Constitution and Legislature of India
3rd-year,
School of Law, Christ (deemed to be University).
Abstract
Indian parliament came with the power of rulemaking[1] through article 368 of the constitution of India for the better governing of the nation and once it gets the assent of the President then the role of the Executive came into the picture; who implement it. The law made by the Indian parliament should be of such nature that it will not abrogate the fundamental rights granted to the citizen of India; enshrined in part III of the constitution of India. There are many cases like “Golaknath vs. the State of Punjab”[2], “Kesavananda Bharti vs. State of Kerala”[3]which talk about the amending the part III of the constitution of India, but then the Supreme court (apex court) of India overrule its previous judgement which then established a new rule.
But “Why the Indian Judiciary has been awarded the power of keeping an eye on the legislature?” and “Does the power of ‘Judicial Review’ really able to achieve its objective; in respect of Citizenship Amendment Bill, 2019?”
The purpose of the Citizenship Act is to provide the Citizenship card to the non-holders and those who want to reside in the territory of India. But the new amendment has brought a provision of deducting only specific category of people(s) from the list of citizenship even if they have fulfilled all the criteria for the attainment of citizen card from the Government of India. Does this act of the Government of India is able to pass the test of Article 14 and Article 15(1) of the Indian Constitution of India? In the end, the author will attempt to try to answer all the questions mentioned above and analyse the existing democratic set up with his own opinion.
Indian history related to Constitution of India:
The constitution of India is one of the largest and the bulkiest constitution of the world which carries many requisites qualities varies to the needs of the country. India is the world’s largest democratic country which comes with many challenges of unity start from the very beginning like linguist, culture, geographical conditions; which puts barriers for the legislature while making the laws and new legislations to keep in view of every individual of the country.
During colonial epoch, the country was under the control of British East India Company, which arrived in India in 1600, as trading merchants who later ruled the country. They were very successful in setting up themselves through royal charters and permissions granted by the then local rulers and this went through the framing of the Government of India Act, 1919 & 1935; which aids the constitutional assembly in drafting the Indian constitution.
Constituent Assembly:
A major task before a Constituent Assembly, which sits to deliberate over the principles and ideals on which the constitution of a country is based, is to prevent the constitution from becoming so rigid as to permit no changes at all and at the same time to enable it to protect itself from the caprices of a transient majority. The constituent power responsible for framing the constitution does not want the constitutional provisions to be changed by ordinary legislative procedure, for it regards the constitution superior to the legislature whose task it will be to follow and not frame the principles of the constitution. At the same time, it is also aware that a constitution based on the ideas prevalent in a particular period must be able to reflect the new ideas as and when they replace the prevailing ones. For, nothing is so fundamental that it will remain so under all circumstances and for all times to come. There remain, thus, two courses open. First is to leave the problems of change and adaptations to be solved by the political institutions and people in the future. Second is to provide for a special method in the constitution itself by which it can be revised when needed.[4]
The Indian Judiciary work as the watchdog for the other three legislatures and this assist in the supremacy of the Indian Constitution, as Constitution of India, is supreme. The provision of checks and balance was awarded so that if the legislature made any law, which violates any the very basic feature or which took away Fundamental Rights (Part III) of the constitution, then Judiciary can step into that law and make it ultra-virus or unconstitutional & void[5].
The main course is laden with clear troubles and it might bring about vulnerabilities and may even prompt brutal changes. The main way left, hence, is to remember for the first archive itself the strategy its update. The constituent gathering, along these lines, realizing that it can’t in any way, shape or form anticipate all the projections, “endeavours to organize the amusement of a constituent get together at whatever point such issues in future are to be considered”[6]. This constituent force might be vested in different political organizations and officially likewise in the individuals. Now and again the position or establishment practising such a constituent force might be “simply the common council acting under specific limitations”[7]. A law making body getting a charge out of such constituent power, in this way, demonstrations in two limits, first as a normal governing body ordering conventional laws and second, as constituent position overhauling the arrangements of the constitution. Such a law-making body, almost certainly, appreciates an assigned constituent position just which might be depicted as altering power. There ought not to be, thusly, a perplexity between the constituent force and the changing force[8]. The organ approved to alter, notwithstanding, goes about as a constituent capacity somewhat and it can re-examine the constitution, even completely[9].
In this way, as there ought to be no disarray between the changing force and the constituent force, there ought to likewise be no perplexity between the law-making body going about like a conventional law-production authority and the governing body practising constituent authority under the correcting arrangements of the constitution.
