The Constitution of the Republic of India is the largest in the world. It describes India as a Sovereign Socialist Secular Democratic Republic, which has a parliamentary system of governance. The Indian Constitution was adopted on the 26th Day of November 1949 and was officially enforced from 26th January 1950. It took 2 years, 11 months, and 18 days for the constituent assembly to write the constitution. The Indian Constitution is a living document and is the supreme source and authority of law in India, but since its creation, the Constitution has been amended multiple times. Beginning with 395 Articles and 8 Schedules, it presently remains stands at 450 Articles and 12 Schedules resulting from 105 amendments. The 1st Amendment to the Constitution was made in 1951, whereas the most recent, 105th Amendment, was made in 2021.
Both rigid and flexible, the Indian Constitution is virtually amendable but difficult to change. The Indian Constitution stipulates that the government may amend the constitution as per Article 368. There are two distinct kinds of amending procedures: rigid and flexible. It is highly challenging to modify the Constitution under the rigid system. The U.S., Canadian, and Australian Constitutions are listed under the rigid system, whereas, the flexible approach is how the Constitution can be amended. A provision must be made in any of the houses in accordance with Article 368 of the Indian Constitution, and it must later be approved by a simple majority or a substantial majority. The resolution will be sent to the president seeking approval if a vote passes it.
Three unique amendment techniques, which blend flexibility and rigidity, are included in the Indian Constitution.
- Simple majority approval; is required to amend some sections, which is akin to adopting a regular law. For instance, adding new states, changing the boundaries of states, changing citizenship requirements, etc.
- The special majority’s amendment; According to Article 249, a majority of two-thirds of members is necessary for a vote. A special majority is needed to adopt Rajya Sabha resolutions that are intended to become laws for the State list.
- Special majority and ratification by at least half of the State Legislatures; the articles, such as those governing the election of the President, the subjects included in the Seventh Schedule, the relationship between the Centre and the States, etc., may be amended.
The Supreme Court held in the 1973 case of Kesavanand Bharati v. State of Kerala that the Parliament could not alter essential clauses that make up the fundamental structure of the constitution. Ideologies of the constitution that are necessary for its existence. Free and fair elections, the federal form of the country, judicial oversight, separation of powers, and so on. It indicates that the Constitution’s fundamental legal principles and founding principles serve as its cornerstone.
Important Amendments to the Indian Constitution
- The First Constitutional (Amendment) Act, 1951 – On June 18, 1951, India’s first constitutional amendment came into effect. All subsequent constitutional amendments followed the model set by this one. The ninth schedule Articles 31A and 31B, and numerous other articles were changed or added because of the first amendment Act. The following Articles were modified by it: 15, 19, 85, 87, 174, 176, 341, 342, 372, and 376. The Acts that make up the ninth schedule are shielded from judicial review. This means that neither the acts nor their legality may be said to violate fundamental rights as the judiciary’s review of parliamentary actions was not effective for the acts as per the ninth schedule, this made it simpler and more straightforward for the government to carry out its objectives through the legislative process of the parliament. They did not need to be concerned about the judiciary disagreeing as a result. Indian people are free to engage in any type of trade or company they choose under Article 19(g). The amendment stated that the nationalization of any trade or enterprise by the state is permitted if it complies with the following requirements and is in the interests of public order, friendly relations with other countries, and state security, the provocation to execute an offence, defamation, and court contempt.
- The Fourth Constitutional (Amendment) Act, 1955 – The first constitutional amendment and the fourth amendment both address issues concerning property, land acquisition, and zamindari eradication laws. The judiciary fairly maintained the Zamindari abolition legislation and accepted them. Article 31 was amended significantly by the Fourth Amendment, which also added Article 31A. Clause (1) of Article 31A was replaced, and Article 31A (2)(b) was changed to include the terms “raiyats” and “under raiyats” in the group of people whose “rights” in an estate were no longer covered by Articles 14, 19(1)(f), and 31. Additionally, the ninth schedule was changed to include additional performances. Trade and commerce are free according to Article 301. Is a law that establishes a governmental monopoly in breach of Article 301. The Supreme Court’s ruling explains that law empowering state monopoly needs to be proven to be established in the public’s best interests and indicates that it comes under the classification of reasonable restrictions under articles 301 and 304(b), respectively. This was raised in the case of Saghir Ahmed v. the State of U.P., but it was not addressed at the time. However, an amendment to Article 305 clarifies it now.
- The Seventh Constitutional (Amendment) Act, 1956 – The first schedule, which included the geographical area and boundaries of all the states and union territories, underwent alterations because of the reorganization plan. Articles 258A, 290A, 298, 350A, 350B, 371, 372A, and 378A were included as part of India’s seventh constitutional amendment. Additionally, it changed the constitution’s schedules 1, 2, 4, and 7, as well as Section 8. The fourth schedule, which outlines how members in the Council of States are distributed, has undergone a major revision. This was because the seat counts were based on a 1941 census. The population and demographics of India had undergone a major change, necessitating an alteration in the number of seats for each state. The constitution was amended to add a new Article 258A. In contrast to Article 258(1), which grants state governments the authority to delegate union functions, the Article defined the states’ ability to do so. The distribution of seats among the states and their regions has been altered by amending Article 81. Alterations are made after every census. Additionally, after every census, each state would be divided into territorial constituencies. Based on the 13th edition of V.N. Shukla’s Constitution of India, there was a gap that required the application of Article 258A. This gap was discovered when a state’s implementation of some of its developmental projects ran into a practical problem. The addition of Article 258A filled (fixed) this gap. The seventh amendment made significant modifications to the makeup of legislative bodies and councils. The same calculation as before was to be used, i.e., one seat per million for the initial five million; and one extra seat for every additional two million. As a result, the seat count is updated in accordance with the findings of the most recent census, but the calculation method is unchanged. Due to problems in states with a low population, the strength was increased from one-fourth to one-third. The 1/4th rule was effective for states with high populations, like Uttar Pradesh, but not for those with smaller populations.
