CONSTITUTION OF INDIA

Transcription

1 CONSTITUTION OF INDIA Sample : Amendments t Cnstitutin Delhi Law Academy India s Finest Law Caching Judicial Services, LLM Entrance All materials, cpyrights and trademarks are rights f their respective wners

2 AMENDMENTS TO CONSTITUTION The Amending Bdy 1. In mst cases, Parliament has the sle authrity t amend the Cnstitutin. 2. Hwever, in sme special cases, an amendment passed by Parliament needs t be ratified by at least half State Legislative Assemblies. Surce f the amending pwer Article 368(1): In exercise f its cnstituent pwer Parliament may amend any prvisin f this Cnstitutin by additin, variatin r repeal in accrdance with prcedure laid dwn in this article Amending Prcedure Article 368(2): Initiatin f amendment: by intrductin f a Bill in either Huse f Parliament Passing f the Bill: by each Huse by a majrity f ttal membership f that Huse and by a majrity f nt less than 2/3 rd members present and vting Assent f President: The Bill then shall be presented t the President wh shall give his assent 2 Caching fr Judicial Services, DU LLB and CLAT

3 Ratificatin by State Legislatures An amendment requires t be ratified by nt less than ne-half f State Legislatures if it seeks t make any change in... Articles 54, 55, 73, 162 and 241 prvisins relating t Judiciary and distributin f legislative pwers any f the three Lists in the Seventh Schedule representatin f States in Parliament prvisins f Article 368 Limitatins n the amending pwer 1. Article 368 f the Cnstitutin des nt in any way put any limitatins n the cnstituent pwers f Parliament, ther than prescribing a special prcedure f State Assembly ratificatin in sme specified cases. 2. Hwever, the Supreme Curt f India came up with a nvel limitatin in 1973 while prpunding the Basic Structure Dctrine in Kesavanand Bharti v. State f Kerala. The single mst imprtant judgment in India s Cnstitutinal Law histry is undubtedly the 13-Judge Bench Majrity Judgment in Kesavananda Bharati case delivered n 24 th April N study f Cnstitutinal Law can be cmplete withut understanding this judgment. But it is easier said than dne. Reasn is simple. It is an exceptinally lengthy judgment, running in 502 printed pages. We present belw the gist f the perating part f the judgment: Principle The Supreme Curt laid dwn the Thery f Basic Structure in this case. It was held that sme f the prvisins f the Cnstitutin f India frm its basic structure 3 Caching fr Judicial Services, DU LLB and CLAT

4 which are nt amendable by Parliament by exercise f its cnstituent pwer under Article 368. Gist f the Operating Part (1) L.C. Glak Nath v. State f Punjab [1967 SC], which had held that fundamental rights were beynd the amending pwers f Parliament, was verruled (2) The Cnstitutin 24 th Amendment Act 1971, giving pwer t Parliament t amend any part f the Cnstitutin, was valid (3) Article 368, as amended, was valid but it did nt cnfer pwer n the Parliament t alter the basic structure r framewrk f the Cnstitutin The curt, hwever, did nt spell ut in any exhaustive manner as t what the basic structure/framewrk was except that sme judges gave a few examples. (4) The amendment f Article 368(4) excluding judicial review f a cnstitutinal amendment was uncnstitutinal Amendments t Article 368 Originally, article 368 cntained nly prcedure fr amendment Tw clauses were added by the 24 th Amendment These were held valid in Kesavananda Bharati case Tw mre clauses were added by the 42 nd Amendment These were struck dwn by the Supreme Curt in Minerva Mills case in 1980 as uncnstitutinal 4 Caching fr Judicial Services, DU LLB and CLAT

