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Amendment of Indian
Constitution - Article 368

The Constitution of India lays down the framework


on which Indian polity is run. The Constitution declares
India to be a sovereign socialist democratic republic,
assuring its citizens of justice, equality, and liberty. It was
passed by the Constituent Assembly of India on November
26, 1949, and came into effect on January 26, 1950. India
celebrates January 26 each year as Republic Day. It is the
longest written constitution of any independent nation in the
world, containing 395 articles and 12 schedules, as well as
numerous amendments, for a total of 117,369 words in the
English language version. Besides the English version, there
is an official Hindi translation.

The Constitution lays down the basic structure of


government under which the people chose themselves to be
governed. It establishes the main organs of government - the
executive, the legislature and the judiciary. The Constitution
not only defines the powers of each organ, but also
demarcates their responsibilities. It regulates the
relationship between the different organs and between the
government and the people.

The Constitution is superior to all other laws of the country.


Every law enacted by the government has to be in
conformity with the Constitution. The Constitution lays
down the national goals of India - Democracy, Socialism
and National Integration. It also spells out the Fundamental
Rghts, Directive Principles and Duties of citizens. The
Draftsmen of the Indian Constitution took inspiration from
Constitutions all over the world and incorporated their
attributes into the Indian Constitution. For example Part III
on Fundamental Rights is partly derived from the American
Constitution and Part 1V on Directive Principles of State
Policy from the Irish Constitution.

A Constitution should be a dynamic document. It should be


able to adapt itself to the changing needs of the society.
Sometimes under the impact of new powerful social and
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economic forces, the pattern of government will require


major changes. Keeping this factor in mind the Draftsmen
of the Indian Constitution incorporated Article 368 in the
Constitution which dealt with the procedure of amendment.
Due to Article 368 the Indian Constitution can neither be
called rigid nor flexible but in fact it is partly rigid and
partly flexible. Articles of the Indian Constitution can be
amended by a simple majority in the Parliament (Second
Schedule, Article 100(3), 105, 11, 124, 135, 81, 137), or by
special majority that is majority of the total membership of
each house and by majority of not less than two thirds of the
members of each house present and voting , or by
Ratification by the State Legislatures after special majority
(Article 73, 162, Chapter 1V of Part V, Chapter V of Part
V1, Seventh Schedule, representation of the State in
Parliament and provisions dealing with amendment of the
Constitution).

Constituent power is the area in the history of Indian


Constitutional Law which has lead to most serious
disagreements between Parliament and Judiciary, the
conflict involving Parliamentary Supremacy on one hand
and on the other Judicial review of the Scope and extent of
the power and the manner in which such power is to be
exercised. Constituent power is termed as a power which is
exercised by a representative body authorized by a
Constitution to amend the Constitution. This amending
power is one of the most desirable powers in a Constitution,
if a Constitution as a fundamental document is to continue.
John Burgess is of the opinion that the first and most
important part is the organization of the State for the
accomplishments of future changes in the Constitution,
which is the amendment clause.

Classification of amendment procedures can if classified in


two heads as rigid and flexible. Rigid. procedures means
difficult to amend the constitution like that of U.S.,
Australia, Canada and Switzerland and flexible procedure
means in which procedure to amend is easy, and can be
done even by passing a normal legislation like that of
United Kingdom. But in Indian constitution though the
procedure is classified as Rigid but it has practically proved
to a flexible one.
In India Article 368 provides the power of amendment. The
procedure to be followed in India in not strictly rigid or
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flexible, and further there is a difference in procedure when


it affects the federal character of the Union. An amendment
can be proposed in either of the Houses. In India all
constitutional amendments can be generally effectuated by a
Special Majority, i.e., it must be passed by both the houses,
with more than 50% of total number of members along with
two thirds of members present and voting.

The clause 2 of Art 368 also specifies certain


situations in which apart from above
mentioned special majority ratification by
more than half of the number of States is
required, they are:

# Election of the President.


# Extent of executive power of the Union and State.
# Provisions dealing with the Supreme Court.
# Provisions dealing with High Courts in the States and
Union territories
# Distribution of legislative power between Centre and State
# Representation of States in Parliament.
# Seventh schedule
# Art. 368 itself.
In either of the two procedures after the bill is passed it is
reserved for Presidential assent, which in turn is bound to
give it. In India the procedure has proved to be far more
flexible, till now as much as 96 amendments have been
made. Dr. Ambedkar in the Constituent Assembly while
defending the procedure contented that the procedure for
amendment in the Indian Constitution is a simple
procedures, as compared to US, Australia or Canada, and
deliberately models of convention and referenda are
avoided. He further said that it may be possible that in
future this power may be used for partisan motives and
hence some rigidity is required in the procedure.

During the 50 years of the Constitution, more than 80


amendments have taken place. The founding fathers of the
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Indian constitution who granted more rights to the people


without balancing them with their duties, perhaps did not
foresee the emergence of present political environment,
wherein the political players of various segments in the
country are more interested in fulfilling their individual
aspirations than the aspirations of the people. There is an
element of truth in this criticism. The fact is that the ease in
the amending process of the Indian Constitution is due to
the one party dominance both at the Centre and the State
.Yet, on close examination it will be seen that there were
compelling circumstances which led to the constitutional
amendments. While some amendments were a natural
product of the eventual evolution of the new political
system established under the Constitution in 1950, there
were others necessitated by practical difficulties. The first
amendment took place in June, 1950.

Necessity of Amending Provisions in the Constitution:


Provisions for amendment of the constitution is made with a
view to overcome the difficulties which may encounter in
future in the working of the constitution. The time is not
static; it goes on changing .The social, economic and
political conditions of the people go on changing so the
constitutional law of the country must also change in order
toward it to the changing needs, changing life of the people.
If no provisions were made for amendment of the
constitution, the people would have recourse to extra
constitutional method like revolution to change the
constitution. The framers of the Indian constitution were
anxious to have a document which could grow with a
growing nation, adapt itself to the changing circumstances
of a growing people. The Constitution has to be changed at
every interval of time. Nobody can say that this is the
finality. A constitution which is static is a constitution
which ultimately becomes a big hurdle in the path of the
progress of the nation.

Restriction on parliament power of Amending Provisions in


the Constitution and Judicial Review: The framers of the
Indian constitution were also aware of that fact that if the
constitution was so flexible it would be like playing cards of
the ruling party so they adopted a middle course. It is
neither too rigid to admit necessary amendments, nor
flexible for undesirable changes. India got independence
after a long struggle in which numerous patriots sacrificed
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their life. They knew the real value of the freedom so they
framed a constitution in which every person is equal and
there is no discrimination on the basis of caste, creed, sex
and religion. They wanted to build a welfare nation where
the social, economical, political rights of the general person
recognize. The one of the wonderful aspect of our
constitution is Fundamental rights and for the protection of
these rights they provided us an independent judiciary.
According to constitution, parliament and state legislature in
India have the power to make the laws within their
respective jurisdiction.

This power is not absolute in nature. The constitution vests


in judiciary, the power to adjudicate upon the constitutional
validity of all the laws. If a laws made by parliament or state
legislature violates any provision of the constitution, the
Supreme Court has power to declare such a law invalid or
ultra virus. So the process of judicial scrutiny of legislative
acts is called Judicial Review. Article 368 of the
Constitution gives the impression that Parliament's
amending powers are absolute and encompass all parts of
the document. But the Supreme Court has acted as a brake
to the legislative enthusiasm of Parliament ever since
independence. With the intention of preserving the original
ideals envisioned by the constitution-makers. To Abraham
Lincoln, democracy meant a Government of the people, by
the people and for the people. So in democratic nation
whenever any law passed by parliament violates any
provision of constitution or takes away any fundamental
rights of the person, the Supreme Court has right and power
to strike down that law or act. According to me this
jurisdiction of Supreme Court is essential for protection of
basic features of the constitution.

The Supreme Court and the Amendment


Power:

Shankari Prasad v.Union of India[1]: In this case first time


the question whether fundamental rights can be amended
under Article 368 came for consideration of the Supreme
Court. In that case the Validity of the First Constitutional
Amendment which added Article 31-A and 31-B of the
Constitution was challenged. It was contended that though it
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may be open to Parliament to amend the provisions in


respect of the fundamental rights, the amendments, would
have to be tested in the light of the provisions contained in
Art.13(2) of the Constitution. The Supreme Court, with a
bench of five judges, unanimously rejected the contention
that in so far as the First Amendment took away or abridged
the fundamental rights conferred by Part III it should not be
upheld in the light of the provisions of article 13(2). Shastri
J: delivering the judgment of the court said that although
"law" must ordinarily include constitutional law, there is a
clear demarcation between ordinary law, which is made in
the exercise of legislative power, and constitutional law,
which is made in the exercise of constituent power. Dicey
defines constitutional law as including "all rules which
directly or indirectly affect the distribution or the exercise of
the sovereign power in the State." The terms of Art. 368 arc
perfectly general and empower Parliament t" amend the
Constitution, without any exception whatever.

Shastri J. was here implementing Dicey's doctrine of


parliamentary sovereignty. He recognized that an
amendment in terms of article 368 was the "exercise of
sovereign constituent power" and that there was no
indication that the constitution-makers intended to make
fundamental rights immune from constitutional amendment.
Therefore "law" in article 13 must be taken to mean rules or
regulations made in the exercise of ordinary legislative
power and not amendments to the Constitution made in the
exercise of constituent power. Article 13 (2) did not affect
amendments made under article 368.

Notwithstanding the First Amendment, agrarian legislative


measures adopted by the States were effectively challenged
in the High Courts and two further amendments were passed
to save the validity of those measures. The Constitution
(Fourth Amendment) Act, 1955, amended article 31-A,
while the Constitution (Seventeenth Amendment) Act,
1964, amended article 31-A, again and added 44 Acts to the
Ninth schedule.|

Sajjan Singh v.State of Rajasthan

[2]: The validity of the Seventeenth Amendment was


challenged in this case. The main contention before the five-
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judge bench of the Supreme Court was that the Seventeenth


Amendment limited the jurisdiction of the High Courts and,
therefore, required ratification by one-half of the States
under the provisions of article 368. The court unanimously
disposed of this contention, but members of the court chose
to deal with a second submission, that the decision in the
Shankari Prasad case should be reconsidered. The Chief
Justice (Gajendragadkar C.J.) in delivering the view of the
majority (Gajendragadkar C.J., Wanchoo and Raghubar
Dayal JJ.) expressed their full concurrence with the decision
in the earlier case. The words "amendment of this
constitution" in article 368 plainly and unambiguously
meant amendment of all the provisions of the Constitution;
it would, therefore, be unreasonable to hold that the word
"law" in article 13(2) took in Constitution Amendment Acts
passed under article 368.

They went on to point out that, even if the powers to amend


the fundamental rights were not included in article 368,
Parliament could by a suitable amendment assume those
powers. The Chief Justice also dealt in his judgment with
the wording of article 3lB. That article, he considered, left it
open to the Legislatures concerned to repeal or amend Acts
that had been included in the Ninth Schedule. But the
inevitable consequence would be that an amended provision
would not receive the protection of article 31B and that its
validity could be examined on its merits.

Hidayatullah and Mudholkar JJ., in separate


judgments, gave notice that they would have difficulty in
accepting the reasoning in Shankari Prasad's case in regard
to the relationship of articles 13 (2) and 368. Hidayatullah J.
said that he would require stronger reasons than those given
in that case to make him accept the view that the
fundamental rights were not really fundamental, but were
intended to be within the power of amendment in common
with other parts of the Constitution. The Constitution gives
so many assurances in Part III that it would be difficult to
think that they were the play things of a special majority."
Mudholkar J. took the view that the word "law" in article 13
(2) included an amendment to the Constitution under article
368.Article 368 does not say that when Parliament makes an
amendment to the Constitution it assumes a different
capacity, that of a constituent body. The learned Judge
recalled that India had a written constitution, which created
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various organs at the Union and State levels and recognized


certain rights as fundamental.

The judgments in Sajjan Singh's case were to provide the


outlines of what was to become, and still is, a national
debate on the method by which the Indian Constitution can
be amended. As an Indian commentator has pointed out the
doubts expressed by Hidayatullah and Mudholkar JJ. in
Sajjan Singh's case about the correctness of the decision in
Shankari Prasad's case were to be confirmed by the majority
in the next case to be considered (Golak Nath's case). Golak
Nath's case was itself to be overruled by a majority in the
Keshvananda bharti's case, this time in favour of Mudholkar
J's view that certain features of the Constitution were basic
and unalterable. The minority judges in Keshvananda's case
were to return to the view of the court in Shankari Prasad's
case and the majority in Sajjan Singh's case.

Golakhnath v. State of Punjab

[3]: The doubts of the minority judges in Sajjan Singh's case


as to the correctness of the decision in Shankari Prasad's
case were raised before a bench of eleven judges of the
Supreme Court in this case, in which the validity of the First
and Seventeenth Amendments to the Constitution in so far
as they affected fundamental rights was again challenged.
The Fourth Amendment was also challenged. This time a
majority of six judges to five decided that Parliament had no
power to amend any of the provisions of Part III, so as to
take away or abridge the fundamental rights enshrined
therein. The majority were, however, faced with the
problem that, if the First, Fourth and Seventeenth
Amendments were at a late stage to be invalidated, the
impact on social and economic affairs would be chaotic. On
the other hand, the court considered that it had a duty to
correct errors in the law. It, therefore, adopted a doctrine of
prospective overruling[4] under which the three
constitutional amendments concerned would continue to be
valid, and the decision to the effect that Parliament had no
power to amend the provisions of Part III would operate for
the future only.

Given this "policy and doctrinaire decision to favour


Fundamental Rights", the majority judgment of Subha Rao
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C.J. proceeded to accept the following propositions:


(i) Article 368 with its marginal note "Procedure for
amendment of the Constitution" dealt only with the
procedure for amendment. Amendment was a legislative
process and the power of Parliament to make amendments
was contained in article 248 and Entry 97 in List I of the
Seventh Schedule (the Union List) which confer residuary
legislative powers on the Union Parliament.

(ii) An amendment to the Constitution, whether under the


procedural requirements of article 368 or under any other
article, is made as part of the normal legislative process. It
is, therefore, a "law" for the purpose of article 13(2).