This is what has happened with the judgment given by the Supreme Court in Golaknath v. State of Punjab case. The Court has held, inter alia, that an amendment act under article 368 is law within the meaning of Article 13(2)[10]and that the amending power of the Parliament ensues not from article 368 but from articles 245. 246 and 248.[11]That the Court may reconsider its judgment in Golaknath seems to be possible as in a subsequent case, Mohd . Yakub Khan
V. State of Jammu and Kashmir, revising its stand in Gulam Sarwar V. Union of India, it held that a Presidential Order under Article 359[12]suspending the fundamental rights is not a law for the purpose of article 13(2).
V. State of Jammu and Kashmir, revising its stand in Gulam Sarwar V. Union of India, it held that a Presidential Order under Article 359[12]suspending the fundamental rights is not a law for the purpose of article 13(2).
But, for the present, the Golaknath judgment stands and the fundamental rights have become immutable.
Similarly, the hopes raised by the Court’s decision in Shantilal Magaldas V. State of Gujarat[13]in which the Court, revising its earlier judgment, refused to go into the question of ‘adequacy’ of compensation,[14]have been belied by the decision in R.C. Cooper V. Union of India[15]. This rapid succession of revised judgments shows that due to certain ambiguities in the provisions of our Constitution it is possible to ‘read’ in these articles anything one likes. It is in this light that serious consideration, especially of the amending provisions of the Constitution has become urgent. On the correct interpretation of these provisions depends the future development of our Constitution. On the clarity and liberality of these depends the answer to the question of whether our Constitution will prove to be a dynamic document in the process of social change.
The decisions referenced above and the debates raised along these lines, notwithstanding, feature just a single part of the. the issue of the revision, i.e., Parliament’s locale over Fundamental Rights. Proposals both for and – against enabling the Parliament to re-examine these rights have come from that point forward. The annihilation of the Privy Purses annulment bill in the Council of States and the proposals for a joint meeting of the Parliament pinpoint one more uncertainty of article 368[16]. The
individuals who contradict any expansion of the correcting intensity of Parliament call attention to an enormous number of revisions did in a short time of 20 years. The opportunity has already come and gone, along these lines, that a point by point assessment of the revising arrangements and the changes done as such far ought to be made to consider whether these arrangements require a re-drafting and whether the charge of an excessive number of alterations in too short a period is substantial. The motivation behind this paper, subsequently, isn’t to state how the altering arrangements ought to be modified yet to inspect why such a correction has gotten inescapable.
The manner in which the constitution can be amended:
There may be four formal methods by which a constitution can be amended.[17]
(i) by a special convention,
(ii) by the people through a referendum,
(iii) by a majority of all units of a federal state and
(iv) by the ordinary legislature acting under certain restrictions.
The Indian Constitution combines the last two methods and at the same time authorises the Parliament to amend some provisions of Constitution by a simple majority. There are, thus, three formal methods according to which the Indian Constitution can be amended:
(а) amendment by a simple majority of the Parliament.
(b) Amendment by a special majority of the Parliament and
(c) amendment by a special majority of the Parliament with ratification by at least one-half of the States.
Amendment by simple majority: Articles 2, 3, 4, 169 and 239 A authorise the Parliament to revise the provisions concerned, with a simple majority. Thus the Parliament may, in consultation with the State legislatures, alter or change their boundaries,[18] may revise the First and Fourth Schedule and article 81 (the composition of the Parliament etc.)[19] may abolish the Legislative Council of a State or may provide for one[20] and may create legislatures or council of ministers for union territories[21] by a simple majority. Similarly, the Parliament is authorised to regulate citizenship rights by law under article 11 of the Constitution. In other words, in all these cases the Parliament enjoys the full constituent authority. The clauses of the relevant articles (see notes 12 to 14) however, make it clear that such changes made by the laws of the Parliament shall not be deemed to be amendments for the purpose of article 368.
Amendment by the special majority:
Article 368of the Constitution provides two methods for the revision of the different parts and articles of the Constitution.[22]In the first place, all the provisions of the Constitution except those which have been included in the proviso of Article 368 are amendable by the ‘double’ majority of the Parliament, first, a majority of the total members of each House considering such an amendment bill and secondly, a majority of not less than two-thirds of the members present and voting. It would also appear that such a bill has to be considered by the Houses separately.
Amendment by special majority with ratification by States:
“Finally, according to the second method provided by article 368, an amendment to articles, Parts, Schedules included in the proviso of the article requires a similar ‘double’ majority support of the Houses of the Parliament plus ratification by at least one-half of the States.”
