Mechanisms for a constitutional amendment in India and Australia

and how they are (or are not) used

Introduction

Meaning of Amendment

Amendment is the process of altering or amending a law or document (such as a constitution) by

parliamentary or constitutional procedure. Such amendment may include addition, removal or
alteration of some part of a law, document or constitution. Amendment as defined by oxford
dictionary means a minor change or addition designed to improve a text, piece of legislation etc.

Necessity of amendments

Provision of amendment in a constitution is of utter importance so as to overcome the difficulties

which may encounter in future in the working of the constitution. No generation has a monopoly
of wisdom nor has it a right to place fetters on future generations to mould the machinery of
Government according to their requirements. If no provisions are made for the amendment of a
constitution, the people would have recourse to extra constitutional method like revolution to
change the constitution.

Comparison and Contrast of Governance in India and Australia

The Indian constitution like that of Australia adopted a federal arrangement and the creation of a
judicial branch wholly independent of the other branches of government. Judicial review to keep
all recipients of public power within the constitution and other applicable laws is faithfully
initiated. The Indian Constitution has further adopted a republican principle which the Australian
Constitution lacks till now. It also incorporates a bill of rights which until very lately has been
regarded as a notion alien to the sovereignty of parliament so central to the constitutional ideas of
the United Kingdom. Despite, these important features which distinguish the Indian and
Australian Constitutions, their Governmental and legal systems are similar. In India, president is
the head of the state whereas Governor General of Australia resembles similar powers. The
position of Supreme Court in India resembles the position of High Court of Australia. Supreme
Court of India is final court of appeal in all matters from all the courts in India unlike the
Supreme Court of United States whose principal work is as a constitutional court. Similarly the
High Court of Australia is the highest court of appeal in all matters civil, criminal and
constitutional.
Question of a federal Constitution

The Australian Constitution is among one of the best examples of a federal Constitution. Indian
constitution is also a federal constitute ion however some scholars hesitate to characterize it as
truly federal. The Constitution of India possesses all the essential characteristics of a federal
Constitution. It establishes a dual polity, a system of double government with the central
Government at one level and the state governments at the other. There is a division of power
between the central and the state governments. The constitution is written and supreme. The
provisions of the constitution which are concerned with federal principles cannot be altered
without the consent of the majority of states. The constitution establishes a supreme court to
decide disputes between the union and the states, or the states inter se. Supreme Court is the
guardian of the constitution. But despite of these features expressions such as “quasi federal”,
“federal with unitary features” or “unitary with federal features”, are used. Such expressions are
supported by the argument of presence of certain provisions in the constitution such as provision
of appointment of governors, parliament’s power to legislate in National interest, Parliaments
power to form new states or alter the boundaries of existing states and emergency provisions.

The federal characteristic of India can be understood by the statement that “Federalism is not like
the set pattern of coats to wear. It is a clock of varying organized pattern benefitting each wearer
and helping him to the next and superior stages of federalism.” India’s federalism is unique and
good for itself.1 Thus Indian Constitution is mainly federal with unique safeguards for enforcing
national unity and growth.2

A federal constitution is generally rigid in character as the procedure of amendment is unduly

complicated. The procedure of amendment in Australian Constitution is very difficult. So is the
case with Australia Canada and Switzerland. It is a common criticism of federal constitution that
it is too conservative, too difficult to alter and that it is consequently behind the times.3 However
the case is different with Indian Constitution. Unique blend of rigidity and flexibility is a salient
feature of the Constitution. Indian Constitution, though written, is sufficiently flexible. It is only
a few provisions which require the ratification of half the states for being amended; rest of the
provisions can be amended by special or simple majority. This can be proved by the fact that the
Indian Constitution has been amended 124 times from its enactment till this date.

The provisions concerned with powers and procedure in the Indian Constitution are articles 245
and 368. Article 245 gives the power of amendment to the legislature while article 368 defines
the procedure of amendment. Powers and procedure of amendment in India cannot be understood
without studying the case laws. A number of times the Apex court has limited the power of
parliament to amend the constitution. The powers and procedure of amendment in Australia has
been discussed under the article 128 of the Australian Constitution.

1
V.N. Shukla- Constitution of India, p. 40 (1969)
2
Jennings_ Some Characteristics of Indian Constitution, p. 55
3
K.C. Wheare: Federal Government, p. 209 (1963 Edn.)
 Mechanism for Constitutional amendment in India

The farmers of Indian Constitution were keen to avoid excessive rigidity. They were anxious to
have a document which could grow with a growing nation, adapt itself to the changing need and
circumstances of a growing people.

