George Bernard Shaw in “Intelligent Woman’s Guide to Socialism” has said: “The institutions under which we live are being changed continually by the Parliament, because we are never satisfied with them. Sometimes they are scrapped for new ones; sometimes they are altered; sometimes they are done away with as nuisances. The new ones have to be stretched in the law courts to make them fit, or to prevent them fitting to well if the judges happen to dislike them.”
The life of a state is vibrant and in order to facilitate the ever dynamic developments and needs of society, its economic, social and political conditions mutate continuously. So, a Constitution drafted in one context at a particular time may prove inadequate at a later stage. Every Constitution has some method of amendment whereby a provision is modified by way of addition, deletion or correction so as to suit the needs of the present.
Provisions for the amendment of the Constitution are made with a view to overcome the difficulties which may encounter in future in the effective working of the Constitution. The framers of the Constitution were keen to avoid excessive rigidity and wanted it to a bit flexible. They wanted to have a document that could grow with a growing nation and adapt itself to the ever changing needs of people.
Oxford’s Dictionary of Law says “Amendment means changes made to legislation, for the purpose of adding to, correcting or modifying the operation of the legislation.”
Black’s Law Dictionary defines ‘Amendment’ as “A formal revision or addition proposed or made to a statute, Constitution, pleading, order, or other instrument” AND “In Parliamentary law, it means a ‘motion that changes another motion’s wording by striking out text, inserting or adding text, or substituting text”.
But Keshavananda Bharti V. State of Kerela provided the best explanation as to the scope and definition of the word ‘Amendment’. It purported that “A broad definition of the word ‘Amendment’ will include any alteration or change. The word ‘amendment’ when used in connection with the Constitution may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular article or clause”.
The Constitution of India provides for amendment mainly in Article 368 and in some other parts as specified therein.
CHAPTER – 2
Amendability Of The Indian Constitution
According to Vepa P. Sarathi, there will never be a conflict between Legislature and Judiciary and these two powerful organs will be better capable of guiding the third branch i.e. Executive, if the following view for the purpose of amendment is accepted. Article 368 can be interpreted in the following manner: A) The power of the Parliament to amend Constitution is absolute and there are no limits on that power. B) Parliament should not, however, take away the power of the courts to strike down ordinary legislation as tested against the amended Constitution. One can relate to what Shakespeare said in “Measure for Measure”: “O, it is excellent
To have a giant’s strength; but it tyrannous
To use it like a giant.”
The elementary question in controversy has been whether Fundamental Rights are amendable so as to take away the basic rights guaranteed by the Constitution. Another controversy deals with the extent, scope and authority of Parliament to amend Constitution. The answer has been given by the Supreme Court from time to time, sometimes under immense pressure and can be understood in the light of the following cases: Shankari Prasad V. Union Of India (AIR 1951 SC 458):
The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to abridge the fundamental Rights under Part 3 of the Constitution of India. Supreme Court...