1.        Explain the reason for requiring special majority for amending the Constitution.

Ans.    Amendments to various provisions of the constitution require two different kinds of special majorities. In the first place for amending certain provisions, besides a majority of the total membership of the house, it must be passed by 2/3 majority of the members present and voting in each house. It has been provided to ensure that the government must take into confidence and support of some opposition parties to make it broad-based.

           In respect of the articles related to the distribution of powers between the union and the States, it is necessary that the amendment must be ratified by at least 50 percent state legislatures after it is passed in both the houses of Parliament. Provisions relating to fundamental rights have also been included in this list. It has been done to check the centre from encroaching the powers of the states without their consent.

2.        Many amendments to the Constitution of India have been made due to different interpreations upheld by the Judiciary and the Parliament. Explain with examples.

Ans.    It is true that many amendments to the constitution of India have been made due to different interpretations upheld by the Judiciary and the Parliament such differences could be clearly seen on matters relating to the (i) Rights to property the position of fundamental. Rights and directive principles of state policy and (ii) Power of Parliament to amend the constitution.

           The very first amendment passed in 1951 made many changes in the constitution. The reason was that certain flaws were noticed in the actual working of the constitution and those had to be removed. This amendment related to the Right to property. It added a new schedule (9th schedule, to the constitution and provided that the legislations provided in the 9th scheduled could not be called in a court of law. Its purpose was to secure the validity of the Zamindari abolition and other land reform acts passed by various state governments.

           In 1967 (in Golaknath's case) the Supreme Court had ruled that Parliament could not take away or limit the Fundamental Rights, even by an constitutional Amendment Act passed under Article 368 of the Constitution. In 1971, Parliament passed the 24th amendment, which gave the Parliament the power to amend any part of the Constitution including the Fundamental Rights, However, in its ruling in Kesavanand Bharti case in 1973 has but specific limit to Parliament's power to amend the Constitution. It says that no amendment can be passed which violates the basic structure of the Constitution.

           The most controversial amendment was the 42nd amendment which was passed in 1976. According to this amendment a new clause was inserted in Article 368 of the constitution. It said that no amendment of the constitution shall be called in question in any court of law. By this amendment the tenure of Lok Sabha and State Legislative Assemblies was extended for 5 to 6 years.

            In the Lok Sabha elections held in 1977, the newly formed Janta party ame into power and Shri Morarji Desai became the Prime Minister. The Congress, for the first time in independent India sat in opposition. This government passed the 43rd Amendment Act in 1977 which provided for the restoration of powers of the Supreme Court and High Courts. It also reduced the tenure of of Lok Sabha and State legislative assemblies again from six to five years. In 1976, 44th Amendment Act was passed which substituted words "armed rebellion" for the words "internal disturbance" in Article 352, which meant that internal disturbance alone would not be a sufficient ground for declaration of emergency. This Amendment also took out 'Right to property' from the list of Fundamental Rights and made it only a legal right.

            There are also some examples in which judicial interpretation have changed our understanding of the constitution. In 'Mandal Commission' case, the Supreme Court laid down the principle of 'creamy layer'. It meant that the well-off persons among the backward classes should be excluded from the right of reservation. Similarly, in many cases the Supreme Court has ruled that reservations in educational institutions or government jobs should not exceed fifty percent of the vacancies.

3.        If amending power is with the elected representatives, judiciary should NOT have the power to decide the validity of amendments. Do you agree ? Give your reasons in 100 words.

Ans.    We do not agree with the proposition that if amending power is with the elected representatives, Judiciary should not have the power to decide the validity of the amendments. If Judiciary is not given the power to decide the validity of the amendments. If Judiciary is not given the power to decide the validity of amendments elected representatives can destroy even the basic structure of the constitution. For example, in the 42nd amendment which was passed in 1976 during emergency, many parts of the constitution were amended. Earlier, the question had risen about the supremacy of Parliament wherein Parliament had claimed the rights to amend every article of the constitution. Although, Parliament (elected representatives) is expected to have an upper hand over both the executive and Judiciary, yet it is not proper to give it unlimited power to amend the constitution. Judiciary should have the power to decide the validity of amendments made by Parliament.