The judgment of three of the dissentients.( Wanchoo,


Bhargava and Mitter JJ.) in the Golak Nath" case was
delivered by Wanchoo J. The learned observed that Art.368
carried the power to amend all parts of the constitution
including the fundamental rights in part III of the
constitution. They reaffirmed the correctness of the
decisions in cases of Shankri Prasad and Sajjan singh.

To get over the decision of the Supreme


Court in Golaknath's case the Constitution
24th Amendment Act was passed in 1971.
The Twenty-fourth Amendment made
changes to articles 13 and 368:
(i) A new clause was added to article 13: "(4) Nothing in
this article shall apply to any amendment of this
Constitution made under article 368."
(ii) Amendments were made to article 368:
a) The article was given a new marginal heading: "Power of
Parliament to amend the Constitution and procedure
therefore."
b) A new clause was added as clause (I): "(I)
Notwithstanding anything in this Constitution, Parliament
may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in
this article.
c) Another clause was added as clause (3): "(3) Nothing in
article 13 shall apply to any amendment under this article."
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Another amendment to the old article 368 (now article


368(2)) made it obligatory rather than discretionary for the
President to give his assent to any Bill duly passed under the
article.

Basic Structure:
The Supreme Court recognized BASIC STRUCTURE
concept for the first time in the historic Kesavananda
Bharati case in 1973. Ever since the Supreme Court has
been the interpreter of the Constitution and the arbiter of all
amendments made by parliament. In this case validity of the
25th Amendment act was challenged along with the
Twenty-fourth and Twenty-ninth Amendments. The court
by majority overruled the Golak Nath case which denied
parliament the power to amend fundamental rights of the
citizens. The majority held that article 368 even before the
24th Amendment contained the power as well as the
procedure of amendment. The Supreme Court declared that
Article 368 did not enable Parliament to alter the basic
structure or framework of the Constitution and parliament
could not use its amending powers under Article368 to
'damage', 'weaken', 'destroy', 'abrogate', 'change' or 'alter' the
'basic structure' or framework of the constitution. This
decision is not just a landmark in the evolution of
constitutional law, but a turning point in constitutional
history.

Kesavananda Bharti v. State of Kerala

[5]: It is a landmark of the Supreme Court of India, and is


the basis in Indian law for the exercise by the Indian
judiciary of the power to judicially review, and strike down,
amendments to the Constitution of India passed by the
Indian Parliament which conflict with or seek to alter the
Constitution's basic structure. The judgment also defined the
extent to which the Indian Parliament could restrict the right
to property, in pursuit of land reform and the redistribution
of large landholdings to cultivators, overruling previous
decisions that suggested that the right to property could not
be restricted.
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Majority Judgement:
Sikri C. J.

Held that the fundamental importance of the freedom of the


individual has to be preserved for all times to come and that
it could not be amended out of existence. According to the
learned Chief Justice, fundamental rights conferred by Part
III of the Constitution cannot be abrogated, though a
reasonable abridgement of those rights could be effected in
public interest. There is a limitation on the power of
amendment by necessary implication which was apparent
from a reading of the preamble and therefore, according to
the learned Chief Justice, the expression "amendment of this
Constitution", in Article 368 means any addition or 'change
in any of the provisions of the Constitution within the broad
contours of the preamble, made in order to carry out the
basic objectives of the Constitution. Accordingly, every
provision of the Constitution was open to amendment
provided the basic foundation or structure of the
Constitution was not damaged or destroyed. Shelat and
Grover, JJ. held that the preamble to the Constitution
contains the clue to the fundamentals of the Constitution.
According to the learned Judges, Parts III and IV of the
Constitution which respectively embody the fundamental
rights and the directive principles have to be balanced and
harmonized. This balance and harmony between two
integral parts of the Constitution forms a basic element of
the Constitution which cannot be altered. The word
'amendment' occurring in Article 368 must therefore be
construed in such a manner as to preserve the power of the
Parliament to amend the Constitution, but not so as to result
in damaging or destroying the structure and identity of the
Constitution. There was thus an implied limitation on the
amending power which precluded Parliament from
abrogating or changing the identity of the Constitution or
any of its basic features.

Hegde and Mukherjea, JJ.


Held that the Constitution of India which is essentially a
social rather than a political document is founded on a social
philosophy and as such has two main features basic and
circumstantial. The basic constituent remained constant; the
circumstantial was subject to change. According to the
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learned Judges, the broad contours of the basic elements and


the fundamental features of the Constitution are delineated
in the preamble and the Parliament has no power to abrogate
or emasculate those basic elements of fundamental features.
The building of a welfare State, the learned Judges said, the
ultimate goal of every Government .but that does not mean
that in order to build a welfare State, human freedoms have
to suffer a total destruction. Applying these tests, the
learned Judges invalidated Article 31C even in its un-
amended form.

Jaganmohan Reddy, J.

Held that the word 'amendment' was used in the sense of


permitting a change, in contradistinction to destruction,
which the repeal or abrogation brings about. Therefore, the
width of the power of amendment could not be enlarged by
amending the amending power itself. The learned Judge
held mat the essential elements of the basic structure of the
Constitution are reflected in its preamble and that some of
the important features of the Constitution are justice,
freedom of expression and equality of status and
opportunity. The word 'amendment' could not possibly
embrace the right to abrogate the pivotal features and the
fundamental freedoms and therefore, that part of the basic
structure could not be damaged or destroyed. According to
the learned Judge, the provisions of Article 31C, as they
stood then, conferring power on Parliament and the State
Legislatures to enact laws for giving effect to the principles
specified in Clauses (b) and (c) of Article 39, altogether
abrogated the right given by Article 14 and were for that
reason unconstitutional. In conclusion, the learned Judge
held that though the power of amendment was wide, it did
not comprehend the power to totally abrogate or emasculate
or damage any of the fundamental rights or the essential
elements of the basic structure of the Constitution or to
destroy the identity of the Constitution. Subject to these
limitations, Parliament had the right to amend any and every
provision of the Constitution.

Khanna, J.
Broadly agreed with the aforesaid views of the six learned
Judges and held that the word 'amendment' postulated that
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the Constitution must survive without loss of its identity,


which meant that the basic structure or framework of the
Constitution must survive any amendment of the
Constitution. According to the learned Judge, although it
was permissible to the Parliament, in exercise of its
amending power, to effect changes so as to meet the
requirements of changing conditions, it was not permissible
to touch the foundation or to alter the basic institutional
pattern. Therefore, the words "amendment of the
Constitution" in spite of the width of their sweep and in
spite of their amplitude, could not have the effect of
empowering the Parliament to destroy or abrogate the basic
structure or framework of the Constitution.

Indira Nehru Gandhi v. Raj Narayan

[6]: Basic Structure concept reaffirmed in this case. The


Supreme Court applied the theory of basic structure and
struck down Cl(4) of article 329-A,which was inserted by
the 39th Amendment in 1975 on the ground that it was
beyond the amending power of the parliament as it
destroyed the basic feature of the constitution. The
amendment was made to the jurisdiction of all courts
including SC, over disputes relating to elections involving
the Prime Minister of India.

Basic Features of the Constitution according to the Election


case verdict Again, each judge expressed views about what
amounts to the basic structure of the Constitution: Justice
Y.V. Chandrachud listed four basic features which he
considered unamendable:
a) Sovereign democratic republic status.
b) Equality of status and opportunity of an individual.
c) Secularism and freedom of conscience and religion.
d) 'Government of laws and not of men' i.e. the rule of law.

2nd Amendment: After the decision of the Supreme Court


in Keshvanand Bharti and Indira Nehru Gandhi case the
constitution (42nd Amendment) Act, 1976 was passed
which added two new clauses, namely, clause (4) and (5) to
Art.368 of the Constitution. It declared that there shall be no
limitation whatever on the constituent power of parliament
to amend by way of addition, variation or repeal of the
provisions of the Constitution under this Article. This
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Amendment would put an end to any controversy as to


which is supreme, Parliament or the Supreme Court. Clause
(4) asserted the supremacy of the parliament. It was urged
that Parliament represents the will of the people and if
people desire to amend the Constitution through Parliament
there can be no limitation whatever on the exercise of this
power. This amendment removed the limitation imposed on
the amending power of the Parliament by the ruling of the
Supreme Court in Keshvanand Bharti's case. It was said that
the theory of 'basic structure' as invented by the Supreme
Court is vague and will create difficulties. The amendment
was intended to rectify this situation.

Minerva Mill v. Union of India

[7]: In this case the validity of 42nd amendment Act was


challenged on the ground that they are destructive of the
'basic structure' of the Constitution. The Supreme Court by
majority by 4 to 1 majority struck down clauses (4) and (5)
of the article 368 inserted by 42nd Amendment, on the
ground that these clauses destroyed the essential feature of
the basic structure of the constitution. It was ruled by court
that a limited amending power itself is a basic feature of the
Constitution.

The historical Judgement laid down that:

The amendment made to Art.31C by the 42nd Amendment


is invalid because it damaged the essential features of the
Constitution. Clauses (4) and (5) are invalid on the ground
that they violate two basic features of the Constitution viz.
limited nature of the power to amend and judicial review.
The courts cannot be deprived of their power of judicial
review. The procedure prescribed by Cl.(2) is mandatory. If
the amendment is passed without complying with the
procedure it would be invalid. The Judgement of the
Supreme Court thus makes it clear that the Constitution is
Supreme not the Parliament. Parliament cannot have
unlimited amending power so as to damage or destroy the
Constitution to which it owes its existence and also derives
its power.

L.Chandra kumar v. Union of India


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[8]: Article 323-A and 323-B, both dealing with tribunals,


were inserted by the 42nd Amendment. Clause 2(d) of
Art.323-A and Clause 3(d) of 323-B provided for exclusion
of the jurisdiction of the High Court under Art.226 and 227
and the Supreme Court under Art.32.The Supreme Court in
this case held these provisions as unconstitutional because
they deny judicial review which is basic feature of the
Constitution. It held that the power of judicial review vested
in the High court under Art.226 and right to move the
Supreme Court under Art.32 is an integral and essential
feature of the Constitution.

Conclusion:

Effect of Keshvanand bharti case.


Keshvanand over ruled Golaknath but did not reestablish
parliamentary supremacy. It stated that fundamental rights
may be amended by the parliament, but not all of them.
Those fundamental rights which constitute the basic
structure of the Constitution cannot be abridged. Golaknath
gave primacy to fundamental rights. Keshvanand recognizes
that some other provisions in the Constitution may be
equally important. If they form the basic structure they are
unamendable. Under Art.368 the parliament cannot rewrite
the entire Constitution and bring in a new one.

By invalidating part of Art.31-C keshvanand prevented the


state legislature from exercising power to virtually amend
the constitution. Art.31-C lays down that if a state
legislature makes a law which contains a declaration that it
is to giving effect to the policy contained in Art.39(b)and(c)
then no court may scrutinize it. Thus a state legislature
could make review proof law. Keshvanand denied them
such power. Power of judicial review shall remain with the
court, legislative declaration cannot destroy it.

Keshvavand is an example of judicial creativity of the first


order. It protected the nation from the attacks on the
Constitution by a passing 2/3 majority which may be
motivated by narrow party or personal interests. The basic
feature cannot be mauled.
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Summary of the effect of the various


judgments:
The effect of the various decisions of the
Supreme Court may be thus summarized:

Parliament has limited powers to amend the constitution.


Parliament cannot damage or destroy the basic features of
the Constitution.
The Procedure prescribed for the amendment is mandatory.
Non compliance with it will result in invalidity of the
amendment.
Clauses (4) and (5) inserted in Art. 368 by the 42nd
Amendment Act are invalid because they take away the
right of judicial review.
Parliament cannot increase its amending power by
amending Art. 368.

Evaluation of the judgments:

Golaknath and later Kesavanand were subjected to a lot of


criticism. It was said that there are no express limitations to
the amending power. The courts are enlarging their powers
by inventing implied limitations. It was contended that the
doctrine of basic features leads to uncertainty. Nobody can
foretell with certainty what the basic features are. The
Parliament does not know where it stands—what power it
possesses. Without uncontrolled power the Parliament
cannot bring about socio-economic reforms.

The answer to these comments is—the Supreme Court has


adopted a purposive approach. Most of the amendments that
were invalidated were no part of any socio-economic
reforms. Some of them had nothing to do with public
welfare. The 39th and 42nd Amendments were made to
ensure power to one individual and one party. The standard
of political morality is low. Within political parties
democracy hardly breathes and power is concentrated in the
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hands of a single individual or a coterie. Majority of the


people are apathetic and easily led by attractive slogans. All
these situations compelled the Supreme Court to rule in
favour of limited powers and protect the freedom of the
people. Uncertainty is part of life. Most of the legal
concepts e.g. negligence, reasonableness, public interest and
natural justice are not susceptible to exact definitions. The
39th and 42nd Amendments have clearly shown that
unlimited amending power can be and effective instrument
to usher dictatorship. The doctrine of implied powers is a
safety device to prevent such occurrence.

The amendment process was incorporated in the


Constitution by the Draftsmen of the Constitution to help
India adapt itself to the changing circumstances. Society is
never stagnant. It is ever- changing. Therefore the amending
procedure was made partly flexible so as to make it easy for
the Legislature. But the Parliament started thinking that it
has unlimited amending power. It assumed itself to be the
supreme law when the Constitution is the supreme law of
the land. The Parliament started making amendments which
were destroying the basic structure of the Indian
Constitution. But after the landmark decisions of
Keshavnand Bharati and Minerva Mills the Court by its
power of judicial review has curtailed the amending power
of the Parliament. The amendments made by the Parliament
can no more affect the basic structure of the Constitution.
But, looking at the ease with amendments can take place
depending on the whims and fancies of the ruling
government and the POLITICS IN THE POLITICS OF
INDIA we cannot say how long the rights of the citizens are
safe and unobstructed.

