Indian Polity Quiz: Amendment of Constitution, Basic Structure of the Constitution, Emergency Provisions | 5 June, 2021

A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament outside the scope of Article 368.

These provisions include:

• Admission or establishment of new states.
• Formation of new states and alteration of areas, boundaries or names of existing states.

• Abolition or creation of legislative councils in states.
• Second Schedule—emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
• Quorum in Parliament.
• Salaries and allowances of the members of Parliament.
• Rules of procedure in Parliament.

• Privileges of the Parliament, its members and its committees.
• Use of English language in Parliament.
• Number of puisne judges in the Supreme Court.
• Conferment of more jurisdictions on the Supreme Court.
• Use of official language.

• Citizenship—acquisition and termination.
• Elections to Parliament and state legislatures.
• Delimitation of constituencies.
• Union territories.
• Fifth Schedule—administration of scheduled areas and scheduled tribes.

• Sixth Schedule—administration of tribal areas.

Source: Laxmikanth

Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.

• An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
• The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
• The bill must be passed in each House by a special majority, that is, a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting. Each House must pass the bill separately.

• In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
• If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
• After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
• The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
• After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.

Source: Laxmikanth

The Emergency provisions are contained in Part XVIII of the Constitution, from Articles 352 to 360.

• These provisions enable the Central government to meet any abnormal situation effectively.
• The rationality behind the incorporation of these provisions in the Constitution is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution.
• During an Emergency, the Central government becomes all powerful and the states go into the total control of the Centre.
• It converts the federal structure into a unitary one without a formal amendment of the Constitution.

Source: Laxmikanth

Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority.

• But some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process).
• Notably, these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.

Source: Indian Polity by Laxmikanth

The Supreme Court used the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalization case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980), and so on.

Source: Laxmikanth

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.

From the various judgments, the following have emerged as ‘basic features’ of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:

• Supremacy of the Constitution
• Sovereign, democratic and republican nature of the Indian polity
• Secular character of the Constitution
• Separation of powers between the legislature, the executive and the judiciary
• Federal character of the Constitution

• Unity and integrity of the nation
• Welfare state (socio-economic justice)
• Judicial review
• Freedom and dignity of the individual

Source: Laxmikanth

Once approved by both the Houses of Parliament, the Financial Emergency continues indefinitely till it is revoked. This implies two things:

• there is no maximum period prescribed for its operation; and
• Repeated parliamentary approval is not required for its continuation.

A resolution approving the proclamation of financial emergency can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that house present and voting.

A proclamation of Financial Emergency may be revoked by the president at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.

Source: Laxmikanth

Under Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion.

• It may be noted that the president can declare a national emergency even before the actual occurrence of war or external aggression or armed rebellion, if he is satisfied that there is an imminent danger.
• The President, however, can proclaim a national emergency only after receiving a written recommendation from the cabinet.
• This means that the emergency can be declared only on the concurrence of the cabinet and not merely on the advice of the prime minister.
• In 1975, the then Prime Minister, Indira Gandhi advised the president to proclaim emergency without consulting her cabinet.
• The cabinet was informed of the proclamation after it was made, as a fait accompli.

• The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the prime minister alone taking a decision in this regard.

Source: Indian Polity by Laxmikanth

The President can also issue different proclamations on grounds of war, external aggression, armed rebellion, or imminent danger thereof, whether or not there is a proclamation already issued by him and such proclamation is in operation. This provision was added by the 38th Amendment Act of 1975.

Source: Laxmikanth

A proclamation imposing President’s Rule must be approved by both the Houses of Parliament within two months from the date of its issue.

• However, if the proclamation of President’s Rule is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha approves it in the meantime.
• If approved by both the Houses of Parliament, the President’s Rule continues for six months.
• It can be extended for a maximum period of three years with the approval of the Parliament, every six months.

Source: Laxmikanth