Basic Structure & Amendment of Constitution - Questions and Answers

ANSWER: Neither 1 nor 2

Explanation:
Special Majority of Parliament -

1. Special Majority means a majority (more than 50 per cent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting.

2. ‘Total membership’ means total number of members comprising the House irrespective of fact whether there are vacancies or absentees.

3. Strictly speaking, the special majority is required only for voting at the third reading stage of the bill but by way of abundant caution the requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.

4. The provisions which can be amended by this way includes -

(i) Fundamental Rights;
(ii) Directive Principles of State Policy; and
(iii) All other provisions which are not covered by the first and third categories.

Special Majority of Parliament and Consent of States -

1. Provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority.

2. If one or some or all the remaining states take no action on the bill,it does not matter;

3. The moment half of the states give their consent; the formality is completed.

4. There is no time limit prescribed within which the states should give their consent to the bill.

5. The following provisions can be amended in this way -

(i) Election of the President and its manner.
(ii) Extent of the executive power of the Union and the states.
(iii) Supreme Court and high courts.
(iv) Distribution of legislative powers between the Union and the states.
(v) Any of the lists in the Seventh Schedule.
(vi) Representation of states in Parliament.
(vii) Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

ANSWER: Only 2

Explanation:

• The procedure laid down for Indian Constitution’s amendment is neither as easy (flexible) as in Britain nor as rigid as in USA.


• It is a mix of both.


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


• It states that the Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down for the purpose


• However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case1 (1973).

Procedure for Amendment -

1. 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.

2. The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.

3. The bill must be passed in each House by a special majority, that is, a majority (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.

4. Each House must pass the bill separately.

5. 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 discussion and passage of the bill.

6. 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.

7. 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.

8. 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. 24^th Constitutional Amendment Act of 1971 made this obligatory.

9. After president’s assent, the bill becomes an Act and the Constitution stands amended in accordance with the terms of the Act.

ANSWER: Only 1

Explanation:

• 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, i.e., 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.

The Constitution can be amended in three ways -

1. Amendment by simple majority of the Parliament.
2. Amendment by special majority of the Parliament.
3. Amendment by special majority of the Parliament and the ratification of half of the state legislatures.

Simple Majority of Parliament

The provisions that can be amended by this include -

1. Admission or establishment of new states.

2. Formation of new states and alteration of areas, boundaries or names of existing states.

3. Abolition or creation of legislative councils in states.

4. 2^nd Schedule - emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.

5. Quorum in Parliament.

6. Salaries and allowances of the members of Parliament.

7. Rules of procedure in Parliament.

8. Privileges of the Parliament, its members and its committees.

9. Use of English language in Parliament.

10. Number of judges in the Supreme Court.

11. Conferment of more jurisdiction on the Supreme Court.

12. Use of official language.

13. Citizenship - acquisition and termination.

14. Elections to Parliament and state legislatures.

15. Delimitation of constituencies.

16. Union territories.

17. Fifth Schedule - administration of scheduled areas and scheduled tribes.

18. Sixth Schedule - administration of tribal areas.

ANSWER: Only 2, 3 and 4

Explanation:

• There is no provision for a special body like Constitutional Convention (as in USA) or Constitutional Assembly for amending the Constitution. The power is vested in the Parliament and only in few cases, in the state legislatures.


• The state legislatures cannot initiate any bill or proposal for amending the Constitution except in one case, that is, passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states.


• Here also, the Parliament can either approve or disapprove such a resolution or may not take any action on it.


• in few cases, the consent of the state legislatures is required and that too, only half of them, while in USA, it is three-fourths of the states.


• The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them.


• Also, it doesn’t talk on the issue whether the states can withdraw their approval after according the same.


• There is no provision for holding a joint sitting of both the Houses of Parliament if there is a deadlock over the passage of a constitutional amendment bill.


• The process of amendment is similar to that of a legislative process except for the special majority.


• The provisions relating to the amendment procedure are too ambiguous. Hence, they leave a wide scope for taking the matters to the judiciary.


• Despite these defects, it cannot be denied that the process has proved to be simple and easy and has succeeded in meeting the changed needs and conditions.


• The procedure is not so flexible as to allow the ruling parties to change it according to their moods and not so rigid as to be incapable of adapting itself to the changing needs.

ANSWER: 32^nd Amendment Act 1973

Explanation:

• 32^nd Amendment Act, 1973 made special provisions to satisfy the aspirations of the people of the Telangana region in Andhra Pradesh.


• When the State of AndhraPradeshwasformedin1956,certain safeguards were envisaged for the Telangana area in the matter of development and also in the matter of employment opportunities and educational facilities for the residents of that area.


