constitutional amendment, Lecture notes of Constitutional Law

Download constitutional amendment and more Lecture notes Constitutional Law in PDF only on Docsity! CHAPTER 1-INTRODUCTION In the ancient times , there was no existence of word 'Constitution'. Crown was the sole source of all the authority and he personally exercised the Supreme Executive, Legislative and Judicial powers. As it was in case of India, during the East India Company, that all powers were vested in the hands of the British Personnel and there was no separation of power among the government. According to Charles Howard McLiwain "Constitutional Government is a Limited Government. Constitution is a legal limitation on Government; it is a anti-thesis of an arbitrary rule; it is a Government of Law-instead of will”1. The word 'Constitution' is used in Great Britain in the broader sense. It is used to describe the whole system of government of a country, the bunch of rules which establish and regulate the government. But in almost all the other countries, the word. 'Constitution' is used in a narrower sense. It is used to describe not be whole bunch of the rules, legal and extra-legal but rather selection of legal rules only, which is usually embodied in one document which operates the working of the government C.F. Strong defined a constitution as "A constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed, and the relations between the two are adjusted. The constitution may be a deliberate creation on paper, it may be found in one document which itself is altered or amended as time and growth demand or it may be a bundle of separate laws given special authority as the laws of the constitution.2 Lord Bryce observed: "A frame of political society, organised though and by law, that is to say, one in which law has established permanent institutions with recognised functions and definite rights. "3 The contemporary use of the term Constitution was established when it was applied to the new instruments of government adopted by the American colonies after their separation from Great Britain in the later part of the 18th century. The era of (1776-1789) in which the American Constitutions came into being has been called by Seeley, a period which is “pre- eminently the Constitutional period of the Modern period."4 Written Constitutions since then have been the general rule in almost whole of the Constitutional world. In the words of J.W. Garner, a typical written constitution contains three sets of provisions: first a series of prescription setting forth the fundamental civil and political rights of the citizens, and imposing certain limitations on the power of the Government as a means of securing the enjoyment of those rights; second a series of provisions outlining the organisation of the Government, enumerating the powers, laying down certain rules relating to administration and defining the electorate ; and third a provision or provisions pointing out the mode of procedure in accordance with which formal changes in the Constitution may be brought about.5 In a written Constitution the provision relating to its adaptability to the social changes is the real test of its existence. A Constitution that is devoid of an amending provision will be the most inadequate and imperfect document and hence deemed to failed in long run.A Constitution with foresight will lay down a feasible procedure of its amendment in such a manner so as to forestall any revolutionary changes. Besides this there have been times that the Constitution makers have thought of enacting a Constitution that was permanent and capable of being to deal with the problems of the dynamic society. The Constitution of nation is the express manifestation of the life of the people and it must respond to the societal changes. Even if the alternatives are not provided for such change, there will be the situation where there be chances of clashes and no following of constitution. Main reasons for the need of amendments include: 1. Democracy in the traditional sense called as a majority rule i.e representation 2. Improvement of decision-making procedures needs to be taken 3. Adjustment to transformations in society in political, economic, cultural scenario 4. Adjustment to international cooperation needs time to time changes 5. Flexibility and efficiency in decision-making due to dynamic time 6. Ensuring, adjusting or reconfirming fundamental rights to satisfy the human basic rights Calling the Indian Constitution as a “living” document unduly minimizes the fixed and enduring character of its text and principles. The Indian Constitution is treated quite differently. In my opinion, interpretations, applications, and understandings of the Constitution's text and principles may change, but the Constitution itself does not change unless properly amended. The Constitutions are fundamental legislative works, on which may depend upon the evolution of a state, its stability and wellbeing. The drafting committee of the framers is reflected in Article 368 which calibrates the level of amendment in such a way that gives ample room to both rigidity and flexibility. Hence, India's constitution has a varied level of amendment procedure depending on the issue. The optimal threshold for amendment balances the need for change in response to exogenous developments, and the interest in preventing the government from entrenching its power.6 2 sabotaged when the pressures become demanding and rapid. We predict that such Constitutions will force drafters to take extra-constitutional action to secure changes in order to make the document long live with wide acceptance of public. Constitutions should grow, if they are of any value; they have roots, they should be ripen with the passage of time. Those that are fashioned to resemble painted sticks, planted in the ground, as I have seen in other countries what are called the trees of liberty. They strike no root, bear no fruit, swiftly decay and are long perish.”10 , Constitutions depend on inherent stability; an exclusively ‘on dynamic conception of dynamic constitutions in constant normative surface would not meet these requirements: ‘A government, is changing and changeable mechanism in a democratic society, which indeed, in a state bordering upon anarchy and confusion’ As much as constitutions serve as normative foundations of political systems elevated from normal politics, they cannot evade itself completely from being responsive to a changing political environment. Therefore, it is desirable for democratic form of government to have a constitution which is being needed and adaptable to changes with the dynamic societal needs simultaneously while satisfying the credibility test. . A Constitution may be either written or unwritten. A written Constitution born at one instance and therefore it is not born but grows by amendment which themselves become part of it by incorporation.11 Constitution Framers were fully aware that, an unamendable Constitution has no value. In Written Constitutions, the amending provisions are having great importance and these provisions ensure smooth and flexible functioning in the nation. The amending provisions were formulated by the Indian Constituent Assembly after a enlarging debate session and detailed investigation of amending provisions of several Countries Constitution viz., United States of America, Australia, France, Switzerland, South Africa, Canada etc. In order to avoid the problems which are facing in rigid and flexibility provisions of amendment, our constitution drafting committee shaped Art.368 as blend of rigidity and flexibility. That means the amendment process of Indian Constitution is not purely a rigid constitution and at the same time it is also not fully flexible. The Constitution of India is a result of socio economic and political factors which existed at the time of independence of the country. These factors were considered as dynamic and not static due to changes in the world order. 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 changes in the economic philosophy of a State may necessitate for the amendment provisions of the Constitution. 1 McLiwin, Charles : Howard Ancient and Modern Constitutionalism 1940 2 Strong, C.R: Modern Political Constitutions (1949) 3 Lord Bryce:Modern Democracies.Vol.II 4 J.R. Seeley, Introduction to Political Science, Two Series of Lectures, Macmillan and Company, 1896 5 James Wilford Garner, Political Science and Government, American book Company, New York, 1928 6 Jain, M.P : Indian Constitutional Law 2014 7 Constitutional Assembly Debates vol 7 8 Black Law Dictionary: sixth edition 1990 9 Jain, M.P : Indian Constitutional Law 2014 10 Granville, A: The Indian Constitution : Cornerstone of A Nation, 1999 11 Chaturvedi, K.N, ‘Amendment to the Constitution’ 1985 6