Now we can say, there is no hard and fast rule for basic
feature of the Constitution. Different judge keep different
views regarding to theory of basis structure. But at one point
they have similar view that parliament has no power to
destroy, alter, or emasculate the 'basic structure' or
framework of the constitution. If the historical background,
18

the preamble, the entire scheme of the constitution and the


relevant provisions thereof including article 368 are kept in
mind then there can be no difficulty, in determining what
are the basic elements of the basic structure of the
constitution. These words apply with greater force to
doctrine of the basic structure, because, the federal and
democratic structure of the constitution, the separation of
powers, the secular character of our state are very much
more definite than either negligence or natural justice. So
for the protection of welfare state, fundamental rights, Unity
and integrity of the nation, Sovereign democratic republic
and for Liberty of thought, expression, belief, faith and
worship, interpretation of judiciary is mandatory. We can
say none is above constitution even parliament and judiciary.
19

Comparative study of UK, US


and India for the procedure of
amending the Constitution
1.Introduction

Constitution can be described as the fundamental law of the


land. It is the basis on which all other laws are made and
enforced. We can all also that Constitution is mother of all
other laws which draws their validity from it. It also sets the
outline and authority and limitation for all laws farmed by
the legislative body of any country. Making of Constitution
is one thing and amending it another. Amendments are
introduced as per the changing situations or as per will of
the people or with the will of majority of people. India,
United States of America and United Kingdom, all three of
these countries are democratic of the world. India and US
are the two world‘s largest democratic countries. All three
of these countries have their ‗own‘ system of Governance
. Although, India is younger democratic nation than US and
UK, but a mature one. This is also matter of fact that in past
both India and US was colonial country of the UK. India
have a written constitution like the US but lengthy than US
and UK. In fact, U K does not have a ‗written Constitution‘.
The System of Governance is more based on the laws &
Acts passed by its parliament from time to time and no
‗written constitution‘ is there like India and US have.
It‘s obvious that when these three countries have
different system of governance then the procedure of
amending the constitution would also be different. Through
this research project I tried to make a comparative study of
amendment procedure available in the Constitution of UK,
US and India. Here we will look into the
amendment procedure of three of the countries with a
comparison point of view.

2. Amendment and its necessity


As per the oxford dictionary an ‗amendment‘ denotes idea
of ‗correction/repair or improvement‘.
20

For most commentators, constitutional amendments rules


are designed to serve exactly this purpose

that is, to allow for the correction of or improvement upon
prior constitutional design choice in light of new
information, evolving experience or political understanding.
As Prof. Sunstein has opined ―the Central goal of a
constitution is to create the preconditions for
a well-functioning democratic order, one in which citizens
are genuinely able to govern themselves.‖ Understanding
the meaning of Constitution from Prof. Sunstein‘s definition
of constitution, we can also term ‗Constitution‘ as the
supreme document of any nation by which the system of
governance is controlled and regulated by enacting laws and
regulations. Constitutions are usually classified as
‗flexible‘ or ‗rigid‘ depending upon the process through
which they can be amended. Prof. A.V. Dicey defines two
types of Constitutions

the flexible as
‗one under which
every law of every description can legally be changed with
the same ease and in the same manner by one an
d the same body‘, and the rigid Constitutions as ‗one under
which
certain laws generally known as constitutional or
fundamental laws, cannot be changed in the same
manner as ordinary laws‘

The UK having an unwritten Constitution, is the best


example of an extremely flexible Constitution as there is no
distinction between the legislative power and the constituent
power. The British Parliament has the power to change the
Constitution by the ordinary process of legislation. As
opposed to the U.K. system, the constitutional amendment
has an important place under a written Constitution like that
of the U.S.A. Its importance increases where the system is
Federal. In a Federal system, additional safeguards like the
involvement of Legislatures at the State level, are also
provided for with a view to ensure that the Federal set-up
does not get altered only at the will of the Federal
Legislature.
Now the questions comes why do amendments are required
to ‗any‘ Constitution? Simple reason
21

is to react to the changing situations and circumstances


within the country and internationally also. As per the
available history of the democratic countries no country can
function with permanent‘ constitution
. Few or more amendments are required as per the changing
situations. Like after the 2001 attack on world trade Centre,
the US Congress by a resolution conferred special power
upon the President of US to take military action against any
nation that may cause security issue the US or those who are
involved in the 2001 attack. This was the first of its kind
amendment in the US Constitution which gives complete
‗sole‘ authority to the President for
taking any military action against any country.

3. Comparative Study of United Kingdom,


United States and India
UK, US and India, all three of these countries are
democratic countries of the world, United States is the
oldest democratic country of the world and its constitution
was made in 1789. Where India was the Colonial state of
the United Kingdom till 1947 and the Indian Constitution
came into force in 1950. But situation in United Kingdom is
different. Although, UK is the democratic country but the
head of the state is monarch. Besides this one of the
uniqueness of the
UK‘s constitution is that it‘s not codifie
d one like the US and India having. The UK Parliament can
make any law or amendment by simply passing it by
majority and then send to the monarch for his assent, which
just the formality part. Another difference among these three
countries is that United State is a true federal country, where
each state has its own constitution; India is quasi federal
there only one constitution for whole country but area of
operation is divided between the Union and the State
governments. Whereas UK is not having the federal
structure, it has the unitary setup of government. In Federal
system of governance, state legislatures have a
say in amending the constitution but in unitary setup it‘s
only the Parliament which has
supremacy for amending the constitution. The British
parliament has the power to change and the constitution by
the ordinary process of legislation. As opposed to the UK,
22

the constitution amendment has an important place under


the written Constitution like that of the US and India. Its
importance increases where the system is Federal. In
Federal system, additional safeguards like the involvement
of Legislatures at the state level, are also provided for with a
view to ensure that the Federal set-up does not get altered
only at the will of the Federal Legislature. Now, to compare
the amending procedure of these three countries, we will
discuss the amending procedures separately of each country
a provided under their Constitution.

i) Amending Procedure under US


Constitution
The Article V of the US Constitution provides for changing
(amending) the Constitution. Article V: "The Congress,
whenever two-thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution,
or, on the Application of the Legislatures of two-thirds of
the several States, shall call Convention for proposing
Amendments, which, in either Case, shall be valid to all
Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three-fourths of several
States, or by Conventions in three-fourths thereof, as the
one or other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be
made prior to the Year One thousand eight hundred and
eight shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no State,
without its
Consent, shall be deprived of its equal Suffrage in the
Senate.‖

5
The Procedure provided under this article is of two kinds
and the US Congress has a liberty to choose any one the
procedure provided under this Article. The Article provides
that the Constitution can be amended either through a) an
act of Congress (US Parliament) b) a national constitutional
convention. Under the first option by an act of Congress,
any Member of Congress may propose to amend the
Constitution by introducing a joint resolution. The
legislation is treated like any other in terms of committee
consideration, floor scheduling and debate. Passage,
23

however, requires a 2/3 vote in each chamber. If all were


present that would mean 290 out of 435 Members of the
House and 67 out of 100 Senators. These super-majorities
are very difficult to obtain. And once passed, the proposed
amendment is not sent to the President like it is done in
India or like in UK send to the Royal head of the UK.
Instead, it is sent to the states. Three-fourths -- or 38 -- of
the states must ratify the proposed amendment. Congress is
given the authority by Article V to select one of two
methods for the states to use in the ratification process:
ratification by vote of the state legislatures or ratification
conventions called for that purpose. Only one amendment -
- the 21st (repealing Prohibition) -- was ratified using the
state convention method instead of being ratified by the
state legislatures. The second option for amending the US
Constitution, the call of a National Constitution Convention
as described in Article V, a National Constitutional
Convention requires 2/3 of all state legislatures (34) to
petition US Congress to convene a National Constitutional
Convention. But the Article V contains no guidelines for
how such a National Convention would be run. This method
of amendment has never been implemented successfully.
There has only been one constitutional convention to date -
the original 1787 Constitutional Convention, which
produced the U.S. Constitution. The rigidity of the US
Constitution can be understood by this fact that since 1789,
over 10,000 amendments to the US Constitution have been
introduced in Congress. Of those, only 33 were adopted and
sent to the states for ratification, and only 27 were
ultimately ratified For amending the constitution
in US, state legislatures have a major role to play and it‘s
not the
absolute power of the US Congress. Whereas under Indian
Constitution States has a role to play for amending the
constitution but not in all matters. And there is complete
different picture in
UK, because it‘s does not have the federal structure of
government so que
stion of state ratification comes. Another important aspect,
is the role of head of the state in amendment, in
US and India the President is the head of the state and in
UK, it‘s the Monarch who is the head of
the state. In US President does not have major role to play
in Constitutional amendments except in voting as the
Congressman. Whereas in UK and India, any amendment
24

passed by the Parliament with due procedure as provided by


under their constitution is sent to the President or the Royal
head, as the case may be, for their assent. And the
amendment becomes the part of constitution only after the
assent has been given but in US any amendment becomes
part of constitution only after it is ratified by the requisite
no. of states.

ii) Amending Procedure under Indian


Constitution

. The makers of the Indian Constitution were neither in


favour of the traditional theory of Federalism, which
entrusts the task of constitutional amendment to a body
other than the Legislature, nor in prescribing a rigid special
procedure for such amendments. Similarly, they never
wanted to have an arrangement like the British set-up where
the Parliament is supreme and
can do everything that is humanly possible. Adopting the
combination of the ‗theory of fundamental law‘, which
underlies the written Constitution of the United States with
the ‗theory of parliamentary sovereignty‘ as existing in the
United Kingdom, the Constitution of India vests
constituent power upon the Parliament subject to the special
procedure laid down therein. The Constitution of India
provides for a distinctive amending process as compared to
the leading Constitutions of the world. It may be described
as partly flexible and partly rigid. It is Article 368 of the
Indian Constitution which provides the procedure through
which amendment can be brought in Indian Constitution.
Article 368: Power of Parliament to amend the Constitution
and Procedure therefor: (1) Notwithstanding anything in this
Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or
repeal any provision of this Constitution in accordance with
the procedure laid down in this article. (2) An amendment
of this Constitution may be initiated only by the
introduction of a Bill for the purpose in either House of
Parliament, and when the Bill is passed in each House by a
majority of the total membership of that House and by a
majority of not less than two-thirds of the members of that
House present and voting, it shall be presented to the
President who shall give his assent to the Bill and thereupon
the Constitution shall stand amended in accordance with the
25

terms of the Bill: Provided that if such amendment seeks to


make any change in: (a) article 54, article 55, article 73,
article 162 or article 241, or (b) Chapter IV of Part V,
Chapter V of Part VI, or Chapter I of Part XI, or (c) any of
the lists in the Seventh Schedule, or (d) The representation
of States in Parliament, or (e) the provisions of this article,
the amendment shall also require to be ratified by the
Legislatures of not less than one-
half of the States17… by resolutions to that effect passed by
those Legislatures before the Bill making provision for such
amendment is presented to the President for assent.

7
(3) Nothing in article 1318 shall apply to amendment made
under this article. (4) No amendment of this Constitution
(including the provisions of Part III) made or purporting to
have been made under this article [whether before or after
the commencement of section 55 of the Constitution (Forty-
second Amendment) Act, 1976] shall be called in question
in any court on any ground. (5) For the removal of doubts, it
is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of
addition, variation or repeal the provisions of this
Constitution under this article. As per the provisions of
Article 368, the Constitution of India provides for three
categories of amendments. Firstly, those that can be effected
by Parliament by a simple majority such as that required for
the passing of any ordinary law

the amendments contemplated in articles 4, 169, para 7(2)
of Schedule V and para 21(2)13 of Schedule VI fall within
this category and are specifically excluded from the purview
of article 368 which is the specific provision in the
Constitution dealing with the power and the procedure for
the amendment of the Constitution;
Secondly, those amendments that can be effected by
Parliament by a prescribed ‗special majority‘; and Thirdly,
those that require, in addition to such ‗special majority‘,
ratification by at
least one half of the State Legislatures. The last two
categories being governed by article 368. Hence, barring the
requirements of special majority, ratification by the State
Legislatures in certain cases, and the mandatory assent by
the President, a Bill for amending the Constitution is dealt
with the Parliament following the same legislative process
26

as applicable to an ordinary piece of legislation. This


procedure of amending the constitution is different as well
similar some manners to the US and UK amending
procedure. In India also state ratification is required but not
in all matters of amendment as the US Constitution requires.
In some matters as specified in Article 368 Indian
Parliament has power to amend the constitution and the
same amendment can
admitted as part of constitution after the assent of the
President. This President‘s assent is
similar to the UK where the assent of the Royal head is
required. Amendment procedure under Indian Consti
tution is ‗flexible‘ as compared to US Constitution whereas
the amendment
procedure of UK
is the most ‗flexible‘
among the three compared nations.

iii) Amending Procedure under UK


Constitution
United Kingdom is not having a codified constitution,
although many of the resources of the constitution are
written and documented. It also does not have the federal
structure like the US have. The UK Parliament has the
power to change the Constitution by the ordinary process of
Legislation. Under the UK Constitution, the right to make or
unmake any law whatever; and, further that no person or
body is recognized by the law of England as having a right
to override or set aside the legislation of Parliament (Dicey
1915, 37-38) The another point of difference between US,
India and UK is that US and India have the elected head of
the State the President, whereas in UK monarch is the royal
head of the state. The amending procedure is simple in UK
as compared to the US and India. There is no special
procedure provided under the UK Constitution for
amending it and the
theory of ‗Parliament Sovereignty‘ is applied in UK.
27

Conclusion:

In this comparative study we have gone through the


different amendment procedures provided
in the respective Country‘s constitution. We got to know
that even though UK, US and India are
democratic countries but their way of functioning, making
laws and amending power are different in as compared to
each other. The Constitution of India is the younger one
among all the three countries. We have even borrowed some
features of our constitution from the other countries after
testing their suitability to our country. But there are some
many differences between the amending procedures among
the compared countries that the similarities are less than the
fingers. Like in US, there is no separate constituent body for
the purpose of amendment of constitution in India
and UK. In UK and India, it‘s the Parliament that can
amend the
Constitution. The role of the state in Constitutional
amendment is limited in India but in US, states have major
role to play and states in US can even initiate any proposal
for amendment of the Constitution. But in India, states
cannot initiate the proposal for amending the Constitution.
Whereas in UK there is no question of states as it does not
have the federal structure. In India, the amendment passed
by the Parliament with due procedure as provided under
Article 368 can become part of Constitution only after the
assent of the President, whereas in UK its monarch whose
assent is required to complete the procedure of amending
the constitution. But in US, the President does not have such
stat
us and no provision of President‘s assent is mentioned in US
Constitution. If we compare all the three constitutions, we
will find that it is very difficult to amend the US
Constitution as very easy to amend the UK constitution and
India lies somewhere in between the US and UK, that is to
say not so easy to amend and not so difficult to amend.
Article 368 gives Indian Parliament supremacy in some
matters to amend the constitution but
then in some matters it requires ratification by not less than
one-half of the states. The notable point is that both in
Indian Constitution and US Constitution no time limit has
been for ratification has been prescribed. In last I would to
conclude that the Indian Constitution is more flexible than
28

rigid. It is only few of amendments of the constitution that


requires ratification by state legislatures and even then
legislation by one

half states would suffice. The rest of the Constitution could
be amended by a special majority by Indian Parliament.
Whereas, the US has a rigid constitution and it can be
amended by the US Congress by means of a special
process provided by the US Constitution for that purpose.
UK has the flexible constitution; it requires no special
procedure for its amendment and can be amended by the
Parliament in the same manner as ordinary laws are made.
29

Constitutional Amendments and


the use of Judicial Review

The Supreme Court’s Power of Judicial review extends


to Constitutional Amendments. However, review of
constitutional Amendments by judiciary in relation to
Fundamental Rights and its legal Validity has been a
Contentious Political issue. The doctrine of ‘basic
Structure’ has enabled the application of judicial review
to Constitutional amendments involving Fundamental
Rights also. This doctrine evolved in Kesavananda
Bharati case, 1973. Parlaiment Can amend the
constitution Under Article 368 but Such amendments
Should not take away or violate Fundamental Rights
and any law made in contravention with this rule Shall
be void (Article 13).

