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MC22001 - Indian Constitution and Society

INDIAN CONSTITUTION

Introduction:

A country having a constitution signifies its independence. The constitution of India came
into force on 26th January 1950, though India became independent on 15 th August 1947. Before
independence, the British governed India by passing a series of legislations and acts.

The first such act is the queen’s proclamation of 1858 which declared in unanimous
terms, that henceforth the country India was to be governed by the crown of England. Thus, still
1947 India was governed by the British by passing legislations and act.

A constitution is generally defined as “a set of rules and

regulations according to which the country is governed”. These

rules and regulations may be written or unwritten. Incase of unwritten constitution the country is
governed on the basis of established precedents, customs, conventions and traditions. In
governing the state laws are made and sometimes these laws are taken from the constitution
itself. Thus, the constitution is the legal document of the country.

Events Leading to the Framing of Indian Constitution

With the crown of England assuming power in 1858 with the passing of Queen’s
Proclamation India was governed and administered by the government of England through
legislations and acts in the 19 th and 20th century.

In 1861 and in 1862 were passed the Indian Councils Act. In 1909 was passed the
Minto- Morley Reforms and in 1919 the Montague- Chelmsford Reforms. The Government
of India Act of 1935 is the last act passed by the parliament of England in ruling India.

During this period, the Indian’s made a vociferous appeal to recognize the rights of the
Indians for constituting a constituent assembly so as to frame a constitution for India. As early
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as 1922 Mahatma Gandhi said that Indians have the right to determine the political destiny of
their country and in 1983 Jawaharlal Nehru expressed that one of the objectives of the congress
was to establish a constituent assembly consisting of Indians to frame a constitution without
outside interference.

In 1942, the British announced the Cripps Proposals, which were to be adopted at the end
of the war provided the Congress and the Muslim League agreed. The proposals put forth the
following:

1. A constituent assembly was to be established to frame a constitution for India,

consisting only of Indians.
2. Dominion (Independent) states to be granted to India.
3. A union of India to be established, consisting of British India, provinces and
Indian states.
However, these proposals were not accepted by the Indian Congress and Muslim League.
Mosques the Muslim League demanded creation of states on communal lines and also called
for separate constituent assemblies. These demands were rejected by the British.

In 1946, the British enunciated the Cabinet Mission Plan. It called for a Union of India
comprising British India Provinces and Indian state and the union was to have complete
jurisdiction over defence internal affairs and communication and secondly communal issues
were to be decided two majors communities present and voting. Thus, a union executive and a
union legislature was to come into existence. As per the Cabinet Mission Plan the
constituent assembly came into existence on December 16th 1946. But the Muslim League
boycotted the first meeting on the ground that the constituent assembly was not representing
every section of the population, it also called for its dissolution.

As a result, the British came out with the June3 plan of 1947 also called as the Mount
Batten Plan according to which the country was to be partitioned and dominion status given.
On July 4 1947, the Indian independent’s bill was introduced in the British Parliament.
The bill received assent of the crown on July 18 th 1947, which became the Indian Independence
act. The act was enforced on 15 th August 1947. Accordingly there were to be two dominions,
two constituent assemblies were to be established, to frame any constitution for India and
Pakistan and all those acts which were to passed could be revealed.
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Thus, a constituent assembly of India met after independence on 15 th August 1947 and
continued to meet till now 1949. The constituent assembly represented every section of
India and every region of India Dr. B.R. Ambedkar was the chairman of the constituent
assembly and Dr. Rajendra Prasad its President.

The constituent assembly which comprised of 385 members deliberated to include

every aspect of administration mention can be made of some of the important members
like Sardar Vallabhai Patel, Rajendra Prasad, Jawaharlal Nehru, Shyam Prasad
Mukherjee, Baldev Singh, Frank Anthony who represented the anglo-Indians, H.P. Meete
who represented the passes and so on. There were two women representatives namely
Sarojini Devi Naidu and Pandit Vijayalakshmi. It also consisted of constitutional experts
namely Dr. B.R. Ambedkar, Alladi Krishnaswamy Iyer and K.M. Munshi. There were nearly
30 representatives of the scheduled castes.

The work of these members of the constituent assembly resulted in the constitution
being adopted on the historic day of 26th Jan, in the year 1950. The constitution declared
India as “Republic” according to which the country was to have an elected head of the
state i.e. the President.

During the course of, the framing of the constitution of India the representatives of the
constituent assembly incorporated in the constitution. Some provisions of the previous acts like
the acts of 1910, 1919 and 1935. The frames even borrowed several features from the other
constitutions, like that of England, USA, Canada, France, Ireland, South Africa, Germany
and Australia. Thus, when the constitution was finally framed it turned out to be the bulkiest
constitution in the world.

PREAMBLE OF THE INDIAN CONSTITUTION

Every constitution is known to have a preamble. Preamble highlights, the

basic objectives and the fundamental principles of the
constitution. It also seeks to promotes and establish these objectives.
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The preamble of the Indian constitution begins with the words “WE
THE PEOPLE OF INDIA, HAVING SOLEMNLY CONSTITUTED INDIA
INTO A SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC
REPUBLIC, assure every Indian – JUSTICE – political, social and
economic, LIBERTY – thought, expression, belief, faith and so on,
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EQUALITY – of status, opportunity and so on, FRATERNITY – dignity of

the individual and unity and integrity of the nation”…..

We adopt enact on this day 26 th November 1946. This constitution for ourselves. The
preamble of the Indian constitution serves two purposes the source from which the constitution
id to promote and establish.

Source:

The constitution of India was framed by the constituent assembly which consisted of 385
members. These members of the constituent assembly were the representatives of people of
India. Thus, the constitution is framed by the people the very words of the Preamble we the
people of India indicates that the people are sovereign and that the constitution is not a
gift of the British parliament.

Democratic Republic:

The preamble calls India as a democratic republic that is the country was to have a head
of the state who is to be elected by the people of India, thus, we have an elected President,
indirectly by the people because he is elected by the elected members of the union parliament
and the state legislatures.

Representative Democracy:

The democracy which the constitution of India envisages is representative democracy.

The people of India elect their representatives to the union parliament and the state
legislature on the basis of universal adult franchise. The members of the Rajya Sabha and
the council of states (upper house of the states) are elected indirectly. Every citizen enjoys their
right to assume political office provided he processes the necessary qualifications this is political
democracy which the preamble aims at promoting and establishing.

Political democracy cannot succeed without social democracy. Social democracy is

infact a way of life. It guarantees liberty, equality and fraternity the liberty to prefer a religion of
one’s choice, liberty of thought and expression etc, equality – equal protection of law, equal
states and equal employment opportunities.
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The constitution also guarantees economic democracy. It calls for equal distribution of
the fruits of means of production, right to work and right to equal pay for equal work.

As a result of the 1976 amendment (42nd Amendment) the words socialist and

secular came to be included in the preamble of the constitution. The preamble thus aims
at establishing a socialist pattern of society. The socialist state of India was however to be
different from state socialism. Infact Indira Gandy observed that – we have our own brand of
socialism and only those sectors that are required, would be nationalized. Thus, the socialist
state of India was not in famous of total nationalization. Some sectors thus continued to remain
government control. Thus, we have a mined economy. The socialist state of India aims at
eliminating inequality of income, states and standard of living of the working class. This is a
socialistic pattern of society which the preamble envisaged and it remained so till 1992
(lately, the trend is towards privatization).

The preamble, with the inclusion of the word secular in 1976 calls for making India a secular
state. Hence, the individual is guaranteed to profess the religion of his choice, it is also the duty
of the state to uphold other secular credentials like equal protection of law to all the religions
and non-declaration of any particular religion as a state religion. Thus, India has set a shining
example to the world, unlike our neighbours, Pakistan, Bangladesh (both are Muslim
states ) and Srilanka (Buddhist state) who have a state religion. One of the fundamental
rights, right to ‘RELIGION’ again guarantees an individual to follow the faith of his choice.