Mind of the Makers of Indian Constitution

The nature of the amending process envisaged by the farmers of our constitution can best be
understood by referring the following observation of late Prime Minister Jawaharlal Nehru,
“While we want this constitution be as solid and permanent as we can make it, there is no
permanence in the Constitution. There should be certain flexibility. If you make anything rigid
and permanent you stop the nation’s growth, of a living, vital, organic people. In any event we
could not make this constitution so rigid that it cannot be adapted to changing conditions. When
the world is in a period of transition what we may do today may not be wholly applicable
tomorrow”. The farmers of Indian Constitution were also aware of the fact that if the constitution
was so flexible it would be a playing of the whims and caprices of the ruling party. They were,
therefore, anxious to avoid flexibility of the extreme type. Hence they adopted a middle course.
It is neither too rigid to admit necessary amendment, nor too flexible for undesirable changes.

According to Willis “If no provision for amendment were provided, there would be constant
danger of revolution. If the method of amendment were too easy, there would be the danger of
too hastily action all the time. In either case there would be a danger of the overthrow of our
political institutions. Hence the purpose for providing for the amendment of the constitution is to
make it possible gradually to change the constitution in an orderly fashion as the changes in
social condition make it necessary to change the fundamental law to correspond with such social
changes.” 4

Article 245:

1. Subject to the provisions of this Constitution, Parliament may make laws for the whole
or any part of the territory of India, and the Legislature of a State may make laws for the
whole or any part of the State.
2. No law made by Parliament shall be deemed to be invalid on the ground that it would
have extra-territorial operation.

It is from this provision from which the parliament derives its power to make and amend laws.
Latter article 368 was added in 24th amendment of the constitution to provide for the procedure
and extent of amendment. Clause 1 of article 368 empowers the parliament to amend the
constitution. It states as under:

44
Quoted in Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461
Article 368 (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article.

Various articles of the constitution are divided into three categories for the purpose of
amendment.

i. Amendment by simple majority- Articles of the constitution that can be amended by

simple majority as that required for passing of any ordinary law. The amendments
contemplated in articles 5, 169, and 239-A can be made by simple majority. These
articles are specifically excluded from the purview of the procedure prescribed in article
368.

Article 5 talks about the citizenship at the commencement of the constitution. It recognizes
certain classes as Indian citizens at the time of commencement of constitution. This article can
be amended by a simple majority. Article 169 talks about the abolition or creation of legislative
councils in states. Article 239-A empowers the government to create local legislatures or council
of ministers or both for certain union territories.

ii. Amendment by special majority- Articles of the constitution which can be amended by
special majority as laid down in Article 368. All constitutional amendments, other than
those referred above, come within this category and must be effected by a majority of the
total membership of each house of the parliament as well as by a majority of not less
than 2/3 of the members of that house present and voting.

This provision further ensures the proper participation and limitation on the power of the ruling
party. However when the ruling party has a very large majority in the legislature this provision
cannot limit its power to amend the constitution by special majority but the only option left is a
constitution bench of the Supreme Court.

iii. By Special Majority and Ratification by States- Articles which require in addition to
special majority mentioned above, ratification of not less than one half of the State
Legislatures. The states are given an important voice in the amendment of these matters.
These are fundamental matters where states have important power under the constitution
and any unilateral amendment by parliament may vitally affect the fundamental basis of
the system built up by the Constitution. This class of articles consists of amendments
which seek to make any change in the provisions mentioned in article 368. The following
provisions require such ratification by the states:
a) Election of the President- Articles 54 and 55.
b) Extent of the executive powers of the Union and States- Articles 73 and 162, Article 241
or 279A.
c) Articles dealing with judiciary, Supreme Court, High Court in the States and Union
Territories- Article 124 to 147, 214 to 231, 241.
 d) Distribution of legislative powers between the Centre and the States- Articles 245 to 255
e) Goods and service tax council- Article 279A.
f) Any of the lists of the VII schedule.
g) Representation of states in parliament IV schedule.
h) Article 368 itself.

Procedure of Amendment

Article 368 clause 2 provides for the procedure of amendment. It reads as under:

An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority
of the total membership of that House and by a majority of not less than two-thirds of the
members of that House present and voting, it shall be presented to the President who shall give
his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the
terms of the Bill:

Provided that if such amendment seeks to make any change in—

(a) Article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) Any of the Lists in the Seventh Schedule, or

(d) The representation of States in Parliament, or

(e) The provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of
the States by resolutions to that effect passed by those Legislatures before the Bill making
provision for such amendment is presented to the President for assent.

