Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure
From UPSC perspective, the following things are important:
Prelims level: Fundamental rights and their interpretation, Amendment Procedures
Mains level: EWS Quota, Amendment Procedures
- During the Lok Sabha debate on the Constitution amendment Bill to provide a 10% quota in jobs and education for the “economically weaker sections”, it was argued that this Bill has to be passed by a two-thirds majority, and then, 50 per cent of the states have to approve it.
Argument for the Procedure
- The counter argument said that to amend Part III (FRs) of Article 368 of the Constitution (which describes the “Power of Parliament to amend the Constitution and procedure there for”), which concerns the FRs, there is no need to go to the state legislatures.
- Even the amendment that added Article 15(5) to the Constitution had been approved only by the two Houses of Parliament.
How and why do procedures for the passage of Constitution amendment Bills vary?
Amendment of Constitution
- Part XX of the Constitution deals with its amendment.
- Under Article 368(2), Parliament can amend the Constitution by passing a Bill in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.
- Thereafter, the Bill shall be presented to the President who shall give his assent… and thereupon the Constitution shall stand amended.
- Parliament cannot amend those provisions which form the basic structure of the Constitution according to the Supreme Court ruling in the landmark 1973 Kesavananda Bharati case.
- FRs and DPSPs are the two most important provisions that can be amended by the special majority.
- All provisions that do not require ratification by states, and those that come directly under the purview of Article 368, have to be amended by the special majority.
Various Procedures for Amendments
[I] Simple Majority
A large number of provisions contained in the constitution are open to change by a simple majority. These may be divided into two classes:
1.Where the text of the constitution is not altered but the law is changed
- Article 11 confers on the Parliament power to enact a law regarding citizenship.
- An Act made in pursuance of that power will change the law relating to citizenship without altering the text of Article 5 to 10.
- Article 124 still refers to the Supreme Court as consisting of the Chief justice and 7 judges.
- But in exercise of its power the Parliament has increased the strength of the judges from 7 to 25.
2.Where the text of the constitution is changed
- Formation of new state.
- Creation or abolition of legislative council
- Creation of council of ministers for Union territories
- Extending the period of 15 years fixed for the use of English in Article 343
- Defining Parliamentary privileges
- Salaries and allowances of President, Vice-President, Judges, etc.
[II] Special Majority
- Except those provisions which are amendable by an ordinary majority, the rest of the provisions require a special majority for amendment.
- The Amendment Bill must be passed by a majority of two-thirds of the members of each House present and voting and such majority must exceed 50% of the total membership of the House.
[III] Special Majority and Ratification by half of the States
- Those provisions which relate to the federal structure of the constitution require special majority in Parliament as well as ratification by at least half of the state legislatures.
- This procedure is required in the following provisions:
- Manner of election of President
- Executive power of the Union and the State
- The Supreme Court and the High Courts
- Distribution of legislative power between the Union and the States
- Representation of states in Parliament
- Article 368 itself
Article 15 of the Indian Constitution
- Article 15 guarantees the FR of prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
- Articles 15(1) and (2) broadly state that the “State” shall not discriminate “any citizen” on grounds only of religion, race, caste, sex, place of birth or any of them.
- It provides that there shall be no restriction on any person to access and use the public places and places of public resort maintained wholly or partly by the state or dedicated to the use of the general public.
- Article 15(3) onward, the Constitution lays down provisions relating to protective discrimination — the policy of granting special privileges to underprivileged sections.
- Articles 15(3) and 15(4) are the foundation for reservations in education and employment in the country.
- Article 15(3) empowers the state to make special provisions for women and children.
- Article 15(4) empowers the state to make special provisions for advancement of socially and educationally backwards, and SC/STs.
- Article 15(5) was introduced by The Constitution (Ninety-Third Amendment) Act, 2005.
- It is an enabling clause that empowers the state to make such provision for the advancement of SC, ST and Socially and Educationally Backward Classes (SEBC) of citizens in relation to a specific subject.