4.        Who framed the constitution of India ? When did it come into force ?

Ans.    Constitution of India was framed by a constituent Assembly which was set up in 1946. It took 2 years 11 months and 18 days to frame our constitution which was adopted by the Constituent Assembly on 26th November 1949. It came into force on 26th January 1950.

5.        Is constitution of India flexible or Rigid why ?

Ans.    The constitution of India is neither purely flexible nor wholly rigid; it is partly flexible and partly rigid. It is because of the fact that for the purpose of amendment our constitution has been divided into three parts :

             (i)    Certain articles of the constitution can be amended by simple majority of both the houses of Parliament.

             (ii)    Certain amendment, can be made by 2/3 majority of both the houses of Parliament and approved by at least one half of legislative assemblies in India.

             (iii)    Amendment with regard to certain subjects can be made by 2/3 majority of both the houses of Parliament.

6.        Name any two countries where people are directly involved in the process of amending the constitution .

Ans.    Switzerland and Russia are the two countries where people participate directly in the amendment of the constitution. In Switzerland any proposal for amendment, after it is passed by central legislature, is put for referendum and becomes effective if it is passed by majority of votes in majority of cantons (states). In Switzerland voters can even initiate any amendment. In Russia also an amendment can be made in the constitution if it is approved by the people.

7.        Discuss the objectives of the Indian constitution as given in the Preamble.

Ans.    Following are the objectives of the Indian constitution as given in the Preamble :

           (i)     Justice. Social economic and political,

           (ii)     Liberty. Of thought expression, relief, faith and worship,

           (iii)    Equality. Of status and opportunity,

           (iv)    Fraternity. Assuring the dignity of the individual and the unity of the nation.

8.        Name any four provisions of the constitution which can be amended only by a two-third majority in each house of Parliament and ratified by the legislatures of at least 50 per cent states.

Ans.    Four such provisions are the following :

           (i)     Method of election of President of India.

           (ii)    Extent of the executive powers of the union.

           (iii)   Establishment of States in Parliament.

9.        Indian constitution has the unique quality of combination of flexibility and rigidity. Explain.

Ans.    Indian constitution is neither purely flexible nor purely rigid, it is a combination of flexibility and rigidity. It is because of the fact that for the purpose of amendment our constitution has been divided into three parts (i) some classes of the constitution can be changed by a simple majority in both houses of Parliament.

            (ii)   Some clauses can be amended by two-third majority in each house of Parliament (iii) Some important provisions of the constitution can be amended by a two-third majority in each house of Parliament and then ratification by the legislatures of at least fifty per cent states. Hence, our constitution presents the unique quality of the  combination of flexibility and rigidity.

10.        What is Basic structure of the constitution ?

Ans.      In the Keshvananda Bharti's case in 1973, the Supreme Court ruled that Parliament had no power to amend the 'basic structure' of the constitution although it was competent to amend any part of the constitution including Fundamental Rights.

              It has not been clarified by the Supreme Court as to what onstituted the 'basic structure,'  of the constitution. However, while deciding different cases, Justice s.M. Sikri, Justice Khanna and Justice Chandrachand found the following to be the basic structure of the constitution.

             (i)      Supremacy of the Constitution.

             (ii)     Federal character of the Constitution.

             (iii)    Secular character of the Constitution.

             (iv)    Democratic and Republican character of the Constitution.

             (v)     Rule of law and provision of Judicial Review.

11.        'Constitution of India' is a living document. Explain.