The preamble of the constitution assesses the citizens political, social and economic
justice which are enjoyed in the form of fundamental rights-right to equality, right to particular
freedom, right to freedom of worship, right against exploitation, right to property, cultural and
educational rights and right to constitutional remedies.

At the same time, the preamble also envisages fundamental duties of the citizen:

1. To abide by the constitution and respect the national flag and

2. To cherish and follow the global ideals which inspired our national struggle for freedom.
3. To protect the sovereignty, unity and integrity of India
4. To defend the country
5. To promote the spirit of common brotherhood amongst all the people of India.
6. To preserve the rich heritage of our composite culture.
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7. To protect and improve the natural environment

8. To develop the scientific temper and spirit of enquiry
9. To safeguard public property
10. To strive towards excellence in all spheres of individual and collective activity.
The preamble aims at fastening unity, integrity and fraternity for the success of
independence and democracy, the feeling of brotherhood have to be infused among the people
who belonged to different races, religion, regions, languages and culture. The feeling of
oneness, that we are all the children of same soil and the same motherland have to be created.

Jawaharlal Nehru felt that independent India should also work towards establishing
international peace and order, that was by maintaining a just and honourable relationships with
the neighbours by solving disputes peacefully and by obliging international treaties and
conventions Nehru, thus wanted fraternity to transcend the national frontiers so as to achieve
the loftier goal of universal brotherhood. Nehru wanted India to remain as a member of the
common wealth countries but its policies and programs were not to be bending upon India as
India’s membership was unofficial. Thus, membership of India is by freewill and could be
terminated by freewill.

Schedules of the Indian Constitution

The Schedules are an integral part of the Indian Constitution, which initially had eight
schedules and subsequently increased to twelve through various constitutional amendments.
The Schedules in the Indian Constitution fulfill the following purpose:

 To reduce the legal complexity of the Constitution as schedules in the Indian

Constitution are designed to be easily understood.
 To be used as a reference when additional information or clarification is needed on a
certain provision of the Constitution.
 The purpose of the schedule is to make the Constitution easier to revise or update by
amending specific sections rather than rewriting the entire article.
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List of schedules, their subject matter, and their related articles

SCHEDULE SUBJECT MATTERS RELATED

ARTICLES

First Schedule  It lists the states and union territories and their corresponding Articles 1 and
territories. There are 28 states and 8 Union territories in the 4
country.

Second  It outlines the provisions for emoluments, allowances, Articles 59(3),

Schedule privileges and so on of the following: 65(3), 75(6),
97, 125,
 The President of India 148(3), 158(3),
 The Governors of States 164 (5), 186
 The Speaker and the Deputy Speaker of the Lok Sabha and 221
 The Chairman and the Deputy Chairman of the Rajya
Sabha
 The Speaker and the Deputy Speaker of the Legislative
Assembly in the states
 The Chairman and the Deputy Chairman of
the Legislative Council in the states
 The Judges of the Supreme Court
 The Judges of the High Courts
 The Comptroller and Auditor General of India

Third Schedule  This provides for the forms of oaths or affirmations including Articles 75(4),
99, 124(6),
 The Union and state ministers 148(2), 164(3),
 The candidates for election to 188 and 219
the Parliament and the state legislature
 The members of Parliament and state legislature
 The judges of the Supreme Court and High Courts
 The Comptroller and Auditor General of India

Fourth  It provides for the number of seats allocated to each state or Articles 4(1)
Schedule union territory in the Council of States (Rajya sabha). and 80(2)

Fifth Schedule  It deals with the administration and control of Scheduled Areas Article 244(1)
and Scheduled Tribes.

Sixth Schedule  It deals with administering Tribal Areas in the States of Assam, Articles 244(2)
Meghalaya, Tripura, and Mizoram. and 275(1)
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Seventh It includes three lists for determining the legislative Article 246
Schedule authority for various subject matters.
Union List includes subjects of national importance, such as
defense and foreign affairs, for which only the central
government can make laws.
State List includes subjects of state and local importance, such
as police and public health, for which only state governments
have the authority to make laws.
Concurrent List includes subjects of joint importance, such
as education, marriage, etc for which both the central and state
governments can make laws.

Note:

 The Parliament has the authority to enact legislation pertaining to

residual Subjects or those that are not included in any of the three
lists.
 Even if an issue is listed on the State List, Parliament has the
authority to pass laws pertaining to it for any area of India's
territory that is not part of a state.
 The Union List has priority over the State List and the
Concurrent List, and the Concurrent List has priority over the
State List.
 The Union List should take precedence over the Concurrent List
in the event of a conflict. The Concurrent List should take
precedence over the State List whenever there is a dispute.
 If there is a disagreement between central law and a state law on
a topic listed in the Concurrent List, central law will prevail.
There is, however, one exception. If the state law has been
submitted to the president for review and received his approval, it
takes precedence in that state. However, the Parliament would
still have the authority to amend that law by passing another one
on the same subject later.

Eighth  It contains the list of recognized languages in India. Originally, Articles 344(1)
Schedule there were 14 languages in the schedule, but presently it and 351
contains 22 languages, namely: Assamese, Bengali, Bodo,
Dogri, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Maithili,
Malayalam, Manipuri, Marathi, Nepali, Odia, Punjabi, Sanskrit,
Santhali, Sindhi, Tamil, Telugu, Urdu.

Ninth Schedule  It was added to the Constitution by the Constitution (First Article 31B
Amendment) Act, 1951.
 The object behind adding the Ninth schedule was to protect
certain acts and regulations from being declared void on the
ground that they violate the fundamental rights provided
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under Part III of the Constitution.

Tenth  It contains provisions relating to the disqualification of the Articles 102(2)

Schedule members of Parliament and State Legislatures on the ground of and 191(2)
defection.
 The Tenth Schedule was added by the Constitution (Fifty-
second Amendment) Act, 1985 to combat the evil of political
defections and is also called the Anti-defection Law.

Eleventh  It was added to the Constitution by Constitution (seventy-third Article 243G

Schedule Amendment) Act, 1992, the Eleventh Schedule deals with,
the powers, authority, and responsibilities of Panchayats.
 It contains 29 functional items of the panchayats, some of which
are Agriculture, Land improvement, implementation of land
reforms, land consolidation and soil conservation, etc.

Twelfth  It deals with the powers, authorities, and responsibilities of the Article 243W
Schedule municipalities. It was also added by the Constitution (Seventy-
fourth Amendment) Act, 1992.
 It contains 18 functional items of the municipalities that are
Urban planning, including town planning, Regulation of land use
and construction of buildings, etc.

Amendments of Indian Constitution

The drafters of the Constitution believed that it needed to reflect societal changes as well as the
aspirations of the population.

They did not consider the constitution as a sacred, unchanging law. They, therefore, included
provisions for occasionally incorporating modifications. These changes are called constitutional
amendments.

However, the procedure of amendment laid in the Indian constitution is neither as easy as in Britain
nor as difficult as in the USA.

Who has the Power to Amend the Constitution?

Article 368 in Part XX of the Indian Constitution deals with the power of the Parliament to amend the
constitution and its procedure if requires.
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So, the Parliament is empowered to amend or repeal any provision of the constitution in accordance
with the procedure laid down for this purpose.

However, it was ruled by the Supreme Court in Kesavananda Bharati Case 1973 that the parliament
cannot amend those provisions which form the “basic structure” of the Constitution.

Types of Amendment
Article 368 of the Indian Constitution has provided for two types of amendments, that is by a special
majority of Parliament and the special majority of parliament along with the ratification of half of the
state’s legislatures by a simple majority.

Certain provisions of the Constitution require amendment by a simple majority of each house, that is,
a majority of members of each house present and voting (similar to ordinary legislation). These
amendments are not considered to be amendments under Article 368.