Until 1967, the Supreme Court up held that the Amendment


Acts were not ordinary laws and thus Constitutional
Amendment Acts did not violate Article 13 and so the
Constitution. [Art. 13 (2) says, The State Shall not make any
law which takes away or abridges the rights Conferred by
this part and any law made in Contravention of this Clause
Shall, to the extent of the Contravention, be void] It meant
that through Constitutional Amendment Act the parliament
Could amend any provision of the Constitution (including
the Fundamental Rights). It was in the Golak Nath vs. State
of Punjab case in 1967, where the Validity of three
constitutional amendments (1st, 4th and 17th) was
Challenged, that the Supreme Court reversed its earlier
decision . It upheld that, Amending power and legislative
Power of the Parliament were essentially the same. Must be
deemed as a law’ as understood under Article 13. That
means Amendment Acts under Article 368 Cannot amend
Fundamental Rights, as it Would Violate Article 13. In
effect, the parliament had limited amending power.
[Article 368] – Power of Parliament to amend the
Constitution and Procedure there for:
30

(1) Notwithstanding anything in this Constitution,


Parliament may in exercise of its Constituent power
amend by way of addition, variation or repeal any
provision of this Constitution in accordance with the
procedure laid down in this article.]
In the Kesavananda Bharati V. State of Kerala Case in 1973,
the Constitutional Validity of the twenty-fourth, twenty fifth
and twenty ninth amendments was Challenged. The 24th
Amendment Act enlarged the Scope of Parliament by
empowering it to amend Part III of the Constitution also.
The Court upheld 24th Amendment Act and held that even
though the Parliament is entitled to amend any provision of
the Constitution it is void since it takes away invaluable
fundamental rights. In the Minerva Mill Case (1980), the
Supreme Court Confirmed the Principle of Judicial review,
already used in many of its previous Judgements. The 42nd
Constitutional Amendment of 1976 among other things had
added a Clause to Article 368 placing a Constitutional
amendment beyond Judicial review. The Court held that
Judicial review is the ‘basic feature’ of the Constitution and
it Cannot be removed by any authority. Since then Judicial
review has been an established feature of the Constitution.

Some guidelines in judicial Review

The Courts have evolved Certain doctrines to be used as


guide in the process of Judicial review.

I. Doctrine of Severability: While interpreting the


impugned law, the court has to see whether the law as a
whole or some parts of it is unconstitutional. The Court Can
declare the impugned law, as a whole or any part of it,
unconstitutional as the case may be.

II. Doctrine of Progressive interpretation: The Judiciary


in Indian has been guided by the doctrine of progressive
interpretation Which means that the Courts have interpreted
the provisions of the Constitution in the light of the Social,
31

economic and legal Conditions prevailing at that point of


time.

III. Doctrine of Prospective Overruling: It is based on the


premise that judicial invalidation or new view of
interpretation of law will not affect the past transactions or
Vested rights but will be effective as regards future
transactions only.

IV. Doctrine of Empirical Adjudication: While exercising


the power of Judicial review. the Courts are not supposed to
deal with hypothetical cases and therefore, it is necessary
that the matter brought before a Court must be of a
‘Concrete’ nature. The Court Seeks to Confine its decisions,
as far as practicable, within the narrow limits of the
Controversy. Between the parties Concerned in a particular
case.

V. Presumption in favour of Constitutionally: When the


Constitutional Validity of any law is Challenged, the Court
will not hold it to be ultra vires unless the invalidity is clear
from all doubts, for there is always a presumption in favour
of its Validity. The Court always begins with this
presumption that the legislature does not exceed its powers,
nor does it make any law that is inconsistent with the spirit
of the Constitution.

Limitations of Judicial Review

The Supreme Court of India, While interpreting a law,


will not itself legislate. It is not Supposed to Question the
reasonableness of any law except where the Constitution
has expressly authorized the Court to exercise the
power, Normally, it works according to the procedure
established by law.
The Ninth Schedule stands as a rare exception to the
principle of Supremacy of the fundamental rights of the
citizen, as well as to the exclusive power granted to the
32

judiciary in matters of evaluating and recognizing laws


proposed by the legislature. The Ninth Schedule is not
Subject to Judicial review. except under the doctrine of
basic structure. That means the parliament has the power to
save the laws from judicial review by listing them in the
Ninth Schedule, provided such laws do not violate the basic
structure of Constitution. The Ninth Schedule itself is not
Subject to Judicial review as the doctrine of basic structure
is not applied to provisions before 24th April, 1973
(Kesavananda Verdict).
The principle of locus standi was earlier essential though
now it is being relaxed. This means that only a person
aggrieved by an administrative action or by an Unjust
provision of law shall have the right to move the Court for
redressal. Under this traditional rule a third party who is not
affected by the action cannot move the Court. Another
limitation is that before a person moves the High Courts and
the Supreme Court invoking their extraordinary jurisdiction,
he Should have exhausted all alternative remedies.

Assessment of Judicial Review

Judicial review is one of the important techniques by which


the Courts examine the actions of the legislature, the
executive and the other governmental agencies and decide
whether or not these actions are valid and within the limits
set by the Constitution. However, the Concept of Judicial
review has been subjected to serious criticism. It has been
Closely associated with judicial activism. It tends to elevate
the Judiciary to the rank of Super legislature. It has clearly
undermined the Status of Parliament. Further ,the exercise
of Judicial review by the Court has obstructed the passage
of progressive social legislation in India. Again, it has
opened the floodgates for litigation and also given rise to
friction and tussle among the Various organs of the
Government.
Despite its adverse effects, the Concept of Judicial review
also has its utility. It is also beyond doubt that judicial
review exercised by Supreme Court and High Courts has
33

played a crucial role in ensuring Constitutional government


in India by keeping the Union and State governments within
their respective jurisdictional spheres. By liberal
interpretation, it also imparted a new meaning and
dimension to the provisions of the constitution as per the
suitability of Changed circumstances. Most importantly, it
has ensured genuine freedom of the citizens (with liberal
interpretation of the Concerned provisions there by
enlarging the Scope of it) by protecting their Fundamental
Rights against the undue interference by the legislature and
the executive.

Curative Petition

Under Article 137 of the Constitution, a ‘review petition’


may be filled in the Supreme Court after the delivery of
its judgement. The Court may review the Case under its
inherent power but on very restricted grounds. A ‘
Curative petition’ Can be filled seeking review of a
decision which has become final after dismissal of a
review petition under Article 137.
Some of the grounds on which such a petition Can be
entertained are:
 Violation of the norms of natural justice;
 Disposal of the matter ex parte;
 Abuse of the process of the Court;
 A Case in which the learned Judge failed to disclose his
links with the party or his Connection with the Subject
matter; or
 The judgment had adversely affected the interests of the
petitioner.
34

Judicial Review in IndiaConcept,


Provisions, Amendments and
Other Details :

The power of judiciary to review and


determine the validity of a law or an order
may be described as the powers of Judicial
Review’.

It means that the constitution is the supreme


law of the land and any law inconsistent
therewith is void through judicial review.

It is the power exerted by the courts of a


country to examine the actions of the
legislatures, executive and administrative
arms of government and to ensure that such
actions conform to the provisions of the
nation’s Constitution. Judicial review has two
important functions, like, of legitimizing
government action and the protection of
constitution against any undue encroachment
by the government.

Extensive Concept of Judicial Review in


India:
The Supreme Court has been vested with the
power of judicial review. It means that the
Supreme Court may review its own Judgement
order. Judicial review can be defined as the
competence of a court of law to declare the
constitutionality or otherwise of a legislative
enactment.

Being the guardian of the Fundamental Rights


and arbiter of the constitutional conflicts
between the Union and the States with respect
to the division of powers between them, the
35

Supreme Court enjoys the competence to


exercise the power of reviewing legislative
enactments both of Parliament and the State’s
legislatures.
The power of the court to declare legislative
enactments invalid is expressively provided by
the Constitution under Article 13, which
declares that every law in force, or every
future law inconsistent with or in derogation
of the Fundamental Rights, shall be void.
Other Articles of the Constitution (131-136)
have also expressively vested in the Supreme
Court the power of reviewing legislative
enactments of the Union and the States.
The jurisdiction of the Supreme Court was
curtailed by the 42nd Amendment of the
Constitution (1976), in several ways. But some
of these changes have been repealed by the
43rd Amendment Act, 1977. But there are
several other provisions which were
introduced by the 42nd Amendment Act 1976
not repealed so far.

These are:

(i) Arts. 323 A-B. The intent of these two new


Articles was to take away the jurisdiction of
the Supreme Court under Art. 32 over orders
and decisions of Administrative Tribunals.
These Articles could, however, be
implemented only by legislation. Art. 323A
has been implemented by the Administrative
Tribunals Act, 1985 (ii) Arts. 368 (4)-(5).
These two Clauses were inserted in Art. 368
with a view to preventing the Supreme Court
to invalidate any Constitutional Amendment
36

Act on the theory of ‘basic features’ of the


Constitution.

These Clauses have been emasculated by the


Supreme Court itself, striking them down on
the ground that they are violative in the two
‘basic features’ of the Constitution:

(a) the limited nature of the amending power


under Art. 368 and

(b) judicial review in the Minerva Mills case.


The court was very reluctant and cautious to
exercise its power of Judicial Review, during
the first decade, when the Supreme Court
declared invalid only one of total 694 Acts
passed by the Parliament.
During the second decade the court asserted
its authority without any hesitation which is
reflected in the famous Golak Nath case and
Kesavananda Barti case. In these cases the
Supreme Court assumed the role of
constitution making.

Indian Judiciary has been able to overcome


the restriction that was put on it by the 42nd
amendment, with the help of the 43rd and
44th amendments. Now the redeeming quality
of Indian judiciary is that no future
governments could clip its wings or dilute its
right of Judicial Review. In fact, now the
‘Judicial Review’ is considered to be the basic
feature of our Constitution.

Constitutional Provisions for Judicial


Review:
The Indian Constitution adopted the Judicial
Review on lines of U.S. Constitution.
37

Parliament is not supreme under the


Constitution of India. Its powers are limited in
a manner that the power is divided between
centre and states.
Moreover the Supreme Court enjoys a position
which entrusts it with the power of reviewing
the legislative enactments both of Parliament
and the State Legislatures. This grants the
court a powerful instrument of judicial review
under the constitution.

Both the political theory and text of the


Constitution has granted the judiciary the
power of judicial review of legislation. The
Constitutional Provisions which guarantee
judicial review of legislation are Articles 13,
32, 131-136, 143, 226, 145, 246, 251, 254 and
372.
Article 372 (1) establishes the judicial review
of the pre-constitution legislation.

Article 13 declares that any law which


contravenes any of the provisions of the part
of Fundamental Rights shall be void.

Articles 32 and 226 entrusts the roles of the


protector and guarantor of fundamental rights
to the Supreme and High Courts.

Article 251 and 254 states that in case of


inconsistency between union and state laws,
the state law shall be void.

Article 246 (3) ensures the state legislature’s


exclusive powers on matters pertaining to the
State List.
38

Article 245 states that the powers of both


Parliament and State legislatures are subject
to the provisions of the constitution.

The legitimacy of any legislation can be


challenged in the court of law on the grounds
that the legislature is not competent enough to
pass a law on that particular subject matter;
the law is repugnant to the provisions of the
constitutions; or the law infringes one of the
fundamental rights.

Articles 131-136 entrusts the court with the


power to adjudicate disputes between
individuals, between individuals and the state,
between the states and the union; but the
court may be required to interpret the
provisions of the constitution and the
interpretation given by the Supreme Court
becomes the law honoured by all courts of the
land.

There is no express provision in our


constitution empowering the courts to
invalidate laws, but the constitution has
imposed definite limitations upon each of the
organs, the transgression of which would
make the law void. The court is entrusted with
the task of deciding whether any of the consti-
tutional limitations has been transgressed or
not.

Constitutional Amendments and the


Use of Judicial Review:
Until 1967, the Supreme Court upheld that the
Amendment Acts were not ordinary laws and
could not be struck down by the application of
Article 13 (2).
39

It was in the famous Golak Nath Vs. the state


of Punjab case in 1967, where the validity of
three constitutional amendments (1st, 4th and
17th) was challenged, that the Supreme Court
reversed its earlier decision and uphold the
provision under article 368 which put a check
on the Parliament’s propensity to abridge the
fundamental Rights under chapter III of the
Constitution.