The meaning, however, does not give us a clear idea of the implications of the term amendment in the law. As the majority judgment of the Supreme Court in Sajjan Singh v. the State of Rajasthan[23]pointed out, “the reliance on the dictionary meaning of the word is singularly inappropriate because what article 368 authorises to be done is the amendment of the provisions of this Constitution. It is well known that an amendment of law may, in a proper case, include the deletion of any one or more of the provisions of the law and the substitution in their place of new provisions. There is nothing explicit or implied, in the provisions of article 368, which places such restrictions on the
amending authority in our country except that some provisions can be amended only by following the procedure laid down in the article. In this respect, the Indian Constitution can be usefully compared with the Constitution of South Africa which has certain ‘entrenched’ provisions which can be amended only by following a special procedure. The stand was taken by the Indian Supreme Court in the famous cases of Shankari
Prasad v. Union of India and Sajjan Singh v. the State of Rajasthan in the pre-Golaknath period was the same, i.e. all the provisions of the Constitution, including the fundamental rights, were subject to the amending authority of Parliament.[24]
Supreme Court View’s in “Golaknath Case”:
The Court, however, revised its view in Golaknath case and ruled that the fundamental rights are not within the scope of the amending power of the Parliament. The main observations made by the majority judgment (6 to 5) are the following: –
1. The power of amendment is contained not in (article 368 but in articles 245, 246 and 248. Article 368 prescribes only the procedure of amendment.
2. An amendment act is a ‘law’ within the meaning of article 1 3(2)[25]and hence if it takes away or abridges any right under Part III it will be void.
3. Parliament will have no power from the date of the decision to amend any provision of Part III so as to take away or abridge any fundamental right.
4. Applying [the doctrine of ‘prospective overruling’, the Court decided that the Golaknath decision will have prospective effect only and hence the amendments done up to the date of the decision will continue to be valid.
The Court’s view that the altering power has its root in articles 245, 246 and 248 doesn’t appear to be persuading. While articles 245 and 246 arrangement with the authoritative word of the Parliament and the State law-making bodies, article 248 vests residuary powers in the Parliament[26]. Neither the Union List nor the Concurrent List contains a thing referencing the ability to correct. As per the view that the ability to correct is
suggested in entry 297 of the Union List and in the residuary force referenced in article 248, the changing force would appear to be unimportant to the point that it couldn’t discover explicit notice in any of the said articles and records. This will be progressively clear in perspective on the way that the Union List contains a not insignificant rundown of 297 things and condition 2 of article 248 vests in the middle, explicitly, the control over expenses not referenced in the State list and simultaneous rundown[27].
Conclusion:
A revision of Part XX, therefore, to improve it generally and to make it comprehensive, precise, positive and distinct from the ordinary legislative power of the Parliament seems not only desirable but essential. It is essential to dispel any doubts about the competence of the Parliament to amend any part of the Constitution according to the given procedure. As has been shown there is no basis for the ‘no-confidence’ in the legislature. “We must presume”, Dicey says, “that it (the Parliament) discharges its functions properly and with due regard to the law in the making of which it has so great a share. If its determination is not in accordance with the law this resembles the case of an error by a judge whose decision is not subject to appeal.” He frequents revision by the Supreme Court of its own judgments show that these judgments are not always above reproach or criticism. The observation made by the Chief Justice Mr M. Hidayatullah in Shantilal Magandas v. the State of Gujarat should be of interest here. Accepting the error of an earlier judgment, he observed,
“I am in agreement that the remarks in P. Vajrevelu’s case must be treated as obiter and not binding on us. I am also of the opinion that the Metal Corporation case, (1967) I.S.C.R. 255, was wrongly decided and should be overruled.”
Analysis:
The constitution of India has given enough power to the Indian legislature to amend the Indian constitution because society changes much faster than the law and it is necessary for the diverse country like India to have a flexible and approached provisions which basically assist its citizen to run the country in a smooth and amicable manner. But there is always the two sides of policy some support such policy or others stood against it and then the same is happening in the country regarding CAA. The violence by the opposition of this policy over the ‘discrimination issue of the policy to avoid the citizenship to the persons belonging to the Muslim community’ is one of the biggest concern since it relates to the discrimination of people on the basis of religion, and avoid awarding the citizen to them, which is directly violative of Article 14[28],15[29]of the constitution of India.
