AMENDING THE CONSTITUTION
By C. V. H. RAO, M.A.
Proposals
and suggestions for amendment of
A
nation’s Constitution is a sacred document and should, as such, be treated with
appropriate deference. Lord Bryce described a Constitution as a “frame of
political society, organised by and through law, that
is to say, one in which law has established permanent institutions with recognised functions and definite rights”. This definition
implies two fundamental conceptions: first, that a Constitution establishes
some permanent agencies–the Executive, the Legislative and the Judiciary
branches–through which the sovereign authority of the State will be exercised;
and secondly, that it establishes the supremacy of Law over arbitrary force.
Implied in the definition is also the view that as Law is not immutable but is
subject to change with the changing needs and requirements of the society to
which it applies, changes in the relations between the organs of government inter
se, or in their powers and functions and the manner of their exercise,
should be susceptible of being introduced in response
to developing needs.
In
some countries with written Constitutions, the
Our
Constitution, the outcome of unremitting efforts expended over nearly three
years by some of our foremost leaders, also embodies the national aspirations
and ideals of the Indian people and the objectives and ends they intend to
achieve through it. Attempts facilely to modify its provisions, therefore,
engender an uneasy feeling. At the same time, changes and amendments rendered
imperative by experience of its working, by developing needs and altered
circumstances, should not be precluded from being introduced. Our
Constitution-framers envisaged the need for such changes, which accounts
largely for the procedure prescribed for amendment, which is simple and
flexible enough to be operative in response to the demands of national policy
and changing social needs, and yet rigid enough to ensure that amendments of a
fundamental character, affecting the rights of constituent States or inter-statal relations, or of a structural character generally,
are not steamrolled into the basic law of the land without consultation with or
in opposition to the desires of the State units.
Deliberations
in the Constituent Assembly on the Indian Constitution reveal that actuating
the framers was the desire that the Constitution should be a blend of the
principles of rigidity and flexibility on the one hand and of the unitary and
the federal types of Constitution on the other. They took account of the course
of India’s constitutional development in the three preceding decades of the
country, which had been in favour of progressive
revolution of authority on the States; they took account of the political and
economic philosophy that Gandhiji strove to inculcate in the nation during the
two and a half decades of the freedom struggle, and which was embodied in his
now well-known constructive programme; and finally, they borrowed extensively
from the Constitutions of other free countries like the United States and
France and from the Government of India Act itself, besides the constitutional
practices of Great Britain.
This
is clearly discernible in the provisions relating to the constitution and
functions of the Legislative, the Executive and the Judiciary branches of the
State, and in respect of the Fundamental Rights provisions. To a certain extent
the influence of foreign Constitutions is also discernible in the provisions
for the amendment of the Constitution. While a Vastly large number of Articles
are susceptible of amendment through a two-thirds majority vote in Parliament
followed by Presidential assent, a few of them, particularly those relating to
the rights of the State units changes in territorial jurisdictions of States,
the constitution and functions of the Federal Judiciary and the functions of
the Comptroller-and-Auditor-General, the constitution and functions of the
State High Courts and judges, representation of States in Parliament, and
lastly, Article 368 itself which prescribes the procedure for constitutional
amendment, cannot be changed unless the proposals secure the assent of not less
than one-half of the States included in Part A and Part B of the First Schedule
through an affirmative vote of the State Legislatures, and are thereafter
presented to the President for assent. It is implicit in this procedure that
proposals for amendment can emanate only from the Government of India or the
State Governments.
With
the inauguration of the Constitution on January 26, 1950, India has in a very
real sense become a ‘Constitutional State’, which means that it has become a
member of the family of States in the world “nationalistic in impulse and
democratic in structure” and, what is significant in the context of our
longstanding association with Great Britain over which reigns a monarch,
republican in form and content. A clear-cut or distinctive political philosophy
did not indeed inspire or guide our Constitution-framers, just as it did the
framers of, say, the U. S. Constitution, but, as it emerged into its final
shape and form, it became increasingly evident that it was being designed to
conform to the philosophy of democratic nationalism, to be capable of promoting
the fulfillment of national economic development, to provide for
national homogeneity, to ensure the Supremacy of the Law and the independence
of the Judiciary, to guarantee certain Fundamental Rights to citizens which
could not be arbitrarily invaded or infringed by Executive authority, to ensure
the supremacy of the Legislature, and above all to promote economic justice and
social security. If, in the constitutional structure as it eventually took
shape, some niches and corners are not as well shaped or as well proportioned
as they should be, ample elbow room has been left to facilitate rounding off of
the odd corners and rubbing off of protuberances, so that a structure as
perfect as possible would ensue. It is in making this possible that the
provisions for constitutional amendment would or should prove helpful.