In the Kesavananda Bharti Vs. State of Kerala


case in 1973, the constitutional validity of the
twenty-fourth, twenty fifth and twenty ninth
amendments was challenged wherein the
court held that even though the Parliament is
entitled to amend any provision of the
constitution it should not tamper with the
essential features of the constitution; and that
Article 31c is void since it takes away
invaluable fundamental rights.

The court balances the felt ‘necessities


of the time’ and ‘constitutional
fundamentals’ when scrutinizing the
validity of any law. H.M. Seervai has
enumerated some of the canyons,
maxims and norms followed by the
court:

1. There is a presumption in favour of


constitutionality, and a law will riot be
declared tin constitutional unless the case is so
clear as to be free from doubt; and the onus to
prove that it’s unconstitutional lies upon the
person who challenges it.

2. Where the validity of a stature is questioned


and there are two interpretations, one of
which would make the law valid, and the other
40

void, the former must be preferred and the


validity of the law will be upheld.

3. The court will not decide constitutional


questions if a case is capable of being decided
on other grounds.

4. The court will not decide a larger


constitutional question than is required by the
case before it.

5. The court will not hear an objection as to


the constitutionality of a law by a person
whose rights are not affected by it.
6. Ordinarily, courts should not pronounce on
the validity of an Act or part of an Act which
has not been brought into force, because till
then the question of validity would be merely
academic.

7. In a later case, the Minerva Mill case, the


Supreme Court went a step ahead. The 42nd
Constitutional Amendment of 1976 among
other things had added a clause to Article 368
placing a constitutional amendment beyond
judicial review. The court held that this was
against the doctrine of judicial review, the
basic feature of the Constitution.

Judicial Review under Private Law:


There are remedies against the actions of the
executive under private law. A suit can be filed
under section 9 of the Code of Civil Procedure.
The suit can be for damages from the
government or other public authority when
right is violated and an injury is suffered. It
can also be for a declaration of the illegality of
the administrative action.
41

A suit can be filed for issuing injunction


against the act that threatens the rights of
persons. These remedies can, however, be
specifically excluded by a statute under which
the administration acts. In such cases the
statute will provide alternative remedies.

If it does not, or if the alternative remedies


provided are not adequate or sufficient the
aggrieved person will have a right to file a suit.
When the alternative remedies are effective
the citizen will have the right only to resort to
those remedies and not the remedy under the
Code of Civil Procedure. These rules are laid
down through judicial decisions.
Strategy of Judicial Review:

The strategy of judicial review can be divided


broadly into public law review and private law
review. Under the Constitution, legislative and
administrative actions can be reviewed by
courts under Articles 32, 136, 226 and 227.
Such review is called public law review. Article
32 guarantees the right to move the Supreme
Court if any fundamental right can be
reviewed under this provision.
Writs:

Article 226 can be, and is more often, used for


reviewing the action of administration. One
can say that there is an increase of litigation in
this respect. The High Court can issue
directions, orders or writs in the nature of
habeas corpus mandamus, prohibition, quo-
warranto, and certiorari for the enforcement
of fundamental rights or for any other
purpose.
42

Habeas corpus is a write issued by the court to


bring before the court a person from illegal
custody. The court will examine the legality of
detention and release the person if detention
is found illegal.

Mandamus is issued to a public authority to


do an act which under law, it is obliged to do
or to forbear from doing.

Prohibition is a write to prevent a court or


tribune! from doing something in excess of its
authority. High Court has power to issue an
order of prohibition to the executive authority
prohibiting it from acting without jurisdiction.
Certiorari is a write issued to a judicial or
quasi-judicial authority to correct its order.
This writ is issued on specified grounds like
violation of natural justice; excess, abuse or
lack of jurisdiction; fraud; and error of law
apparent on the face of the record.

Quo-warranto is a writ issued to a person who


authorisedly occupies a public office to step
down from that office. High courts and the
Supreme Court have the power to issue not
only these writs but also appropriate
directions and orders.

Judicial Review and Contempt of Court:

It is mandatory that an administrative officer


or authority should obey the directions of a
court and execute the decisions of the court.
What action can be court take if they do not do
this? The court has neither the sword not the
purse like the executive. It has a potential
power.
43

It has the power to take action of contempt of


court. Those who violate or disobey the
decisions of the courts are proceeded against
under this power. They can be punished and
sent to jail. Obviously the contempt power is
the only weapon in the hand of judiciary to see
that their decisions are executed.

Locus standi is the first limitation on judicial


review. This means that only a person
aggrieved by an administrative action or by an
unjust provision of law shall have the right to
move the court for redressal. Under this
traditional rule a third party who is not
affected by the action cannot move the court.
Another limitation is that before a person
moves the High Courts and the Supreme
Court invoking their extraordinary
jurisdiction, he should have exhausted all
alternative remedies. For example, these may
be a hierarchy of authorities provided in
legislation to look-into the grievances of the
affected party. The aggrieved person should
first approach these authorities for a remedy
before invoking extraordinary jurisdiction of
the courts.

However, the alternative remedies should be


equally efficacious and effective as the
remedies available from the courts are. If they
are not, the jurisdiction can be invoked. In
cases of manifest injustice and the violation of
procedural fairness, alternative remedy is not
a bar.

A rule has been evolved to avoid repeated


adjudication on the same matter between the
same parties. If the case is finally disposed of
44

on merits the same issue cannot be re-agitated


by any of the parties filing another case. This
limitation is called res judicata.

Changing Trends in Judicial Review:

Recently there is a rising trends in judicial


activism in the land. The doors of the judiciary
are kept open for redressing the grievances of
persons who cannot ordinarily have access to
justice. The strict observance of the traditional
rule of locus standi will do injustice to certain
persons who do not have the money,
knowledge and facilities of approaching court.

In such cases if a public spirited person comes


forward on their behalf courts relax the rules
an adjudicate over the matter. Thus, in the
matter of socially and economically backward
groups or persons who are not aware of their
rights or not capable of pursuing their case in
a court, the complex and rigorous procedural
formalities are not insisted upon. At this level
there are cases when press reports were taken
as write petitions and reliefs granted. Letters
addressed to the courts were also ‘treated as
petitions.

Judicial review is one of the important


techniques by which the courts examine the
actions of the legislature, the executive and the
other governmental agencies and decide
whether or not these actions are valid and
within the limits set by the Constitution.

Therefore, with the power of judicial review


the courts act as a custodian of the
fundamental rights. The Indian Judiciary,
given the federal structure of the Constitution,
45

also settles conflicts of jurisdiction in


legislation between the centre and the states.
With the growing functions of the modern
state judicial intervention in the process of
making administrative decisions and executive
them has also increased.
46

Judicial Review: Significances


and Utility of the Power of
Judicial Review in India
:
The important significances and utility
of the power of judicial review in India
are:
1. India has a Written Constitution:
A law or an Article of the Constitution may be
ambiguously worded.

So naturally the question of interpretation of


Constitution is bound to arise at times.
2. The Constitution has Provided Limited
Powers to the Union and the States:
If the Union Government or the States
transgress their limits the functioning of
government will become difficult. Only a
Supreme Court can settle the disputes
between the Government of India and States.
3. Interpretation of the Laws is the Peculiar
Function of the Courts:
The Constitutional law has many problems of
interpretation. The Legislature does not
possess the acumen and impartiality which are
needed to explain what the law means. This
function can be best performed by a judicial
body alone.
4. The Court is the Protector of the Rights of
Citizens:
Restrictions can be imposed on the rights of
the citizens in the interest of security of the
47

State and also in public interest. The Court


alone can decide whether or not those
restrictions are reasonable. The Supreme
Court may say to other branches of
government: “thus far and no farther.”
5. The Supreme Court Adapted the
Constitution to Changes in Society:

The Court played an important role in


adapting the Constitution to changes in
society. The judges have very often
pronounced radical judgement, keeping in
view the vast socio-economic inequalities in
society.

In May 1995, the Supreme Court reminded the


Government of its Constitutional duty “to
secure for the citizens a uniform civil code
throughout the territory of India.” There was
“no necessary connection between religion
and personal law in a civilized society”, said
Justice Kuldip Singh in his judgement.
6. Speedy and Economical Justice:
Some new ideas and programmes have
recently been introduced in the country, e.g.
legal aid, social action, litigation and Lok
Adalats. Not only the person aggrieved by a
wrong, but any member of the public can now
initiate a proceeding on behalf of the
aggrieved person in either the High Court or
the Supreme Court for enforcement of
Constitutional rights.

Under the new arrangements a destitute


citizen can file a writ petition even through a
simple letter written on a postcard.
Cognizance of public litigation eases by the
48

Supreme Court has added a new dimension to


its role.

Despite these powers, the Indian Supreme


Court is a creature of the Constitution and
depends for the continuation of these powers
on the union legislature which can impose
limitations on them by amending the
Constitution. Moreover, all these powers can
also be suspended or superseded whenever
there is a declaration of emergency in the
country.
49

An Analysis of Different
Constitutional
Amendment Models
A constitution is the heart of a nation. It codifies the
fundamental theories and definitive
laws that a nation has accepted as the ultimate expression of
national identity. Due to its unique
nature and complete and overriding authority it is a logical
conclusion that a constitution must
not be easily changed.1 This is not to say that amending or
even rewriting a constitution must be
placed outside the realm of thought, but merely that such
editing follow a strict and formal
procedure to ensure that mere dictatorial whim or frantic
mob rule can dominate the legal
proceedings.2 If the constitution is the heart of a nation,
then it follows that an amendment
process be a triple bypass surgery. It is not a process that
should be entered into lightly, but
when it does occur it must be executed with the skill and
precision of a master surgeon to keep
the patient from dying.
The reason behind my thought is that a stable constitution
leads to a stable government,
and that a stable government is the best bulwark against
tyranny and oppression.3 To be sure,
there are examples that go against the grain. For example,
the Soviet Union had a magnificently
crafted constitution that was in effect “just a parchment
guarantee.” 4 To clarify, I believe that a
constitution that is created and adopted with the aim of
fostering a healthy republic or
1 Rasch, Erik Bjorn; Foundation of Constiutional Stability,
http://verfassungswandel.files.wordpress.com/2008/10/bjc3
b8rn-erik-rasch-constitutional-rigidity-and-
formalamendment-
procedures1.pdf
2 Id.
3 Landau, David; Abusive Constitutionalism, 47. U.C. Davis
L. Rev. 189
4 “The bill of rights of the former evil empire, the Union of
Soviet Socialist Republics, was much better than ours. I
50

mean it literally. It was much better. We guarantee freedom


of speech and of the press, big deal! They guaranteed
freedom of speech, of the press of street demonstrations and
anyone who is caught trying to suppress criticism of the
government will be called to account” Scalia said speaking
to a Senate Judiciary Committee. Scalia also asserts that
the Soviet Constitution is “wonderful” but only words on
paper, “just a parchment guarantee.”
http://americanpatriottoday.net/2012/02/supreme-court-
justice-antonin-scalia-soviet-constitution-is-better-
thanunited-
states-constitution/
constitutional monarchy, and is crafted to be sufficiently
stable, is the best way to prevent the
rise of a despotic government.
However, there is a caveat. A stable constitutional
amendment process does not
necessarily relate to a stable government. The Egyptian
constitution of 2012 is a prime example
of that.5 The Constitutional amendment process was
thoroughly strict, and yet the government
that promulgated the constitution was out of power within a
year.6 This means that there is no
“one size fits all” quality for constitutions. Different nations
need different things at different
times in order to either maintain or create stability.
My conclusion is that there are different constitutional
amendment procedures necessary
during different times of a country’s development. In a well-
established and prominent
democracy such as the United States, a difficult amendment
procedure is needed to maintain
order. In a transitioning state, such as Germany post World
War II, a more flexible amendment
procedure is called for, so as to adapt to fast moving
developments in national and international
politics. In a state like Egypt, there must be an amendment
process that does not rely too heavily
5 Constitution of the Arab Republic of Egypt.
“Article 217
The amendment of one or more of the Constitution articles
may be requested by the President of the Republic or the
House of Representatives. The request shall specify the
articles to be amended and the reasons for the amendments,
51

and if initiated by the House of Representatives shall be


signed by at least five House of Representatives Members.
In all cases, the House of Representatives and Shura
Council shall debate the request within 30 days from the
date of
its receipt; each council shall issue its decision to accept the
request in whole or in part by two-thirds majority of its
members.
If the request is rejected, the same amendments may not be
requested again before the next legislative term.
Article 218
If the amendment request is approved by both Houses, each
of them shall discuss the text of the articles to be
amended within 60 days from the date of approval; if
approved by a two-thirds majority of each House, the
amendment shall be put to public referendum within 30
days from the date of approval.
The amendment shall be effective from the date of
announcement of the referendum result.”
6 Coup topples Egypt’s Morsy;
http://www.cnn.com/2013/07/03/world/meast/egypt-
protests/index.html?hpt=hp_t1
on barriers to change, as the situation on the ground changes
drastically from day to day. In
addition, the amendment procedures must take into account
the nature of the country in question.
The United States is a rare exception to this conclusion.
Unlike most other national
constitutions, which were written for an already existing
state, the Constitution of the United
States created the nation. Germany, Hungary, Egypt, and
Colombia had all already existed, in
some form or another, for periods of time up to a thousand
years.7
In order to support my thesis, I will first analyze several
constitutional models and
provide the pros and cons of each method. This will be a
county by country analysis using both
nations that are stable and ones that are in the grips of near
dictatorial regimes and even
borderline anarchy.
52

DIFFERING APPROACHES TO THE


CONSTITUTIONAL AMENDMENT MODEL

Different nations take different approaches to their


constitution. Ulrich K Preuss stated
that there are three different overarching constitutional
paradigms;
“Thus we can point to three categories of constitutional
states:
those with a continuous tradition like Britain and the USA; a
country with an erratic constitutional development like
Germany,
and finally the post-communist states of East and Central
Europe
which have to achieve that nation state, a civil society, and
democratic structures at the same time.”8
Mr. Preuss conducted his analysis several years after the
dissolution of the Soviet sphere of
influence in 1991. At this time, the nation states of Europe
that had thrown off the yolk of Soviet
7 The commonly accepted dates of statehood are Hungary
in 1000, Modern Germany in 1871, Colombia in 1810,
and Egypt in 3,200 BC
8 Preuss, Ulrich K Patterns of Constituional Evolution
and Change in Eastern Europe. Comparative
Constitutional
Law course book.
oppression were struggling to transition to modern
democratic states.9 The current analogue to
this situation is the Arab Spring revolts in the Middle East
and Africa. Similar to the former
communist bloc, the new Arabic regimes, Egypt in
particular, are struggling with the transition
to democracy and an attempt to stabilize their
governments.10 To be certain, a long and
democratic history is beneficial to ensuring the stability of a
government, but it is by no means
the only factor involved. Germany, for example, suffered
through an absolute monarch, a
military dictatorship, a uselessly weak republican
government, and the Nazis all within the span
of a single century.
53

A Constitution that is Difficult to Amend: The United


States

The first constitutional arrangement singled out by Mr.


