Monumental Amendments of The Indian Constitution

The British crown ruled India for almost 200 years. The rule of Britishers began establishing in India when Robert Clive won over Bengal in the Battle of Plassey in 1757. Later British rule expanded throughout the Indian subcontinent. Finally, after years of struggle & rebellion, India got independence from the United Kingdom on August 15, 1947. A Constituent Assembly was formed with people representing all the regions of the country, so interests of all the communities could be considered while drafting the Constitution. India chose to become sovereign, socialist, secular, democratic & republic nation by adopting the constitution on November 26, 1949. It came into force on January 26, 1950. Though the constitution was tailored to the needs of the people, the scope of the amendment was provided so provisions of the constitution could be altered to the needs of the evolving society.

Article 368

Part XX of the constitution titled as ‘Amendment of the Constitution’ contains Article 368, which states the procedure for amendment. The Parliament of India is empowered to amend any provision of the constitution by addition, variance or repeal. The constitution can be amended by 2 methods: Informal and Formal. An informal method, changes are made in a well-established convention or interpretation of the provisions of the constitution. For example, the senior-most judge of the Supreme Court (SC) is appointed as the Chief Justice of India (CJI). But, in 1973, Justice A. N. Ray was appointed as CJI, who was junior to 3 judges. Thus, a change was brought in the operation of Article 124(2) regarding appointments. Also, if the SC finds that any of its previous judgements is erroneous, it can overrule it. Hence, over the time new interpretations are given to the same constitutional provisions. The constitution can be amended formally by Simple majority, Special majority, and Special majority in both the Houses of Parliament with ratification by at least half of the State Legislatures. For the Legislature to amend any provision, it should be a matter under their competence and not void under Article 13.

Important Amendments

The Constitution of India grants the Parliament, the power to amend the constitution. But it is in the hands of SC to interpret the scope of their amendment power. The Constitution (1st Amendment) Act, 1951 introduced the following changes:

  • To introduce agrarian reforms and take steps for abolition of Zamindari system, some State Governments introduced legislations. Bihar Legislature enacted the Bihar Land Reforms Act, 1950 which enabled the acquisition of estates of three leading zamindars of Bihar. This act was struck down in Kameshwar Singh v State of Bihar[1] by Patna High Court due to violation of Article 14. Thus, Article 31A was added by 1st Amendment to remove this difficulty.
  •  In the case of Ramesh Thaper v State of Madras,[2] SC held that even if a citizen advocates murder or other crimes of violence, he still cannot be held culpable because the term ‘Freedom of Speech & Expression’ under Article 19(1) (a) was very comprehensive. The term ‘friendly relations with foreign states, public order and incitement to an offence’ was added in Clause 2 of Article 19 so reasonable restrictions could be imposed.
  • Reservation of seats for Scheduled Castes, Scheduled Tribes & Backward classes violated Article 15(1) and Article 29(2) of the Constitution. This was held by the SC in State of Madras v Champakam Dorairajan[3]. Thus Clause 4 was added to Article 15 to provide reservations and nullify the effect of this judgement.
  • Article 31 B was added to immunize the laws included in the Ninth Schedule from any acquisition claiming their inconsistency with the Fundamental Rights.
  • Article 19 Clause (6) (ii) was amended to validate nationalisation of any trade, business, industry or service by the state to partial or complete exclusion to others.
  • In Shankari Prasad v Union of India,[4] the constitutionality of the 1st Amendment was upheld and SC held that Parliament can amend any part of the Constitution including the Fundamental Rights because Article 368 conferred them with constituent power.

The West Bengal Land Development and Planning Act, 1948 was struck down in the case of State of West Bengal v. Bella Banerjee [5] because the compensation for the land acquired was not to exceed the market value of the property as on 31st December 1946. SC held that giving ‘compensation’ meant giving ‘just equivalent’ of what a person is deprived of. And in this case, the compensation had no relation to the market value of the property when it’s acquired, making the act unconstitutional. In response to such decisions, The Constitution (4th Amendment) Act, 1955 was enacted to bring the question of compensation out of the realm of the courts. Article 305 was also amended to prevent state monopoly from being challenged under Articles 301 & 303. In the Ninth Schedule, 7 acts were added.

In The Constitution (7th Amendment) Act, 1956, Second and Seventh Schedule were amended to give effect to the States Reorganization Act, 1956. Classifications of states were abolished and states were reorganised into 14 States & 6 Union Territories. Also, Union Territories were brought under the jurisdiction of High Courts.

By the enactment of The Constitution (17th Amendment) Act, the meaning of the term ‘estate’ in Article 31A was modified to avoid difficulties in the transfer of land from one state to another while state reorganisation. It also added 44 acts to the Ninth Schedule. In Sajjan Singh v State of Rajasthan,[6] the constitutionality of this amendment was upheld. Finally in the celebrated case of Golak Nath,[7] the constitutionality of 1st, 4th and17th Amendment was questioned. The 11 Judge bench of SC by 6: 5 majority overruled the previous decision of Shankri Prasad and Sajjan Singh, and held that Parliament cannot amend Fundamental Rights. This decision was prospective in nature i.e. previous amendments were not invalidated but Parliament could not abridge any Fundamental right in future.

To nullify the effect of Golak Nath, The Constitution (24th Amendment) Act, 1971 was introduced. It amended Articles 13 and 368 and conferred unlimited and absolute power over Parliament to amend any provision of the Constitution by the way of addition, variation or repeal. The word ‘compensation’ was replaced with ‘amount’ by The Constitution (25th Amendment) Act, 1971, to make the amount given to any person on an acquisition of property beyond the scrutiny of the courts. In the Keshavananda Bharti case,[8] the validity of the 24th Amendment was upheld but could not alter the basic framework of the constitution.

