constitutional amendment, Thesis of Law

Download constitutional amendment and more Thesis Law in PDF only on Docsity! CHAPTER 4 – COMARATIVE STUDY OF AMENDABILTY PROVISION IN SELECTIVE CONSTITUTION OF THE WORLD INTRODUCTION Constitution of a country is a set of rules and regulation that governs the working of the organs of government with in its spherical work or while discharging the function of checks and balances. Constitution can be written or oral nature but its working is totally dependent upon its adaptability of the country. As the oral constitutions laid it’s working upon its usages and conventions on other hand the written one laid its working as according to its provisional aspects. The essence of a written Constitution lies in its mode of amendment. The amendment process is an opportunity to express democratic conceptions of basic constitutional values without derogating from the fundamental constitutional principles.1 No Written Constitution is complete without the incorporation of amending provisions, in some respect, the amending provision is the most important part of the Constitution. A Constitution is a system of fundamental book of laws or principles for the governance of a nation. The Constitution clearly states the principles and framework of the law and its country government. The amending provision in written constitution assumes great importance because it gives chance to successive generation to use it as per their changing desires. It is not possible for a written Constitution to specify all its objects and purposes or the means by which amendments are to be carried into effect. Framers of a Constitution cannot anticipate conditions which may arise in the near future in progress of a nation or establish all laws which may be necessary from time to time to do justice to the changing conditions of a society. The amending provisions were formulated by the Constituent Assembly after a detailed debate and investigation of amending provisions of several Countries Constitution viz., United States of America, Australia, France, Switzerland, South Africa,Canada etc2. In order to avoid the problems which existed in rigid and flexibility provisions in amendment, our constitution Framers adopt Art.368 as fine blend of rigidity and flexibility. Constitution Framers were fully aware that, an unamendable Constitution has no value, in Written Constitutions, the amending provisions are of greater importance that ensure smooth and flexible on version record of the upcoming scenario. The constitution of US, Switzerland, Australia, Canada, West Germany, South Africa, Yogoslavia, U.S.S.R., India, Malaysia and Nigeria etc. would be called as federal constitution, as they have written constitutions as they are intended to be work over the Legislatures and provisions of it cannot be altered by the legislatures action through the ordinary process of legislation. 1 Analyses of Different Constitution of World A Federal constitution is called rigid constitution, because it requires special procedure for its alteration or amendment. Rigid constitution is that one which enjoys an authority superior to that of the other statutory laws of the state and can be changed only by a method different from that whereby other laws that are enacted or repealed by legislature only. It can be changed only by a special procedure which is usually laid down in the constitution. Federal constitutions like, U.S.A. , Australia, Switzerland, Canada, South Africa, West Germany, U.S.S.R., Yugoslavia, India, Malaysia and Nigeria had been drafted by their constitutional Assembly and it has clearly lay down specific method of amendment under the provisions of their constitutions. In all the federal constitutions, there is a written constitution, which is known as a Supreme Law or Basic law or Fundamental law of the country, which has a fixed prescribed method for its amendment process. Usually, such amending process of federal constitution is different from the ordinary legislative process. Amending process given in the hands of legislative body, it may be federal legislative body or State legislative body or mixed form of the both bodies. In the U.S.A., the Amending Process provided in the constitution requires a joint collaboration by the Federal and its provincial units. Under Article V of U.S.A., there are two methods of amendments; first method is amendment by congress and second method is amendment through the conventions3. Under the first method, amendment of the constitution may be proposed by the congress and proposed amendment must be subsequently be rectified by the State Legislatures. While the under the second method, the state Legislatures may request to congress summon a constitutional convention. Congress shall thereupon do so, having no option to refuse the proposal and then convention drafted and submitted to amendments. Then convention may be called in the several states and it may be ratified by them. In U.S.A. there is provision of the convention method, but there is no specified method for composing to the body of conventions. However convention method of amendment has been given in the U.S.A constitution, but on many of the occasions on which the amending power has been exercise first method of amendment has been employed and no drafting conventions of the whole union or ratifying conventions in the several states have ever been summoned4.Convention method of U.S.A. was not adopted by other countries, because that method would not get success in own country and it is a very long and complicated process of amendment. In convention methods both legislative bodies centre as well as states form a new amending body which takes enormous time. 2