Impact of Major Constitutional Amendments on the Indian Polity

Prakriti Dadsena[1]

“The existing legal constitution is nothing but the product of a revolution. Revolution is the act of political creation in the history of classes, while constitutional legislation is the expression of the continual political vegetation of a society.” – Rosa Luxemburg.

The Indian constitutional developmental tree delineates that there has been constant succession between status quo and change. Globally all the constitution is comprehended to develop and advance after sometime as the conditions, needs and estimates of our society changes. In Missouri v. Holland, 252 U.S. 416, 433 (1920), Justice Holmes collated the Constitution to an “Organism”. The Canadian Supreme Court reluctantly embraced an organic metaphor to clarify its rendition of living constitutionalism, which has come to be known as the “living tree” doctrine. While talking about Constitutional survival, it is vitally important that we give due eminence to those elements that lend endurance and the essential malleability to the Constitution. So as to counterbalance the approaching stuns, we can list some auxiliary factors that vitally influence the political order and without a doubt has some impact on the life expectancy of Constitutions.

Further when we talk about Constitution, what can best challenge Constitutional Inertia, an isolating line was drawn between Conservatives who favoured looking to the Framers’ unique expectation when translating the Constitution and Liberals who favoured the possibility of a ‘living Constitution’. By the statement of faith of liberals considers it to be essential that constitutional interpretation must be informed by contemporary standards and conditions, not just by its unique importance. Liberals are known as Progressives, by variations, advocate that the Constitution must advance to meet changing circumstances.[2] They have rather conceptualized the Constitution as “living law,”[3] as a “living charter”[4]“capable of growth.”[5]

The framers of the Indian constitution knew about the onerous and unbending method of American Constitution. On account of this objective on 17 March, 1947 a poll was progressed by the Constitutional advisor Mr. B.N. Rau among the individuals of the Constituent Assembly. While presenting the draft proposition he drew attention not just towards the provisions of the American Constitution yet in addition of different Constitutions like that of Australia, Canada, Ireland, Union of South Africa, U.S.A and Switzerland.[6] Disparate proposals were move forward by the members recommending extraordinary systems for Constitutional amendments. Dr. S.P. Mookherjee approached with a recommendation that amendments can be actuated by ¼ of the members of either house of the Union legislature and should be enacted by 2/3 majority in each of the two houses of the Union Legislature and also by 2/3 majority of the Constitutional convention. According to Sardar K.M. Pannikar the amendment to the Constitution be first actuated in either House of the Union Legislature and then enacted by 2/3 majority in both the Houses of the Union Legislature and then ratified by the Legislature of each unit.[7]Contradicting the above scheme, in a joint memorandum N. Gopalaswami Ayyangar and Alladi Krishnaswamy Ayyar, held that “amendments of the Constitution will be made by the Union Legislature yet no amendment will be esteemed to have been affirmed by the Union Legislature unless it has secure the support in each of the two chambers of a majority of not less than 2/3 of its sanctioned strength.” Further such amendments will have no impact except if it is also approved by the legislatures of not less than 2/3 of the Units.

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Rau’s Draft in his memorandum made a comparable provision that an amendment of the Constitution could be started in either house of the Parliament. After the proposed amendment was passed in each House by a majority of not less than two-thirds of the total membership of that house and ratified by the legislatures of not less than two thirds of the units it would be displayed to the President for his consent and on such consent being given the amendment would come into operation.[8]

In any case, in his draft not all amendments were to experience this elaborate and unbending process. There were several provisions for amendments which were to be acknowledged by the customary administrative process and a simple strategy for amendment in the underlying phases of the constitution. For instance, (1) all supplementary legislation regarding citizenship could be made by ordinary union Law; (2) union law could include new territories within the Union as well make readjustments of territory as between the Provinces.[9] The memorandum also contained a transitional provision that until the termination of three years from the beginning of the Constitution, The Federal Parliament may, despite anything in Part XIII; by Act correct this Constitution whether by method for variety, expansion or repeal. The three-year time span had been obtained from Article 51 of the Constitution of Ireland when Shri Rau had an opportunity to talk about this provision with legal advisers and statesman amid his visit to USA Canada, Ireland and UK in October 1947. Yet, Mr. De Valera, the Irish Premier prompted Mr. Rau that the time of three years provided for the amendment of the Constitution by a simple Act of parliament was far too less. He thus recommended a threshold period of not less than five years.[10] K.M. Munshi also shared and justified the same as Mr. Rau, that in framing a Constitution, it was not necessary to have a very elaborate and rigid scheme of amending its provisions in the first three years.[11]

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So as to speed up the whole procedure, a joint gathering of the Union Constitution Committee and the Union Powers Committee was gathered on 30 June 1947 which altered, re examined the proposals progressed by Mr. Rau. These altered propositions were incorporated into the report of the Union constitution Committee displayed to the Constituent Assembly on 4th July 1947. At last the Union Constitution Committee gathered again on 12 July 1947 where it upgraded Mr. Rau’s draft report by presenting two noteworthy changes. It was suggested that for the purpose of amendment, the provisions of the Constitution should be categorized into two:

(a). Where an amendment proposed a change in the Federal Legislative List, or in the representation of unit in the Parliament, or in the powers of the Supreme Court, it would require, a majority in each house and two-thirds of the members present and voting and second, ratification by the legislatures of the units representing a majority of the population of all the units.

(b). In regard to other amendments, the requirement of ratification by the units would not be necessary.

All these submissions were then clubbed in a supplementary report of the Committee and presented to the Constituent assembly on 13 July, 1947; and a slightly modified version was incorporated in the Draft constitution prepared by Rau in October 1947. From these considerations one may conclude, that stringency of amending process was entirely ruled out in the preliminary stages. At the same time too flexible process was also not acceptable except for a limited period.

Therefore, the Constitution of India is famous for being the longest among the written constitutions worldwide with a reasonably long Preamble, 395 articles augmented by more additions than deletions through amendments and 12 Schedules, some of them very long. In the family of Constitutions, the Constitution of India is said to belong to the Euro –American tradition. As regards its length, early commentators on the Constitution had predicted that its length would lead to legalism and rigidity. Fortunately, this did not happen and as expected by the Constitution makers it has proved to be quite flexible and received some favourable comments from some foreign scholars. Where we saw in it wise variety while Austin found the amending processes as ‘one of the most aptly conceived aspects of the Constitution’. The number of times and the ease with which the Constitution has been amended amply prove the point.

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[1] Student, Amity Law School, Noida.

[2] Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 Const. Comment. 353 (2007).

[3] Louis D. Brandeis, The Living Law, 10 Ill. L. Rev., 461 (1916).

[4] Michael H. v. Gerald D., 491 U.S. 110, 141 (1989).

[5] Harvard University, Brandeis Papers draft of Brandeis’s dissent in United States v. Moreland, 258 U.S. 433

(1922).

[6] B. Shiva Rao, The Framing of India’s constitution, Select Documents, 11, 448-51.

[7] Sardar K.M. Pannikar and Dr. S.P, Papers in the President’s Secretariat.

[8] Supra note at 6, 550.

[9] Supra note at 6, 492.

[10] Draft Constitution of India article 238, (22nd September.1947).

[11] Constituent Assembly Debates, I-IV, 546.