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- It declares that laws inconsistent with or in derogation of any of the fundamental rights shall be void.
- The term ‘law’ in Article 13 include:
a) Permanent laws enacted by the Parliament or the state legislatures;
b) Temporary laws like ordinances issued by the president or the state governors;
c) Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and
d) Non-legislative sources of law, that is, custom or usage having the force of law.
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- It allows for existence of all laws before enactment of Constitution, provided they don’t contravene with Part-III of the Constitution.
- It gives Part III a superior status vis-à-vis the rest of the Constitution.
- It establishes supremacy of the Constitution and provides basis for-
- Judicial review
- Judiciary (SC & HC) as guardian of the Constitution
Amendability debate relating to Part-III (Case laws)
| Phases | Amendments | Cases |
|---|---|---|
| Phase- I (1951- 1967) | • 1st Amendment Act • Schedule 9 • Article 31 a & b | Shankari Prasad Case ‘Law’ under Article 13 doesnot include amendment. Fundamental Rights could be amended Schedule 9 could be kept outside the purview of court. |
| Phase- II (1967- 1973) | • 17th Amendment Act | Golaknath case Shankari Prasad Case judgement overruled. Fundamental rights (Part III) given transcendental position by providing them immunity from amending power of parliament. |
| Phase- III (1973- 1980) | • 24th Amendment Act – Article 13(4) • 25th Amendment Act – Article 31(c), article 39(b)&(c) given precedence over Article 14 and 19. | Keshavananda Bharati Case Article 13 (4) struck down. Justified 24th and 25th Amendment Acts. Parliament could amend any Part of the Constitution save ‘Basic structure’. Schedule 9 will be subject to judicial review as far as laws put after April 24, 1973 are concerned. (Further clarified in I. R. Coelho Case 2006) |
| Phase- IV (1980 onwards) | • 42nd Amendment Act- parliament not bound by the Constitution and DPSPs given precedence over FRs. Also took away the powers of judicial review. | Minerva Mills Case It struck down some of the provisions of 42nd Amendment Act. Restored the Keshavananda Bharati judgement. Parliament cannot take away the power of judicial review as it is a part of basic structure i.e. re-enforced the basic structure doctrine. Established harmonious relationship between DPSPs and FRs. |
Indian Constitution- Rigid vs. flexible debate
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- Article 368 of the Indian Constitution deals with the amendment to the Constitution by Parliament.
- There are 3 methods to amend the Constitution:
- By a simple majority of the Parliament– majority of more than 50% of the members present and voting. For example– Article 2, Fifth Schedule, Citizenship etc.
- By a special majority of the Parliament– majority of the total membership of each House and a majority of two-thirds of the members of each House present and voting. For example– Fundamental Rights, DPSPs etc.
- By a special majority of the Parliament and ratification of half of the state legislatures– special majority of Parliament and ratification of states by simple majority. For example– election of President, Seventh schedule, Article 368 etc.
| United States (US) | India |
|---|---|
| • Both the federal government as well as the States can initiate the amendment procedure. • The time period for states to ratify the proposed amendments is mentioned in the Constitution. • Ratification by 3/4th of the states. • Most rigid Constitution in the world (only 30 amendments in over 250 years) | • States cannot initiate the amendment procedure. It can only be done by the Parliament. • The Constitution doesnot specify the time period for states to ratify the amendment bill. • Ratification by half of the states. • Blend of rigidity and flexibility (106 amendments in just 75 years) |
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- Remarks by experts and leaders-
- K C Where: Indian Constitution is a right blend of rigidity and flexibility.
- Granville Austin: Although the processes were complex but Indian Constitution had a unique balance between flexibility and rigidity, hardly found in any Constitution.
- Jawaharlal Nehru: There should not be a question of fallibility and infallibility. Constitution not a final document and by rigidity will impose a Constitution on upcoming generation, rather it should be decided by people.
- R. Ambedkar: He remarked that Indian Constitution establish a balance between flexibity and rigidity.