A bill to amend the constitution may be introduced in either house of the parliament. It must be
passed by each house with the majority of total membership of that house and by a majority of
not less than 2/3rd of the members of that house present and voting. When a bill is passed by
both the houses it shall be presented to the president for his assent who shall give his assent to
bill and thereupon the constitution shall stand amended. But a bill which seeks to amend the
provisions mentioned in article 368 requires in addition to the special majority mentioned above
the ratification by 1/2 of the States. 5

5
Constitution of India, 1950, art. 368
Article 368 does not constitute a complete code. The process of amending the constitution is the
legislative process governed by the rules of that process.

Most of the provisions of the constitution can be amended by ordinary legislative process. Only
a few provisions which deal with the federal principle require a special majority plus ratification
by the states. The procedure to amend the constitution of India is not as difficult as that followed
in Australia, Switzerland or America. Most of the provisions of Indian Constitution can be
amended by a special majority. Though different from ordinary legislative process the special
majority rules are not very rigid. Even the process of ratification by states after a special
majority is not as difficult as in America or Australia.

What is amendable and what not?

The question whether the fundamental rights can be amended or not came first time in the case
of Shankari Prasad v. Union of India6. In this case the validity of articles 31-A and 31- B of
the constitution was challenged on the ground that it purported to take away or abridge the rights
conferred by part III which fell within the prohibition of article 13(2) and hence was void. It was
stated that the state in Article 12 included parliament and the word “law” in article 13(2),
therefore must include constitution amendment. The Supreme Court, however, rejected the
above argument and held that the power to amend the constitution including the fundamental
rights contained in article 368 and hence the word “law” in article 13(8) includes only an
ordinary law made in exercise of the legislative powers and does not include constitutional
amendment which is made in exercise of constituent power. Therefore, a constitutional
amendment will be valid even if it abridges or takes any of the fundamental rights.

This judgment gave exclusive powers to the parliament to amend any part of the constitution
including the part three which contains the fundamental rights. Further it held that a
constitutional amendment is valid even if it abridges or takes away a fundamental right.

The same question was again before the Apex Court in Sajjan Singh v. State of Rajasthan7.
The validity of the constitution (17th amendment) Act, 1964 was challenged. The Supreme Court
approved the majority judgment given in Shankari Prasad’s case and held that the phrase
“amendment of the constitution” means amendment of all the provisions of the constitution.
Gajendragadkar C.J. said that if the constitution-makers intended to exclude the fundamental
rights from the scope of the amending power they would have made a clear provision in that
behalf.

6
AIR 1951 SC 455
7
AIR 1965 SC 845
Another and the most important case where the same question arose is Golaknath v. State of
Punjab8. In this case the validity of the constitution (17th amendment) Act, 1964 was challenged
which inserted certain state Acts in ninth schedule. The Supreme Court by a majority of 6 to 5
prospectively overruled its earlier decision in Shankari Prasad’s and Sajjan Singh cases and held
that parliament had no power from the date of this decision to amend part III so as to take away
or abridge fundamental rights. Subba Rao, C.J., supported his judgment on the following
reasons:

1. The chief justice rejected the argument that power to amend constitution was a sovereign
power and he said power was supreme to the legislative power and that it did not permit
any implied limitations and that amendment made in exercise of that power involve
political questions and that therefore they were outside of judicial review.
2. The power of parliament to amend the constitution is derived from article 245, read with
entry 97 of list I of the constitution and not from article 368. Article 368 lays down
merely the procedure for amendment of the constitution. Amendment is a legislative
process.
3. An amendment is a law within the meaning of article 13(2) and therefore, if it, violates
any of the fundamental rights it may be declared void. The word “Law” in article 13
includes every kind of law, statutory as well as constitutional law and hence a
constitutional amendment which contravened article 13(2) will be declared void.

The chief justice said that the fundamental rights are assigned transcendental place under our
constitution and, therefore, they are kept beyond the reach of parliament. The chief justice
applied the doctrine of prospective overruling and held that this decision will have only
prospective operation and, therefore, the 1st, 4th and 17th amendment will continue to be valid. It
means that all cases decided before Golaknath’s case shall remain valid.

The minority, however, held that the word ‘law’ in article 13(2) referred to only ordinary law
and not a constitutional amendment and hence Shankari Prasad’s and Sajjan Singh cases were
rightly decided. According to them, article 368 deals with not only the procedure to amend the
constitution but also contains the power to amend the constitution.

