Can The Indian Constitution Be Amended Entirely?

This Article is Written by Ishan Bhardwaj

Table of Contents

Indian Constitution

The longest constitution of the world which took almost 3 years to be made. Indian Constitution came into force on 26^th January 1950 and since its inception, it has undergone many changes. Indian Constitution changed itself with time so as to accommodate in it, new social norms and practices. Almost every part of Indian Constitution can be changed with the exception of the ‘Elements of Basic Structure’ such as Rule of Law, Judicial Review, Constitutional Supremacy and many others as was laid down by the apex court in the case of Keshavanand Bharti v. State of Kerela¹, and Indira Nehru Gandhi v. Raj Narain², and many other cases.

Till this point of time, there have been more than 100 amendments in the Indian Constitution. Indian Constitution is many times referred to as a “Living Document” because of the fact that it changes with time. These frequent amendments in the constitution does not mean that the constitution can be amended whenever the legislature or the executive wishes to, the fact is that different processes are there with respect to amending different parts and provisions of the constitution as some provisions are such which can be amended with a simple majority, some can be passed with a special majority only, while some provisions are such that their amendment needs to be ratified by the states as well.

Article 368 of the Constitution of India provides for amendment procedure, procedures with respect to any amendment that requires ratification by states, Article 368 of the Indian Constitution provides that if any amendment seeks to make any change with respect to the election of the President, or Article 73 that talks of the extent of executive power of the Union, or Article 162 that talks of executive power of the state, or with respect to the Goods and Services Tax, or Union Judiciary or state High Courts or legislative relations between Union and the States or the Seventh Schedule of the Constitution i.e. Union List, State List and Concurrent list or representation of states in the Parliament or Article 368 itself. The saying is very much true that the Indian constitution is a blend of rigidity and flexibility, it is a balanced document.

Amendment of Part III of the Constitution i.e. Fundamental Rights have been a controversial issue for many years. This issue first came before the Supreme Court in the case of Shankari Prasad v. Union of India³, in this case, the validity of The Constitution (First Amendment) Act,1951 was challenged and the court ruled that any amendment will be valid if it abridges or takes away fundamental rights. Then in the case of Sajjan Singh v. State of Rajasthan⁴, where validity of The Constitution (Seventeenth Amendment) Act,1964 was challenged, the court approved its judgment of Shankari Prasad’s case and held that “amendment of the Constitution” refers to amendment of any part and any provision of the constitution with no exception. The court said that if fundamental rights were to be excluded from the purview of Parliament’s amending power, then the Constituent Assembly would have specific provisions with respect to it.

Then, the validity of the Constitution (Seventeenth Amendment) Act,1964 was challenged again in the case of Golak Nath v. State of Punjab⁵. In this case, the apex court by a majority of 6 to 5 overruled its earlier judgment of Sajjan Singh case and said that Parliament’s power to amend the Constitution cannot take away or abridge fundamental rights of the people. However, the court applied the doctrine of Prospective overruling to Golak Nath judgment which means that all cases that were decided before this judgment remained valid.

Later, the Parliament enacted The Constitution (24^th Amendment) Act to remove difficulties created by the Golak Nath judgment. The Constitution (24^th Amendment) Act,1971 restored Parliament’s power to amend the Constitution. The validity of this Act was challenged in Keshavanand Bharti v. State of Kerela⁶. In this case, the apex court overruled the Golak Nath judgment by majority. The court said that The Constitution (24^th Amendment) Act, 1971, did nothing more than just making explicit what was earlier implicit and the amendment is just declaratory in nature.

The apex court ruled that the Parliament may amend any part of the Constitution but it also had put a condition that the change that Parliament brings should not be violative of the basic structure of the Constitution. In this case, the apex court said that 5 major elements of the basic structure are the supremacy of the Constitution, republican and democratic form of government, secular character of the state, Separation of powers between the organs of the government i.e. the Legislature, the Executive and the Judiciary and the federal character of the Constitution.

After this judgment, the court added various elements to the basic structure doctrine via various judgments. Basic Structure is that requirement that every amendment shall conform to and if it does not it is liable to be struck down by the court. However, the basic structure theory is also criticized by many, critics are of the view that the court has not given a clear definition of the basic structure and if this doctrine is applied, then all amendments may be said to be violative of one or other feature of the basic structure. Critics say that the doctrine is vague, ambiguous and uncertain.

