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Constitutional Amendments : A worldwide perspective

- By Mr. Shyam Veer Singh

Sir Ivor Jennings was a British lawyer and academic. He was a prominent educator who served as the Vice Chancellor of University of Cambridge and University of Ceylon. He was proposed by First P.M. Jawaharlal Nehru to be the chairman of the drafting committee of the Constitution of India; however, eventually Mahatma Gandhi's candidate, Dr. B. R. Ambedkar, was chosen.


He delivered the Sir Alladi Krishnaswami Iyer Lecture at the University of Madras in March 1952. He spoke on the Indian constitution. He said India’s constitution was ‘far too large and therefore far too rigid’, too caged by its history, and too unwieldy to be molded into something useful through judicious interpretations.


In this blog post, I aim to talk about first part of his sentence.


1. Indian constitution is largest in World. The original text of the Constitution contained 395 articles in 22 parts and eight schedules. Now the Constitution of India has 448 articles in 25 parts and 12 schedules .There are 104 amendments till date.

It was large mainly because

a) We are diverse country. Special provision was required for princely state (Till abolition of privy purses) North eastern states, Earlier Kashmir so that India could not disintegrate.


b) It is borrowed from many countries. Good features were borrowed by doing extensive Research and comparison.


c) Our constitution makers have incorporated very minute details for administration of the country which we won't find in any other constitution. For example, our constitution has detailed provisions laid down for Centre-State relations, administrative machinery of our country, emergency provisions, fundamental rights, DPSPs etc. to name a few.


d) The constitution was largely borrowed from the Govt. of India Act, 1935 which itself was a colossal in size. This has partly contributed to the size of the newly formed constitution.


e) There are some useless redundant articles present in Indian constitution like Article 290A, Article 371E, Article 273 , Article 366 , Article 393 etc. which make a funny reading.


I agree on part where Mr. Jennings called it far too long.


2. Now talking about rigidity, here I would be discussing major constitutions all around world so readers can themselves judge Indian Constitution is rigid or not.


A. United States which is among the oldest modern democracies. Article Five of the United States Constitution describes the process whereby the Constitution, the nation's frame of government, may be altered. Under Article V, the process to alter the Constitution consists of two steps

a. proposing an amendment or amendments,

and

b. subsequent ratification.


a) Amendments may be proposed either by :-

i) The U.S. Congress, whenever a two-thirds majority in both the Senate and the House of Representatives deem it necessary;

or

ii) A national convention, called by Congress for this purpose, on the application of the legislatures of two-thirds of the states. Simply a request from two-third of legislatures of states to call a national convention.

The convention option has never been used.


b) To become part of the Constitution, an amendment must be ratified by either:

i) The legislatures of three-fourths of the states;

or

ii) State ratifying conventions in three-fourths of the states. Where delegates elected by voters

The only amendment to be ratified through the state convention method thus far is the Twenty-first Amendment in 1933. That amendment is also the only one that explicitly repeals an earlier one, the Eighteenth Amendment. Both related to a ban on the sale of alcohol.

The procedure of amendment hence is very rigid. It is evident from fact that Constitution was put into operation on March 4, 1789 and Twenty-seven of these, having been ratified by the requisite number of states i.e. 38. Hence 27 amendments in 230 years.


Justices Antonin Scalia of S. C. O. T. U. S once remarked fewer than 2 percent of the population could prevent enactment of a constitutional amendment.


B. The Australian Constitution: Process of constitutional amendment is found in s. 128 of the Constitution and supporting legislation. Their constitution can only be changed with the approval of the Australian people. A proposed change must be approved by the Parliament and then be put to Australian voters in a referendum.


An absolute majority of each house of parliament, or it must be passed twice by an absolute majority of one house, with an interval of three months in between. Even if the Senate alone approves a referendum, it still requires the governor-general to put it to the referendum. On the only occasion this occurred, in 1914, the governor-general acted on the advice of the government not to hold the referendum.


All Australian citizens on the electoral roll vote 'yes' or 'no' to proposed change or changes. A referendum is only passed if it is approved by a majority of voters in a majority of states, and by a majority of voters across the nation. This is known as a double majority. Territory voters are only counted in the national majority.

Simply,


a) Parliament Approved with majority then Governor General sent it for referendum on advice government.

b) Then Majority of Australian citizen saying yes i.e. Total population of Australia's majority.

c) The above majority is valid only if majority of voters in majority states say yes.

i.e. That means that there has to be majority “yes” vote in four of the six states of Australia.

Simply a national majority along with majority of States, must be gained. Since 1901, 19 referendums have proposed 44 changes to the Constitution; only eight changes have been agreed to. There has not been a successful constitutional change since 1977. Hence a very rigid constitution.


C. Japan :- The Constitution has not been amended since its enactment in 1946. Article 96 provides that amendments can be made to the Constitution if approved by super majority of two-thirds of both houses of the Diet, and then by a simple majority in a popular referendum. The Emperor promulgates the successful amendment in the name of the people, and cannot veto it.

D. Germany :- Since enactment in 1949 has been amended 50 times as of 2003. Article 79 states the Constitution may be amended by an absolute two-thirds majority of both the Bundestag and the Bundesrat. Hence it is moderate rigid constitution.


As it is not possible to discuss all constitution. I will switch to Our Country India.


As of today, there have been 104 amendments of the Constitution of India since it was first enacted in 1950. There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by Article 368.


i). The first type of amendments includes that can be passed by "simple majority" in each house of the Parliament of India.

ii). The second type of amendments includes that can be effected by the parliament by a prescribed "special majority" in each house; and

iii). The third type of amendments includes those that require, in addition to such "special majority" in each house of the parliament, ratification by at least one half of the State Legislatures. Third type of amendment is generally done when Centre-state relation is affected.


Seeing and examining all the data and major constitution around world. I disagree with statement of Mr. Jennings describing Indian constitution as for too rigid. It is ample clear from data that I have quoted.


The Author is a Final Year law student at RTMNU's Dr. Babasaheb Ambedkar College of Law, Main Branch, Nagpur.

Do share with others...and like the blog.


Note :- The author Shyam Veer Singh has written this blog in his personal capacity and not as a board member. The forum's website acted as the platform for this purpose, hence if there is any objection to the content written it must be communicated to the author Mr. Shyam Veer directly and not to the board of the forum.



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