Constitution (24th amendment) Act, 1971

In order to remove the difficulties created by the decision of Supreme Court in Golaknath’s case
parliament enacted the (24th amendment) Act. The amendment made the following amendments:
it added a new clause (4) to article 13 which provides that nothing in this article shall apply to
any amendment of this constitution made under article 368. It substituted a new marginal
heading to article 368 in place of old heading “Procedure for amendment of the constitution”.

8
AIR 1971 SC 1643
The new heading is “Power of parliament to amend the constitution and procedure therefor.” It
inserted a new sub-section (1) in article 368 which provides that “notwithstanding anything in
this constitution, parliament may, in exercise of its constituent power amend by way of addition,
variation or repel any provision of this constitution in accordance with the procedure laid down
in this article.” It substituted the words, “it shall be presented to the president who shall give his
assent and upon such assent being given to the Bill.” Thus it makes it obligatory for the
president to give his assent to the bill amending the constitution. It has added a new clause (3) to
article 368 which provides that “nothing in article 13 shall apply to any amendment made under
this article.”9

Thus the 24th amendment not only restored the amending power of the parliament but also
extended its scope by adding the words “to amend by way of the addition or variation or repel
any provision of this constitution in accordance with procedure laid down in this article.”

Theory of basic structure

A limitation on amending power – The validity of the (24th Amendment) Act, 1971, was
challenged in Keshavananda Bharti v. state of Kerala popularly known as the fundamental
right’s case the petitioners had challenged the validity of the Kerala land reform Act, 1963. But
during the pendency of the petition the Kerala act was amended in 1971 and was placed in the
ninth schedule by 29th amendment act. The petitioners were permitted to challenge the validity
of twenty fourth twenty fifth and twenty ninth amendments to the constitution. The question
involved was as to what was the extent of the amending power conferred by article 368 of the
constitution? On behalf of the Union of India it was claimed that amending power was unlimited
and short of repeal of the constitution any change could be effected. On the other hand the
petitioner contended that the amending power was wide but was not unlimited. Under article 368
Parliament cannot destroy the “basic feature” of the constitution. A special bench of 13 judges
was constituted to hear the case.

The Court by majority overruled the Golak Nath's case which denied Parliament the power to
amend fundamental rights of citizens. The majority held that Article 368 even before the 24th
Amendment contained the power as well as the procedure of amendment. The 24th Amendment
merely made explicit what was implicit in the unamended Article 368 (1). The 24th Amendment
does not enlarge the amending power of the Parliament. The 24th Amendment is declaratory in
nature. It only declares the true legal position as it was before that amendment hence it is valid.
The Court held that under Art. 368 Parliament is not empowered to amend the basic structure or
framework of the Constitution. It held that the first part of the twenty-fifth Amendment Act is
valid, but held that the second part, namely, “no such law, containing the declaration that it is for

9
Constitution (24th amendment) Act, 1971
giving effect so such policy shall be called in question in any Court on the ground that it does
not give effect to such policy” is invalid.

As regards the scope of amending power contained in Article 368, six Judges (Sikri, C.J., Shelat,
Grover, Hegde, Reddy and Mukherjee, JJ.) held that there are inherent or implied limitations on
the amending power of Parliament and Article 368 does not confer power to amend the
Constitution so as to damage or destroy the essential elements or basic features of the
Constitution, Khanna, J., held that though there is no implied limitation on the amending power
but the power to amend does not include the power to abrogate the Constitution. The word
“amendment", he said postulated that the old Constitution must survive without loss of
indemnity and it must be retained through in the amended form and. therefore, the power does
not include the power to destroy or abrogate the basic structure or framework of the
Constitution. The remaining six Judges (A. N . Ray, Chandrachud, Mathew, Beg, Dwivedi and
Palekar, JJ.) held that there are no limitations, express or implied on the amending power. Thus
the Court by majority of 7 to 6 held that the Parliament has wide powers of amending the
Constitution and it extends to all the Articles. but the amending power is not unlimited and does
not include the power to destroy or abrogate the ‘basic feature’ or ‘framework’ of the
Constitution. There are implied limitations on the power of amendment under Article 368.
Within these limits Parliament can amend every Article of the Constitution. Whether there are
implied limitations on the amending power or not would depend upon the interpretation of the
word ‘amendment’.