• Note that the 5^th Amendment Act, 1955 empowered the president to fix the time-limit for the state legislatures to express their views on the proposed Central legislation affecting the areas, boundaries and names of the states.

ANSWER: 1^st, 1951

Explanation:

First Amendment Act, 1951 -

1. Empowered the state to make special provisions for the advancement of socially and economically backward classes.

2. Provided for the saving of laws providing for acquisition of estates, etc.

3. Added 9th Schedule to protect the land reform and other laws included in it from the judicial review.

4. Added three more grounds of restrictions on freedom of speech and expression, viz., public order, friendly relations with foreign states and incitement to an offence. Also, made the restrictions ‘reasonable’ and thus, justiciable in nature.

5. Provided that state trading and nationalization of any trade or business by the state is not to be invalid on the ground of violation of the right to trade or business.

• However, all laws placed under the 9^th Schedule after 24 April, 1973 are open to challenge in court if they violate basic structure of the constitution.


• The 6^th Constitutional Amendment Act, 1956 included a new subject in the Union list i.e., taxes on the sale and purchase of goods in the course of inter-state trade and commerce and restricted the state’s power in this regard.

ANSWER: 2, 3 and 4

Explanation:

• Point 1 is from the 44^th amendment act of 1978.


• 42^nd Constitutional Amendment Act, 1976 is known as ‘Mini-Constitution’.


• It gave effect to the recommendations of Swaran Singh Committee.

It had following provisions -

a. It added three new words (i.e., socialist, secular and integrity) in the Preamble.

b. Added Fundamental Duties by the citizens (new Part IV A).

c. Made the president bound by the advice of the cabinet.

d. Provided for administrative tribunals and tribunals for other matters (Added Part XIV A).

e. Froze the seats in the Lok Sabha and state legislative assemblies on the basis of 1971 census till2001.

f. Made the constitutional amendments beyond judicial scrutiny.

g. Curtailed the power of judicial review and writ jurisdiction of the Supreme Court and high courts.

h. Raised the tenure of Lok Sabha and state legislative assemblies from 5 to 6 years.

i. Provided that the laws made for the implementation of Directive Principles cannot be declared invalid by the courts on the ground of violation of some Fundamental Rights.

j. Empowered the Parliament to make laws to deal with anti-national activities and such laws are to take precedence over Fundamental Rights.

k. Added three new Directive Principles viz., equal justice and free-legal aid, participation of workers in the management of industries and protection of environment, forests and wild life.

l. Facilitated the proclamation of national emergency in a part of territory of India.

m. Extended the one-time duration of the President’s rule in a state from 6 months to one year.

n. Empowered the Centre to deploy its armed forces in any state to deal with a grave situation of law and order.

o. Shifted five subjects from the state list to the concurrent list, viz., education, forests, protection of wild animals and birds, weights and measures and administration of justice, constitution and organization of all courts except the Supreme Court and the high courts.

p. Did away with the requirement of quorum in the Parliament and the state legislatures.

q. Empowered the Parliament to decide from time to time the rights and privileges of its members and committees.

r. Provided for the creation of the All-India Judicial Service.

s. Shortened the procedure for disciplinary action by taking away the right of a civil servant to make representation at the second stage after the inquiry (i.e., on the penalty proposed).


• The 41^st Constitutional Amendment Act, 1976 raised the retirement age of members of State Public Service Commission and Joint Public Service Commission from 60 to 62.

ANSWER: 2, 3 and 4

Explanation:

• Point 1 is from the 43^rd amendment act of 1977.


• 43^rd Constitutional Amendment Act, 1977 and 44^th Constitutional Amendment Act, 1978 were enacted by the Janata Government mainly to neutralize the distortions introduced by the 42^nd Amendment Act, 1976.

43^rd Constitutional Amendment Act, 1977 provided for following things -

a. It restored the jurisdiction of the Supreme Court and the high courts in respect of judicial review and issue of writs.

b. It also deprived the Parliament of its special powers to make laws to deal with anti-national activities.