Ans.      No Constitution can be a static one; a Constitution is always a dynamic or a living document. It should grow with the growing nation and must change with the changing needs and circumstances of a country. France had five Constitutions since 1792. In Russia Communism was established in 1917 and till the dissolution of Soviet Union in 1991, it had four constitutions, the Constitution of 1918, 1924, 1936 and 1977. After the dissolution of Soviet Union, the new Russian federation gave to itself a new Constitution in 1993. Similarly, the Constitution of India which came into force on 26 January 1950 has been amended as many as 93 times. This could be possible because it had sufficient flexibility to adjust it to the changing cirumstances in the country. The Supreme Court has also played a very positive and useful role in giving the constitution both stability and flexibility. Thus, the framers of our constitution made it partly rigid and partly flexible.

12.        What do you understand by technical amendments ? Mention some of the technical amendments made in the Indian Constitution.

Ans.      Technical amendments are those amendments which are made just to meet a few technical or administrative problems. Although these are amendments made in the legal sense, yet they make no substantial difference to those provisions. For example, originally the constitution provided for reservation of seats in Parliament and State legislative Assemblies for 10 years, yet due to the social and economic backwardness of the people belonging to these communities, the period was extended for 10 years several times 8th amendment in 1960, 23rd amendment in 1969, 45th amendment in 1980, 62nd amendment in 1989 and 79th amendment in 1999.

               Similarly, raising the retirement age of Judges of High Court from 60 years to 62 years (15th amendment) and the amendment relating to the increase in the salaries of Judges of Supreme Court and High Courts are amendments of merely a technical nature.

13.        Describe the procedure of Amendment of Indian Constitution.

Ans.      A Constitution is a living document and it is necessary to amend the Constitution according to the changing conditions and circumstances of the country. If there is no provision for amendment is the Constitution, revolution will be the only means of development in India. India has adopted federal form of government so the Constitution must be rigid. A rigid Constitution is that Constitution which cannot be changed by the same procedure which has been passing of an ordinary law; a special procedure has to be adopted for making any amendment in the Constitution. On the other hand, a flexible Constitution is one which can be amended by the same procedure which has been adopted for passing an ordinary law.

               An important feature of Indian constitution is that it is partly flexible and partly rigid. At the time of framing of our constitution Shri Jawahar Lal Nehru (The first Prime Minister of India) observed in the Constitution Assembly. "While we want this constitution to be as solid and permanent as we can make it there is no permanence in the Constitution. There should be a certain flexibility. If you make anything rigid and permanent, you stop the nation's growth, the growth of a living, vital organic people... . In any case, we could not make this Constitution so rigid that it cannot be adopted to changing conditions. When the world is in a period of transition, what we do today may not be wholly acceptable tomorrow".

               Rigidity in the Constitution in necessary for a federal form of government so that the central government is not able to change it according to its own will. But it should not be so rigid as it is not able to change according to the changing circumstances. That is why our Constitution is neither wholly flexible like the Constitution of Engliand or wholly rigid like the Constitution of U. S. A. It is partly flexible and partly rigid.

               The procedure of amendment in our Constitution has been given in Article 368 of the Constitution. According to it for the purpose of amendment Indian constitution has been divided into three parts :

                1.    Amendment by Parliament by Simple Majority. Certain provisions of the Constitution can be amended by a simple majority in each house of Parliament. The following provisions are included in this category :

                (i)    Inclusion of new states in the Indian Union, creation of new states, change in the names and boundaries of the existing states.

                (ii)   Subjects concerning Indian citizenship.

                (iii)   Creatiion or abolition of Legislative Council in a State on the recommendation of Legislative Assembly of that State.

                (iv)   Matters relating to national Language.

                (v)   To lay down qualifications for members of Parliament and state legislatures.

                (vi)   Number of Judges of Supreme Court.

                (vii)  Salary, allowances and other facilities of members of Parliament.

                (viii)  Matters relating to Scheduled Castes, Scheduled Tribes and Other Backward Classes.

