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The Hon’ble Supreme Court is all set to hear the petition challenging the 103th constitutional amendment act. The petitioner in the supreme court contends that the central theme of the amendment, that is, reservation based on individual economic status, violates the basic structure of the constitution.
The Union government introduced the 124th Constitutional (Amendment) Bill which was passed with thumping majority, rendering ten percent reservation for economically weaker section of the society. As the matter is sub judice, this post will not comment on the merit of these allegations but will discuss the amendment process and the restrictions on it.
What is the process for amendment of Indian constitution?
The procedure of amendment to the constitution has been enumerated under article 368 of constitution itself. It provides that the parliament can amend the constitution by passing a bill in each house by “a majority of the total membership of that House present and voting”. Subsequently, the bill is presented to President for assent “who shall give his assent”, rendering the constitution amended.
Be that as it may, if the amendments seek to change article 54, 55,73, Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or any of the Lists in the Seventh Schedule, or the representation of States in Parliament, or the provisions of this article, the amendment shall be required to be ratified by legislatures of not less than 2/3rd of the states.
Even for amending the procedure of the amendment ratification of State legislature is required. All those provision which do not require ratification by the states, and those which fall under the ambit of article 368 of the Constitution have to be amended by special majority.
Can the Parliament amend any part of the constitution?
History is replete with examples of attempts made by the government to amend the core principles of the constitution. However, time and again, the judiciary has stepped in, delineating a thin yet vibrant line between parliament’s amending power and inviolable basic framework of the Constitution.
The Hon’ble Supreme Court of India in 1973 observed in the famous Fundamental Rights case (Kesavananda Bharti v. State of Kerala) that the amending power of the parliament is absolute as long as the basic structure of the constitution is not violated.
The doctrine of basic structure has acted over the years as a guardian of our constitution, providing much needed stability and the same time rendering enough room for modification according to the changing needs of society.
What are the basic features of our constitution?
In common parlance, basic structure or framework of the constitution refers to the set of principles which embody the very fabric of our constitution. That is why it has been ranked as sacrosanct. The apex court has time and again reiterated features of our constitution that are inalienable under the basic structure theory. These are:
- Supremacy of constitution.
- Republican and democratic form of government.
- Secular character of the constitution.
- Federal character of the constitution.
- Separation of power: the organs of the government shall not interfere in the functioning of other.
- Unity and sovereignty of India.
- Individual freedom: Right to freedom.
The constitution of India is a dynamic document. Its makers realized the fact that it needs to keep changing with time in order to be successful. Therefore, they empowered the Parliament to amend it. However, there is a limitation on this power in the sense that the basic essence of our constitution should remain intact.
It is the duty of Supreme Court of India to judge whether a particular amendment violates the basic structure of constitution. In this sense, it is the protector of the constitution. The latest amendment, that is, 103rd amendment is also challenged before the apex court. Now it is up to the court to decide whether it is constitutional or not.