Delivering the leading majority judgment Sikri, C. J., said : “in the Constitution the word,
‘amendment’ or ‘amend’ has been used in various places to mean different things. In some
articles, the word ‘amendment’ in the context, has a wide meaning and another context it has a
‘narrow meaning’. In view of the great variation of the phrases used all through the Constitution
it follows that the word “amendment” must derive its colour from Article 368 and the rest of the
provisions of the Constitution. Reading the Preamble, the fundamental importance of the
freedom of the individual, its inalienability and the importance of the economic, social and
political justice mentioned in the Preamble, the importance of directive principles, the non-
inclusion in Article 368 of provisions like Articles 52, 53 and various other provisions, an
irresistible conclusion emerges that it was not the intention to use the word “amendment” in the
widest sense. It was the common understanding that the fundamental rights would remain in
substance as they are and they would not be amended out of existence. It seems also to have
been a common understanding that the fundamental features of the Constitution, namely,
secularism, democracy and the freedom of the individual would always subsist in the welfare
State. In view of the above reasons, a necessary implication arises on the power of Parliament
that the expression “amendment of this Constitution” has consequently a limited meaning in our
Constitution and not the meaning suggested by the Attorney General. The expression
“amendment of this Constitution” in Article 368 means any addition or change in any of the
provisions of the Constitution within the broad contours of the Preamble and the Constitution to
carry out the objectives in the Preamble and the Directive Principle applied to fundamental
rights, it would mean that while fundamental rights cannot be abrogated reasonable
abridgements of fundamental rights can be effected in the public interest. “If this meaning is
given”, the Chief Justice said “it would enable Parliament to adjust fundamental rights in order
to secure what the Directive Principles direct to be accomplished, while maintaining the freedom
and dignity of every citizen.” On behalf of the Union and the States, it was urged that the
conceptions of basic elements and fundamental features are illusive conceptions and therefore it
would be very unsatisfactory test for the Parliament to comprehend and follow. The Chief
Justice said that the concept of amendment within the contours of the Preamble and of
Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the
public would not be able to understand. He said that the argument that because something
cannot be cut and dried or nicely weighed or measured and therefore does not exist is fallacious.
There are many concepts of law which are not capable of exact definition, but it does not mean
that it does not exist. It was also argued that every provision of the Constitution is essential,
otherwise it would not have been put in the Constitution. The Chief Justice further said, “But
this does not place every provisions of the Constitution in the same position. The true position is
that every provision of the Constitution can be amended provided in the result the basic
foundation and structure of the Constitution remains the same.10

What exactly is basic structure?

There is no perfect answer to the question as what is basic structure. Although certain essentials
of the basic structure have been enumerated by various judges in a no. of cases but it is also
made clear that they are illustrative and not exhaustive and that they will be determined on the
basis of facts in each case. This can be understood by the explanation given in Nagraj v. Union
of India. It states that basic structure is systematic principles underlying and connecting
provisions of the constitution. They give coherence and durability to constitution. These
principles are part of constitutional law even if not expressly stated. This doctrine has essentially
developed from the German Constitution. Theory of basic structure is based on the concept of
constitution identity. Below are discussed the essentials enumerated in various cases:

In Keshavananda Bharti v. State of Kerala 11the Judges listed certain essentials of basic
structure separately which are as follows:

Sikri, C.J., the basic structure of the constitution consists of the following features:

1. Supremacy of the constitution

2. Republican and democratic form of government and sovereignty of the Government

10
Dr. J.N. Pandey, CONSTITUTIONAL LAW OF INDIA 807 (Central Law Agency, Allahabad 55th Edition 2018)
11
AIR 1973 SC 1461
 3. Secular character of the constitution
4. Separation of powers between legislature, the executive and the judiciary
5. Federal character of the constitution

Shelat and Grover, JJ., the following are the illustrations of the basic structure of the constitution

1. Supremacy of the constitution

2. Republican and democratic form of government and sovereignty of the country
3. Secular and federal character of the constitution
4. Demarcation of power between legislature, the executive and the judiciary
5. Dignity of individual secured by various freedoms and basic rights in part III and the
mandate to build a welfare state contained in part V.
6. Unity and integrity of the nation.

According to Hegde and Mukherjee, JJ., the following are the examples of the basic structure:

1. Sovereignty of India
2. The democratic character of our polity
3. The unity of the country
4. Essential features of individual freedoms secured to the citizens
5. Mandate to build a welfare state.

