Can the Constitution of India be altered completely ?

Can the Constitution of India be altered completely ?

Why is it in the news?

1.The ruling party BJP gave the slogan of “Abki bar char so par” in the eighteenth general election for Lok Sabha. This means that, BJP wants to get 400 seats out of 543 seats in Lok Sabha. 

2.Bjp MP of Faizabad, Lallu Singh, Bjp candidate Mrs Jyoti Mirdha and former union minister Anant Kumar Hegde from Karnataka asserted that it was necessary to get 400 seats in Lok Sabha so that the constitution can be altered. 

3.The moot question is : can our constitution be altered completely? 

What is the process of amendment? 

1.So far 106 amendments have been made in our constitution. Our constitution is a mixture of rigidity and flexibility. It is the living document. So, unlike the US constitution which is very much rigid, our constitution has been amended to fulfil the changing societal needs. 

2.Article 368, contains provision for the amendment of our constitution. 

3.A bill for amendment can be introduced only in either House of the Parliament, not in the state legislatures.

4.An amendment bill can be introduced either by a minister or a private member and does not require prior permission of the President.

5.The bill must be passed in each House of the Parliament by a special majority that is a majority of more than 50% of the total membership of the House and a majority of two thirds of the members of the House, present and voting. For example, if Rajya Sabha has 240 members, the absolute majority would be 121. Suppose on that day, the total number of members present in the Rajya were 200. And suppose 180 members voted on the bill and 20 members absented themselves.  2/3rd of 180 members would be 120. So in order to pass the bill at least 121 members are required to vote in favour of the amendment. Suppose all 240 members were  present and they participated in the voting,  then 2/3rd majority will be 160. So, in order to pass the bill, 160 votes are needed. 

6.Each House must pass the bill separately. There is no provision for joint sitting of Parliament in case of a constitutional amendment bill. If the bill is passed by both Houses of the Parliament, it must be presented before the President for his assent. Once the President assents to the bill, it becomes an act. Those provisions which require special majority include fundamental rights, Directive Principles of State Policy, Fundamental Duties.

7.In case the constitutional amendment bill is with respect to the federal provisions of our constitution, in addition to the Parliamentary approval of special majority, at least half of the state legislature must ratify the bill with simple majority. For example, election of the President, executive power of the union and the states, provisions related to the Supreme Court and the High Courts. Goods and Services tax council, distribution of legislative powers between the union and states. Any of the list of the seventh schedule, representation of the states in the Parliament, power of Parliament to amend the constitution and its procedure under article 368. 

8.According to the 24th amendment act, it has become mandatory for the President of India to give his assent to the constitutional amendment bill passed by the Parliament. So unlike ordinary bills, he can neither withhold his assent to the bill nor return the bill for reconsideration by the Parliament. 

9.There are several provisions in our constitution which can be amended by a simple majority. These amendments fall outside the jurisdiction of article 368. These are creation of new states, alteration of the boundaries of and the changes of names of existing states, fifth and sixth schedule of our constitution, abolition and creation of legislative council in a state, rules of procedure in Parliament, citizenship, delimitation of the constituencies, union territories, use of official language, privileges of Parliament. 

Basic structure of the constitution

1.On 24th April 1973, the 13 judges bench of the Supreme Court overruled the judgement in Golaknath case (1967) where it held that the Parliament was not competent to amend fundamental rights covered under part III of our constitution. By 24th amendment, Parliament asserted that it could amend any part of the constitution. In Kesavananda Bharati case (1973), the Supreme Court approved the 24th amendment and held that Parliament could amend any part of the constitution but it could not alter the basic structure of the constitution. The doctrine of basic structure was applied in the Indira Nehru Gandhi case (1975). The Supreme Court invalidated the provision of 39th amendment act which kept the election disputes related to the Prime Minister and Lok Sabha Speaker outside the judicial review of any court of India. The Supreme Court held that the judicial review is a part of the basic structure of the constitution and Parliament is not competent to amend it. 

2.By the 42nd amendment (1976) article 368 was amended and it provided that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of contravention of any of the fundamental rights. However, the Supreme Court in the Minerva Mills case (1980) invalidated this provision. It stated that since the constitution has conferred a limited amending power on the Parliament, Parliament could not under the exercise of that limited power enlarge that very power into an absolute power. 

3.Again in the Vaman Rao case (1980), the Supreme Court held that all the constitutional amendments enacted after 24th April 1973 would come under judicial review.

It did not define what constitutes basic structure in the Keshvanand Bharati case (1973)? But, in the catena of judgements it defined basic structure. These are - 

• Supremacy of the constitution

• Sovereign democratic and republican nature of the Indian Polity

• Federal character of the constitution

• Separation of powers 

• Parliamentary democracy

• Independence of judiciary 

• Powers of the Supreme Court under articles 32,136,141 and 142

• Powers of the High Court under articles 226 and 227

• Effective access to the justice

• Principle of equality 

• Free and fair election

• Limited power of the Parliament to amend the constitution

• Rule of law

• Judicial review 

• Secular character of the constitution

• Unity and integrity of nation

• Fundamental rights

4.Conclusion

1.As of now, on account of the  doctrine of the basic structure of the constitution, the Parliament has limited power and so it cannot alter our constitution completely. If Parliament does so, the Supreme Court will test the amendment act and if it finds that amendment act infringes upon basic structure of the constitution, it will declare that amendment act ultra vires. Thus, for example, if Parliament changes Parliamentary democracy to Presidential democracy, it will be hit by the doctrine of basic structure and so the Supreme Court will invalidate the amendment act. So, even after getting two third majority in both Houses of the Parliament, a party cannot bring total annihilation of our constitution. The ultimate guardian and protector of our constitution is the Supreme Court of India.