Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

CONSTITUTION OF INDIA EXPLAINED

The Constitution of India forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam. To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

PART XX: AMENDMENTS TO CONSTITUTION

Amending Body

1. In most cases, Parliament has the sole authority to amend the Constitution.
2. However, in some special cases, an amendment passed by Parliament has to ratified by at least half State Legislative Assemblies.

Source of the amending power

Article 368(1)

• In exercise of its constituent power
  • Parliament may amend any provision of this Constitution
    • by addition, variation or repeal
  • in accordance with procedure laid down in this article

Amending Procedure

Article 368(2)

• Initiation of amendment:
  • by introduction of a Bill in either House of Parliament

• Passing of the Bill:
  • by each House
    • by a majority of total membership of that House and
    • by a majority of not less than 2/3rd members present and voting

• Assent of President:
  • The Bill then shall be presented to the President
    • who shall give his assent

Ratification by State Legislatures

• An amendment requires to be ratified
  • by not less than one-half of State Legislatures
    • before it is presented to President for assent
  • if it seeks to make any change in…
    • Articles 54, 55, 73, 162 and 241
    • Provisions on Judiciary and distribution of legislative powers
    • Any of the three Lists in the Seventh Schedule
    • Representation of States in Parliament
    • Provisions of Article 368

Limitations on the amending power

1. Article 368 of the Constitution does not in any way put any limitations on the constituent powers of Parliament, other than prescribing a special procedure of State Assembly ratification in some specified cases.
2. However, the Supreme Court of India came up with a novel limitation in 1973 while propounding the Basic Structure Doctrine in Kesavanand Bharti v. State of Kerala.

The single most important judgment in India’s Constitutional Law history is undoubtedly the 13-Judge Bench Majority Judgment in Kesavananda Bharati case delivered on 24th April 1973. No study of Constitutional Law can be complete without understanding this judgment. But it is easier said than done. Reason is simple. It is an exceptionally lengthy judgment, running in 502 printed pages.

We present below the gist of the operating part of the judgment:

Principle

• The Supreme Court laid down the Theory of Basic Structure in this case. It was held that some of the provisions of the Constitution of India form its basic structure, which are not amendable by Parliament by exercise of its constituent power under Article 368.

Question:

What comprises the Basic Structure?

Answer:

The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic forms of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i. e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

Issue

Whether Fundamental Rights could be taken away by Parliament by Constitutional Amendments?

Stage 1

Shankari Prasad v. Union of India 1951

• Supreme Court held that
  • ‘Law’ in Art 13(3) did not include Amendments u/a 368
• Thus, Parliament could amend Fundamental Rights

Stage 2

Golak Nath v. State of Punjab 1967

• Supreme Court reversed its decision of 1951 in Shankari Prasad case
• Supreme Court held that Parliament could not take away or abridge FRs
  • even by constitutional amendments

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Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

CONSTITUTION OF INDIA EXPLAINED

The Constitution of India forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam. To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

PART XX: AMENDMENTS TO CONSTITUTION

Amending Body

1. In most cases, Parliament has the sole authority to amend the Constitution.
2. However, in some special cases, an amendment passed by Parliament has to ratified by at least half State Legislative Assemblies.

Source of the amending power

Article 368(1)

• In exercise of its constituent power
  • Parliament may amend any provision of this Constitution
    • by addition, variation or repeal
  • in accordance with procedure laid down in this article

Amending Procedure

Article 368(2)

• Initiation of amendment:
  • by introduction of a Bill in either House of Parliament

• Passing of the Bill:
  • by each House
    • by a majority of total membership of that House and
    • by a majority of not less than 2/3rd members present and voting

• Assent of President:
  • The Bill then shall be presented to the President
    • who shall give his assent

Ratification by State Legislatures

• An amendment requires to be ratified
  • by not less than one-half of State Legislatures
    • before it is presented to President for assent
  • if it seeks to make any change in…
    • Articles 54, 55, 73, 162 and 241
    • Provisions on Judiciary and distribution of legislative powers
    • Any of the three Lists in the Seventh Schedule
    • Representation of States in Parliament
    • Provisions of Article 368

Limitations on the amending power

1. Article 368 of the Constitution does not in any way put any limitations on the constituent powers of Parliament, other than prescribing a special procedure of State Assembly ratification in some specified cases.
2. However, the Supreme Court of India came up with a novel limitation in 1973 while propounding the Basic Structure Doctrine in Kesavanand Bharti v. State of Kerala.

The single most important judgment in India’s Constitutional Law history is undoubtedly the 13-Judge Bench Majority Judgment in Kesavananda Bharati case delivered on 24th April 1973. No study of Constitutional Law can be complete without understanding this judgment. But it is easier said than done. Reason is simple. It is an exceptionally lengthy judgment, running in 502 printed pages.

We present below the gist of the operating part of the judgment:

Principle

• The Supreme Court laid down the Theory of Basic Structure in this case. It was held that some of the provisions of the Constitution of India form its basic structure, which are not amendable by Parliament by exercise of its constituent power under Article 368.

Question:

What comprises the Basic Structure?

Answer:

The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic forms of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i. e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

Issue

Whether Fundamental Rights could be taken away by Parliament by Constitutional Amendments?

Stage 1

Shankari Prasad v. Union of India 1951

• Supreme Court held that
  • ‘Law’ in Art 13(3) did not include Amendments u/a 368
• Thus, Parliament could amend Fundamental Rights

Stage 2

Golak Nath v. State of Punjab 1967

• Supreme Court reversed its decision of 1951 in Shankari Prasad case
• Supreme Court held that Parliament could not take away or abridge FRs
  • even by constitutional amendments

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