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Friday, November 27, 2015



November 27, 2015
Constitutional Law

Aspirations of the Nations are reflected in their Constitution, written or unwritten. The moving finger writes  and goes on writing, in the Parliament, Courthouse and if I may say so, in the media and in the minds of the people. Judge-made Law is no less important than the lawfully enacted amendments. Lest it goes unnoticed, let it be asserted that unwritten principles  ( ‘SatyamEva JayathE’) are firmly implanted in the constitutional apparatus. In that welcome process, the original written document can be the torch-bearer or could, on the contrary, become the dark alley. The citizens’ shield is his acute awareness. As J.S.Mill put it, ‘ Vigilance is the price of Liberty’.

By way of illustration, we may consider the fate of the Article 368 and in particular, 368(4) and (5) of the Constitution of India, which read as under:
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 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 States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.
  1. 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.
  2. 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.

Without getting bamboozled by the tortuous turn of the words in turmoil in those articles (and elsewhere too!), it can be safely asserted that they unambiguously  proclaim the over-arching power of Parliament to amend the Constitution. 
It is of interest to grasp what went on the minds of the framers of the Constitution.

B.R.Ambedkar speaking in the Constituent Assembly on 4 November 1948

"...It is said that this Constituent Assembly is not elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while the latter has been denied the same right. It is paraded as one of the absurdities of the Draft Constitution. I must repudiate the charge because it is without foundation...One has only to study the provisions for amendment contained in the American and Australian Constitutions...The Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind... Parliament will have an axe to grind.That explains why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it."

Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948: 

"While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible ... while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I thinks it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote - man and woman - the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so - under this Constitution of course it will have the right to do anything - should have an easy opportunity to make such changes as it wants to. But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible ...".

Dr. P.S. Deshmukh believed that the amendment of the Constitution should be made easier as he felt there were contradictory provisions in some places which would be more and more apparent when the provisions were interpreted, and that the whole administration would suffer, if the amendment to the Constitution was not made easy. Brajeshwar Prasad also favoured a flexible Constitution so as to make it survive the test of time. He was of the opinion that rigidity tends to check progressive legislation or gradual innovation. On the other hand, H.V. Kamathfavoured ensuring procedural safeguards to avoid the possibility of hasty amendment to the Constitution.

H.V. Kamath was an astute and earnest Parliamentarian, who never minced his words. He called a spade a spade. We shall have many opportunities to listen to his famous articulations, later.

This part concludes by drawing attention to the case of Kesavananda Bharati v State of Kerala which upset the apple-cart! It is a curious case in the sense that Kesavananda Bharathi was clueless about the case in his name that was a milestone in the evolution of the Indian Democratic Entity.