Q1:- Write short answer of the following question.(c)Critically describe about the amendment process of the Indian constitution(8marks)
The amendment process of the Indian Constitution is a testament to its dynamic nature, allowing for adaptability while preserving its foundational principles. This process is outlined in Article 368 of the Constitution. A critical examination of this process reveals its complexity, strengths, and areas of contention.
Contents
Constitutional Provisions
- Article 368:
- Part I: Empowers Parliament to amend the Constitution, adding to, varying, or repealing any provision.
- Part II: Lists amendments that require not only a two-thirds majority in each House of Parliament but also ratification by at least half of the State Legislatures.
Types of Amendments
The Constitution can be amended in three ways:
- Simple Majority:
- Certain provisions can be amended by a simple majority in both Houses of Parliament. These include changes to the boundaries of states, the creation or abolition of legislative councils, etc.
- Special Majority:
- Most constitutional amendments require a “special majority,” which means a two-thirds majority of members present and voting, and a majority (more than 50%) of the total membership of each House.
- Special Majority with Ratification:
- For certain provisions, amendments not only need a special majority in Parliament but also ratification by at least half of the State Legislatures. These provisions include the election of the President, the extent of executive power, the Union judiciary, and fundamental rights.
Critical Examination
Strengths
- Flexibility:
- The amendment process is sufficiently flexible to allow for necessary changes in response to evolving political, social, and economic conditions. This flexibility ensures the Constitution’s relevance over time.
- Democratic Process:
- The requirement of a special majority ensures that amendments reflect a broad consensus rather than the whims of a transient parliamentary majority. This protects the Constitution from arbitrary changes.
- Federal Balance:
- Provisions requiring state ratification protect federal principles, ensuring that the central government cannot unilaterally alter fundamental aspects affecting states’ interests.
- Judicial Review:
- The judiciary, particularly the Supreme Court, has the power to review and strike down amendments that violate the “basic structure” of the Constitution, thus safeguarding its core principles.
Criticisms
- Complexity and Rigidity:
- While the process is flexible, it is also complex and, in some cases, overly rigid. The high thresholds for special majority and state ratification can make necessary amendments difficult to achieve, potentially stifling progressive reforms.
- Ambiguity in Basic Structure Doctrine:
- The “basic structure” doctrine, established by the Supreme Court in the Kesavananda Bharati case (1973), holds that certain fundamental features of the Constitution cannot be amended. However, the lack of a clear definition of what constitutes the basic structure creates legal uncertainty and gives significant discretionary power to the judiciary.
- Potential for Political Exploitation:
- The amendment process can be exploited for political gain. For instance, amendments that alter electoral processes or reservation policies can be driven more by political motives than genuine constitutional necessity.
- Centralized Power:
- The process, particularly for simple majority amendments, can sometimes reflect the centralization of power. This is evident in amendments related to the creation or reorganization of states, which may not always align with the aspirations of regional populations.
Landmark Amendments
- First Amendment (1951):
- Addressed issues related to freedom of speech, property rights, and affirmative action.
- 42nd Amendment (1976):
- Known as the “mini-Constitution,” it made extensive changes, including the addition of the words “socialist,” “secular,” and “integrity” to the Preamble. It also curtailed the power of the judiciary and increased the power of the executive.
- 44th Amendment (1978):
- Passed to undo many changes made by the 42nd Amendment, it restored judicial review and safeguards against the abuse of emergency powers.
- 73rd and 74th Amendments (1992):
- Strengthened local self-government by establishing Panchayati Raj institutions and urban local bodies.
Conclusion
The amendment process of the Indian Constitution embodies a balance between rigidity and flexibility, aiming to protect the Constitution’s core principles while allowing for necessary changes. While it has successfully facilitated numerous important amendments, ensuring the Constitution’s adaptability, it also faces criticisms regarding its complexity, potential for political misuse, and the ambiguity surrounding the basic structure doctrine. Ongoing debates and judicial interpretations continue to shape and refine this process, ensuring that it remains responsive to the needs of a dynamic and diverse society.
