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Amendment of Indian
Constitution - Article 368
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.
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.
Majority Judgement:
Sikri C. J.
Jaganmohan Reddy, J.
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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Conclusion:
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,
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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,
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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
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Conclusion:
Curative Petition
These are:
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
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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
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CONCLUSION
Now all the three ways are explained below one by one:
5. Quorum in Parliament
(iii) All other provisions which are not covered by the first
and third categories.
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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