This
leads to a consideration of the actual proposals for amendment under
contemplation. A primary principle to remember in this connection is that the
procedure for constitutional amendment should be resorted to in every instance
mainly to ensure that such amendment would take us nearer to the realisation of
the concept of a Welfare State and it would in fact be justified in the public
eye only from that standpoint. It is likely that the full implications of that
much publicised term were not vividly envisioned by
our Constitution-framers, though they were certainly not unaware of the
increasing impact of the Welfare State ideal on the minds of men and of the
need for State policies being moulded and channelled to its rapid attainment. Both the Preamble to
the Constitution and the Directive Principles of State Policy incorporated in
it provide a firm indication of this awareness on their part. With the
subsequent formulation of the Five Year Plan, the Welfare State ideal has
become transmuted from a somewhat vague theoretical concept into a specific
objective towards which all State endeavour
should be directed.
The
test of our Constitution’s resiliency consists in its being an effective
instrument for the realisation of that cherished objective, and amendments
proposed presently or may be proposed in future should answer the description
of helping it forward. For the same purpose a reorganisation
of the administrative machinery, to render it an efficient instrument for the
execution of schemes which make for economic progress and bring the Welfare
State ideal closer to attainment, has also become essential. Added to this,
some amendments seem called for to bring constitutional provisions into harmony
with the decisions and findings of the Supreme Court which is charged, among
other things, with the duty of interpreting the Constitution and of pointing
out the directions in which Articles of the Constitution offend against public
interests, or are mutually conflicting, or impede smooth relations between the
Union and the State Governments and as among the State Governments inter se.
The Judiciary may take a strictly formal view of some issues involving
constitutional points by adhering to the letter of the provisions, or it may
take a liberal view, keeping in mind the vital consideration that the
Constitution is not a document set in a wooden frame, but is really intended to
be an instrument for the fulfillment of the demands made by social, economic
and other needs on a progressive State situated in the centre
of a world in which phenomenal changes are being wrought with almost
bewildering rapidity. Our Supreme Court has, in fact, shown itself fully
responsive to such needs in the decisions given by it in those cases in which
it has been called upon to pronounce on constitutional issues,
and we may hope that never will there be occasion for our Executive authorities
to complain of the Supreme Court, as President Roosevelt complained of the U.
S. Supreme Court when it began to set itself in opposition to the New Deal
legislation, that it “is assuming an additional function and coming more and
more to constitute a scattered, loosely organised and
slowly operating Third House of the National Legislature”. A judicial organ
which does not keep pace in its judgments with the particular problems cropping
up in a national emergency, or is impervious to the need for progressive
reform, can be an agency of retrogression instead of an instrument for advance.
It
is stated that, among Articles which are proposed to be amended in the second
installment of amendments to be introduced, is Article 31 providing for payment
of compensation for private property rights acquired or proposed to he acquired
for public purposes. This is probably intended to help some State Governments
to acquire the rights of zamindars and landholders in
land without payment of compensation, or probably it is intended too to
facilitate extension of that principle to mineral and other rights and to take
over certain industrial undertakings. The principle of payment of compensation
for private property rights acquired for public purposes has been an
acknowledged and accepted one. Nevertheless each case of proposed acquisition
in future has to be examined and decided with reference to the special
conditions and circumstances involved in it, and furthermore with reference to
the public interest that will be served thereby. In most States zamindari abolition legislation has made provision for
payment of compensation, while in respect of industrial undertakings nationalisation of these, except what are classified as key
industries, has been ruled out at least for a number of years, not only in
terms of the various policy statements made by and on behalf of the Government
of India but also by the present position of our national finances. Altogether
it would seem that an amendment of Article 31, in a manner which would appear
to justify or legalise expropriation of private
property rights without payment of compensation, calls for careful
consideration and a very cautious approach. At the same time it would seem
necessary to obviate this move from gaining momentum on the ground that the
success of the Five Year Plan would be impeded unless the private sector plays
its part, and, if it does not play that part a rapid extension of the public
sector will have to be brought about through acquisition of private rights.
