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Mains Answer Writing

16-February-2024

Q1) What is the process for amending the Constitution of India? Discuss the significance of the Kesavananda Bharati case in relation to the power of Parliament to amend the Constitution.

(250 Words/15 Marks)

ANSWER

The constitution of India is structured with a mixture of flexible and rigid features. Many of its parts can be changed through a process akin to passing simple law, while others demand much stricter requirements as detailed in article 368 of the constitution. The changes to the constitution under article 368 are called the amendments to the constitution.

 The process for amending the Constitution is as follows:

  1. An amendment to the Constitution is initiated through a bill for the same by a minister or by a private member in either house of parliament. If initiated by a private member, the bill needs recommendation from the Committee on Private Members’ Bills and Resolutions.
  2. The bill must be passed by each house of the parliament separately through a special majority, i.e., >50% of the total membership of the house as well as 2/3rd of the present and voting members. Joint sitting is not permitted for Constitution Amendment Bills.
  3. When any of the federal provisions must be amended, the bill needs an additional ratification through simple majority by half of the total legislative assemblies in the country.
  4. After the bill is duly passed by both Houses of Parliament and ratified by the state legislatures, it is sent to the President for his assent. President is bound to give his assent to the bill.
  5. After the President’s assent, the Constitutional Amendment Act is published in the official gazette.

Significance of the Kesavananda Bharati Case for the Parliament’s power to amend the constitution is as follows:

  1. It freed the parliament’s powers under article 368 from limitations of article 13. The court overruled the Golaknath judgement and declared that amendment are not laws.
  2. The case established the supremacy of the constitution through the basic structure doctrine It held that certain features of the constitution are beyond the amending power of the parliament.
  3. The verdict preserved the judicial review of the constitutional amendment acts on grounds of violating the basic structure.

E.g., SC in the Minerva Mills case struck down provisions in the 42nd amendment arguing that parliament’s power to amend is limited.

  1. It declared secularism as the basic feature of the constitution before the word was added to the preamble. It reduced the scope for majoritarianism.
  2. Being dynamic in nature, this judgement is open to progressive changes over time. Thus, the court has outlined various basic features over the years.

E.g., in SR Bommai case (federalism), Indira Gandhi case (rule of law, judicial review) etc.

The Kesavanand Bharti case has checked the parliament’s power to amend the constitution. In this process, it has made the basic structure doctrine the bedrock of constitutionalism in India.

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