It clearly means that the amendment of Indian Constitution is possible in three ways:

1. Amendment by a simple majority of the Parliament,

2. Amendment by a special majority of the Parliament, and
3. Amendment by a special majority of the Parliament, and the ratification of half of the state
legislatures.

Procedure for Amendment as per Article 368

The procedure for amendment of the Indian Constitution as per Article 368 is as follows:

An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament and not in the state legislature.
The bill does not require the prior permission of the President for introduction in the
Parliament.
The bill shall be presented by a minister or a private member.
The bill must be passed in each house by a special majority i.e., the majority of the total
membership of the house and the majority of two third of members of the house present and
voting.
Each house must have to pass the bill separately and there is no provision for joint sitting if
any case of disagreement arises between the two houses.
If the bill seeks to amend the federal feature of the constitution, it must also be ratified by half
of the state legislature with a simple majority.
After duly passed by both houses and ratified by the states (if requires), the bill is presented
to the president for his assent.
The President can neither withhold nor return the bill for the reconsideration purpose of the
parliament. Hence, President must have to give his assent to the bill.
After the assent of the President, the bill will become an Act.

What is Simple Majority?

This refers to the majority of more than 50% of the members present and voting and it is outside the
ambit of Article 368. This is also known as the functional majority or working majority. The simple
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majority is the most frequently used form of majority in Parliamentary business. When the
constitution or the laws do not specify the type of majority needed, the simple majority is considered
for voting.

To understand the simple majority, let us consider a situation in Lok Sabha. On a particular day, out
of the total strength of 545, 45 were absent and 100 abstained from voting on an issue. So only 400
members were present and voting. Then the simple majority is 50% of 400 plus 1, ie. 201.

Cases where the simple majority is used:

1. To pass Ordinary/Money/Financial bills.

2. To pass Non-Confidence Motion/Adjournment Motion/Censure Motion/Confidence Motion.
3. For the removal of the Vice President majority required in Lok Sabha is the simple majority –
A67(b).
4. To declare a financial emergency.
5. To declare a state emergency (President’s rule).
6. Formation of new states and alteration of areas, boundaries or names of existing states,
7. Abolition or creation of legislative councils in states,
8. Use of official language,
9. Citizenship – acquisition, and termination,
10. Election of Speaker/Deputy Speaker of Lok Sabha and State legislatures.
11. Fifth Schedule – administration of scheduled areas and scheduled tribes,
12. Sixth Schedule – administration of tribal areas.

What is Special Majority?

All types of majorities other than the absolute, effective or simple majority are known as the special
majority. A special majority are of 4 types, with different clauses.

The two most significant provisions that can be changed by a special majority are the Fundamental
Rights and Directive Principles of State Policy (DPSP), however, any changes must stay within the
constraints of the Basic Structure of the Constitution.

 Type 1 – Special Majority as Per Article 249.

 Type 2 – Special Majority as per Article 368.
 Type 3 – Special Majority as per Article 368 + 50 per cent state ratification by a simple
majority.
 Type 4 – Special Majority as per Article 61.

Special Majority as Per Article 249

Special majority as per article 249 requires a majority of 2/3rd members present and voting. For
example, if out of the 245 members in Rajya Sabha, only 150 are present and voting, then the
special majority required as per article 249 would be 101.

Cases where special majority as per article 249 is used:

To pass the Rajya Sabha resolution to empower the parliament to make laws in the state list. (valid
up to 1 year, but can be extended any number of times).
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Special Majority as Per Article 368

Special majority as per article 368 requires a majority of 2/3rd members present and voting
supported by more than 50% of the total strength of the house. This type of majority is used for most
of the Constitutional amendment bills. To pass a constitution amendment bill in Rajya Sabha, in
addition to getting the support of 123 members, the bill should be favored by more than 2/3rd of the
members present and voting.

Cases where special majority as per article 368 is used:

1. To pass a constitutional amendment bill which does not affect federalism.

2. Removal of judges of SC/HC.
3. Removal of CEC/CAG.
4. Approval of a national emergency requires a special majority as per Article 368 in both
houses.
5. Resolution by the state legislature for the creation/abolition of the Legislative Council (Article
169).

Special Majority as Per Article 368 Plus State Ratification

This type of special majority is required when a constitutional amendment bill tries to change the
federal structure. Special majority as per article 368 plus state ratification requires a majority of 2/3rd
members present and voting supported by more than 50% of the state legislatures by a simple
majority.

Cases where special majority as per article 368 plus state ratification is used:

To pass a constitutional amendment bill which affects federalism like the position of High Court
Judges?

Special Majority as Per Article 61

Special majority as per article 61 requires a majority of 2/3rd members of the total strength of the
house. In Lok Sabha, the special majority as per article 61 is 364 while in Rajya Sabha, the special
majority as per article 61 is 164.

Amendability of Fundamental Rights and Evolution of Basic Structure

The question of whether Fundamental Rights can be amended by the Parliament under 368 or
not was the reason for the evolution of the basic structure. Important incidents related to this are:

Shankari Prashad Case, 1951

Supreme Court ruled that the power of Parliament to amend the Constitution under Article 368 also
includes the power to amend the Fundamental Rights.

Golakhnath Case, 1967

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Supreme Court reversed its earlier judgement. Here, the Supreme Court ruled that Fundamental
Rights are given a “transcendental and immutable” position. So, the Parliament cannot abridge or
take away any of the Fundamental Rights.

24th Amendment Act, 1971

The Parliament reacted to the Court’s judgement in the Golakhnath Case 1967. The act amended
Articles 13 and 368 and declared that Parliament has the power to abridge or take away any of the
Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article
13.

Kesavananda Bharati Case, 1973

Supreme Court overruled its judgement made in Golakhnath Case and stated that the Parliament is
empowered to take away any of the Fundamental Rights but at the same time it introduced a new
doctrine of the “Basic Structure”. It ruled that the Power of Parliament under Article 368 does not
enable it to alter the “Basic Structure/Feature” of the Constitution and declared Fundamental Rights,
a basic structure of the Constitution.

42nd Amendment Act, 1976

The act amended article 368 and declared that there is no limitation on the constituent power of
Parliament and no amendment can be questioned in any court.

Minerva Mills Case, 1980

In this case, Supreme Court invalidated the provision as it excludes judicial review which is a “basic
feature” of the constitution.

Waman Rao Case, 1981

Supreme Court further clarified that the doctrine of Basic Structure would apply to the constitutional
amendment enacted after 24 April 1973 (i.e., after the date of the judgment of the Keshwanand
Bharti case).

Important Amendments of the Indian Constitution

Here is a list of some major amendments to the Indian Constitution:

First Amendment (1951): This amendment protected the rights of property owners and made it
more difficult for the government to enact land reform measures. It also added the Ninth Schedule,
which protected certain laws from being challenged in the courts.

Fourth Amendment (1955): This amendment authorized the government to take over the
management of “absentee landlord” estates, which were estates owned by landlords who did not live
on or manage the land.
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Seventh Amendment (1956): This amendment extended the powers of the government to acquire
property for public purposes and to provide compensation to the owners.

Eleventh Amendment (1961): This amendment authorized the government to take over the
management of “inam” lands, which were lands granted to individuals or institutions by the
government.

Sixteenth Amendment (1966): This amendment authorized the government to levy taxes on
agricultural income.

Eighteenth Amendment (1971): This amendment made significant changes to the Indian
Constitution, including the creation of a new state (Meghalaya), the inclusion of a new language
(Santali) in the Eighth Schedule, and the abolition of the privy purses of the former rulers of the
princely states.

Twenty-fifth Amendment (1971): This amendment recognized the right to property as a legal right
rather than a fundamental right.

Thirty-ninth Amendment (1975): This amendment protected the constitutional position of the state
of Sikkim after it was merged with India.