Jagmohan Reddy, J.,

1. A sovereign democratic republic

2. Parliamentary democracy certainly constitutes the basic structure.

Indira Nehru Gandhi v. Raj Narayan12

The legislature in order to suppress the prosecution of former Prime Minister in Supreme Court
retrospectively amended the laws and made the unlawful acts lawful. Further 39th amendment
of the constitution was passed by the parliament which constitutionally disposed of the case.
However, the Supreme Court declared the 39th amendment as unconstitutional and as the one
which destroys the basic structure in the case of Indira Nehru Gandhi v. Raj Narayan. The
Supreme Court struck down clause 4 of article 329-A which was added by this amendment on
the ground that it was beyond the amending power of the parliament as it destroyed the basic
feature of constitution. Reason given for striking down the clause was that it violated the free
and fair election which was an essential postulate of democracy. Further clause 5 was also stuck
down on the ground that it violated the article 14 of the constitution. In this case the Supreme

12
AIR 1975 SC 2299
Court added few more features to the list of basic features laid down in the case of
Keshavananda Bharti. These are as follows:

1. Rule of law
2. Judicial review
3. Democracy which implies free and fair election

Minerva Mills Ltd v. Union of India13

The following features were laid down as basic features in this case:

1. Limited power of parliament to amend the constitution

2. Harmony and balance between fundamental rights and directive principles
3. Fundamental rights in certain cases
4. Power of judicial review in certain cases

Recent case of striking down an Amendment

The National Judicial Appointments Commission

The Constitution (Ninety Ninth Amendment) Act, 2014 was passed by the lower and upper
house on 13th and 14th August 2014 respectively. This amendment established the National
Judicial Appointments Commission which was to be regulated by the NJAC Act, 2014.
According to this act the above mentioned commission shall comprise of the following
members:

a) Chief justice of India, ex officio;Ttwo senior judges of the supreme court next to the chief
justice of India- Members, ex officio;
b) Union minister in charge of Law and Justice- Member, ex officio;
c) two eminent persons to be nominated by the committee consisting of the Prime Minister,
the chief justice of India and the leader of opposition provided that one of them belongs
to the scheduled castes.

Functions of NJAC

Under article 124B the NJAC shall have following duties:

a) To recommend persons for appointment as Chief Justice of India, Judges of the Supreme
Court, Chief Justices of High Courts and other judges of High Courts;
b) To recommend transfer of chief Justices and other judges of High Courts from one high
court to another; and

13
AIR 1980 SC 1789
 c) To ensure that person recommended is of ability and integrity.

Judgment of the Supreme Court

In Supreme Court Advocates on Record Association v. Union of India14, the Supreme Court
by its order declared the 99th amendment of constitution as unconstitutional and void by a
majority of 4:1. All the five judges of the bench gave separate judgments.

J. Madan B. Lokar held that article 124A alters the basic structure of the constitution and the
other provisions of this Act cannot stand by themselves. The NJAC Act cannot stand in the
absence of 99th amendment of constitution and further it also confers arbitrary and uncharged
powers on various authorities and violates article 14 of the constitution. Resultantly the
collegium system gets revived.

Mechanism for Constitutional amendment in Australia

The process of amendment of Australian constitution is very complex. It is laid down in section
128 of the constitution of common wealth of Australia. Section 128 reads as follows:

Mode of altering the Constitution

Article 128

This Constitution shall not be altered except in the following manner:

The proposed law for the alteration thereof must be passed by an absolute majority of each
House of the Parliament, and not less than two nor more than six months after its passage
through both Houses the proposed law shall be submitted in each State and Territory to the
electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the other House
rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House
will not agree, and if after an interval of three months the first-mentioned House in the same or
the next session again passes the proposed law by an absolute majority with or without any
amendment which has been made or agreed to by the other House, and such other House rejects
or fails to pass it or passes it with any amendment to which the first-mentioned House will not
agree, the Governor-General may submit the proposed law as last proposed by the first-
mentioned House, and either with or without any amendments subsequently agreed to by both

14
(2015) AIR SCW 5457
Houses, to the electors in each State and Territory qualified to vote for the election of the House
of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the
Parliament prescribes. But until the qualification of electors of members of the House of
Representatives becomes uniform throughout the Commonwealth, only one-half the electors
voting for and against the proposed law shall be counted in any State in which adult suffrage
prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and
if a majority of all the electors voting also approve the proposed law, it shall be presented to the
Governor-General for the Queen’s assent.

No alteration diminishing the proportionate representation of any State in either House of the
Parliament, or the minimum number of representatives of a State in the House of
Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in
any manner affecting the provisions of the Constitution in relation thereto, shall become law
unless the majority of the electors voting in that State approve the proposed law.

In this section, Territory means any territory referred to in section one hundred and twenty-two
of this Constitution in respect of which there is in force a law allowing its representation in the
House of Representatives.15

Procedure for amending the constitution

Any constitutional amendment is initiated by the commonwealth parliament. As per section 128
stated above, a bill must be introduced in the commonwealth parliament first. After it is passed
from the parliament, the proposal shall be submitted in a referendum to the voters in all the
states and Union Territories between two to six months after it leaves the parliament.