Justice Khanna held that the amending power of the Parliament extended to all the provisions of the constitution but such amending power is not unlimited and cannot abrogate basic structure. He also mentioned that Right to property was not part of the basic structure. The 25th Amendment was also held valid in the case, but if the amount fixed or principles specified to fix the amount for requisition of the property was a fraud on the Constitution; such law could be questioned in the court of law. It was also held that if an act is added to the Ninth Schedule, it could not be protected by Article 31 B if it violates the basic framework of the Constitution.

In Indira Gandhi v Raj Narain (Election case),[9] Allahabad High Court invalidated the election of Indira Gandhi for involving in corrupt practices under the Representation of People Act, 1951. She appealed to the SC. During the pendency of the appeal, she enforced The Constitution (39th Amendment) Act, 1975 which inter alia, inserted Article 329A to place the election of Speaker, Prime Minister, President and Vice-President beyond the scrutiny of the courts. SC struck down this law stating that Judicial Review, Free and fair election, Right to Equality and Rule of Law are the part of the basic structure of the Constitution.

The Constitution (42nd Amendment) Act, 1976 added the words socialist, secular and integrity to the Preamble. It also added Fundamental Duties in Part IV A of the Constitution. It gave more importance to the Directive Principles of State Policy over the Fundamental Rights. It also inserted Clause 4 and Clause 5 to Article 368 to keep constitutional amendments out of the realm of the courts. In the case of Minerva Mills,[10] these clauses were held as unconstitutional. It was held that judicial review is the basic structure and Parliament cannot exercise constituent power. Its amending power is limited.

The Constitution (44th Amendment) Act, 1978 introduced important changes:

  • President could send back the advice of the Cabinet for their reconsideration. But if the same is sent again to the President, he will be bound by it.
  • Right to property was removed from the Fundamental Rights and was made a legal right.
  • President could only declare an emergency on the written recommendation of the cabinet. Within 1 month, the proclamation has to be approved by both Houses of Parliament with a two-thirds majority of the members.
  • The term ‘internal disturbance’ was replaced by ‘armed rebellion’ in the national emergency provision.
  • Articles 20 and 21 of Part III of the Constitution cannot be suspended even during an emergency.
  • Constitutional protection was given regarding publication of the proceedings of Parliament and State Legislatures until proved malicious.

To stop the politics of ‘Aaya Ram, Gaya Ram’, provisions were laid down for the disqualification of members of Parliament and State legislatures on the ground of defection to another party after elections. Tenth Schedule was added by The Constitution (52nd Amendment) Act, 1985 stating anti-defection provisions.

By the Constitution (61st Amendment) Act, 1989 voting age was lowered from 21 to 28. The Constitution (65th Amendment) Act, 1990 provided for the establishment of a multi-member National Commission for Scheduled Castes & Scheduled Tribes. The Constitution (73rd Amendment) Act, 1992 gave constitutional status to Panchayati Raj Institutions. Provisions for the same have been added to Article 243 of Part IX of the Constitution. Powers and functions of Panchayati Raj Institutions are mentioned in the Eleventh Schedule. The Constitution (74th Amendment) Act, 1992 gave constitutional status to urban local bodies.

This amendment installed Part IX-A & Twelfth Schedule in the Constitution, which stated provisions and mentioned functions of municipalities, accordingly. Reservations were given to Scheduled Castes & Tribes in government jobs regarding promotions by The Constitution (77th Amendment) Act, 1995. By the Constitution (84th Amendment) Act, 2001, a ban was put on the readjustment of seats in the Lok Sabha and the State Assemblies for the next 25 years. Education till the age of 14 years was made a Fundamental Right under Article 21A.

Article 15(5) was inserted by The Constitution (93rd Amendment) Act, 2005 for making special provisions for the socially and educationally backward classes or the Scheduled Castes or Tribes for education in private educational institutions, except the minority institutions. Part IX-B was added in the constitution entitled as ‘The Co-operative societies’ and right to form co-operative societies was made a Fundamental Right under Article 19 by The Constitution (97th Amendment) Act, 2011. National Judicial Appointments Commission was established by The Constitution (99th Amendment) Act, 2014, a collegium to appoint judges to the Supreme Court and High Courts. It was later struck down as unconstitutional in 2015.

Goods and Services Tax (GST) which is an indirect tax was introduced by The Constitution (101st Amendment) Act, 2017. It is a comprehensive tax and includes almost all indirect taxes except a few state taxes. The Constitution (103rd Amendment) Act, 2019 gives a 10% reservation to the Economic Weaker Section in public employment. The Constitution (104th Amendment) Act, 2020 extended the reservations of Scheduled Castes & Scheduled Tribes to Lok Sabha and States assemblies.

Till date, there are only 104 Amendments made to the Constitution since 1950.

[1] AIR 1951 Pat 91

[2] AIR 1950 SC 124

[3] AIR 1951 SC 226

[4] AIR 1951 SC 458

[5] AIR 1954 SC 170

[6] AIR 1951 SC 458

[7] Golaknath V. State of Punjab, AIR 1967 SC 1643

[8] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. The state of Kerala, AIR 1973 SC 1461

[9] AIR 1975 SC 2299

[10] AIR 1980 SC 1789

Mansi Mathpal from Vivekananda Institute of Professional Studies, New Delhi

“Uncertainity in certain things is the fascinating space scoping for magic”

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