that nothing in this Article shall apply to any amendment of this constitution made under Article 368 .
(2) it submitted a new heading to Article 368 power of Parliament to amend the Constitution and Procedure therefore. Instead of Procedure for amendment of the Constitution.
(3) It inserted a new sub section (1) in Article 368 which provides that notwithstanding anything in the Constitution, Parliament may, in exercise of its constituent power may amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in the Article. Thus the 24th amendment restored the amending power of the Parliament. The validity of the 24th amendment was challenged in the case of Keshavnand Bharati v. State of Kerala . It challenged the validity of the Kerala Reforms Act, 1963. but during the pendency of the petition the Kerala Act was placed in the Ninth Schedule by the 29th Amendment. The question involved was the extent of the amending power conferred by Article 368 of the Constitution. A Special bench of 13 judges was constituted to hear the case. The Court by majority overruled the Golaknaths case which denied Parliament the power to amend fundamental rights of citizens. It held that the 24th amendment merely made explicit which was implicit in the unamended Article 368. The Court held that under the Article 368 Parliament is not empowered to amend the basic structure or framework of the Constitution. After the decisions of the Supreme Court in Keshavnand Bharati and Indira Gandhi cases the Constitution (42nd Amendment) Act, 1976, was passed which added two new clauses , namely, clauses
(4) provided that no constitutional amendment (including the provision of Part III) or purporting to have been made under Article 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground. Clause
(5) removed any doubts about the scope of the amending power. It declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition ,variation or repeal of the provisions of the Constitution under this Article. Thus by inserting this clause it was made clear that the basic structure of the Constitution could be amended. In Minerva Mills v. Union of India the Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby! conferred an unlimited amending power, it was destructive of the basic structure of the Constitution. The judgment of the Supreme Court thus makes it clear that the Constitution not the Parliament is supreme in India. The Parliament owes its existence to the Constitution and it cannot take priority over the Constitution. Therefore this landmark decision ended the long controversy between the Courts and the Executive.

Forty second Amendment 1976.
Amendment passed during internal emergency by Indira Gandhi. Provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a "Socialist Secular" Republic. Provide supremacy of parliament and gave primacy to directive principles over fundamental rights. It also added 10 fundamental duties. New words- socialist, secular and unity and Integrity of the Nation, were added in the preamble.
Forty fourth Amendment 1978
Amendment passed after revocation of internal emergency in the Country. Provides for human rights safeguards and mechanisms to prevent abuse of executive and legislative authority. Annuls some Amendments enacted in Amendment Bill 42. The right to property was deleted from part III. Article 352 was amended to provide ‘Armed Rebellion’ as one of the circumstances for declaration of emergency.
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. But the Parliament started thinking that it has unlimited amending power. It assumed itself to be the supreme law when the Constitution is the supreme law of the land. The Parliament started making amendments which were destroying the basic structure of the Indian Constitution. But after the landmark decisions of Keshavnand Bharati and Minerva Mills the Court 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.

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