For an amendment to stand ratified a double majority is required. There must be a majority of
voters ratifying to the bill in majority of States i.e. in at least 4 States. Also the total vote count
nationwide should be in favour for complete ratification. Territory votes are counted in total
national votes.

In a referendum each elector gets a pamphlet containing arguments in favour and arguments
against any proposal upon which he is voting. The word limit for these arguments is set to be not
more than 2000 word. However, when when more than one referendum is held on the same day,
a particular argument may exceed the limit of 2000 words provided that the average of
arguments in favour and against is not more than 2000 words.

15
Constitution of Australia, 1900, art. 128
The arguments given in the referendum in favour and against must be authorized by the
parliamentarians as per their stands.

Exceptional cases of arguments in opposition not being presented

In some cases ‘NO’ arguments are not presented before the voters as happened in 1967 in the
Aboriginals amendment. The Referendum (Machinery Provisions) Act 1984 (s. 11) states that
such arguments must be submitted to each voter, at least 14 days before the day of referendum.

Usually the yes cases are led by the government and no cases are argued by groups of
individuals combining with the opposition. However, in 1999 the cases were managed by two
advertising campaign committees appointed by the government. In such a situation government
and opposition are left with a little say in the matter.

The eight amendments

1. Constitution Alteration (Senate Elections) Act, 1906

This was the first amendment ever held in commonwealth of Australia. This amendment was
related to the terms of office of the senators. The amendment proposed to hold the elections to
the House of Representatives and Senate simultaneously. Before this amendment section 13 of
the constitution provided that senate term would begin from 1st of January and end on 31st
December.

It was felt that Senate terms would coincide with the House of Representative terms and thus it
was necessary to change these terms.

2. Constitution Alteration (State Debts) Act, 1909

The referendum on 13th April 1910 received Royal assent on 6th August.

Initially section 105 of the Australian Constitution gave federal government the power to assume
any pre-existing debts held by the state-governments at that time. Section 105 was altered in this
amendment in order to take over any debts incurred by any state at any time.

3. Constitution Alteration (State Debts) Act 1928

This third successful amendment was approved by referendum on 17th November 1928 and
became a law on 13th February 1929. During 1920s the financial relations between the
commonwealth and the States worsened. ‘Per Capita Grants’ was introduced in 1910 between
the governments, according to which each State received annual wealth of 25 shillings per head
of its population from the commonwealth. By 1920s inflation made inroads in this sum.

The 1927 Financial agreement established a Loan Council. Now all Governments borrowing
except for a purpose of defence, were to be under the control of Loan Council. For the
establishment of Loan Council a new provision (section 105 A)was introduced into the Finance
and Trade (Chapter IV) of Constitution.

The new provision reads as follows:

Section 105A

(1.) The Commonwealth may make agreements with the States with respect to the
public debts of the States, including-

1. The taking over of such debts by the Commonwealth;

2. The management of such debts;

3. The payment of interest and the provision and management of sinking funds in
respect of such debts;

4. The consolidation, renewal, conversion and redemption of such debts;

5. The indemnification of the Commonwealth by the States in respect of debts

taken over by the Commonwealth; and

6. The borrowing of money by the State or the Commonwealth, or by the

Commonwealth for the States.

(2.) The Parliament may make laws for validating any such agreement made before
the commencement of this section.

(3.) The Parliament may make laws for the carrying out by the parties thereto of
any such agreement.

(4.) Any such agreement may be varied or rescinded by the parties thereto.

(5.) Every such agreement and any such variation thereof shall be binding upon the
Commonwealth and the States parties thereto notwithstanding anything contained
in this Constitution or the Constitution of the several States or in any law of the
Parliament of the Commonwealth or of any State.
 (6.) The powers conferred by this section shall not be construed as being limited in
any way by the provisions of section one hundred and five of this Constitution.

4. Constitution Alteration (Social Services) 1946

The fourth successful amendment was passed in the year 1946. It proposed extending the power
of commonwealth government over a range of social services which included widow’s pensions,
child endowment, unemployment, pharmaceutical etc. On a number of these issues federal
legislation already existed, however, there was a lack of clear constitutional basis.

The amendment altered section fifty-one of the constitution by adding the following paragraph:

S51 (XXIIIA) The provision of maternity allowances, widows' pensions, child endowment,
unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but
not so as to authorize any form of civil conscription), benefits to students and family allowances.