- The Thirty-Eight Constitutional (Amendment) Act, 1975 – According to Article 123, the President may issue ordinances when neither chamber of parliament is in session. However, the President may only do this if he or she is convinced that doing so is absolutely required in the specific situation. As a result, the Constitution has granted the following powers: to the Governor under Article 239B, to the administrator. Articles 123, 213, and 239B have readable language. Since satisfaction is an ambiguous concept, it cannot be quantified. It is inherently arbitrary. According to the amendment, since “satisfaction” is a relative concept, an ordinance should pass if the president is satisfied with it. When the parliament’s two houses are not in session and a crisis arises, an ordinance is passed. There is no time to confer with others or consider the problem in such circumstances. The approval of the president ought to be the sole criterion for action, which must be implemented quickly. After the cases A.K. Roy, etc. vs. Union of India and Anr. and T. Venkata Reddy, etc. vs. State of Andhra Pradesh, the following was decided. The president’s satisfaction is not exempt from judicial review, but it also cannot be dismissed as simply political or cast in doubt just because of a political issue. On the grounds of motivation or lack of application of mind, the ordinance cannot be contested. The authority to enact an ordinance is a legislative authority, not an executive power. If the President’s intentions are being questioned, an ordinance may be called into doubt. When the President acts dishonestly, it may be contested.
- The One Hundred First Constitutional (Amendment) Act, 2016 –Article 256A, was added to the constitution with the 101st amendment. “(1) Notwithstanding anything stated in articles 246 and 254, Parliament, and according to clause (2), the Legislature of each and every State, having jurisdiction to adopt legislation with regard to goods and services tax levied by the Union or by such State,” the constitution reads. Where the provision of products, services, or both occur during interstate trade or commerce, Parliament alone has the authority to enact laws relating to the goods and services tax. All the states and the center have the same authority to enact laws governing goods and services. Trades conducted within a state are subject to both state and federal regulations. According to Section 269A, “(1) The Government of India shall levy and collect the Goods and Services Tax on goods in the course of inter-State trade or commerce, and such tax shall be appropriated between the Union and the States in the manner might well be produced by Parliament by law on the suggestions of the Goods and Services Tax Council.” The following prerequisites must be met for the provision, regarding the clause, the provision of products or services, or both, for interstate trade or commerce is defined as the importation of such goods or services into India. According to the clause, the sum allotted to a state is not included in the Consolidated Fund of India. If a tax amount is imposed under subsection (1) and collected to satisfy a tax obligation imposed by the state, it will not be included in the Consolidated Fund of India. When a tax is collected that was imposed by a state under Article 246A and utilized to fulfill clause (1), the tax amount collected will not be included in the State’s Consolidated Fund. Through the creation of laws, the Parliament is empowered to determine where interstate commerce in the form of the delivery of commodities, services, or both will occur. The purpose of the 101st Amendment was to create a consistent national tax system. It grants the center and the states simultaneous taxing authority. Added to that are the union territories. With the legislature in session, this authority allows for the passage of laws relating to the tax imposed on goods and services. All domestic deals involving the flow of goods and services would be subject to this goods and services tax.
Scope for Improvement in the Constitution
- Transparency in Appointment of Judges- Judges in India choose other judges. The remaining judges and HC judges are appointed by the SC collegium, which consists of the Chief Justice and the four senior-most judges. The public is unaware of the reasons why one judge was nominated and another was not since this is done in an opaque manner. To ensure accountability and openness, the Judges should be appointed by a completely independent authority. On this point, the judiciary serves as a check on the legislative and executive branches’ powers, but there is minimal to no control over the judiciary itself.
- Term Limits on Public Offices- Important constitutional positions including the Prime Minister, President, Chief Minister, Governor, and even Members of Parliament, Legislative Assemblies, all the way down to members of panchayats should have a set number of terms or tenures. No one should be permitted to occupy any elected public office for longer than 3 terms if not 2. Staying for longer durations in a position of power can be misused for personal gains, as we have seen in countries like Russia and China where their head of state misused their powers to remain in power for even longer durations.
- Kesavanand Bharati v. State of Kerala, (1973) 4 SCC 225.
- Saghir Ahmed v. The State of Uttar Pradesh, 1954 AIR 728.
- A.K. Roy, etc. v. Union of India, AIR 1982 SC 710.
- T. Venkata Reddy, etc. v. State of Andhra Pradesh, 1985 AIR 724.
This article is written by Namay Khanna, a 3rd year BBA LLB (Hons.) student at Symbiosis Law School, Pune.