Two
other Articles, amendment of which is stated to be under
contemplation, are Articles 313 and 314 which provide for the continuance of
the conditions of service and emoluments of the all-India and former ‘Secretary
of State’ services. Whether guarantees vouchsafed to them should be scrapped or
not is indeed a matter more of public than financial policy, and the financial
gain from abrogating them would seem on the whole insignificant. Repeal or
alteration of the conditions of service and of the scales of salaries and other
privileges given to them is calculated to produce an adverse effect on the
morale of the members of these services and compromise their efficiency at a
time when there is complaint of an all round deficiency of
that needed quality. Two considerations require to be borne in mind in
this connection. In the first place, the Constitution confers on the
Article
19 (c) of the Fundamental Rights chapter of the Constitution is also, according
to reports, proposed to be suitably amended to enable State Governments to
restrict the operations of organisations or
individuals which offend against public morality. Of all the Articles in the
Constitution, the ones that should be least susceptible of easy amendment, or
of amendment only after the most thoroughgoing scrutiny, are those pertaining
to Fundamental Rights, and while no two opinions can exist regarding the
imperative need to protect public morality against the attacks of unscrupulous
individuals or organisations, the utmost care should
be exercised in restricting the freedom of association.
Apart
from these, provisions relating to the regulation of interstatal
retail trade and the associated problem of the levy of the sales-tax by more
than one State on the same article, which were the subjects of debate recently
in some States, and those imposing restrictions on retired High Court Judges
from practising in any Court within the Indian Union,
also seem to be on the schedule for amendment. Many of the State Governments,
experiencing difficulties on account of limited financial resources to carry
out their developmental schemes, would like the revision of Union and State schedules
of subjects, so that they will have command of more elastic sources of revenue.
It
is indeed neither possible nor desirable to proceed to comment in detail on
proposals for amendment of specific Articles of the Constitution, the precise
scope and nature of which is not known clearly. It seems, therefore, essential
to state, as a measure of abundant caution, that all the proposals and
suggestions in this regard received from the State Governments by the Union
Government should be published for general information, and adequate time and
opportunity given to the public to examine them and comment on them.
There
is a noticeably growing feeling in some of the States that the relations
between the Union Centre and the State units should
be placed on a more flexible basis than what has been done in the Constitution.
Apparently a proposition like this would seem innocent and even acceptable.
Nevertheless there is need to guard against proposals which, by conferring more
powers on the States or by slackening the extent and nature of control over and
supervision of States’ policies by the Centre, tend
to weaken the Central Government’s over-all authority and are likely to prove
detrimental and injurious to national interests in the long run. This applies
particularly to proposals for relaxation of control and supervision in respect
of political and constitutional matters, which even at present is of a general
character and is exercised mainly in the interests of promoting co-ordination
and uniformity in respect of national policies and administrative matters,
though the control can be fairly extensive and rigid in circumstances of
national emergency or when the breakdown provisions have to operate.
As
a general statement of the considerations that should govern proposals for
amendment of the Constitution, the following quotation from a paper contributed
by Mr. Dickens Cherry to the India Quarterly would seem appropriate. He
says: “The provisions made for the amendment of the Constitution reflect the
ideas of the founders as to what kind of a document a Constitution should be. A
Constitution which is difficult to amend reflects the belief of the founders
that it is a compact between conflicting interests, and, for the protection of
those interests, should not be frequently or drastically changed. A
Constitution which is easy to amend reflects the belief of the founders that
times change and interests change in character and magnitude and a Constitution
should be changeable enough to keep pace with the changing situation.” The
Indian Constitution, generally speaking, reflects and harmonises
these two points of view, as has been stated already.
An important point, which is likely to be missed by some in the study of the Indian Constitution, may be mentioned in conclusion. It is that while the Constitution inheres the principle of separation of powers it also enshrines the principle of the supremacy of the Legislative organ or Parliament. The latter is the final authority in effecting any amendments to the Constitution; it is the authority which supervises and controls the activities and policies of the Executive branch; and in the final analysis it is the repository of the will of the political sovereign and, therefore, of all State power. This supremacy of Parliament is a reflection, in a sense, of our status as a Republic, in which every adult citizen who has the right to vote is a participant in government. For the successful and efficient working of the system and the achievement of the basic objectives of the Constitution, the existence of an intelligent and active electorate is postulated, and inherent in it is the principle that all law-making, law execution and law interpretation, should proceed on the basis that the Constitution is made for the people and not the other way about, The internal checks and balances in the Constitution are intended to be a guarantee that when changes in constitutional provisions are desiderated they cannot be withheld, but that when changes are proposed to be introduced which public opinion or public interest has not warranted or given its consent to, they cannot be forced by interested Parties or interests who happen to have control for the time being of the State machinery. That way lies danger, and it may in the first instance lead to the overthrow of the Party trying to force the change and ultimately to the overthrow of the Constitution itself through revolutionary processes. The Constitution should not harbour subversionism in its bosom; it should not shelter the forces of reactionarism either.