5 Issue Whether Fundamental Rights culd be taken away by Parliament by Cnstitutinal Amendments? Stage 1 Shankari Prasad v. Unin f India [1951 SC] Supreme Curt held that Law in Art 13(3) did nt include Amendments u/a 368 Thus, Parliament culd amend Fundamental Rights Stage 2 Glak Nath v. State f Punjab [1967 SC] Supreme Curt reversed its decisin f 1951 in Shankari Prasad case Supreme Curt held that Parliament culd nt take away r abridge FRs even by cnstitutinal amendments Stage 3 24 th Amendment, 1971 Parliament added clause (4) in Article 13 Nthing in this Article shall apply t amendments u/a 368 Parliament added clause (3) in Article 368 Nthing in Article 13 shall apply t amendments made under this Article Stage 4 Keshavanand Bharti v. State f Kerala [1973 SC] 5 Caching fr Judicial Services, DU LLB and CLAT

6 Supreme Curt upheld validity f the 24 th Amendment Supreme Curt prpunded the Basic Structure dctrine Stage 5 42 nd Amendment, 1976 Parliament added clause (4) t Article 368 N amendment u/a 368 shall be called in questin in any curt n any grund Parliament added clause (5) t Article 368 There is n limitatin whatsever n amending pwer f Parliament Stage 6 Minerva Mills v. Unin f India 1980 Clauses (4) and (5) f Art 368 were struck dwn by the Supreme Curt Clause (4) was held as vilative f the basic feature f judicial review Clause (5) was held as vilative f the basic feature f limited amending pwer f the Parliament Current Legal Psitin Parliament's amending pwer under article 368 is limited by the Basic Structure dctrine Parliament's amending pwer is nt unlimited Parliament's amending pwer is subject t judicial review 6 Caching fr Judicial Services, DU LLB and CLAT

7 IMPORTANT CONSTITUTIONAL AMENDMENTS 1 st Amendment, 1951 Added Clause (4) t Article 15: State was empwered t make special prvisins fr SEBCs Added Article 31A saving laws prviding fr acquisitin f estates, etc Added Article 31B and Ninth Schedule t prtect frm judicial review land refrm and ther laws included in it Added three mre grunds f restrictins n freedm f speech & expressin public rder friendly relatins with freign states incitement t an ffence 7 th Amendment, 1956 Ablished existing classificatin f states in fur categries: Part A, B, C and D States and rerganised them int 14 States and 6 Unin Territries Extended jurisdictin f high curts t unin territries Prvided fr establishment f a cmmn high curt fr tw r mre States 9 th Amendment, 1960 Enabled cessin f Indian territry f Berubari Unin t Pakistan as per 1958 Treaty between India and Pakistan 10 th Amendment, 1961 Incrprated Dadra & Nagar Haveli in Indian Unin 7 Caching fr Judicial Services, DU LLB and CLAT

8 12 th Amendment, 1962 Incrprated Ga, Daman & Diu in Indian Unin 14 th Amendment, 1962 Incrprated Pndicherry in Indian Unin 24 th Amendment, 1971 Added Articles 13(4) and 368(3) Parliament was empwered t amend any part f Cnstitutin including FRs Made it cmpulsry fr President t give his assent t a Cnstitutinal Amendment Bill 25 th Amendment, 1971 Added Article 31C Any law made t give effect t principles in Article 39 (b) r (c) cannt be challenged fr vilatin f FRs u/a 14 and th Amendment Ablished privy purses and privileges f frmer rulers f Princely States 31 st Amendment Increased number f Lk Sabha seats frm 525 t th Amendment, 1975 Deleted Art 2A and Tenth Schedule Sikkim was made a full-fledged State 8 Caching fr Judicial Services, DU LLB and CLAT