- Remarks by experts and leaders-
Major amendments since adoption of the Constitution
| Amendments | Provisions |
|---|---|
| First Amendment Act, 1951 | • Empowered the state to make special provisions for the advancement of socially and economically backward classes. • saving of laws providing for acquisition of estates • Ninth Schedule-to protect laws from judicial review. • Added three grounds to restrict freedom of speech and expression, viz., public order, friendly relations with foreign states and incitement to an offence. |
| Twenty-Fourth Amendment Act, 1971 | • Affirmed the power of Parliament to amend any part of the Constitution • Made it mandatory for the president to give assent to a Constitutional Amendment Bill. |
| Twenty-Fifth Amendment Act, 1971 | • Fundamental right to property curtailed. • Provided that any law made to give effect to Article 39 (b) or (c) cannot be challenged on the ground of violation of Articles 14, 19 and 31. |
| Forty-Second Amendment Act, 1976 (aka MiniConstitution) | • Added three new words (socialist, secular and integrity) in the Preamble. • Added Fundamental Duties (Part IV A). • Made the president bound by the advise of the cabinet. • Provided for tribunals (administrative and others) (Part XIV A). • Constitutional amendments beyond judicial scrutiny. • Provided that the laws made for the implementation of DPSPs cannot be declared invalid on the ground of violation of some Fundamental Rights. • Three new Directive Principles added- equal justice and free-legal aid, participation of workers in the management of industries and protection of environment, forests and wild life. • Facilitated the proclamation of national emergency in a part of territory of India. • Provided for the creation of the AllIndia Judicial Service. |
| Forty-Fourth Amendment Act, 1978 | • Restored original term of the Lok Sabha and the state legislative assemblies. • Empowered the president to send back once the advice of cabinet for reconsideration. But, the reconsidered advice is to be binding on the president. • Replaced the term “internal disturbance” by “armed rebellion” in respect of national emergency. • Made the President to declare a national emergency only on the written recommendation of the cabinet. • Made certain procedural safeguards with respect to national emergency and President’s rule. • Deleted the right to property from the list of Fundamental Rights and made it only a legal right. • Provided that the fundamental rights guaranteed by Articles 20 and 21 cannot be suspended during a national emergency. |
| Fifty-Second Amendment Act, 1985 | • Popularly known as Anti-Defection Law. • Added Tenth Schedule |
| Sixty-First Amendment Act, 1989 | • Reduced voting age from 21 years to 18 years for Lok Sabha and state legislative assembly elections. |
| Sixty-Ninth Amendment Act, 1991 | • Special status to the Union Territory of Delhi accorded by designing it as the National Capital Territory of Delhi. |
| Seventy-Third Amendment Act, 1992 | • Constitutional status to Panchayati raj institutions. • Added Part-IX and 11th Schedule |
| Seventy-Fourth Amendment Act, 1992 | • Constitutional status to the urban local bodies. • Added Part IX-A and 12th Schedule |
| Eighty-Fourth Amendment Act, 2001 | • Extended ban on readjustment of seats in the Lok Sabha and the state legislative assemblies for another 25 years (i.e., up to 2026) |
| Eighty-Sixth Amendment Act, 2002 | • Added Article-21A - Made elementary education a fundamental right. • Changed the subject matter of Article 45 in Directive Principles. • Added Article 51-A as a new Fundamental duty. |
| Ninety-First Amendment Act, 2003 | • The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha. • Similarly in case of a state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12. • A member of either House of Parliament or State legislature, disqualified on the ground of defection shall also be disqualified to be appointed as a minister. • It removed the provision of 10th schedule of protection in case of split. |
| Ninety-Seventh Amendment Act, 2011 | • Gave constitutional status to co-operative societies and added Part IX-B. • Made right to form co-operative societies a fundamental right. • A new DPSP included- promotion of cooperative societies. (Article 43B) |
| Ninety-Ninth Amendment Act, 2014 | • Replaced collegium system of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC). However, it was declared unconstitutional and void in 2015. |
| One Hundredth Amendment Act, 2015 | • Acquiring of certain territories by India and transfer of certain other territories to Bangladesh (through exchange of enclaves and retention of adverse possessions) in pursuance of the Land Boundary Agreement of 1974 and its Protocol of 2011. |
| One Hundred and Third Amendment Act, 2019 | • Empowered the state to make special provision for advancement of economically weaker sections of citizens. • Allowed the state to make provision for upto 10% reservation of seats for such sections in admission to educational institutions. |
| One Hundred and Sixth Amendment Act, 2023 | • Popularly known as the Women's Reservation Bill, 2023 Nari Shakti Vandan Adhiniyam • It seeks to allocate 33 percent of the seats in the directly elected Lok Sabha, State legislative assemblies and Delhi legislative assembly for women. |
Should India adopt a new Constitution?
Yes
Dr. Bibek Debroy suggested the need for a new Constitution to align with India’s vision of becoming world power by 2047. He highlighted the colonial legacy of current Constitution as:
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- About 250 of the 395 Articles in the Constitution are from the Government of India Act, 1935.
- It reflects colonial administrative structures, focusing smooth transition of power rather than aspirations of independent India.
No
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- Caste and nepotism play a vital role in electoral politics, consensus would be impossible.
- Leaders are more loyal to party than nation.
- Framing a new Constitution will be cumbersome.
