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A Comparative Study of the Indian and the US Constitution Amendment

the US Constitution Amendment
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A constitution is a collection of rules regulating a government. Some countries have a structured written constitution in which the system of government is well established, and the separate powers of the country and the states are outlined in a single text, and some have unwritten constitutions that indicate that there is no formal written constitution. Their statutory laws are derived from a variety of outlets.

The constitution of each nation is established to protect the functional and material rights of its people. It is the basic or fundamental law that governs the framework of the land. Given this particular nature, it is appropriate that, with the developments in the circumstances of the nation’s life and the changing priorities of the present government, this fundamental norm, i.e. the fundamental law of the country, should be revised and updated in compliance with the requirements of the time.

In this fast-paced change in the world, it is necessary to keep up with trends. A constitutional amendment is an amendment to the framework of a government agency, organization, or another form of institution. Modifications may be interwoven in the particular sections of the new constitution, and the text may be expressly changed.

One of the major influences for India’s constitution, drawn up between 1947 and 1950, was the US constitution.  Both Indians and Americans regard their “constitutional rights “particularly the” fundamental right “of free speech and the separation of state and religion.

Each constitution offers a specific set of solutions to the social, economic, and cultural context. India has not copied the U.S. Constitution; it has taken away what worked for it, and no longer. Moreover, if constitutions are tools for governance, they simply have to change over time, through trial and error. Constitutions should be modified as much as their citizens wish to change them, to achieve the outcomes they need from their political societies.[1]

Comparative Analysis of the Indian and the US Constitution

India

  1. The basic structure of the constitution cannot be amended[2]
  2. Amending the Constitution is a unique blend of a rigid and flexible mechanism
  3. Types of amendments:

By the simple majority of parliament

  • Articles 5, 169, and 239-a can be amended by a simple majority
  • These provisions include:
  • Admission or creation of new states
  • Creation of new states and modification of the territories, borders, or naming of existing states
  • The quorum of parliament. Etc.

By Special Majority of Parliament

  • A special session of the house, i.e. By a vote of more than 50 % of the total membership of each house and by a majority of two-thirds of the members of each house present and voting can amend such laws
  • The regulations which can be amended in this manner include:
  1. fundamental rights
  2. principles of state policy
  3. all other clauses which are not addressed by the first and third categories

Through the special majority of Parliament and by consent of States

  • The provisions of the constitution relating to the federal constitutional system can be amended by a special majority of the parliament and also by a simple majority with the agreement of half of the state assemblies
  • If one or more of the remaining states do not take action on the bill, it does not affect the bill half of the states have given their consent and the formality is completed
  • The following provisions can be amended as follows:
  1. Election of the president and its manner
  2. Representation of states in parliament
  3. Power of the parliament to amend the constitution and its procedure (article 368 itself) Etc

The procedure for the amendment of the constitution as laid down in article 368

  • The Supreme Court of India has employed certain limits on the power of the legislature to amend the Constitution under Article 368 of the Indian Constitution.
  • Amendment of the constitution can be introduced only by the enactment of a bill for the reason in either house of parliament and not in state legislatures.
  • The bill may be presented either by a minister or by a private individual and does not require the president’s prior approval
  • The bill must be approved by a special vote of each house, i.e. By a proportion of more than 50% of the total members of the house and by a vote of two-thirds of the members of the house present and voting
  • Each house must pass the bill on its behalf
  • After being properly approved by both the houses of parliament and ratified by the state legislatures, the bill shall, if necessary, be submitted to the president for assent
  • The president must give his approval to the bill.
  • He may not withdraw his approval of the bill nor return the bill to parliament for reconsideration
  • After the president’s approval, the bill becomes a constitutional amendment act and the constitution is amended in conformity with the terms of the act.
  • The Supreme Court of India has made a significant contribution to evolving the Indian Constitution to the progressing circumstances bypassing progressive judicial decisions that seem to have a profound effect on constitutional growth.
  • The judicial interpretative procedure has shaped the Constitution according to new circumstances concerning conventions.

USA

  • The process of amendment of the constitution is very rigid
  • The Procedure of two kinds and the US Congress has the liberty to choose anyone the procedure provided under this Article:[3]
  1. Proposed by the Congress and approved by the Member States

    • Amendment to be passed by a two-thirds vote of both Houses
    • To be approved by the State Legislatures of at least 3/4 of the States
  1. Proposed by States and ratified by States

  • 2/3 of the Member States should ratify a resolution to this effect
  • We are going to talk to Congress. Congress is going to schedule the convention
  • 3/4 of the States must ratify the Convention

Article V of the US Constitution provides for amending the Constitution

  • Whenever two-thirds of both Houses consider it appropriate, the Congress shall propose amendments to this Constitution or, on the application of the Legislatures of two-thirds of several States, shall call upon the Convention to propose amendments which are valid for all Intents and Purposes of this Constitution upon ratification by the Legislatures of three-fourths of the Legislatures.
  • It has been held that accepting this express limitation in Article V, there is no other limitation upon the amending power and no other part of the Constitution is exempted from change through the procedure of Amendment.[4]
  • In US President does not have a major role to play in Constitutional amendments except in voting as the Congressman.
  • The Constitution of the United States explicitly established that powers not directly granted by the Constitution rest with the State or the people (U.S. Constitution). [5]
  • The Constitution forbade Congress to create any law against freedom of expression or peaceful assembly, or to respect the establishment of any religion or to limit its free exercise.
  • The Constitution of the United States, which grants more personal liberty to its citizens and the power of the Congress, is expressly limited.