9 42 nd Amendment, 1976 Added scialist, secular, integrity t Preamble Added Fundamental Duties fr citizens: Part IVA President made bund by advice f Cuncil f Ministers: Art 74 Prvided fr administrative and ther tribunals: Part XIVA Scpe f Article 31C expanded t include all Directive Principles Added three new Directive Principles: Art 39A, 43A, 48A Shifted 5 subjects frm State List t Cncurrent List: Educatin, frests, prtectin f wild animals and birds, weights and measures, administratin f justice Frze seats in Lk Sabha and Legislative Assemblies at 1971 census level Raised tenure f Lk Sabha and Legislative Assemblies frm 5 t 6 years Tk away the right f a civil servant t make representatin at the secnd stage after the inquiry, i.e. n the penalty prpsed 44 th Amendment, 1978 Deleted Right t Prperty frm Chapter III, made it a legal right under Art 300A Empwered President t send back Cuncil s advice fr recnsideratin, Prvis t Art 74 Gave prtectin t publicatin f true reprts f all legislatures, Art 361A Made several changes in Art 352 Articles 20 and 21 taken beynd suspensin pwer f President during Emergency, Art nd Amendment, 1985 Added Tenth Schedule [Anti-defectin Law] 9 Caching fr Judicial Services, DU LLB and CLAT

10 61 st Amendment, 1989 Amendment f article 326 Reduced vting age frm 21 years t 18 years fr Lk Sabha and Legislative Assemblies 65 th Amendment, 1990 Amendment f article 338 Established a multi-member Natinal Cmmissin fr SCs and STs in place f Special Officer fr SCs and STs 69 th Amendment, 1991 Inserted 239AA Accrded special status t Unin Territry f Delhi Designated it as Natinal Capital Territry f Delhi Prvided fr a Legislative Assembly and Cuncil f Ministers 73 rd Amendment, 1992 Inserted Part IX Granted Cnstitutinal status and prtectin t Panchayat Raj institutins Added Eleventh Schedule, cntaining 29 functinal items fr Panchayats 74 th Amendment, 1992 Inserted Part IXA Granted Cnstitutinal status and prtectin t urban lcal bdies Added Twelfth Schedule cntaining 18 functinal items fr municipalities 10 Caching fr Judicial Services, DU LLB and CLAT

11 77 th Amendment, 1995 Inserted article 16(4A) Prvided fr reservatin in prmtins in gvt jbs fr SCs and STs Nullified Supreme Curt ruling in Indira Sawhney case prhibiting reservatin in prmtins 81 st Amendment, 2000 Inserted article 16(4B) Empwered State t cnsider unfilled reserved vacancies f a year as a separate class t be filled up in succeeding years Such vacancies are nt t be cnsidered fr 50% ceiling n reservatins 82 nd Amendment, 2000 Amendment f article 335 Prvided fr relaxatin in qualifying marks and lwering f standards f evaluatin fr prmtins in favur f SCs and STs 86 th Amendment, 2002 Inserted article 21A Elementary educatin made a fundamental right Amended article 45 Prvided fr early childhd care and educatin f children upt 6 years A new Fundamental Duty added in article 51A Parents r guardians t prvide pprtunities fr educatin t children between 6 and 14 years f age 11 Caching fr Judicial Services, DU LLB and CLAT

12 88 th Amendment, 2003 Inserted article 268A Prvided fr impsitin f service tax Taxes n services are t be levied by Centre but their prceeds are t be cllected and apprpriated by bth Centre and States n principles frmulated by Parliament 89 th Amendment, 2003 Amended article 338 Prvided fr a Natinal Cmmissin fr Scheduled Castes Inserted article 338A Prvided fr a separate Natinal Cmmissin fr Scheduled Tribes 91 st Amendment, 2003 Inserted article 75(1A): Number f ministers in Unin Cuncil f Ministers shall nt exceed 15% f Lk Sabha strength Inserted article 75(1B): A Member f Parliament disqualified fr defectin shall als be disqualified t be appinted as a Minister Inserted article 164(1A)and 164(1B) Amended Tenth Schedule: Exemptin frm disqualificatin n spilt by 1/3 rd members f a legislature party deleted 92 nd Amendment, 2003 Bd, Dgri, Maithili and Santhali were included in the Eighth Schedule 12 Caching fr Judicial Services, DU LLB and CLAT