44^th Constitutional Amendment Act, 1978 -

a. Restored the original term of the Lok Sabha and the state legislative assemblies (i.e. 5 years).

b. Restored the provisions with regard to quorum in the Parliament and state legislatures.

c. Omitted the reference to the British House of Commons in the provisions pertaining to the parliamentary privileges.

d. Gave constitutional protection to publication in newspaper of true reports of the proceedings of the Parliament and the state legislatures.

e. Empowered the president to send back once the advice of cabinet for reconsideration. But, the reconsidered advice is to be binding on the president.

f. Deleted the provision which made the satisfaction of the president, governor and administrators final in issuing ordinances.

g. Restored some of the powers of the Supreme Court and high courts.

h. Replaced the term ‘internal disturbance’ by ‘armed rebellion’ in respect of national emergency.

i. Made the President to declare a national emergency only on the written recommendation of the cabinet.

j. Made certain procedural safeguards with respect to national emergency and President’s rule.
k. Deleted the right to property from the list of Fundamental Rights and made it only a legal right.

l. Provided that the fundamental rights guaranteed by Articles 20 and 21 cannot be suspended during a national emergency.

m. Omitted the provisions which took away the power of the court to decide the election disputes of the president, the vice-president, the prime minister and the Speaker of the Lok Sabha.

ANSWER: 91^st Amendment Act 2003

Explanation:

• 91^st Amendment Act, 2003 limited the size of Council of Ministers.


• It also debarred defectors from holding public offices and strengthened the anti-defection law.

Its provisions are -

a. The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha (Article 75(1A)).

b. A member of either house of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister (Article 75(1B)).

c. The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15% of the total strength of the legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12 (Article 164(1A)).

d. A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister (Article 164(1B)).

e. A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post. The expression “remunerative political post” means -

(i) any office under the central government or a state government where the salary or remuneration for such office is paid out of the public revenue of the concerned government; or

(ii) any office under a body, whether incorporated or not, which is wholly or partially owned by the central government or a state government and the salary or remuneration for such office is paid by such body, except where such salary or remuneration paid is compensatory in nature (Article 361-B).

f. The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits.

ANSWER: Sindhi

Explanation:

• At present, the Eighth Schedule of the Constitution specifies 22 languages.


• It originally specified 14 languages.
  
  These 14 were -
  
  
• Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Malayalam, Marathi, Oriya, Punjabi, Sanskrit, Tamil, Telugu and Urdu.


• Sindhi was added by the 21^st Amendment Act of 1967.


• Konkani, Manipuri and Nepali were added by the 71^st Amendment Act of 1992.


• 92^ndAmendment Act, 2003 included four more languages in the 8th Schedule - Bodo, Dogri (Dongri), Mathilli (Maithili) and Santhali.


• Thus, the total number of constitutionally recognized languages now is 22 - Assamese, Bengali, Bodo, Dogri (Dongri), Gujarati, Hindi, Kannada, Kashmiri, Konkani, Mathili (Maithili), Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Santhali, Sindhi, Tamil, Telugu and Urdu.


• The 96^thAmendment Act of 2011 substituted “Odia” for “Oriya”.

ANSWER: A-4, B-3, C-2, D-1

Explanation:

• 88^th Amendment Act, 2003 made a provision for service tax (Article 268-A).


• Taxes on services are levied by the Centre.


• But, their proceeds are collected as well as appropriated by both the Centre and the states in accordance with the principles formulated by parliament.


• 58^th Amendment Act, 1987 provided for an authoritative text of the Constitution in Hindi language and gave the same legal sanctity to the Hindi version of the Constitution.


• 39^th Amendment Act, 1975 placed the disputes relating to the President, Vice-President, Prime Minister and Speaker beyond the scope of the judiciary.


• They are to be decided by such authority as may be determined by the Parliament.


• 61^st Amendment Act, 1989 reduced the voting age from 21 years to 18 years for the Lok Sabha and state legislative assembly elections.


• 19^th Amendment Act, 1966 abolished the system of Election Tribunals and vested the power to hear election petitions in the High Courts.

ANSWER: A-2, B-3, C-1, D-4

Explanation:

• 11^th Amendment Act, 1961 changed the procedure of election of the vice-president by providing for an electoral college instead of a joint meeting of the two Houses of Parliament.


• It also provided that the election of the president or vice-president cannot be challenged on the ground of any vacancy in the appropriate electoral college.


• 18^th Amendment Act, 1966 made it clear that the power of Parliament to form a new state also includes a power to form a new state or union territory by uniting a part of a state or a union territory to another state or union territory.

16^th Amendment Act, 1963 -

a. Empowered the state to impose further restriction on the rights to freedom of speech and expression, to assemble peaceably and to form associations in the interests of sovereignty and integrity of India.

b. It also included sovereignty and integrity in the forms of oaths or affirmations to be subscribed by contestants to the legislatures, members of the legislatures, ministers, judges and CAG of India.