Criticism of Amending Procedure of Indian Constitution:

We must note that nothing in the world is absolutely correct and everything has some defects and the amendment procedure of the Indian Constitution is not untouched by this and it has been criticized on many grounds, such as:

States do not have much power with respect to Constitutional Amendments. We can say that they can just raise the issue but cannot do anything about it.
Indian Constitution does not provide for any specific body to deal with Constitutional Amendments such as the Constitutional Convention in the USA. Having a special body to deal with the issue will make things better, but unfortunately, there is no such body in India.
Parliament can amend most of the Indian Constitution either with a simple majority or a special majority and part of the Constitution that requires ratification of states are just a handful of provisions of the world’s largest written constitution. Moreover, consent of only half of the states is required while in some countries it is three-fourth of the states like in the USA.
There is no provision for a situation where there may be differences in opinion of both houses of the Parliament with respect to any constitutional amendment bill which can be there and when it persists, legislators will not be having a direct solution for the problem.
The procedure for amending the Constitution is almost similar to the ordinary legislative process and with the only exception of special majority, constitutional amendment bills are to be passed by the Parliament in a similar manner as an ordinary bill.

Comparison of Amendments made in Indian Constitution with other Constitutions of the World:

If we compare Indian constitution with the constitution of United States of America, the constitution of United States of America has been subject to amendment just 27 times since it came into force on March 4, 1789, while the Indian constitution has been amended more than 100 times in just 70 years. However, with the American constitution, a deciding factor is that every state of the United States of America has their own different constitution and those state constitutions have been subject to more amendments than the constitution of the United States of America. For example, in the constitution of the American state of Alabama (the state of Alabama has the largest constitution for any state), there have been more than 900 amendments till date.

Similarly, if we make the same comparison with respect to the constitution of Russia which was enacted on 25^th December, 1993, it has been amended just 4 times since it came into effect. The Constitution of The People’s Republic of China that came into effect on 4^th December, 1982 has been amended 5 times since its enactment.

From these three comparisons, we can notice that no federal constitution among these has been amended so frequently as the Indian Constitution has been. But in no way, does this high number of amendments mean any negative. The amendment procedure of the Indian Constitution is simple, not easy. More amendments merely mean that the Indian Constitution adapts itself to the changing world more easily, and had the process been too rigid, it may have put the constitutional machinery in chaos.

Conclusion:

Indian Constitution is referred to as a “Living Document” because it has adapted itself according to the changing world and that in a most positive manner. It is a dynamic document and not a static one. Article 368 of the Indian Constitution that deals with amendment procedure of Indian Constitution has a simple process of amendment for certain things and has a more rigid process for things that are more important and should not be amended frequently. Almost every part of the Indian Constitution can be amended except that which constitutes elements if basic structure as it has been laid down by the apex court in various cases.

However, the amendment procedure of the Indian Constitution also has its limitations like it gives the sole power of amendment to the Parliament, rather than having any special body for this delicate purpose and it also does not give states much say in matters relating to the amendment of the Constitution. Comparing the amendments that have been made in the Indian Constitution with some other constitutions of the world tells us that federal constitutions are not amended so frequently as the Indian Constitution has been, but this does not mean any negative, amendment process of Indian Constitution is simple but not easy. It is a mixture of rigidity and flexibility. Frequent amendments and adaptable nature of the Indian Constitution may have prevented a chaos in the constitutional machinery.

Bibliography:

Awnesa Mohanty, Amendment Procedure of the Indian Constitution, Law Times Journal(May 10, 2020, 21:18 PM), http://lawtimesjournal.in/amedment-procedure-of-the-indian-constitution/
Amendments, Alabama Constitution, Ballotpedia(May 11,2020, 10:40 AM), https://ballotpedia.orgAmendments,_Alabama_Constitution
Dr. J.N. Pandey, Constitutional Law of India, (Central Law Agency , 2019)
M. Laxmikanth , Indian Polity (McGraw Hill , 2019)
Narendra Kumar , Constitutional Law of India (Allahbad Law Agency, 2019)