Preuss is that of the United States.
It is a commonly agreed conclusion that the constitution of
the United States possesses one of the
most burdensome constitutional amendment procedures.11
The Constitution is not amended in
the way of editing. Instead, the new amendments are tacked
onto the end of the document, and
even if they overrule a previous part, that part is left in. 12
The Framers of the Constitution believed that the American
Constitution should be a
document that doesn’t grant rights, but one that prevents the
government from imposing its will
on the people.13 In the words of Judge Posner; “Our
Constitution is a charter of negative rights
rather than positive liberties…The men who wrote the Bill
of Rights were not concerned that
9 Encyclopedia Britannica, 1989 annus mirabilis,
http://www.britannica.com/EBchecked/topic/291225/20thce
ntury-
international-relations/32993/1989-annus-mirabilis
10 Kirkpatrick, David; Army Ousts Egypt’s President;
http://www.nytimes.com/2013/07/04/world/middleeast/egyp
t.html
11 Bjorn, page 21
12 Constitution of the United States; Amendment 18 and
Amendment 21
13 Kende, Mark, Why the South African Constitution is
BETTER than the United States’;
http://academic.udayton.edu/race/06hrights/georegions/a
frica/safrica03.htm
government might do too little to the people but that it
might do too much to them.”14 To aid this
attempt, the rights that are spelled out in the Bill of Rights
are overarching and vague without
any specifics laid down. This was to ensure that the
government could not encroach on these
rights in any way or form without inviting scrutiny. This
skepticism of government action is also
evident in the high standard needed to attain a constitutional
amendment. To quote the
Constitution;
54

The Congress, whenever two thirds of both Houses shall


deem it
necessary, shall propose Amendments to this Constitution,
or on
the Application of the Legislatures of two thirds of the
several
States, shall call a Convention for proposing Amendments,
which,
in either Case, shall be valid to all Intents and Purposes, as
Part of
this Constitution, when ratified by the Legislatures of three
fourths
of the several State
U.S. Const. art. V
This is clearly a sufficiently high bar to prevent the whims
of a few or the fiat of the government
to radically alter the constitution to suit the needs of the
moment. The Framers were quite
apprehensive of the ability of a strong central authority to
hold dictatorial rule over the entire
nation, and so crafted a Constitution, and a constitutional
amendment procedure, that ensured
that the will of the people would not be infringed. The
procedures laid down in the Constitution
do not allow for an easy editing process. This difficulty
defends the core of the document
against being rewritten to fit the political expediency of the
moment. . To quote Chief Justice
Burger; “Convenience and efficiency are not the primary
objectives -- or the hallmarks -- of
democratic government…”15
Clearly, the largest failing of this current model is obvious
when one recognizes that twothirds
of the House and the Senate cannot agree if the sky is blue
or not or whether we actually
14 Jackson v City of Joilet, 715 F 2d 1200 (7th Cir. 1983)
15 Ins v Chadha, 462 US, 919 (1983)
need a budget, to say nothing of the political firestorm that
would erupt should one party or the
other attempt to change the Constitution.16 However, this is
not as serious a problem as it might
seem. Given my earlier presumption, this is exactly the time
when a constitution should not be
amended. When a country is in turmoil then it is time to rely
on the constitution to guide the
55

nation. The amendment process can be saved for sunnier


days when the goal of the government
is not partisan bickering but leadership of the nation.

A Constitution that is Moderately Difficult to Amend:


Federal Republic of Germany

The history of the German nation, whether Kaisserreich,


Groβdeutches Reich or
Bundesrepublik, has proven the need for a powerful source
of law to contain a government that
staggered from dominance to atrocity more times that can
be believed.17 The Basic Law of the
German Republic contains a forceful provision that “The
Basic law can be amended only by a
law which expressly amends or supplements the text
thereof.” 18 Similar to Article V of the
United States, an amendment must be passed by an absolute
two-thirds majority of the
Bundestag & simple two-thirds majority of the Bundesrat.19
The history of the Basic Law of Federal Republic of
Germany (hereinafter “Basic Law”)
shows a more adaptable model than that of the United
States, but not one so permissible as to
allow for a headlong rush into anarchy.20 There are three
periods in the history of the Basic Law,
one of regular changes, one of near complete stability, and
one of intense activity surrounding
16 Weisman, Jonathan; Government Shuts Down in
Budget Impasse
http://www.nytimes.com/2013/10/01/us/politics/congress
-shutdown-debate.html
17 Encyclopedia Britannica, Germany,
http://www.britannica.com/EBchecked/topic/231186/Ger
many
18 Section 79 of the Basic Law for the Federal Republic of
Germany
19 Id.
20 Bjorn, page 28
the Reunification of Germany after the fall of the German
Democratic Republic.21 The first was
the attempt to override some of the weaknesses in the Basic
Law at its inception.22 Once that
56

plateau of stability had been achieved, there was a long


period of tranquility in which the Basic
Law was barely touched.23 However, the defining test of
the German constitutional amendment
model came in the early 1990s.
The amendment process in Germany is a stringent one, but
it still allows for the necessary
changes to react to nationwide events and international
problems. The swift decline of the Soviet
Union and the release of its Eastern European vassals
initiated a wave of support inside, though
not necessarily outside, Germany for reunification. The
Basic Law could not merely be extended
to incorporate new territory.24 This created a quandary for
those in the German government that
wished to reunify the country as quickly as possible without
invoking the clauses of the Basic
Law that seemed to indicate that a new constitution would
need to be created upon reunification.
25 However, there seemed to be an opening in Article 23
that provided for the constitution to be
extended in “other parts of Germany after their
accession.”26 To this end, the German
government swiftly and decisively amended article 146
through the amended by Unification
Treaty of 31 August 1990 and a federal statute on 23
September 1990 so that it was possible to
merely admit the states of the former German Democratic
Republic into the Country.27 Article
21 Id. Quoting Busch
22 Bjorn, page 28
23 Bjorn
24 Mathias Reimann, Takeover: German Reunification
Under A Magnifying Glass the Imperfect Union:
Constitutional Structures of German Unification. by Peter E.
Quint. Princeton: Princeton University Press. 1997. Pp.
Xi, 482. $75., 96 Mich. L. Rev. 1988, 1995-96 (1998)
25 Id. “In 1949, when the division of Germany became
clear, the FRG's Grundgesetz (Basic Law), drafted as a
temporary constitution for the new republic, expressly
endorsed future reunification in its preamble. The document
listed two options to accomplish that goal. On the one hand,
article 146 provided that “this Basic Law will lose its
validity on the effective date of a constitution that has been
chosen by the German people in a free decision.” Thus,
57

it seemed to envisage the drafting of a new constitution on


the occasion of reunification.”
26 Section 23 of the Basic Law for the Federal Republic of
Germany
27 Amended Section 146 of the Basic Law for the Federal
Republic of Germany
146 was thusly amended to read that; “This Basic Law,
which is valid for the entire German
people following the achievement of the unity and freedom
of Germany, shall cease to be in
force on the day on which a constitution adopted by a free
decision of the German people comes
into force.”28 Originally, this article was seen as providing
that there should be a new election
called for a new constitution when the possibility of unity
came about.29 The quick and decisive
amendment process allowed for events on the ground
(popular sentiment for reunification,
opposition by France, and the freefall of the East German
State) to be quickly accounted for.

A Constitution that is Easy to Amend: Colombia

If the United States is the exemplar of a constitution that is


difficult to amend, then
Colombia is the polar opposite.30 Article 375 of the
Constitution states that, in order for an
amendment to be considered; “The government, 10
members of the Congress, 20 percent of
councillors or deputies, or citizens totaling at least five
percent of the electoral rolls in force, may
introduce legislative Acts.”31 This limit can easily be
surpassed in order to amend the
constitution in a very short period of time. Article 375
allows for an amendment to the
Constitution to be passed through Congress through two
rounds of voting, the first of which
requires a simple majority, and the second of which requires
an absolute majority.32 This is one
of the most lenient constitutional amendment processes on
the planet.33
28 Article 146 of the Basic Law for the Federal Republic of
Germany
29 The original text of Article 146 read that “This Basic
Law, which since the achievement of the unity and freedom
58

of Germany applies to the entire German people, shall cease


to apply on the day on which a constitution freely
adopted by the German people takes effect.”
30 See Constitution of Colombia; Article 375.
31 Id.
32 Id.
33 See Constitution of Colombia, art. 375.
The amendment process of the Colombian constitution was
most strenuously tested after
the 2002 election of President Alvaro Uribe Velez.34 The
new President used his vast popularity
and the weak restraints of the amendment process to push
through an amendment that would
grant the President the ability to run for a second term.35
The Constitutional Court agreed that
the second term amendment was allowable, but declined to
extend it to a third term four years
later.36
The President and his supporters used the lenient Colombian
model to push through an
amendment that would allow him a second term in office.37
This leniency could easily have
become a problem if the Constitutional Court had not
stepped in and barred the President from a
third term. The perils of the Colombian model will be
discussed at length in the next section.
The pros of such a system allow for an easy amendment
process if the people of the
nation or the government find it so desirable. Indeed, it was
the supporters of the former
President that wanted him to stay in power for a third term,
and attempted to change the
constitution to allow it.38 This, however, could easily be
abused if the governing authority is
more interested in maintaining its own authority. The
Colombian model is one that I find to be
dangerously lax.

THE DANGERS OF A WEAK CONSTITUTION AND


THE THREAT OF “ABUSIVE
CONSTITUTIONALISM”
Now that the varying models of constitutional amendment
procedures has been
established, we must look to how these models have gone
awry.
59

34 Landau, David; Abusive Constitutionalism, 47. U.C.


Davis L. Rev. 189
35 Landau, David; Abusive Constitutionalism, 47. U.C.
Davis L. Rev. 189
36 Id.
37 Id.
38 Id.
David Landau, a law review writer for the University of
California at Davis, defines the
term abusive constitutionalism as “the use of mechanisms of
constitutional change in order to
make a state significantly less democratic than it was
before.”39 He highlights the regimes of
Egypt, Hungary, and Colombia as places in which this
abuse of the constitution has presented
situations of governmental overreach.40 The systems in
place in these nations were all different.
This allows for a thorough investigation into the possible
issues raised by a weak constitution
(Colombia), ways in which a strong constitutional
amendment procedure might fail (Hungary),
and a case study in how everything that can possibly go
wrong when writing a constitution did
(Egypt).

Constitutional Amendment Problems in Colombia

The case of the former President Uribe has already been


discussed briefly in this paper,
but here I would like to show the dangers of the system that
produced the possibility of a
governmental overreach more clearly. The only thing that
prevented the President from
assuming the ability to run for a third term in office was the
Constitutional Court.41 A system
that relies so heavily on unelected judges to determine the
fate of a nation is one that is rife with
the ability to corrupt. Constitutional Court Justices are
appointed by the President in Colombia.
Had Uribe had the opportunity to “pack the Court” then the
only real effective check on his
power would have been swept away. This possibility is one
that underscores the weakness of a
60

weak constitutional amendment process. Merely having one


branch of the government
shouldering the burden of protecting the constitution is a
horrendous idea on several levels. The
first, as mentioned, is the possibility of corruption. The
second, and perhaps more subtle, is that
39 Landau, David; Abusive Constitutionalism, 47. U.C.
Davis L. Rev. 189
40 Id
41 Id.
the people themselves could come to see the Court as a
burden to the progress of the nation.
Where this to happen, then it provides an opening for the
President and/or the legislature to rally
support for them to take care of the problem by removing
the authority of the Court to please the
will of the people. This would effectively leave the
Constitution in Colombia open to
interpretation on the whim of either the Executive or the
Legislature.

Constitutional Rewriting in Hungary

Hungary has not had a history of constitutional excellence.


After the country was overrun
by Soviet troops following the end of World War II, a
constitution was implemented that
effectively made the small republic a vassal state of the
Soviet Union.42 This constitution was
amended after the fall of the Eastern Bloc, but was not
rewritten as were the rest of the
constitutions of the nations of the Soviet sphere.43 This
became an issue after the Hungarian
Parliamentary Election of 2010. The center right party
Fidesz-Hungarian Civil Alliance (In
Hungarian Fidesz – Magyar Polgári Szövetség) swept the
election with an absolute majority of
the Parliament.44 With this newfound power, a vote for a
new constitution was called. 45 This
was widely seen both inside and outside of the country as an
overreach of legislative power.46
Hungary provides both the strongest example and the
greatest danger of my thesis. A
constitution should be difficult to change, but when those
difficulties are overcome, it is possible
61

that the result is not the consensus of a broad group of


parties but the fiat of a near dictatorship.
The Hungarian governmental revolution exposes some
seemingly dangerous gaps in my theory.
42 Library of Congress: Country Studies
http://lcweb2.loc.gov/frd/cs/hutoc.html
43 Library of Congress: Country Studies
http://lcweb2.loc.gov/frd/cs/hutoc.html
44 Fidesz wins Hungary election with strong mandate;
http://www.reuters.com/article/2010/04/12/us-
hungaryelection-
idUSTRE63A1GE20100412
45
46 Orban Constitution Threatens Hungary Laws, Expert
Says; http://www.bloomberg.com/news/2013-06-
14/orbanconstitution-
threatens-hungary-laws-experts-says.html
But, with the proper analysis, it will be shown that this
bolsters my argument instead of sinking
it. The Hungarian Constitution of 1989 provided precisely
the kind of safeguards that I have been
arguing for. Article 24 of the Constitution stated that “A
majority of two-thirds of the votes of
the Members of Parliament is required to amend the
Constitution and for certain decisions
specified therein.” 47 This is language similar to the
American Constitution. Given that the
language was sufficiently strong, what was it that caused the
government to be enabled to force a
new constitution down the throat of the young republic? The
answer is simple, a catastrophic
failure of the socialist government from 2004 to 2009 to
adapt to the problems that the nation
was facing.48 The Prime Minister was caught in a speech
stating that the party had lied to get
back into power and that they must now move forward.49
This caused widespread unrest and
revolt in the country.50 The idea that a government could
fail so catastrophically that the
opposition could ride a wave of support that allows it to
change the constitution by fiat is one
that would have seemed outside the realm of possibility
even six years ago. I think that the risk
of this happening is low enough that it is not an inherent
threat in the system, but the worst
62

possible conflagration of events.