Landmark Judgements

India: Keshvananda Bharati v State of Kerala, (1973)

The court found that the term ‘amendment’ used in Article 368 would not apply to changes that may modify the basic structure of the constitution. If Parliament wants to amend a specific provision of the Constitution, that amendment would have to pass the test of the basic structure.

The 24th amendment was approved by the Bench, although the 25th section of the second amendment was refused. The verdict was issued after the study of the different factors and was focused on rational logic.

The Bench feared that if the Parliament were to have unrestricted authority to amend the Indian Constitution, the authority would be misused and modified by the Government in compliance with its own will and desires. The basic features and the very spirit of the Constitution and can be modified by the Government if it has unrestricted authority to amend it. There seemed to be a need for a doctrine to safeguard the rights of both Parliament and citizens, and the Bench, therefore, set out to safeguard both their rights through the doctrine of the Basic Structure.

USA: Griswold v. Connecticut

The right to privacy implicit in the Fourth Amendment is one of the most sacred rights that American’s enjoy in the constitutional amendments. In 1965, the Supreme Court was confronted with the question of whether or not there was a constitutional right to privacy and, where does it fall under the Constitution?

The context of this case was the Connecticut statute, which restricted the use of contraceptives, the Comstock statute. The main issue raised the question of whether or not a person has a right to privacy concerning one’s intimate practices, such as the use of contraception.

In its decision, the Supreme Court found that Connecticut’s birth control statute was unconstitutional based on liberties laid out in the 4th and 5th amendments that protect an individual’s home and private life from intervention by the government.

Judging that marriage is a religious and private bond within the privacy zone provided by certain clauses of the Constitution, including the principle of equality implied by the Bill of Rights, the Court held that the original decision against Griswold and Buxton should be reversed and that people in the state of Connecticut should enjoy the freedom to exercise birth control within the bounds of marriage.

Common Features of Both the Constitutions

India and the USA share some common features concerning their Constitutions i.e. both of them are having a written Constitution which is federal.

Being a country governed by a written document, both of them felt the need of altering this document according to the changing times to meet the challenging situations and as well as to fulfil every growing aspiration of their citizens.

Any written document which governs the fundamental framework of a government of any country cannot be changed or altered by ordinary law Therefore, a special procedure is required to amend the basic law of the land.

To avoid any controversies and friction the Constitution itself provides the manner and procedure of amending itself. This procedure of Amendment is guided by a certain formula and method which is to be followed by any country willing to amend its written Constitutional Law.

Despite being governed by different Constitutions both of these countries i.e. India and the USA follow more or less the same procedure and are guided by the same principles in amending their respective Constitutions.

Since a federal Constitution is generally a product of certain compromises arrived by at people of different communities, race, language, and religion and it has the status of a fundamental law, its amending procedures should be based on certain broad principles such as:”

(1) The federal structure and the interests of the people should be properly secured.

(2) It should be construed in such a way as to check undesired amendments and adopt desirable amendments without much difficulty.

(3) The framework should be such that there are ample deliberation and public consensus obtained before the amendment is enacted.

(4) People should be allowed to express their views before a change is made.

The general principles set out above are observed by making the amending procedure different and difficult compared to the ordinary legislative procedure. This is generally ensured by the use of separate steps for the initiation and ratification of amendments, requiring extra-ordinary majorities at some point in the procedure and requiring a referendum.

Since 1789 the Constitution has been revised 27 times and of those amendments, the first 10 are collectively referred to as the Bill of Rights and were certified on 15 December 1791. To sum up, in the last 231 years, only 27 amendments show rigidity and a lack of willingness to change over time.

Whereas the Indian constitution has been 104 times amended up to January 2020. The latest amendment has extended the reservation of seats for SC’s and STs in the state assemblies and Lok Sabha. The first amendment took place in 1950. So overall in the past 70 years, there have been 104 amendments that showcase the flexibility of the Indian constitution and its willingness to change with time.

Overall Indian constitution is more suitable to act as a law to abide by citizens by than the USA constitution which works on old age laws and cannot fruitfully evolve.

Reference

[1] https://qz.com/india/1579673/unlike-the-us-the-indian-constitution-has-been-amended-103-times/

[2] I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643.3

[3] https://www.civilsdaily.com/constitution-of-usa-features-comparison-with-indian-other-constitutions/

[4] https://www.journalijdr.com/scope-and-ambit-amendment-constitution-comparitive-study-constitutions-india-usa-and-ethiopia

[5] https://www.journalijdr.com/scope-and-ambit-amendment-constitution-comparitive-study-constitutions-india-usa-and-ethiopia

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Written by Advocate Neha Chopra

Neha Chopra is an advocate and pursuing Master in Business and corporate law from Symbiosis Law School. She feels, "as much we read in today's time is less compared to the fast pace the world is moving with". She is here to share her thoughts, knowledge, opinions, and all that you can incorporate from her writings.

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