As referenced in the 2019 Amendment demonstration of citizenship, it will offer resident to each one of those people who showed up in India from Afghanistan, Pakistan and Bangladesh and to the individuals who explicitly has a place with “Hindu, Christian, Jain, Buddhism, Sikh or Parsi”, which implies the rundown is comprehensive and suspended the people who follow Muhammadan religion and who entered the premises of India from the previously mentioned three nations at the very latest 31st/December/2014, whom the Indian government have not given the citizenship will be entitled to citizenship, yet this will prohibit the Muhammadan religion adherents from this classification[30].
The Citizen (Amendment) Act, 2019 has given an arrangement of an application made to the proper position (government) if their name isn’t recorded in the Citizenship records[31][32].
Be that as it may, it’s better to rest the choice of ‘whether it being unlawful or sacred?’ will stay in the hands of Supreme Court of India, as it is the precise and suitable position.
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[1] Article 368: Power of the Parliament to amend the constitution and procedure therefor (Part XX) of the constitution of India. [Subs. By the constitution 24th amendment Act, 1971.]
[2] 1967 AIR 1643
[3] (1973) 4 SCC 225
[4] By Bishwanath Singh, A CASE FOR AMENDING THE AMENDING PROVISIONS OF THE INDIAN CONSTITUTION, from (The Indian Journal of Political Science, Vol. 31, No. 4 (October—December 1970); ¶¶381-401.)
[5] Judge bench in the case of “National Judicial Appointment Commission (NJAC)”.
[6] C.F. Stron Modern Political Constitutions, (London, Sidgwick and Jackson, 1963), p. 152.
[7] Ibid.
[8] C.J. Friedrich, constitutional government and democracy, (Calcutta, Oxford and I.B.H., 1966), P.1.
[9] Ibid.- It happened in Switzerland
C.F. views expressed by former Chief Justice K. Subbarao at National Conference on Fundamental Rights. He says that the constituent assembly cannot delegates its powers to any other body, vide the times of India, (Bombay) August30, 19.
[10] Article 13(2) reads as under: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
[11] Article 368 reads as under : An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if suc
h amendment seeks to make any change in
h amendment seeks to make any change in
(а) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article. The amendment shall also require to be ratified by the legislatures of not less than one-half of the States by resolutions to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent.
Article 248 reads:
(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.
[12] Suspension of the enforcement of the rights conferred by Part III during emergencies
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order
(1A) While an order made under clause ( 1 ) mentioning any of the rights conferred by Part III (except Article 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions containing in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation
(1B) Nothing in clause ( 1A ) shall apply
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital
(2) An order made as aforesaid may extend to the whole or any part of the territory of India: Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the Preside
nt, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary
nt, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary
(3) Every order made under clause ( 1 ) shall, as soon may be after it is made, be laid before each House of Parliament
[13] 1969 SCC (1) 509
[14] Interpreting the compensation clause of article 31.
[15] 1970 AIR 564
[16] There is no provision of joint session in article 368.
[17] C.F. Strong, op. cit., p.153.
[18] . Relevant articles of the Indian Constitution read as follows: Art. 2:
Parliament may be law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.
Art. 3: Parliament may by law
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State ; Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.
[19] Relevant clauses of article 4 read as follows:
(1) Any law referred to in Article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as a
foresaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.
foresaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.
[20] Relevant clauses of article 169 read:
(1) Notwithstanding anything in Article 168, Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.
[21] Article 239A:
(1) Parliament may by law create for any of the Union territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry (a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified by law.
(2) Any such law as is referred to in Clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.
[22] Refer footnote 1&10.
[23] Sajjan Singh v. State of Punjab [1965 AIR 845]
[24] . In Sajjan Singh case, in fact, Gajendragadkar C.J., pointing to the susceptibility of the fundamental rights, observed: Parliament may consider whether it would not be expedient and reasonable to include the provisions of Part III in the proviso of article 368.
[25] Refer footnote 9.
[26] Article 248 reads:
1. parliament has exclusive power to make any laws with respect to any matter not enumerated in the concurrent list or state list.
2. Such power shall include the power of making any law imposing a tax not mentioned in either of those lists.
[27] Refer to footnote 23.
[28] Article 14: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
[29] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
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(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
[30] Citizenship (Amendment) Act, 2019, mentioned in The Gazette of India, published on 12th/December/2019 by Ministry of Law & Justice.
[31] Ibid. reference 27.
[32] Maneka Gandhi v. Union of India 1978 AIR 597.