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45 Page 2439 2443 End PDF
45 Page 2439 2443 End PDF
CONCLUDING REMARKS
SYNOPSIS
Concluding Remarks ................................................................................... 2439
Concluding
XLIIARemarks
Concluding
Chap Remarks
Syn
2439
2440 Concluding Remarks [Chap XLIIA
be changed with the lapse of time, some were not necessary at all as they were an
attempt to change the balances originally incorporated into the Constitution by its
framers.
It needs to be emphasized that the Constitution should be treated with great re-
spect and not made into a play thing by political parties. A stable constitution
gives stability to the country’s constitutional process. For example, in the U.S.A.,
during nearly over 200 years, only 30 amendments have been made and the
U.S.A. has progressed tremendously under an old Constitution.
The purpose of the constitution is to regulate administrative and political proc-
esses in the country and it is not proper to change the constitution to suit transient
political expediency. Majority in Parliament in a democracy is only transient; it is
not permanent, but constitution is more permanent in nature. Parliament under a
written constitution ought not to regard itself as omnipotent and seek to mutilate
the Constitution in any way it likes. If one party in majority changes the Consti-
tution today, another party in majority will change it tomorrow and the Constitu-
tion will then cease to claim respect of the people on which it depends for its
efficacy and survival.
The procedure to amend the Constitution as laid down in Art. 368, though dif-
ferent from the ordinary legislative process (where the rule of only simple major-
ity operates), has, in practice, been found to be not so rigid as in America or
Australia. This is evident from the fact that since its inception in 1950, the Con-
stitution has been amended so many times.
A major factor contributing to the facile way in which the Constitution could
be amended so far has been that the Congress Party has enjoyed an overwhelm-
ing majority in both the chambers of Parliament at the Centre as well as in the
State Legislatures. Therefore, when once the Central leadership of the Party has
made up its mind to effect an amendment, it has not found it difficult to muster
the requisite majority in the two Houses of Parliament as well as in the State
Legislatures whenever their ratification was required.
But the political life in India has now become fragmented; political parties
have proliferated and the Congress Party has lost its predominant position. No
single political party now enjoys 2/3rd majority in the two Houses of Parliament.
Therefore, it may no longer be possible to predicate with any certainty whether a
particular proposal to amend the Constitution would get the necessary votes in
both Houses of Parliament as well as in the States to become effective. For ex-
ample, in 1970, the bill to abolish privy purses of the erstwhile rulers failed to get
the requisite votes in the Rajya Sabha in spite of the fact that it had got the requi-
site majority in the Lok Sabha and received a wide measure of support from sev-
eral sections of Parliament as well as the government. This is one example of the
failure of a constitutional amendment initiated by the government.6 Another
[Footnote 6 Contd.]
The idea to have a joint session in such a situation may find support from some observations
made by the majority of the Judges of the Supreme Court in Golak Nath refusing to distinguish
between the legislative process and the constituent process. But these observations were made
with reference to Art. 13 only and cannot be taken to obliterate entirely, for all purposes, the
difference between the two processes. An ordinary Bill is passed by a simple majority in a
House where the quorum is very small.
Thus, an ordinary Bill can be passed in a House by merely a few members present at a
sitting. That cannot be done with respect to a Constitution Amendment Bill which must have
at least 272 votes in its favour in the Lok Sabha, as the strength of the House is 542. In addi-
tion, 2/3 of the members present and voting should also support such a Bill. There is thus an
essential difference between legislative and constituent processes. Since Kesavananda, such
a difference has been judicially recognised. Also the XXIV Amendment amended Art. 368
in such a manner as to underline the distinction between legislative and constituent proc-
esses.
7. Supra, Ch. XLI, Sec. E(f).
8. Supra, Ch. XXXII, Sec. C.
9. Blackshield in his article, Fundamental Rights and the Economic Viability of the Indian
Nation, 10., JILI., 183 (1968), makes the point that these amendments were not really neces-
sary and the purpose in view could have been achieved by proper legislative drafting. Also
see, Ramaswami, the Indian Constitutional Amendments, (1963) Indian Yr. Book of Int. Af-
fairs, 161.
2442 Concluding Remarks [Chap XLIIA
To achieve this laudable objective, it seems absolutely necessary that the con-
stitutional amending process be rigidified and made more difficult so that an
Amendment can be made to the Constitution only when there is broad national
consensus favouring the same. The truth remains that 2/3 of Lok Sabha hardly
represents a broad national consensus as it is common knowledge that not more
than 45% of the eligible voters cast their votes at the general election for the
House. Rajya Sabha has no popular mandate whatsoever. It also needs to be re-
alised that the basic purpose of the constitution is to control power—legislative
as well as executive. This is the idea inherent in the term “constitutionalism”.13
Therefore, the government cannot rush to amend the constitution the moment it
feels any constitutional difficulty in executing its policies. If that is done too of-
ten, then, all constitutional restraints on the government will come to an end and
we shall be left with an uncontrolled, arbitrary, government.
The Janata Government through CB 45 had proposed to lay down the process
of referendum to amend certain specified features of the Constitution.14 This was
a very wholesome proposal and although approved by Lok Sabha, unfortunately,
it could not get the requisite votes in Rajya Sabha because of the intransigence of
certain political groups, especially, the Congress Party.
If referendum appears to be too complicated a procedure in a country like In-
dia, another alternative to consider may be to require ratification of all constitu-
tional amendments by 2/3 of all the State legislative assemblies, each assembly
passing the requisite resolution by the same voting rule as prevails in Parliament
for a constitutional Amendment. After all, it is illogical that while many consti-
tutional provisions need State ratification to amend, Fundamental Rights which
affect the individual so vitally can be amended by Parliament alone. The pro-
posed procedure will ensure a broad public participation on national level in the
constitutional amending process.