Forty-second Amendment (1976): This amendment made a number of changes to the Indian
Constitution, including the addition of the words “secular” and “socialist” to the Preamble and the
insertion of the Fundamental Duties of citizens.

Forty-fourth Amendment (1978): This amendment reversed many of the changes made by the
Forty-second Amendment and restored the rights and freedoms of citizens.

Fifty-second Amendment (1985): This amendment recognized the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act as a fundamental right.

Sixty-first Amendment (1989): This amendment lowered the voting age from 21 to 18.

Sixty-ninth Amendment (1991): This amendment recognized the capital city of Delhi as a Union
Territory with a legislature.

Seventy-third Amendment (1992): This amendment recognized the right to panchayats (local self-
governments) as a fundamental right and provided for the reservation of seats for Scheduled Castes
and Scheduled Tribes in panchayats.

Seventy-fourth Amendment (1992): This amendment recognized the right to municipalities (local
self-governments) as a fundamental right and provided for the reservation of seats for Scheduled
Castes and Scheduled Tribes in municipalities.

Seventy-seventh Amendment (1995): This amendment provided for the reservation of seats for
Scheduled Castes and Scheduled Tribes in posts in cooperative societies.
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Ninety-third Amendment (2006): This amendment provided for the reservation of seats for
Scheduled Castes and Scheduled Tribes in higher education institutions.

Ninety-fifth Amendment (2009): This amendment provided for the reservation of seats for
Scheduled Castes and Scheduled Tribes in the promotion to government jobs.

One hundred and third Amendment (2019): This amendment provided for the reservation of seats
for economically weaker sections of society in higher education institutions.

Criticism of the procedure of Amendment of the Constitution

Specialized Agency

There should be no special body like the constitutional convention when amending the
constitution.

Federal Character

The Parliament of India only initiates the amendment process. The state legislature plays its role in
passing a resolution for the request of formation or abolition of the legislative council of the parliament.
However, the parliament can neither approve nor disapprove or take any action on it.

 Only in a few cases, the state legislature can be amended by most of the constitution
 There is no well-defined time process for any of these amendments and can be delayed to
legislative delays just like judicial delays or remain silent on this matter
 There is no provision for a joint sitting of both Lok Sabha and Rajya Sabha if there is any issue
regarding the constitutional amendment
 The process of Amendment will be analogous except for the cases where it requires a special
majority
 The ordinary bills pass the constitutional amendment bills despite all the disadvantages; the
constitutional amendments cannot be rejected and must meet the necessary changes required.
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The necessity of amending provisions in the Constitution

There is a reason why the fathers of our constitution made the constitution as flexible as it is today. This
is to ensure that the document evolves and grows along with the nation. Thus, under Article 368, the
powers of the Parliament to amend the constitution is unrestricted with regards to sections of the
constitution they wish to amend.

But the Parliament having absolute power over amending the constitution is dangerous. Instead of being
the backbone of our democracy, the constitution will be reduced to a tool to establish Parliament’s
totalitarianism. The government will amend various provisions to make sure it’s powers are unfettered.

While this is a scary thought, it is not far away from the truth. The government in multiple amendments
such as the 39th Amendment and in the second clause of the 25th Amendment has tried to establish a
state where the legislative is supreme.

That is why the judiciary through various landmark cases has established The Basic Structure Doctrine of
The Indian Constitution.

What is the Basic Structure?

The Basic Structure Doctrine states there are certain fundamental structures and founding principles of the
constitution which make the backbone of the constitution. In simple terms, they are ideologies of the constitution
which are essential for the survival of the constitution. Some examples are Free and Fair Election, the Federal nature
of the Nation, Judicial review and Separation of Power. The government is restricted from touching these contours
of the constitution through amendment.

The Supreme Court has not given us a list of these ideologies. It is up to the courts to decide what they are
when certain judicial questions are presented before them. But if one wants to describe the nature of the structures, it
can be said that if these ideologies are violated, then not only democracy but the entire working of this country will
fall flat on its face. The country will either fall into total anarchy or totalitarianism. It is because of these
mechanisms that India is still one of the largest democracies in the world.

Thus, while Parliament has unrestricted powers to amend various sections of the constitution, but they
cannot touch amend, repeal or add sections into the constitution which would affect its basic structure in the process.

Below are a few more cases to understand this concept further.

Kesavananda Bharati vs State of Kerala, 1973

Facts
The plaintiff, Swami Kesavananda Bharati was the leader of Edneer Matt, a Hindu monastic institution
which is located in Kerala. He challenged the two-state Land Reform Act, imposed by the Kerala government which
 18

sought to restrict the way his property was managed. He stated that his fundamental rights under Articles
25 (Freedom of conscience and free profession, practice, and propagation of religion), Article 26 (Freedom to
manage religious affairs), Article 14 (Equality before law), Article 19(1)(f) (Right to property which has been
omitted) and Article 31 (the right of private ownership without restrictions) had been violated.

The case was handled by a 13 Judge Bench. It came to be one of the most important cases in Indias and
established the Basic Structure Doctrine of the constitution. In the case, they considered the constitutionality of
the 24th, 25th, and 29th amendments.

24th Amendment

Changes made to Article 13 are as follows:

Article 13 regulates government policy-making and checks that the laws made by parliament that infringe
on the rights of the people.

The amendment made changes to Article 13. Clause (4) was inserted. It stated that any amendment done
under Article 368 would not be subject to Article 13.

Changes made to Article 368

Changes were made to the power of Parliament to amend.

It stated that despite whatever is mentioned in the constitution, the Parliament would be able to add,
repeal and amend any section of the constitution according to the procedures set down by Article 368,
even provisions mentioned in the proviso of Article 368. After being passed by a majority, such a Bill or
Act merely required the assent of the President.

25th Amendment

Changes made to Article 31

Article 31 states that no one shall be deprived of his property. Clause (2) was inserted.

The clause stated that any law which allowed the state to take property for a certain amount, that amount
would not be questioned by a court of law.

Clause 9(b) after (2A) was inserted that nothing mentioned in Article 19 (1)(f) shall affect such laws.

Insertion of Article 31C

This was with regard to laws that enforced the fundamentals of the Directive Principles. It stated that laws
made to ensure Directive Principles were enforced would not be subject to the scrutiny of Articles
14, 19 and 31. They shall not be declared void if they abridged such rights.

This is only if the law has been passed by state legislation and has got the assent of the President.
 19

29th Amendment
The Kerala Land Reforms Act, 1963 (Act 1 of 1964) and other such land reform Acts were added to the
Ninth Schedule.

Arguments of the Petitioners

They argued that restructuring Parliament’s powers amending are a part of the Basic Structure of the
Constitution. He also stated his fundamental rights to property were being violated. He pleaded to the
court to receive recourse.

Issue

1. The constitutional validity of the 24th, 25th, and 29th Amendment Act.
2. The extent of the powers of the Parliament to amend the constitution.

Held
The court upheld the 24th Amendment and stated that the 2nd part of the 25th Amendment was ultra
vires.

The court in this judgment answers an extremely important question that was left unanswered in Golak
Nath v. State of Punjab i.e. the extent of Parliament to amend. The court observed that such a power
should be a balance between the Parliaments’ duty to follow the constitution and its duty to perform
socio-economic duties.

To answer this question, they established the Doctrine of Basic Structure. While they admitted that the
Parliaments’ power to amend the constitution was unrestricted with regards to the portion of the
constitution they wished to amend, there were certain contours of the constitution that should be left
untouched. Hedge.J and Mukherjee.J in their opinions stated that the Indian constitution was more of a
social document based on social philosophy than a political document. Just like every philosophy, the
constitution contains certain basic features that should not be touched.

The majority bench left it up to the courts to decide what the basic features of the constitution were
because, in their opinion, they were not exhaustive.