This is a prime example of how not to rework a
Constitution. There were widespread
protests about the decision, as some saw it as an attempt to
install a near one-party system.51
There are, however, some that say that this was the best way
to promote a more stable Hungary
in the future, as traditionally every election since the fall of
the communist state has produced a
new government. The ham-stringing of the Constitutional
Court seems to provide a strong
47 Hungarian Constitution of 1949,
http://lapa.princeton.edu/hosteddocs/hungary/1989-
90%20constitution_english.pdf
48 Riots over Hungarian PM’s “lies”;
http://news.bbc.co.uk/2/hi/5358546.stm
49 Excerpts: Hungarian ‘lies’ speech;
http://news.bbc.co.uk/2/hi/europe/5359546.stm
50 See Footnote 43
51 Karasz, Palko; Opposition Protests Constitution in
Hungary;
http://www.nytimes.com/2012/01/03/world/europe/rare-
opposition-protests-in-hungary.html
opposition to this view. The current Prime Minister, Victor
Orban, has been quoted as stating
that he is intentionally tying the hands of successive
governments by limiting what they can and
cannot do in regards to governing the Country.52

THESIS AS A RUBRIC FOR CONSTITUTIOANL


AMENDMENT PROCEDURES AT
DIFFERING STAGES OF NATIONAL
DEVELOPMENT

Now that the analysis of various constitutional models has


been completed, the difficult
work of applying the various theories to assemble the
perfect model for amending the
constitution must begin. The formula is broken down into
three divisions.
The first will be termed the “fledgling state.” A fledgling
state will be defined as one that
has recently been released from dictatorial rule or one that
has recently become an independent
63

nation in its own right. Examples of fledgling nations would


be the Republic of Hungary in 1989,
the United States of America in 1776, and the Federal
Republic of Germany in 1949. A
fledgling nation is host to a wide array of problems.
Whether it has recently thrown off the
shackles of dictatorial oppression (Hungary & Egypt),
fought a bitter revolution (the United
States) or recently been utterly and ruthlessly dominated
through war (Germany), a new nation is
beset by a vast amount of problems. First and foremost
amongst those are what shape the new
nation will take, and what its core beliefs are. Is a belief
sufficiently widespread and engrained
in the national consciousness to merit inclusion into the
constitution or is it something that
should best be left to the real of statutory interpretation? It is
because of these problems that a
new constitution should not possess the rigid barriers to
amendment that keep the more
entrenched countries stabilized. A prime example of the
problems of creating such a constitution
can be seen today in Egypt.
52 Orban says constitutional changes “tying the hands of the
next ten governments”;
http://www.politics.hu/20110614/orban-says-constitutional-
changes-tying-hands-of-next-ten-governments/
The second tier I have termed the “transitional state.” This
is a state that has weathered
the fledgling phase and has attained a level of stability that
comes with a well-established
constitutional order. Examples of these nations are Germany
today and the United States in the
early 1900s. Once a state has entered the transitional phase
the constitutional order that is most
preferable is one that is open to change, sometimes rapid, in
order to adapt to external and
internal developments. Germany is a good example of both
the fledgling nation and the
transitional nation paradigm. In the first 25 years of its
existence, the basic law was changed
with an almost clockwork regularity.53 This was in
response to the changes that were occurring
in the new nation and stands as a testament to the ability of
the West German government to
64

whether the changes involved. After this period, there was


roughly a decade and a half of
relative inactivity.54 Then, something interesting happened.
The Soviet dominated Eastern bloc
collapsed, and the Soviet dominated German Democratic
Republic found itself without the one
thing that kept it as a viable state. With the collapse of the
Moscow backed government, events
began to quickly accelerate towards German unification. As
mentioned previously, it was the
ability of the German amendment model to quickly change
Article 146 of the Basic Law that
allowed for a quick German reunification.
The third and final tier has been designated the “established
state.” This state is seen as
relatively removed and secure from any constitutional
crises. It has survived the problems in the
transitional phase and has emerged with a clearer and more
bedrock like constitutional order. An
example of this state is the Kingdom of Denmark. The
Kingdom of Denmark has existed in
53 Bjorn
54 Id.
some form or another since its consolidation in the 8th
Century.55 The Constitution of Denmark
lays down a rigid procedure for constitutional amendments.
When the Parliament passes a Bill for the purposes of a
new constitutional provision, and the Government wishes to
proceed with the matter, writs shall be issued for the
election of
Members of a new Parliament. If the Bill is passed
unamended by
the Parliament assembling after the election, the Bill shall
within
six months after its final passing be submitted to the
Electors for
approval or rejection by direct voting. Rules for this voting
shall
be laid down by Statute. If a majority of the persons taking
part in
the voting, and at least 40 per cent of the Electorate has
voted in
favor of the Bill as passed by the Parliament, and if the Bill
receives the Royal Assent it shall form an integral part of
the
65

Constitution Act.56
Although at first blush it does not seem that Denmark is
overly strict, Professor Rasch explains
that the referendum requirement is a rather onerous burden
needed to pass.57 The referendum
does not require 40% of those voting to approve, it requires
40% of the entire electorate to pass.
As it is spelled out in a constitutional pamphlet promulgated
by the Danish government;
“Finally, the constitutional amendment must be the subject
of a
referendum…It is not enough for there to be a majority in
favour
of the constitutional amendment. The majority must consist
of at
least 40 per cent of all citizens who are entitled to vote. In
fact, this
means that all persons entitled to vote count, even if they do
not
vote or they abstain. If a lot of people stay at home instead
of
voting, it can be hard to get a constitutional amendment
passed into
law.”58
The Kingdom of Denmark has changed its constitution very
rarely since it was first promulgated
in 1849.59 This is due both to the stringent constitutional
amendment procedures as well as the
55 Encyclopedia Britannica; Denmark,
http://www.britannica.com/EBchecked/topic/157748/Den
mark
56 Constitution of Denmark, Part X, Sec. 88
57 Bjorn, at 21
58 My Constitutional Act; http://www.euoplysningen.
dk/upload/application/pdf/0172b719/Min_Grundlov_eng.
pdf
59
http://www.thedanishparliament.dk/Democracy/The_Cons
titutional_Act_of_Denmark.aspx
willingness of the Danish Parliament to adhere to loose
interpretations of the general language of
the law instead of being confined by stricter wording.60
66

EXCEPTIONS TO THE RUBRIC; EGPYT AND THE


UNITED STATES

In the realm of constitutional amendments, as in most


things, the United States is an
exception. Time and again it rears its head and makes my
formulas and rubrics a mess. The
Constitution of the United States was, for lack of a better
term, a Great Experiment. It was an
ambitious and untried idea for forming a nation. The nation
followed the Constitution, not the
other way around. Hungary, for example, was a unified state
as early as 1000, but its extant
constitution dates from a mere three years ago.61 Germany
was unified in 1871, but the Basic
Law only came into effect in 1949.62 For most nations, the
constitution is the code of ideals that
a nation has accumulated and found to be sufficiently
important for inclusion into a constitution.
For the United States, the Constitution is the nation.
It is with this unique historical fact in mind that the United
States will be stated as a rare
exception to my constitutional amendment rubric. The
United States has one of the most difficult
constitutions in the world to amend.63 This makes it
unsuitable for inclusion into my rubric,
which recommends that fledgling nation states have a
constitution that, while stable, should be
relatively easy to amend. Although the United States works
for my example now that it is an
60 Id. “The Constitutional Act of Denmark is one of the
oldest constitutions in the world. It has only been amended a
few times since it was enacted in 1849. This is partly
because making an amendment is a rather complex
procedure,
requiring that both the Danish Parliament and the Danish
people agree to it. However, another important reason is
that the wording in the Constitutional Act is so general that
it can still be applied today, despite major changes in
society and political life over the past 160 years.”
61 Constitution of the Republic of Hungary, 2011
62 Basic Law of the Federal Republic of Germany, 1949
63 Bjorn
established nation, at the time of its inception the
Constitution possessed the same rigid structure
67

that it does today.64


THE DANGERS OF A STRONG CONSTITUTIONAL
AMENDMENT PROCESS AT
THE WRONG STAGE OF DEVELOPMENT

Egypt is a special case. The country has been in a state of


total flux since the ousting of
the dictator cum President Hosni Mubarak.65 After the
Arab Spring revolts that provided hope of
a genuine democratic reform, the country abruptly turned a
hundred and eighty degress and
marched right back into dictatorship. To first understand
what must go right with Egypt, we
must first examine all that went wrong.
Egypt’s Constitution was passed by former President
Mohammed Morsi in 2012, one
year after the overthrow of Mubarak.66 The Constitution
was put to a popular vote, but there
were certain irregularities. Although the Constitution passed
by 63.8% voting yes, only 10.9
Million of the 83 Million people in the Country voted.67
This became decidedly problematic for
the President, as it was soon declared by many in the
country that he and his party had hijacked
the nation.68 This eventually led to his ouster, and the
process of rewriting the constitution began
once again.
64 Constitution of the United States, Art. V
65 Encyclopedia Britannica, Egyptian Uprising of 2011,
http://www.britannica.com/EBchecked/topic/1756982/Egyp
t-Uprising-of-2011
66 Kirkpatrick, David; Army Ousts Egypt’s President;
http://www.nytimes.com/2013/07/04/world/middleeast/egyp
t.html
67 Egyptian Constitution ‘approved’ in
referendum;http://www.bbc.co.uk/news/world-middle-east-
20829911
68 Brown, Jeffrey; Egyptian Army Steps In After Violent
Overnight Clashes at Presidential Palace;
http://www.pbs.org/newshour/bb/world/july-
dec12/egypt1_12-06.html
Part of the fatal flaw of the Egyptian Constitution of 2012
was the perception among the
people of Egypt, and the world, that it did not convey
enough religious freedoms.69 This
68

presumption was led by the overwhelming influence of the


Islamist Muslim Brotherhood
network.70 However, if we look at the amendment
procedures contained in the Constitution, they
are sound.71 The procedures called for a two-thirds
majority vote in both houses of Parliament,
followed by a secondary vote calling for the same majority,
and then finally a public
referendum.72 This Constitution, the first of its “democratic
era” was riddled with flaws.
Although it was put to a popular vote, this vote was
representative of only a small number of the
actual population, allowing widespread resentment and
anger. The strict amendment procedures
did not help this anger. If a large segment of the population
is dissatisfied with a constitution,
and they can see that the barriers to changing it are too high,
then they can easily dissolve into
revolt. These amendment procedures were an attempt to
ensure the stability of the constitution in
the face of radical change. However, Morsi was completely
misguided in his attempt. New
democracies are turbulent places. There must be an
adaptable nature of the constitution to
conform to the realities of a nation that does not yet have a
sense of identity in the new regime.
Although I think that there should be a level of amendment
procedures higher than an
ability to change in the wind, this barrier was too high for a
nation struggling to regain its footing
after a major governmental change.
The problem with Egyptian democracy at the current time is
not only of a constitutional
nature, it is one of history. Up until 2011, Egypt had never
had an elected government. All of
69 Religious Freedom in Egypt “quite tenuous”;
http://www.reuters.com/article/2012/07/30/us-usa-
religionidUSBRE86T1DM20120730
70 Religious Freedom in Egypt “quite tenuous”;
http://www.reuters.com/article/2012/07/30/us-usa-
religionidUSBRE86T1DM20120730
71 Egyptian Constitution of 2012, Article 217
72 Egyptian Constitution ‘approved’ in referendum
;http://www.bbc.co.uk/news/world-middle-east-20829911
69

the previous rulers dating back to antiquity had been


strongmen (or women) that ruled the
country essentially as a personal fiefdom.73 The people of
Egypt have only recently climbed out
of a dictatorial regime that has lasted for decades and “Most
Egyptians are not practiced in civic
activism after being disenfranchised for decades under
President Hosni Mubarak, who was
ousted in 2011.”74 This underdeveloped civic duty has
manifested itself in the overthrow of the
Morsi regime that followed the overthrow of Mubarak.75
The constitution promulgated by that
government was seen as a block to the democracy growing
in Egypt.76 However, part of the
problem was that the constitution was not easily
amendable.77 If the new government is able to
promulgate a constitution that can be shown to both assuage
the fears of the populace and to be
amended to change what the people do not accept, then it
will be a substantial step in the right
direction.
Further complicating the Egyptian matter is the repeated
influence of the Muslim
Brotherhood. The Muslim Brotherhood is the oldest
organized Islamist group in the world, and
was wildly influential during the overthrow of former
President Mubarak.78 The group is
avowedly and staunchly conservative Islamist group. 79 It
was, in fact, the problems inherent in
the overwhelming presence of the Brotherhood in the new
government that was one of the chief
reasons for both the dissatisfaction over the 2012
constitution and the subsequent overthrow of
President Mohammed Morsi.80
73 Encyclopedia Britannica, Egypt;
http://www.britannica.com/EBchecked/topic/180382/Egypt
74 Egypt’s Latest Constitution;
http://www.nytimes.com/2013/12/05/opinion/egypts-
latest-constitution.html
75 Id.
76 Constitution of the Arab Republic of Egypt, 2011
77 Id.
70