13 93 rd Amendment, 2005 Added clause (5) t Article 15 Empwered State t make special prvisins fr scially and educatinally backward classes r SCs r STs in admissin t educatinal institutins, public r private, aided r unaided This amendment nullified SC judgment in P A Inamdar case which held that State culd nt impse reservatin plicy n unaided private clleges 97 th Amendment, 2011 Amended article 19(1)(c): Right t frm c-perative scieties made a Fundamental Right Inserted article 43B State t prmte frmatin and wrking f c-perative scieties Inserted Part IXB Prvided fr frmatin and wrking f c-perative scieties 98 th Amendment, 2012 Inserted article 371J Prvided fr special prvisins fr Hyderabad-Karnataka regin Prvided fr institutinal mechanism fr equitable allcatin f funds t develp the regin and t enhance its human resurces and t prmte emplyment by prviding fr lcal cadres in service and reservatin in educatinal institutins 13 Caching fr Judicial Services, DU LLB and CLAT

14 99 th Amendment, 2014 Amended articles 124, 217 and 222 Added articles 124A, 124B and 124C Prvided fr establishment f Natinal Judicial Appintments Cmmissin fr appintment f Supreme Curt and High Curt judges and fr transfer f High Curt judges Nte: This Amendment has been struck dwn by the Supreme Curt n , as uncnstitutinal n the grund that it strikes at the independence f judiciary which is a basic feature f the Cnstitutin 100 th Amendment, 2015 Amended the First Schedule 111 Indian enclaves are transferred t Bangladesh in lieu f transfer f 51 Bangladeshi enclaves t India Nte: This Amendment gives effect t the India-Bangladesh Land Bundary Agreement f st Amendment Act 2016 Inserted article 246A Parliament and State Legislatures have been empwered t make laws with respect t gds and services tax Parliament has been empwered t make laws with respect t interstate gds and services tax 14 Caching fr Judicial Services, DU LLB and CLAT

15 Deleted article 268A This article prvided fr levy f Service Tax Inserted article 269A Prvides fr apprtinment f inter-state gds and services tax between the Unin and the States Inserted article 279A Prvides fr cnstitutin f a Gds and Services Tax Cuncil. Nte This Amendment intrduced gds and services tax in India 102nd Amendment Act 2018 Inserts a new Article 338B fr establishment f a Natinal Cmmissin fr Backward Classes fr the scially and educatinally backward classes t investigate and mnitr the safeguards prvided fr these classes Inserts a new Article 342A t prvide that the President may specify the scially and educatinally backward classes fr a State r UT and that the Parliament may by law include in r exclude frm the Central List f scially and educatinally backward classes s specified Inserts a new Clause (26C) in Article 266 t define "scially and educatinally backward classes" as the backward classes s deemed under article 342A Amends Clause (10) f Article 338 t exclude ther backward classes frm the jurisdictin f the Natinal Cmmissin fr Scheduled Castes Nte This Amendment gives cnstitutinal status t the Natinal Cmmissin fr Backward Classes 15 Caching fr Judicial Services, DU LLB and CLAT

16 103rd Amendment Act 2019 Inserted clause (6) in Article 15: Enables the State t make special prvisin fr advancement f ecnmically weaker sectins f citizens Enables the State t make special prvisin fr their admissin t educatinal institutins including private educatinal institutins, whether aided r unaided by State which in case f reservatin wuld be in additin t the existing reservatins and subject t a maximum f 10% f ttal seats in each categry Inserted clause (6) in Article 16: Enables the State t make reservatin f appintments in favur f ecnmically weaker sectins f citizens ther than classes mentined in clause (4) in additin t existing reservatin and subject t a maximum f 10% f psts in each categry Nte The Cnstitutin 103rd Amendment Act 2019: enables reservatin in educatinal institutins and public appintments t ecnmically weaker sectins f citizens received assent f the President n 12 January 2019 came int frce n 14 January 2019 ************** 16 Caching fr Judicial Services, DU LLB and CLAT