The major findings of the court are as follows:

1. There is a difference between an amendment and ordinary laws.

2. Overruled Golak Nath v. State of Punjab by stating the power of Parliament to Amend is not
unfettered. It can’t violate the Basic Structure of the Constitution.
3. They established the extent of amendment under Article 368 and stated that it was restrictive
and they could not make fundamental changes.
4. It stated that parliament can amend any provision in the constitution, including fundamental
rights. But this was again subject to the fact that they could not alter the basic structure
 20

5. The court mentioned a few basic structures which they could locate such as “Free and Fair
Elections” and the “Federal Structure of the Nations”. They also stated that the list was not
exhaustive and it was up to the courts to decide whether it was a basic structure or not.
6. The court upheld the 24th Amendment and struck down the second part of
the 25th Amendment. However, the 25th Amendment was to be subjected to two conditions-

 The word ‘amount’ does not only relate to compensation and it should be related to the market
value of the property at that time.
 The part which barred judicial review was struck down as ‘no law can prevent scrutiny by the
courts’.

1. By validating the first part of the 25th Amendment, the courts recognized the Parliaments’
duty to fulfill their socio-economic duties. They also saved the citizens from parliamentary
totalitarianism by striking down the second part which barred legal remedy.
2. They stated that the judgment was an improvement from Golaknath as:

 Golak Nath v. State of Punjab was only restricted to the protection of fundamental rights.
 By preventing the Parliament from amending the fundamental Rights, it made the constitution
rigid. The concept of Basic Structure is an improvement.

Procedure to Amendment

Article 368

Article 368 lays down the process by which the Parliament can amend the constitution. The process is as
followed.

Step 1

The Bill is introduced in either house of the parliament.

Step 2

The Bill must be passed by a total majority (irrespective of vacancies or absentees) and by a majority, not
less than 2/3rd of people present and voting by both the houses. There is no provision of joint sitting if
there is a disagreement between both the houses.

Step 3

After acquiring the majority, the Bill is presented to the President who will then give his assent to the
Bill.

In the case of amendment of provisions mentioned in Article 368, It needs to be ratified by not less than
half of the states. Ratification should be done by a resolution passed by the state legislature. However, this
must be passed before the amendment Bill is presented to the President for his assent.
 21

Amendment of Fundamental Rights

The backbone of human rights in this country is the fundamental rights stated in Part III of the
constitution. The judiciary of this country in numerous landmark cases have proved time and again that
the fundamental right of an individual or private organization is not something that can be tampered with.
These rights have been given preference in numerous cases with regards to the other sections of the
constitution and it can be said that they make up an extremely important part of it.

But given that the parliament has the power to amend the constitution, could they also amend the
fundamental rights of the constitution? And do they constitute the basic features of the constitution? By
analyzing the case of Sajjan Singh v. State of Rajasthan and Golak Nath v. the State of Punjab, we shall
answer the following questions.

Sajjan Singh v. State of Rajasthan, 1965

In this case, it was held that fundamental rights could be amended as long as they were indirect, incidental
or insignificant on the power given under Article 226, the article under which the High Court received its
powers.

Facts
In order to back up several legislatures with regard to agrarian reforms done by various states, the
parliament had amended certain sections of the constitution. This was done through Acts such as
the Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, and
the Constitution (Seventeenth Amendment) Act 1964. The Constitution (Seventeenth Amendment)Act
1964, an Act that was questioned had amended 31A (acquisition of the estate by the state) and added 44
Acts to the Ninth Schedule.

The contentions of the Petitioners

The petitioners who were aggrieved by the legislatures stated that none of these legislatures could be
allowed as the Constitution (Seventeenth Amendment) Act was unconstitutional. They contended:

 The powers prescribed by Article 226 will be affected by the Seventeenth Amendment and thus
the Act should follow the special provisions set down by Article 368.
 The decision held in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar should be
reconsidered.
 The Seventeenth Amendment Act deals with land. Parliament has no right to make laws with
respect to land and thus the Act is invalid.
 The Act went against decisions of courts of competent jurisdiction and was thus unconstitutional.

Issues

1. Whether the Acts violated the powers prescribed by Article 266?

 22

2. Should the decision of Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar be
considered?
3. Whether the Acts deal with the land?
4. Can Parliament validate laws that have been ruled as invalid by the courts?

I. C. Golaknath & ors vs State of Punjab & Anrs., 1971

This case went and reversed the judgment of Sajjan Singh v. the State of Rajasthan. It stated that the
parliament does not have the power to amend fundamental rights.

Facts
The petitioner filed a writ petition against Constitution (Seventeenth Amendment) Act, 1964, which
included in the Ninth Schedule, among other Acts, the Punjab Security of Land Tenures Act, 1953 (Act
10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965.

Issue
Could fundamental rights be amended?

Indira Gandy vs Shri Raj Narain & Anr, 1975

When this case was filed to the High Court, Indira Gandy was at the height of power and her party was
enjoying the majority in Parliament. But later on, Indira Gandy was found guilty for electoral
malpractices. She called emergency and passed certain amendment Acts, one of them being Article 329-
A which barred judicial review. What needed to be asked was whether judicial review was a part of the
Basic Structure of the Indian Constitution. The court held that the emergency was passed in mala fide
and Article 329A passed under the amendment Act was unconstitutional.

Facts
In the 1971 Indian general election, Raj Narain contented against Indira Gandy in a constituency of Uttar
Pradesh. The results of the elections were that Indira Gandy was re-elected and that the Indian National
Congress won a sweeping majority in the Parliament.

Raj Narain filed a petition to appeal to the Allahabad High Court with the appeal to reverse the elections.
He blamed Mrs. Gandy for using unfair means such as bribery and misusing government machinery to
win the elections.

The Allahabad High Court held that Mrs. Gandy was guilty of election malpractices. The election in that
constituency was declared null and void. It was also held that she could not stand in elections in that
constituency for 6 years.
 23

Aggrieved, Mrs. Gandy tried to move to the Supreme Court but they shifted the judgment to a future date
as the court was on vacation. This led to Indira Gandy calling for an emergency. President Fakhrudeen
Ali when declaring emergency stated it was because of internal emergencies. But in reality, the real
reason was the judgment of the Allahabad High Court.

The Supreme Court tried to stop this order and shift deliberations against it to a future date, but
Parliament added Article 329-A to the 39th Constitutional (Amendment) Act, 1975 which made such
matters out of the jurisdiction of the court.

Thus, the 39th Constitutional (Amendment) Act, 1975 was challenged in the court.

39th Amendment
Clause 4 of Article 329 A
This was with regard to the election of Prime Minister to the Parliament. It stated that the election of the
Prime Minister or the Speaker of the House of the People would not be questioned by any authority other
than the ones mentioned in the law made by the Parliament. It was also stated that the validity of such
laws will not be questioned by the courts. Arguments of the Respondents

1. Relying on the judgment of Kesavananda Bharati, the respondents argued that the amendment
in question violated the basic features of the constitution.
2. Parliament under Article 368 was only able to lay down general principles governing the
organs of the state.
3. The question of whether the elections were valid or not depends on the judiciary under Article
329 and Article 136. Thus, such an amendment is violative of the democratic structure of
India.
4. The amendment is violative of the principle of equality as it states no rational basis for the
need to demarcate between people who hold high offices and others.
5. It goes against democracy as it makes The Representation of the People Act,
1951 inapplicable to the election of the Prime Minister and the Speaker.
6. Cancellation of the Allahabad High Court judgment is a denial of political justice which is a
basic feature in the constitution. The amendment is a slap on the face to not only judicial
review but the Separation of Power.

Issue
Is the 39th Constitutional (Amendment) Act, 1975 constitutional valid?

Held

The court upheld the ratio of the Kesavananda Bharati case and stated that Clause 4 of Article 329 as
unconstitutional.
 24

The majority bench stated that the clause tore at the fabric of democracy. A free and fair election is a part
of the Basic Structure of the Constitution. To take that away from the people of India is a huge
infringement of their rights. The bench also found it violated other basic features of the constitution such
as rule of law (restriction of arbitrary power by law) and principles of natural justice i.e. Audi Alteram
Partem.