                2.    Amendment by Special Majority of Parliament and Ratification by Legislature of at least fifty percent States. In the second category are those provisions which can be amended only by a two-third majority in each house of Parliament and ratified by the legislatures of at least 50 percent states. Amendment in the subjects given in this category has to be passed in two stages. In the first stage, bill is to be introduced in either house of Parliament. The bill so initiated must be passed in each house by a majority of the total membership of the house and by a two-third majority of the members present and voting.

                When an amendment bill is so passed it must be sent to the state legislatures for their ratification. When that bill has been ratified by the legislatures of at least fifty percent states, it is sent to the President for his assent and becomes effective after getting his approval. Unlike other bills President has no power to sent an amendment bill back to the legislature for its reconsideration. He has to give his assent. The above procedure is adopted in respect to the following subjects :

                (i)      Method of election of President.

                (ii)     Extent of executive powers of the Union.

                (iii)    Extent of the executive powers of the States.

                (iv)    Establishment of High Courts for union territories.

                (v)     Matters relating to High Courts in the States.

                (vi)    Matters which deal with union judiciary.

                (vii)    Legislative relations between the Union and the States.

                (viii)   Representation of States in Parliament.

                (ix)     Procedure of amendment in the constitution.

                3.    Amendment by Parliament by Two-third Majority. In case of remaining subjects (subjects not included in the above two lists) an amendment bill is to be passed in each house separately by a simple majority of the total membership of the house and by a two-third majority of the members present and voting. After that the bill is sent to the President who shall give his assent to the bill.

                Thus, our constitution is a combination of rigidity and flexibility.

14.        On what grounds has the procedure of amendment in the Indian constitution been criticised ?

Ans.      The procedure of amendment in Indian Constitution has been criticised on the following grounds :

              1.    An amendment can be initiated only on the introduction of a bill in Parliament. States or the people have no power to initiate any amendment.

             2.    No procedure has been laid down in the constitution for resolving a deadlock between the two houses on a constitution amendment bill. However, the general view is there it must be resolved in a joint sitting of the two houses, the procedure which has been laid down for resolving a deadlock in the passing of an ordinary bill. If at the joint sitting the bill is passed by a majority of total number of both the houses of Parliament it shall be deemed to have been passed by both the houses.

             3.    The Constitution does not lay down any timelimit for the ratification of an amendment by the state legislatures. In U. S. A. When Congress central legislature, sends anny proposed amendment for ratification by the states, it lay down a fixed timelimit by which the approval must be sent. If the proposal is not ratified by the states within that fixed time, the proposal is killed.

             4.    Certain provisions of the Constitution can be changed even without passing an amendment bill. For example, to fulfil any international treaty obligation the central Parliament can legislate on a subject given in the state list. Similarly, if Rajya Sabha by a resolution passed by 2/3 majority declares may state subject to be of national importance, the Parliament will get the power to make law in relation to that subject. Inspite of the above criticism, our Constitution has functioned smoothly.

POINTS TO REMEMBER

1.     The Constitution is a living document; it cannot be static. It must change according to the changing conditions and circumstances in the country.

2.     Constitution of India, which came into force a 26th January 1950, has been amended many a times (93 times till now).

3.     Constitution of India is both flexible as well as rigid. Certain articles can be changed by a simple majority in both houses of Parliament. Some other subjects can be amended by two-third majority in each house of Parliament plus its ratification by at least fifty percent of state legislatures. The remaining subjects can be amended by 2/3 majority in each house of Parliament.

4.     Parliament cannot amend any subject relating to the basic structure of the Constitution.

5.     Judicial interpretations have changed our understanding of the Constitution.

6.     Decisions regarding the idea of 'creamy layer' in the backward classes and reservations in jobs and educational institutions are best examples of Judicial interprations.

7.     Judiciary must have the power to review the Constitution Amendment Act passed by Parliament (elected representatives). Elected representatives could destroy even the basic structure of the Constitution as was done in the 42nd amendment.