15^th Amendment Act, 1963 -

a. Enabled the high courts to issue writs to any person or authority even outside its territorial jurisdiction if the cause of action arises within its territorial limits.

b. Increased the retirement age of high court judges from 60 to 62 years.

c. Provided for appointment of retired judges of the high courts as acting judges of the same court.

d. Provided for compensatory allowance to judges who are transferred from one high court to another.

e. Enabled the retired judge of a high court to act as adhoc judge of the Supreme Court.

f. Provided for the procedure for determining the age of the Supreme Court and high court judges.

ANSWER: A-3, B-2, C-1, D-4

Explanation:

69^th Amendment Act, 1991 -

a. It accorded a special status to the Union Territory of Delhi by designing it as the National Capital Territory of Delhi.

b. The amendment also provided for the creation of a 70-member legislative assembly and a 7-member council of ministers for Delhi.

• 70^th Amendment Act, 1992 provided for the inclusion of the members of the Legislative Assemblies of National Capital Territory of Delhi and the Union Territory of Puducherry in the electoral college for the election of the president.

86^th Amendment Act, 2002 -

a. It made elementary education a fundamental right.

b. The newly added Article 21A declares that ‘the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may determine’.

c. It changed the subject matter of Article 45 in Directive Principles of State Policy.

d. It now reads - ‘The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years’.

e. It also added a new fundamental duty under Article 51A which is - ‘It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years’.


• 33^rd Amendment Act, 1974 provided that the resignation of the members of Parliament and the state legislatures may be accepted by the Speaker/Chairman only if he is satisfied that the resignation is voluntary or genuine.

27^th Amendment, 1971 -

a. Empowered the administrators of certain union territories to promulgate ordinances.

b. Made certain special provisions for new Union Territories of Arunachal Pradesh and Mizoram.

c. Authorized the Parliament to create the legislative assembly and the council of ministers for the new state of Manipur.

ANSWER: A-3, B-1, C-4, D-2

Explanation:

• 24^th Amendment Act, 1971 affirmed the power of Parliament to amend any part of the constitution including fundamental rights.


• It made it compulsory for the president to give his assent to a Constitutional Amendment Bill.


• 25^th Amendment Act, 1971 curtailed the fundamental right to property.


• It provided that any law made to give effect to the Directive Principles contained in Article 39 (b) or (c) cannot be challenged on the ground of violation of the rights guaranteed by Articles 14, 19 and 31.


• 26^thAmendment Act, 1971 abolished the privy purses and privileges of the former rulers of princely states.


• 28^th Amendment Act, 1972 abolished the special privileges of ICS officers and empowered the Parliament to determine their service conditions.


• 38^th Amendment Act, 1975 made the declaration of emergency by the president non-justiciable.


• It made the promulgation of ordinances by the president, governors and administrators of union territories non-justiciable.


• It also empowered the president to declare different proclamations of national emergency on different grounds simultaneously.

ANSWER: All of the above

Explanation:
Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

Though unclear about the exact basic structure, from the various SC judgements, the following have emerged as ‘basic features’ of the Constitution -

1. Supremacy of the Constitution.
2. Sovereign, democratic and republican nature of the Indian polity.
3. Secular character of the Constitution.
4. Separation of powers between the legislature, the executive and the judiciary.
5. Federal character of the Constitution.
6. Unity and integrity of the nation.
7. Welfare state (socio-economic justice).
8. Judicial review.
9. Freedom and dignity of the individual.
10. Parliamentary system.
11. Rule of law.
12. Harmony and balance between Fundamental Rights and Directive Principles.
13. Principle of equality.
14. Free and fair elections.
15. Independence of Judiciary.
16. Limited power of Parliament to amend the Constitution.
17. Effective access to justice.
18. Principle of reasonableness.
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142.

ANSWER: A-1, B-4, C-2, D-3

Explanation:

• The constitutional validity of the 1^st Amendment Act (1951), which curtailed the right to property, was challenged in the Shankari Prasad case (1951).


• The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.


• Constitutional validity of the 17^th Amendment Act (1964), which inserted certain state acts in the 9th Schedule, was challenged in the Golak Nath case (1967).The Supreme Court said that the Fundamental Rights cannot be amended. The Parliament cannot abridge or take away any of these rights.


• But, in the Kesavananda Bharati case (1973), the Supreme Court upheld the validity of the 24^th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights.


• It also laid down a new doctrine of the ‘basic structure’ of the Constitution.


• It said that the Parliament under Article 368 can’t alter the ‘basic structure’ of the Constitution.


• This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.


• The Supreme Court in the Minerva Mills case (1980) invalidated the provision in 42^nd Amendment Act (1976), as it excluded judicial review which is a ‘basic feature’ of the Constitution.


• In the Waman Rao case (1981), the Supreme Court adhere to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973 - the date of the judgment in the Kesavananda Bharati case.