The opinion of Justice Chandrachud J.

Justice Chandrachud J. also added that the Act was violative of the policy of Separation of Power as it
gave the parliament, powers of the Judiciary. He also believed that it was violative of Article 14, as it
created an unequal advantage for some considering despite not being under the scrutiny of a free and fair
elections, they could hold such a powerful office.

Minerva Mills Ltd. & ors vs Union of India & ors,1980

In case, the court examined the implication of the government being able to amend articles in the
constitution which gave them the power to amend. They also examined the relationship between Directive
Principles and fundamental rights. The bench ruled Clause 5 of 368 (expanded their powers of
amendment), Clause 4 of 368 (removing judicial review) and Section 4 of the Amendment Act of
1976 (removing judicial review) to be unconstitutional.

Facts

In order to save mills that are being managed in a way detrimental to public interests, the government
passed the Sick Textile Undertakings (Nationalisation) Act, 1974. By this Act, the government could take
over the management of these mills.

Minerva Mills, a limited company dealing with textiles was accused of being a ‘sick industry’ by the
government. A committee was set up to investigate the matter. The report claimed that the company was
‘sick’. Thus, under Section 18A in The Industries (Development and Regulation) Act, 1951 the company
was put under the management of the government.

The mill questioned the constitutionality of such an Act that was made possible under the Constitution
(Forty Second Amendment) Act, 1976. Due to this, the constitutionality of the amendment Act came into
question.

Issue

The constitutionality of Constitution (Forty Second Amendment) Act, 1976.

Held
 25

Clause 5 of the Article of 368

The amendment included clause 5 of Article of 368 stated that the parliament had no limitation on what
part of the constitution which they wished to amend. The bench ruled that the newly introduced
amendment was unconstitutional. It expanded the government’s limited power to absolute power. Such
expansion was against the social, political, and economic justice of the people. Thus, Parliament cannot
expand its powers and ruin the Basic Structure of the Constitution.

Clause 4 of Article 368

The amendment also included clause 4 of 368 which stated that no amendment made under Article
368 could be reviewed by the court. The court also ruled this to be unconstitutional. There is an important
balance between the three wings of the government- namely the legislative, the executive and the
judiciary. If this clause is to be valid then the judiciary would not be able to markdown any amendment
passed under this provision, even if it goes against the Basic Structure of the Constitution. It would the
legislature that would decide the validity of the law. That power belongs to the judiciary.

Thus, this clause gives a power to the legislature which clearly belongs to the judiciary. By destroying
this separation of power and depriving the common person of a source of redressal, they go against the
fabric of democracy.

Section 4 of the Amendment Act of 1976

The section tries to isolate Article 14 (equality before law) and Article 19 (freedom of speech)
from Article 31(C). After amendment, Article 31(C) stated that any law giving effect to certain Directive
Principles shall not be said to be invalid if it violates Article 14 and 19. No court will be able to question
such laws. The court ruled this amendment to be unconstitutional. These two rights that have been
violated by these laws are not only an essential part of the Universal Declaration of Human Rights but
also essential to the Basic Structure of the Constitution. It was also said that by the ratio of the Kesavanda
Bharati case, they cannot be emasculated by these amendments.

Relationship between Part III and IV of the Constitution

The court also explains the relationship between Part III and Part IV of the constitution,i.e., the
fundamental rights and the directive principles. They stated that both created the foundation of the
constitution and if one was to be given preference over the other, it would shake the foundation of the
constitution and make it weak. They must both be read in harmony.

Dissent
Bhagwati J. dissented with regard to the amendment to Article 31(C). He was of the opinion that one
should not rule a law to be unconstitutional at first glance and should first analyze its pith and substance
before ruling against it.
 26

Waman Rao and Ors vs Union of India (UOI) and Ors.1981

In this case, the ratio of Minerva Mills Ltd. v. Union of India was reversed. It also cleared major doubts in
the Kesavananda Bharati case such as; Validity of Acts passed before the judgment.

Facts

The Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962 violated several fundamental rights.
The amendment Act that not only made The Maharashtra Agricultural Lands (Ceiling on Holdings) Act
1962 valid but also introduced Articles 31A and 31B had on the Basic Structure of the Constitution. The
42nd Amendment Act was questioned in the Bombay High Court but the appeals were dismissed.
In Dattatraya Govind Mahajan & Ors. vs State Of Maharashtra & Anr, the same issues were presented in
the court but the court dismissed the appeal. But the judgment came out during the emergency, so there
was an appeal to review the judgment. This case is a review of Dattatraya Govind Mahajan & Ors. vs
State Of Maharashtra & Anr,.

Articles in question

Article 31(A)
This Article protects laws that violate Articles 14 (equality before law) and Article 19 (right to freedom)
with regards to the acquisition of estate. The law states that laws dealing with:

 Acquisition of state that led to the extinguishment or modification of any right,

 Taking over management of property for public interest or for proper management,
 The amalgamation of estates for public interest or for proper management,
 The encroaching of rights of managing agents, secretaries and treasurers, managing directors,
directors or managers of corporations, or of any voting rights of shareholders thereof,
 The encroaching of rights for a license for the purpose of searching for, or winning, any mineral
or mineral oil, or the premature termination or cancellation of any such agreement, lease or
license.
 shall not be deemed to be void if they are inconsistent with Article 14 and Article 19.

This was provided that the laws in question were not only formulated by the legislature of the state but
had also got the assent from the President.

It also stated land that is under one’s own personal cultivation can not be taken by the State above the
ceiling limit applicable to him. But if the State does take land above the ceiling limit, then the State must
provide compensation which shall not be less than the market value.
 27

Article 31(B)
This Act stated that no Act or regulation in the Ninth Schedule shall be deemed to be void on the grounds
that it violates any fundamental right, regardless of an order or judgment from any court in this country.

It shall be the job of the legislature to repeal or amend such Acts.

Article 31(C)
This Act was established to protect laws that secured and furthered the goal of the Directive Principles. It
stated that regardless of the guidelines put down by Article 13 ( ensured protection against draconian
laws), if the laws secured the principles of the Directive Principles, then even if they violated Article
14 and Article 19, they would be considered to be valid.

This was provided that the laws in question were not only formulated by the legislature of the state but
had also got the assent from the President.

Arguments of the parties

The appellants argued that the protective shield like nature of Articles 31-A, B and C, which prevented
any law to be challenged, is unconstitutional.

Issue

1. Whether by facilitating their power to amend the constitution under Article 31(a), The
government transgressed their power of constitutional amendment?
2. Whether Article 31(A) is a shield to laws that transgress Article 14, Article 19 and Article 31?
3. Whether Article 31(B) can be challenged on the grounds that it infringes on the fundamental
rights of the citizens?
4. Whether Article 31C can be challenged on the grounds that it infringes on the fundamental
rights of the citizens?
5. Whether the emergency was proclaimed in bad faith and whether the 40th amendment is valid
or not?
6. Whether the doctrine of stare decisis ( the doctrine of looking at previous precedents to guide
one’s judgment) can apply on the validity of constitutional Articles or on the laws that are
protected by the Articles?

Conclusion
Through this article, we explored the amendment of the constitution. We found that there is something
called the Basic Structure of the Constitution and it is against the basic principles of justice to breach it.
The judiciary was at first of the opinion that the preamble was what constituted the basic structure of the
 28

constitution but later on, it was ruled that other aspects of the constitution such as judicial review could
also be the aspects of the Basic Structure of the Constitution.