78 Encyclopedia Britannica, Muslim Brotherhood;


http://www.britannica.com/EBchecked/topic/399387/Musl
im-
Brotherhood
79 Id.
80 Id.
Faced with such a group, one that is staunchly anti-secular,
how can the desire for
democracy be balanced with the need for establishing order
in this coup-prone nation? Simply
put, it must be shown that an orderly transfer of power is
possible. This is to say that the
Brotherhood must be convinced of the merits of a
democratic system. This would best be
accomplished by the ability to amend the new constitution
easily in addition to a popular
referendum that requires a high percentage of the electorate
to approve it, similar to the situation
in Denmark.
It has been argued that one cannot argue with a religiously
based organization. That is
generally true. However, the Muslim Brotherhood in Egypt
is not al-Qaeda in Pakistan. Yes, it
is a group based around religious ideals. So are nearly half
of the political parties in power today.
The leadership of the Brotherhood is nothing if not
practical. They survived the British, the
Egyptian Monarchy, and then nearly fifty years of
dictatorial regimes of varying serenity.81
Showing the Brotherhood that they can have a say in
politics is the first way towards
achieving the peace that Egypt so sorely needs. It must be
proven to them that they will not be
marginalized or removed from the picture in one way or
another. I believe that this goal will be
greatly aided by a more relatively loose amendment
procedure to the new constitution.
My original idea was to have a very loose model for a state
such as Egypt (fledgling
state) and that the constitutional model should be very easy
to amend. However, after some
consideration that does not seem to be fully applicable. Not
quite so easy as Colombia, but not
quite something so stringent as Germany. Due to the
unpredictable and rapid changes possible in
71

the Egyptian political landscape the most important thing is


to get all the warring sides to sit
81 Encyclopedia Britannica, Muslim Brotherhood;
http://www.britannica.com/EBchecked/topic/399387/Musl
im-
Brotherhood
down and agree to talk to one another. If both sides can be
confident that 1) their voices wqill be
heard and 2) they will not be marginalized after the process
is complete. Furthermore, and
possibly even more important, there must be a strict
referendum procedure in place that reflects
both the needs of the Egyptian populace and takes into
account the myriad issues with the
previous constitution. I believe that the best way to
accomplish this would be a referendum on
the new constitution that requires a high percentage, not of
the people voting, but of the total
electorate. In this regard, we should look to Denmark and its
constitutional amendment process,
specifically, the 40% of the electorate that is required to
pass an amendment. This referendum
would necessarily be a higher bar than the low requirements
needed for the Parliament to pass
the proposed change. The referendum would need to be a
three-quarters majority in order to pass
muster. Part of the issue with the 2011 constitution was that
although there was a 60% approval
rate, the voter turnout was low. 82
With a timing that can only be seen as cosmically
humorous, the Egyptian government
agreed on a draft of the new constitution on December 2,
2013.83 The new constitution was
approved by a committee of fifty members that are
appointed by the interim President, Adli
Mansour.84 While the Muslim Brotherhood dominated the
original constitutional proceedings, it
only had one representative on the new committee, albeit an
ultraconservative one.85 While not
totally representative of the Egyptian populace, the
committee seems more able to handle the
country’s transition to democracy; “Various unions,
syndicates, and state bodies were allowed to
choose their own representatives, and the president
peppered the body with some prominent
72

82 Egyptian Constitution ‘approved’ in referendum;


http://www.bbc.co.uk/news/world-middle-east-20829911
83 Egypt’s Committee of 50 rewrites the Constitution-
again;
http://america.aljazeera.com/articles/2013/11/11/egypt-
constitutioncommitteeof50.html
84 Egypt’s Daring Constitutional Gang of 50;
http://mideastafrica.foreignpolicy.com/posts/2013/09/20/
egypts_daring_constitutional_gang_of_50
85 Id.
politicians and intellectuals.”86 The translation of the newly
draft of the constitution is not yet
available in English. However, there is a comparison of the
1971 Mubarak Constitution, the 2011
Morsi Constitution and the 2013 (Sisi?) constitution.
Although the document does not deal
specifically with the amendment process to be included in
the new constitution, we can glean
what that process might be from the actions of the
Committee itself.
As stated by the Carnegie endowment;
Egyptians will soon vote in a referendum on a new
constitution, their second in just over a year. Following the
removal of then president Mohamed Morsi from office on
July 3,
Egypt’s military-backed government began a two-phase
process of
creating a new constitution. During the first phase, the
regime
tasked a committee of ten legal experts with drafting a list
of
constitutional amendments. In the second phase, it
appointed a
committee of 50 representatives from various state
institutions and
social groups to build upon these amendments and write a
new
constitution. The draft, which was finalized on December 1,
2013,
is meant to replace Egypt’s 2012 constitution, which was
written
by an Islamist majority and approved by a December 2012
referendum with 63 percent of the vote.87
73

The process by which the Committee came up with the


amendments to the Constitution
was one of debate and intellectual discourse.88 The minutes
and the deliberative processes that
the Committee engaged in are not yet translated into
English. However, what we can ascertain is
that the process was much more representative of a modern
democracy than the previous
constitutional committee, which was essentially an organ of
the Muslim Brotherhood. Despite
the problems inherent in Egypt today, there is a light at the
end of the tunnel. The Egyptian
people have shown that they have no problem with
overthrowing a dictatorial regime. If the
86 Id.
87 http://carnegieendowment.org/files/Comparing-Egypt-
s-Constitutions.pdf
88 Egypt’s Daring Constitutional Gang of 50;
http://mideastafrica.foreignpolicy.com/posts/2013/09/20/
egypts_daring_constitutional_gang_of_50
military, as many fear, attempts to remain in power for an
indeterminate future, they will find
themselves on the same side of history as Mubarak and
Morsi.
Despite the more rosy future painted by the process by
which the new constitution was
drafted, there are still problems on the horizon. The Muslim
Brotherhood has rejected the new
constitution.89 Despite this, there is the possibility that the
Brotherhood can be placated in the
future. As stated in USA Today;
“The one ultraconservative Islamist on the panel,
Mohammed
Ibrahim Mansour of the al-Nour Party, said the document
struck a
good balance between the teachings of Islam and civil
freedoms.
His support comes despite the removal of several provisions
that
ultraconservative Islamists had introduced into the Morsi-
era
charter, worrying liberals who feared they could be a
prelude
toward stricter implementation of Islamic law, or
Shariah.”90
74

This is the first stage towards reconciliation and eventual


symbiosis between the formerly
frantic Brotherhood and the new government of Egypt. If an
ultraconservative cleric can be
welcomed into the debate process and help to pave the way
for a constitution that will be more
acceptable to all, then maybe Egypt isn’t as far-gone as
some would like to believe.
89Egypt’s Muslim Brotherhood Rejects Draft
Constitution.
http://mideastafrica.foreignpolicy.com/posts/2013/12/02/
egypt_s_muslim_brotherhood_rejects_draft_constituti
on
90 Egypt Overhauls constitution, empowers military;
http://www.usatoday.com/story/news/world/2013/12/02/
egypt-overhauls-constitution-military/3812457/

CONCLUSION

Nothing works in a vacuum, and this is especially true of


politics. The Constitution itself
is just words on a page: a paper that defines the nation. In
order to truly protect liberty there
must be something protecting the spirit of those words. I
think that the best safety procedure for
a constitution is an amendment process that allows for the
natural maturation of a constitution,
yet sets a very high bar to change. A constitution should not
be changed on a whim or to suit the
needs of a particular moment. As the ultimate expression of
national self-identity, a constitution
should be the bedrock foundation upon which the law of the
nation is built.
75

What are the Types of


Constitutional Amendment in
India?

Article 368 in Part XX of the Indian Constitution deals with


the powers of Parliament to amend the Constitution and its
procedure. It states that the Parliament may, in exercise of
its constituent power, add/remove an article, repeal any
provision of the Constitution. But no change can be done in
the basic structure of the constitution. The constitution can
be amended in three ways:

i. Amendment by simple majority of the parliament

ii. Amendment by special majority of the parliament

iii. Amendment by special majority of the parliament and


the ratification of half of the state legislatures.

Now all the three ways are explained below one by one:

i. By Simple Majority of Parliament:

So many provisions in the Indian Constitution can be


amended by a simple majority of the two Houses of
Parliament outside the scope of Article 368. These
provisions include:

1. Admission or establishment of new states

2. Formation of new states and alteration of areas,


boundaries or names of existing states

3. Abolition or creation of legislative councils in states


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4. Second Schedule—emoluments, allowances, privileges


and so on of the president, the governors, the Speakers,
judges, etc.

5. Quorum in Parliament

6. Salaries and allowances of the members of Parliament

7. Rules of procedure in Parliament

8. Privileges of the Parliament, its members and its


committees

9. Use of English language in Parliament

10. Number of puisne judges in the Supreme Court

11. Conferment of more jurisdictions on the Supreme Court

12. Use of official language

13. Citizenship—acquisition and termination

14. Elections to Parliament and state legislatures

15. Delimitation of constituencies

16. Union territories

17. Fifth Schedule—administration of scheduled areas and


scheduled tribes

18. Sixth Schedule—administration of tribal areas

Amendment of the Constitution

ii. By Special Majority of Parliament

The majority of the provisions in the Constitution need to be


amended by a special majority of the Parliament, that is, a
majority (that is, more than 50 per cent) of the total
77

membership of each House and a majority of two-thirds of


the members of each House present and voting. The
expression ‘total membership’ means the total number of
members comprising the House irrespective of fact whether
there are vacancies or absentees.

‘Strictly speaking, the special majority is required only for


voting at the third reading stage of the bill but by way of
abundant caution the requirement for special majority has
been provided for in the rules of the Houses in respect of all
the effective stages of the bill’.

The provisions which can be amended by this way include:

(i) Fundamental Rights

(ii) Directive Principles of State Policy

(iii) All other provisions which are not covered by the first
and third categories.

iii. By Special Majority of Parliament and Consent of


States:

Those provisions of the Constitution which are related to the


federal structure of the polity can be amended by a special
majority of the Parliament and also with the consent of half
of the state legislatures by a simple majority. If one or some
or all the remaining states take no action on the bill, it does
not matter; the moment half of the states give their consent,
the formality is completed. There is no time limit within
which the states should give their consent to the bill.

Polity: Complete Study Material

The following provisions can be amended in this way:

1. Election of the President and its manner.

2. Extent of the executive power of the Union and the states.


78

3. Supreme Court and high courts.

4. Distribution of legislative powers between the Union and


the states.

5. Any of the lists in the Seventh Schedule.

6. Representation of states in Parliament.

7. Power of Parliament to amend the Constitution and its


procedure (Article 368 itself).
79

Constitutional Amendment
Provisions
Article 368 in Part XX of the Constitution deals with the
powers of Parliament to amend the Constitution and its
procedure. It states that the Parliament may, in exercise of
its constituent power, amend by way of addition, variation
or repeal any provision of the Constitution in accordance
with the procedure laid down for the purpose.
The procedure for the amendment of the Constitution as laid
down in Article 368 is as follows:
1. An amendment of the Constitution can be initiated only
by the introduction of a bill for the purpose in either House
of Parliament and not in the state legislatures.
2. The bill can be introduced either by a minister or by a
private member and does not require prior permission of the
president.
3. The bill must be passed in each House by a special
majority, that is, a majority (that is, more than 50 per cent)
of the total membership of the House and a majority of two-
thirds of the members of the House present and voting.
4. Each House must pass the bill separately. In case of a
disagreement between the two Houses, there is no provision
for holding a joint sitting of the two Houses for the purpose
of deliberation and passage of the bill.
5. If the bill seeks to amend the federal provisions of the
Constitution, it must also be ratified by the legislatures of
half of the states by a simple majority, that is, a majority of
the members of the House present and voting.
6. After duly passed by both the Houses of Parliament and
ratified by the state legislatures, where necessary, the bill is
presented to the president for assent.
7. The president must give his assent to the bill. He can
neither withhold his assent to the bill nor return the bill for
reconsideration of the Parliament.2
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8. After the president’s assent, the bill becomes an Act (i.e.,


a constitutional amendment act) and the Constitution stands
amended in accordance with the terms of the Act.
The constitution can be amended through the following
methods:
1. Amendments by Simple Majority (ordinary legislative
process): A large number of provisions contained in the
constitution are open to change by a simple majority. These
may be divided into two classes.
(a) Where the text of the constitution is not altered but the
law is changed. Article 11 confers on the Parliament power
to enact a law regarding citizenship. An Act made in
pursuance of that power will change the law relating to
citizenship without altering the text of Article 5 to 10.
Article 124 still refers to the Supreme Court as consisting of
the Chief justice and 7 judges. But in exercise of its power
the Parliament has increased the strength of the judges from
7 to 25.
(b) Where the text of the constitution is changed:
1. Formation of new state.
2. Creation or abolition of legislative council
3. Creation of council of ministers for Union territories
4. Extending the period of 15 years fixed for the use of
English in Article 343.
5. Defining Parliamentary privileges [Article 105(3)]
6. Salaries and allowances of President, Vice-President,
Judges, etc.
2. Amendments requiring special majority only: Except
those provisions which are amendable by an ordinary
majority, the rest of the provisions require a special majority
for amendment. The Amendment Bill must be passed by a
majority of two-thirds of the members of each House
present and voting and such majority must exceed 50% of
the total membership of the House.
3. Amendments requiring special majority and
ratification by States: Those provisions which relate to the
81

federal structure of the constitution require special majority


in Parliament as well as ratification by at least half of the
state legislatures. This procedure is required in the
following provisions:
(a) Manner of election of President
(b) Executive power of the Union and the State
(c) The Supreme Court and the High Courts
(d) Distribution of legislative power between the Union and
the States
(e) Representation of states in Parliament
(f) Article 368 itself
Apart from these provisions for formal amendments of the
constitution, the constitution also gets amended through
constitutional practices, conventions and by judicial
interpretation. Judicial interpretation has played especially
important role in our constitution insofar as the Supreme
Court has held that the basic structure or framework of the
constitution cannot be changed by an amendment and
court’s power to examine whether that limit has been
exceeded have been held to be part of the basic structure of
the Constitution.
82