Chapter 9 notes
Constitution as a living document,
Is constitution static?
The Soviet Union had four constitutions, in 74 years, (1918,1924, 1936, and
1977).
1991 disintegration, political upheaval, Russia adopted new in 1993.
26 Nov. 1949 adopted, in 1950 implemented,
Makers were farsighted, constitution is accommodative, according to changes.
Flexibility of interpretation.
A constitution will have temporary provisions and permanent one, to deal a
particular situation.
The constitution is not static or its not unalterable.
Article 368, “Parliament may in exercise of its constituent power amend way of
addition, variation or repeal any provision of this constitution in accordance with
the procedure laid down in this article”.
Flexible as well as rigid.
Constitution amendment through,
simple ordinary law, (by law indicates simple method ordinary nature). Ex,
Article 2, Parliament may by law admit into the union the new states.
Article 3, parliament may by law, increase or decrease area of any state.
special majority in both the houses separately article 368.
special majority plus consent of half of the state legislatures, 368.
President cannot send it back for reconsideration.
Parliament sovereignty for constitutional amendment (people’s elected
representatives).
Special majority, no provision for Joint session, those who voting should
constitute half of the total strength.
The supporter should constitute two third of the total who take part in voting.
Ex, 273 for a bill, even if 300 were present it should get 273.
Two principles dominate in modern constitutions,
Special majority, for US, South Africa and Russia, two third for US, three-fourth in
case of Russia and SA
People participations in amendments, ex, in Switzerland, people can initiate,
Russian and Italy also others.
“If those who are dissatisfied with the constitution have only to obtain 2/3
majority and if they cannot be deemed to be shared by the general public”.
Here, Ambedkar also refer views of general public, behind majority there is
principle of public opinion that govern decision making.
Ratification by states,
Amendment aims to modify an article of distribution of power must be consulted
by states,
As federalism is not mercy by central govt.
The bill needs to be pass by the half of the states, with simple majority, before
amendment comes into effect.
Why there is much amendments,
Not politics but changes was necessary.
Contents of the amendment,
Can be into three types,
Technical or administrative nature and were only clarifications, explanations, and
minor modification etc. Only in legal sense.
15th amendment retirement age increased from 60 to 62, salaries of judges of HC
and SC increased 55th amendment.
Seats reservation for ST and SC for 10 years initially.
74 (1) the advice of C.o. M will be binding on president. Although it was
happening.
Different interpretation,
Opinion clash between judiciary and govt, amendment to give one authentic
one.
Ex, from 1970 to 1975.
In past, conflicts in fundamental rights and DPSP, and scope of private property
and the power of the parliament to amend constitution.
Amendment through political consensus,
Post 1984, starting with Anti-defection, (52 nd amendment and 91st), 61st
amendment for turning voter age from 21 to 18, the 73 rd and 74th amendments.
Clarifying and expanding reservation in jobs and admission, 77 th, 81st and 82nd
amendments.
Controversial amendments
1970 to 1976, 38th, 39th and 42nd amendments controversial, passed during
emergency and applied in June 1975.
42nd, on the restricts review of judiciary and right to property removed, mini
constitution, six years tenure of Lok Sabha. In 1977, new front reconsiders many
of it, through 43rd and 44th amendment.
Basic structure and evolution of the constitution.
In 1973, Kesavananda Bharti case, specified the power of parliament to
amend, and basic structure was introduced,
It allows parliament to amend any part except these basic structures,
It places judiciary as final authority to decides whether its violated or not.
Judiciary itself made amendment without formal way in this article.
In 2000 a commission led by retired chief justice of SC, Justice Venkatachaliah,
appointed by central govt,
The commission stuck on basic structure and didn’t provide suggestion that
would destroy constitution, opposition boycotted commission.
SC held that reservation should not exceeded 50%. For OBC, a creamy layer was
introduced.
Constitution as a living document,
Document responded the situations and circumstances arising from time to time.
Democracy is not only about votes and people’s representation but also about
the rule of law. That’s why parliamentary supremacy was not ensured.
Contributions of the judiciary, Balancing power between various organ and
spirit of the constitution.
Maturity of the political leader,
Some recommendation was made for Kesavananda case, but court didn’t hold
back so, 42nd amendment was made,
But court repeated earlier stand on Minerva Mills case 1980, govt, also accepted
inviolable structure,
“The ideals on which this draft constitution is framed have no manifest relation
to the fundamental spirit of India, this constitution will not prove suitable and
would break down soon after being brought into operation”
Lakhminarayan Sahu,
Politics is all about negotiation and compromises, give and take, extreme
positions may be theoretically very correct and ideologically attractive but
politics demands everyone is prepared to moderate their views, sharp position
and reach a minimum ground. The ultimate authority lies with people.