The government in many landmark cases tried to amend the constitution in order to make it easier to
ensure the best for the public interest. The judiciary was absolutely against the whole idea, in later
judgments we see the judges opening up to the idea of the executive being able to override certain aspects
of the basic structure in order to ensure the best for the public interest. But in later on judgments, unless
the judiciary was absolutely convinced that such Acts would be beneficial in ensuring greater public
welfare, they were strict about amendments that violated the basic structure.

42nd Amendment Act, 1976

42nd Amendment Act, 1976 is considered as one of the most remarkable amendments to
the Constitution of India, 1950 (COI). This Amendment Act is often referred to as the Mini-
Constitution as it made a large number of amendments to the COI. This Amendment Act amended
the Preamble to the Constitution, 40 Articles and the Seventh schedule, and added 14 new articles and
two new parts to the COI.

Changes made by the 42nd Amendment Act

 Preamble to the COI
This Amendment Act has made the following changes to the Preamble:
Added the words socialist and secular.
The words unity of the nation was changed to unity and integrity of the nation.

 Directive Principles of State Policy (DPSP)

Articles 39A, 43A and 48A were added to the Directive Principles of State Policy by this
Amendment Act and changes were made to Article 39(f).
Article 39(f): That children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against exploitation and
against moral and material abandonment.
Article 39A: To promote equal justice and to provide free legal aid to the poor.
Article 43A: To take steps to secure the participation of workers in the management of industries.
Article 48A: To protect and improve the environment and to safeguard forests and wildlife.

 Fundamental Duties
Part IV-A was constituted which contained Fundamental Duties under Article 51 of the COI.
Presently there are 11 fundamental duties enlisted in the COI.

 Seventh Schedule
 29

Education, Forests, Protection of wild animals and birds, Weights and Measures, and Administration of
justice, constitution, and organization of all courts except the Supreme Court and the High Courts were
all moved from the State list to the Concurrent list.

 Parliament
By the Amendment Act, the President was obligated to follow the cabinet's advice.
Article 257A was added which allowed the Centre to deploy central forces in the state to deal with
law-and-order conflicts.
Quorum requirements in the Parliament and state legislatures were abolished.
The Parliament was given the authority to decide on the rights and privileges of its members and
committees regularly.
The Lok Sabha and State legislative assemblies now had a six-year term instead of five.

 Emergency
As per the changes made in Article 352 of the COI by this Amendment Act, a proclamation of national
emergency may be applicable to the entire country or only a part of it.
This Amendment Act extended the one-time duration of the President’s rule in a State from six months
to one year.

 Judiciary
The High Courts' judicial review power was curtailed.
Provided for the creation of the All-India Judicial Service.

 Part XIV-A of the COI

Articles 323A and 323B were added dealt with the tribunals dealing with administrative matters and
tribunals for other matters respectively.

 Suspension of the Fundamental Rights

This Amendment Act introduced the necessary clauses to the COI that allowed for the suspension of
fundamental rights in times of need.
Whenever an external emergency is imposed, Article 358 of the COI has the effect of suspending the
rights given by Article 19 of the COI without any special notice. It provides that Article 19 is
suspended nationwide for the duration of the emergency and that emergency laws are given legal
immunity.

44th Constitutional Amendment Act, 1978

With the aim of restoring the Constitution of India, 1950 (COI) to the condition it was in before the
emergency, the Government of India enacted the 44th Constitutional Amendment Act of 1978.
It was introduced in the Lok Sabha. It made wide scale changes to the COI with the aim of making the
Indian polity more democratic.
Objectives of the 44th Amendment Act, 1978
 30

To ensure the Fundamental Rights were not restricted or taken away by a transient majority in
Parliament, it was necessary to provide adequate safeguards against recurrence of such a contingency
in the future.
To ensure that the power to proclaim an emergency under Article 352 of the COI, must be used
properly and after due consideration and deliberation.
To ensure that the basic features of the COI were not lightly interfered with by Parliament in exercise
of the power of constitutional amendment under Article 368 of the COI.

Modification Made by the 44th Amendment Act, 1978

Fundamental Rights
The right to property was removed from the list of fundamental rights and elevated to the status of a
legal right under Article 300A.
Removal of Article 19(1)(f) and Article 31 from the COI.
Article 31(1) became Article 300A which states that no person shall be deprived of his property saved
by authority of law.
The safeguard contained in Article 31(2) was incorporated in Article 30. Thus, a new clause (1A) has
been added after Article 30(1) which states that -
Article 30 (1A)- In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause ( 1 ), the State
shall ensure that the amount fixed by or determined under such law for the acquisition of such property
is such as would not restrict or abrogate the right guaranteed under that clause.

Power of President
Article 74(1) was revised, and a clause was added which stated that the President may require the
council of Ministers to reconsider the advice, either generally or otherwise, and the President shall act
in accordance with the advice tendered after such reconsideration.
Previously, the President was required to act in accordance with the Council of Ministers' advice.

Amendment to the Basic Structure

Any modifications in the basic structure of the COI can only be enacted if the people of India approve
them by a majority of votes cast in a referendum in which at least 51% of the voters participated. This
has been ensured by amending Article 368.

Directive Principles of State Policy

Article 38 was added which states that the state to secure a social order for the promotion of welfare
of the people.

Parliament and State Legislature

The term of the Lok Sabha and the State Assemblies were restored to five years by amending
Articles 83 and 172 of the COI.
 31

Article 361A was added to the COI in order to ensure that no one was held liable to any civil or
criminal proceedings in a court in respect of the publication in a newspaper of a substantially true
report of any proceedings of either house of parliament or of a state legislature unless the publication of
any report of the secret proceedings of a House.

Judiciary
Restored some of the powers of the Supreme Court and high courts.
It allowed for the judicial review for the elections of the President, Governors and speaker of the Lok
Sabha.

Restraint on the Power of the Parliament

The 44th Amendment introduced a new provision to put a restraint on the power of Parliament to
extend a proclamation issued under Article 356 beyond one year.

Parliamentary Privileges
Articles 103 and 192 of the COI which related to the decisions on questions of disqualification of
members of Parliament and State Legislatures, have been replaced to provide that the President's
decision on the question of disqualification will be based on the Election Commission's opinion.

 National Emergency
It was introduced to prevent the misuse of emergency power by the executive. It introduced a number
of safeguards under Article 352 which are as follows:
Prior to the 44th Amendment Act 1978, a proclamation of emergency could be issued on the grounds
of war or external aggression or internal disturbance.
The internal disturbance was a vague one and could be misused by the executive.
The Act, therefore, introduced the expression "armed rebellion" in place of internal disturbance.
The President can proclaim an emergency only after a written recommendation from the Cabinet.
There was no Parliamentary control, once a proclamation of emergency was approved by it. But now
a special sitting of Lok Sabha can take place for the purpose of considering disapproval.
Under the provisions of Article 358, Article 19 will be automatically suspended when an emergency
is declared on the basis of war or external aggression.
During an emergency, enforcement of the rights conferred by Article 20 and Article 21 cannot be
suspended. Prior to the Act, enforcement of any or all the Fundamental rights could be suspended
when an emergency was in force.

 Federalism
Article 257A, which dealt with the power of the Central Government to deploy its military forces or
other union forces to deal with a grave crisis, was removed.

Conclusion
 32

The 44th Amendment Act, 1978 intended to reform all the amendments that were made to the COI by
the 42nd Amendment Act, 1976. This Amendment Act nullified several provisions and introduced a
number of positive changes in the COI. However, this Amendment Act is often regarded as an attempt
to institutionalize emergency in the country forever.

73rd Amendment of the Indian Constitution

Passed in 1992, the 73rd Amendment of the Indian Constitution is an amendment to the Constitution
that directed on standardising the village bodies of Gram Panchayats and gave them a much-needed title
of local self-government. With this Act, a new part of Part IX was added to the Constitution which
contains various provisions from Article 243 to 243O to resolve the issue and weaknesses existing in the
system of Panchayat at the village local levels.

