Amendment of the constitution

Transcription

1 Amendment of the constitution Article 368 PART XVIII Parliament cannot amend those provision which form the basic structure of the constitution (Kesavananda Bharti case 1973) Procedure for Amendment 1) Introduced in any house - Lok sabha - Rajyasabha - Not in state legislatures 2) by a minister or private member 3) does not require prior permission of president 4) Each house must pass bill separately ( Not joint sitting) ( 24 the Amemdment, 1971) 5) President cannot withhold his assent and not retuned the bill for reconsideration of president 6) President cannot use pocket veto or supensive veto Types of Amendements :- a) By the simple majority Art 368 provisions in constitution amended by simple majority are outside the scope of Article 368 ( Because, simple majority for only cosmetic changes not for fundamental change Provisions include in simple majority- 1) Names of states, boundaries, alteration of areas 2) Legislative council 3) Second schedule 4) Quorum 5) Privileges of parliament 6) Rule of procedure in parliament 7) Use of English Language 8) Use of official language 9) Citizenship 10) Elections to parliament 11) Delimitation commission 12) Fifth schedule 13) Sixth schedule 14) Union territories 15) More jurisdiction on superme court Pune 30. Ph , Mob Page 1

2 B) By Special majority and consent of states ( No time limit for state to give their consent to the bill) Federal structure Election of president and its manner Exeutive power of Union and states Supreme court and High court Distribution of legislative power Representation of states in Parliament Articale 368 it self. C) By Special Majority of Parliament Fundamental Rights Directive Principles of state policy Provisions which are not covered by first and third categories Amendability of Fundamental Rights 1) Shankari Prasad case (1951) Challenged first amendment act Supreme court i) Art 368 F.R.can be amendable ii) Art 13 for ordinary law only Parliament can amend Fundamental Rights 2) Golakhnath Case (1976) Changed previous decision By Seventh amendment some state law in nineth schedule F.R. Transcendental and Immutable 3) 24 th Amendement,1971 Art 368 and Art 13 amendment Art 368 Parliament can remove any fundamental rights It means power of Judicial Review Not applicable 4) Kesavananda Bharti case (24 April, 1973) 24 th Amendement valid Parliament can amend fundamental Rights, without affecting Basic structure of constitution Doctrine of Basis Structure 5) 42 nd Amendment, 1976 According to Art 368, Parliament can amend constitation and it is not under Judiciry. Pune 30. Ph , Mob Page 2

3 6) Minerva Mills care (1980) Limited power of parliament to amend. 7) Waman Rao case (1981) Basic structure would apply to constitutional amendments enacted after April 24, 1973 Federal System Federal System i) Federation ii) Confederation iii) Unitary Why Federal System? India s large size Socio-cultural diversity Federation Latin word Foedus means treaty or agreement Federation formed in two ways by way of integration by way of disintegration America - Forst amd oldest federation India Is union of states not Federation of states Federalism part of Basic structure Why India is not federal state? i) Not result of an agreement among states ii) State have no right to secede iii) Federation is union, it is indestructible Based on the Canadian Model not American Model Federal Features of the constitution 1) Dual polity 2) Written constitation 3) Divison of the power 4) Supremay of the constitation Pune 30. Ph , Mob Page 3

4 5) Rigid constitation 6) Independent Judiciary 7) Bicameralism Unitary features of constitation 1) Strong centre 2) States not Indestructible 3) Single constitation 4) Flexibility of constitution 5) No Equality of state Representation 6) Emergency Provision 7) Single citizenship 8) Integrated Judiciary 9) All- India services :- IAS, IPS, IFS, Art.311 sarkariya commission Art ) Integrated Audit Machinery (Art 148) 11) Parliaments authority over state list Art 249 Art 250 Art 252 Art 253 Art ) Appointment of Governor 13) Integated Election Machinery 14) Veto over state Bills Art 111 Art 200 Art 201 Critical Evaluation of the Federnal systems 1) K.C. wheare- quasi federal 2) Paul Appleby Extremly federal 3) Morris Jones- Bargaining federalism 4) Granville Austin- cooperative Federalism Bommai case, constitution is federal Bais structure Pune 30. Ph , Mob Page 4

5 Features of the constitution Maximum part from Government of India Act, th Amendment Mini constitution Important Features 1) Lengthiest written constipation 2) Drawn from various sources Originally Presently 1) 395 Article Article 2) 22 Parts 24 parts 3) 8 Schedule 12 schedule 3) Rigidity + flexibility Simple majority majority of present and voting Special majority 2/3 Majority of present and voting (that is more than 50 per cent) Special majority +simple majority of half of states 4) Federal system with Unitary Bias Confederation Unitary system Federation of states ( ) Union of states () federalism Basic structure of constitution 5) Parliamentary form of Government Art 74 & Art 75 & Art 163 & 164 6) Synthesis of Parlimentary sovereignty and Judicial supremary 7) Integated and Independent Judiciry 8) Fundamental Rights Political Democracy 9) Directive principles of state policy (Part IV) Social and Economic democracy Pune 30. Ph , Mob Page 5

6 10) Fundamental Duties Swaran singh committee 42th Amendment, duties 86 th Amendement, th duty added Non Justiciable 11) Secular State 42th Amendment addesd this word Positive secularism Negative secularism 12) Universal Adult Franchise (Art 326) 61th Amendement voting age reduced to 18 years from 21 years 13) Single citizenship 14) Independant Bodies UPSC Election commission CAG (Art.148) 15) Emergency provision (Part XVIII) Art ( ) Art (365) 16) Three tier Government i) Union govt. ii) State govt. iii) Local govt. 73 rd Amendement, 1992 Rural Local Government 74 th Amendement, Urban Local Goverment Pune 30. Ph , Mob Page 6