Main provisions of the 73rd Amendment Act

There were various distinct provisions of the 73rd Amendment of the Indian Constitution. Some of
them are:

1) Panchayati Raj Institutions or the PRI’s were accorded the place of a major constitutional body in the
Constitution.

2) Each state was permitted to set up the institutions of Panchayati Raj Institutions at the local, village and
territorial levels of the state. This provision was introduced with Article 243-B of the Indian Constitution.

3) Being able to function or be elected for a tenure of five years now, the State authority had the power to
bestow various responsibilities that it thinks as fine to the local self-government.

4) Independent elections would now be conducted every five years, for electing the panchayat bodies in
different territories of the state government.

5) The problem of non-representation of the weaker sections was also removed with this Amendment and
thus, now these sections of the society had an equal representation in the PRIs of the various villages.

6) Interestingly, the problem of adequate finance with the village bodies also got eradicated and now the
Finance Commission body at the State level was given a duty to evaluate all the finances of the local self-
government.

Main features of the 73rd Constitutional Amendment Act

The 73rd Amendment of the Indian Constitution focused on various distinctive areas of problems.
The main features of the 73rd Constitutional Amendment Act are:
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A) Gram Sabha
Gram Sabha refers to a constitutional village body that Article 243 (b) of the Indian Constitution has the
power to perform the functions that are bestowed to this body by the State Legislature.

B) State Election Commission

State Election Commission is the body that takes care of the Independent elections which are conducted
every five years, for electing the panchayat bodies in different territories of the state government. The
responsibility of controlling, maintaining and preparation of the electoral rolls lies in the hands of the
State Election Commission.

C) Three-tier system
With this, Panchayati Raj Institutions would be set up at three levels of a particular state, village level, the
intermediate level and the district levels. This provision is passed on through Article 243-B of the Indian
Constitution.

D) Composition of the Panchayats

With accordance to the Article 243-C of the Indian Constitution, the power of deciding the composition
of the panchayat raj bodies will be decided by the State Legislature. The members in a particular body
would depend on the population of that particular area.

E) Manner of Election
Direct elections are to be conducted for electing the bodies at the village, intermediate and the district
levels. However, the responsibility of the election and the choice of the chairman from that elected body
is indirectly in the hands of the body elected through direct elections.

F) Reservation of the Seats

The problem of non-representation of the weaker sections was also removed with this Amendment and
thus, now these sections of the society had an equal representation in the PRIs of the various villages. It is
Article 243-D that provided for the provisions related to the reservation of the backward classes of the
society. Notably, the act has given or reserved 1/3rd seats in the Panchayat bodies for the women who
belongs the the category of SC’s and ST’s.

G) Duration of Panchayats
With Article 243E of the Indian Constitution, it is decided that the panchayat bodies are elected by direct
elections for every five years. In fact, if a new panchayati body is elected in between the tenure of the
existing panchayat body, then the new ones will work for the remaining tenure of the existing panchayati
raj body.

H) Duties of the Panchayats

The State authority has the power to bestow various responsibilities that it thinks as fine to the local self-
government. Further, the panchayat bodies makes and takes detailed care of the economic development
and the social justice of the area which is accorded to it. The legislations made by the central and the state
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government are taken into consideration by the panchayats, who implements these policies at the ground
level, thus increasing the reach of the policies.

I) Finance Commission
The Governor of the state holds the responsibility of setting up a State Finance Commission to look after
the finances of the local level areas. Further, it is this body, which decides the proper and necessary
division of the taxes between the state authorities and the panchayat bodies. It is the Consolidated Funds
of the State that funds the activities of the State authorities and the village level bodies under the state.

Conclusion
Even after setting up of a particular body for managing the finances of the village bodies, still the
panchayat bodies face the flaw of the absence of funds. It is with these less available funds, that the body
has to rely on for funding all their activities of the territorial levels. Apart from this, it also faces a
problem of political intervention from the various leaders of the state authority which hampers the
efficiency of the policies. But even after these structural flaws, the Act still has uplifted the position of the
local self-governing bodies and has dealt with various issues from the grassroots levels.

74th Constitutional Amendment Act - 1992

Constitution of Municipalities

The Indian Constitution establishes a three-tiered structure of government: union, state, and
municipalities. The 74th Constitutional Amendment Act of 1992 provided for the formation of
municipalities. Depending on the urban area's size, population, and revenue, the Act provides for the
formation of urban local authorities. Examples of ULA's are the Municipal Corporation, Municipal
Council, Town Area Committee, and Nagar Panchayat.

 State legislatures have the authority to enact legislation governing the formation and governance
of municipalities in their respective states.
 Municipalities have the authority to levy taxes, fees, and levies in order to provide services to
their inhabitants.
 Municipal bodies also have the authority to enact rules and ordinances to govern their area.

Composition of Municipalities

Municipalities' composition might vary depending on the local authority in question. Most towns will
have a governing body or council to decide on the Municipality's day-to-day operations. This governing
body may also be in charge of approving the annual budget, establishing local ordinances, granting
licenses, and hiring municipal staff. Most municipalities will have a mayor or another elected figure who
serves as the Municipality's main executive.
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Departments such as police, fire, sanitation, public works, parks and recreation, and others are
components of municipalities.
These departments are in charge of delivering municipal services and recreational activities.
Some towns may have special districts or boards in charge of certain areas of the Municipality.
Some examples of these areas are public utilities, airports, and school districts.

Constitution of Wards Committees

Wards Committees increase public involvement in local self-government. They are formed in urban local
bodies with a population of 3 lakhs or more, as well as in all municipalities throughout the state.
According to the State Municipal Act, the Wards Committee is formed by the Municipality and must
consist of at least 11 and no more than 21 members.

Reservation of seats

The seats in Wards Committees are reserved in the same manner as the seats in the Municipality. This
includes reservations for Scheduled Castes, Scheduled Tribes, and women.

Duration of Municipalities

The duration of a municipality is five years. This can be extended by the state government by a maximum
of six months.

Powers and Functions of the Municipalities

The powers and functions of the municipalities are laid down in the respective State Municipal Acts.
Generally, the municipalities are responsible for providing civic services such as water supply, sanitation,
health and hygiene, solid waste management, roads and bridges, street lighting, public transport, slum
improvement, and public parks. They are also responsible for tax collection, issuing licenses, and
providing public amenities.

Finances of Municipalities

Municipalities are responsible for raising and managing their own finances. This includes the collection
of taxes and fees, the setting of budgets, and the approval of expenditures. They also have the authority to
borrow money and issue bonds. Municipalities must also ensure that their financial resources are used
responsibly and that all expenditures are in accordance with the law.

Finance Commission

The 74th CAA introduces many of the major features related to the Finance Commission. These include:
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 Finance Commission for Municipalities: The Amendment provided for the establishment of a
Finance Commission at the state level. It will review the financial position of municipalities. It
will also make recommendations on matters such as taxes, grants, and allocation of resources.
 Grants for Municipalities: The Amendment made it mandatory for states to provide grants-in-
aid to municipalities. This grant is for the provision of basic services such as water supply,
sanitation, and roads.
 Devolution of Funds: The Amendment also made it mandatory for states to devolve funds to
municipalities on a regular basis. This is to ensure their financial independence and autonomy.

Municipality Elections

Municipal elections are held every five years to elect members of the municipal council. These officials
are in charge of making decisions on behalf of the people in their Municipality. They also have the power
to enact laws and establish policies that influence the local populace.

Accountancy and audit

Municipalities must preserve proper financial records. These records should be submitted to the local
government for audit. This audit verifies that the Municipality's finances are correctly managed. If the
local government suspects any anomalies, it may undertake its own audit.

Committee for District Planning

District Planning Committees are responsible for developing plans for district development. They are
composed of representatives from the municipal council, the local government, and other stakeholders.
They are responsible for assessing the needs of the district and formulating plans for its development.
They also have the authority to allocate funds for projects that would benefit the district.