5. Constitution Alteration (Aboriginals) 1967

Referendum on 27 May 1967 approved two amendments to the Australian Constitution. These
amendments were related to indigenous Australians. Both the amendments won 90.77% of vote
cast in all the six states.

Section 51 (XXXVI) and 127 were altered in these amendments. They had immediate effect of
including Aboriginal Australians in determinations of population and empowered the federal
parliament to legislate for this racial group.

6. Constitution Alteration (Senate Casual Vacancies) 1977

This amendment was approved by referendum on 21st May 1977. It was related to the filling of
casual vacancies in the Senate. Before this amendment came into effect, the legislature of a State
was not required to replace a vacancy in the senate with regard to political allegiances. Also the
term of the newly appointed senator could continue until the next general election for either
House of Representatives or Senate, or the original Senator’s term, whichever came first.

However, after this amendment, the State legislature was required to replace a Senator with a
member of the same political party. Also, the term of new Senator could continue until the end
of the term of the original Senator.
 7. Constitution Alteration (Referendums) 1977

Initially section 128 failed to recognize the residents of territories as voters. Even the citizens the
citizens of Australian Capital Territory were restricted from voting.

In 1977 the question of territory votes was carried in every State and it got a national YES vote
of 77.7%. However it could secure only 40.4% YES votes in Queensland and 37.8% YES votes
in Tasmania.

8. Constitution Alteration (Retirement of Judges) 1977

In October 1976, the standing committee of Senate on constitutional and legal affairs
recommended a retiring age for all the federal judges.

The basis of this recommendation was:

 Perception of a need to maintain vigorous and dynamic courts

 To open up avenues for able legal practitioners to achieve judicial position
 Growing community belief in compulsory retiring age for judges
 Avoiding the unfortunate necessity of removing a judge made unfit for office by
declining health

This view was accepted by the Australian Constitutional Convention.

The application of this amendment was prospective in nature i.e. the tenure of judges appointed
before the referendum was unaffected irrespective of the fact whether they were High Court or
Federal Judges.

Systematic difficulties

The provision of referendum has received criticism on the part of a number of writers. The
requirement of a double majority for the ratification of a bill creates unnecessary hurdle. Even if
it had required half the states for ratification, much more amendments would have succeeded.
Such an amendment was proposed in 1974, however, it itself could not climb the high hurdle set
up by the existing provision. Such proposed amendments which would have passed if half the
states were required for ratification include Marketing (1946), Industrial Employment (1946)
and Simultaneous Elections (1977).
Critiques of scholars

Richardson suggests that, the printing of arguments both in favour and against in the same
pamphlet, gives the NO case a status which it might not have got if they were guided by the
votes in parliament. He maintains that an amendment proposal which is passed by the parliament
is a legal expression of the will of the people and the amendment provision is unable to
recognize this fact.16

Another important writer digging out the flaws in the procedure is Mr. Colin Howard. He
maintains that usually the yes cases are presented simply, containing the features of what is
being proposed while the NO cases are often designed in such a manner which confuses the
readers. The writer uses the phrase ‘argument in against is totally unreliable guide to the
proposed amendment.17

Another defect which writers talk about is compulsory voting. Professor L.F. Crisp is of the
view that compulsory voting has loaded the chances of opposing an amendment because voters
who are uninterested to take part in such a process are forced to do so and most of them prefer a
NO. This view of Professor L.F. Crisp is commonly cited for the defeat of any amendment
proposal.

The work of Professor Lan Mc Allister shows that in ‘The establishment of Republic (1999)’
referendum, if the ignorant people were not compelled to vote, the amendment would have
succeeded.18

Government Clumsiness

John Uhr focuses on, the defective approach of the governments proposing the Bill. Most
common defect is asking too much in a single amendment with an option of only either a YES
or NO. Two such examples are discussed below.

Trade and Commerce (1911)- This referendum sought to extend the powers of commonwealth
parliament in the field of trade and commerce. The proposed amendment included extension of
control over trade and commerce, corporations, labor and employment and monopolies and
combinations. And all these vast changes were proposed within one question.

Industry and Commerce (1926)- Most of the matters covered in the case of 1911 were included
in this with addition of power to make laws with respect to Trade Unions and Employer
Associations.

16
J. E. Richardson, 'Reform of the Constitution: The Referendums and Constitutional Convention', in Evans, Labor
and the Constitution, pp. 856.
17
Colin Howard, Australia's Constitution, Penguin, Ringwood, rev. ed, 1985, p. 135
18
L. F. Crisp, Australian National Government, Longmans, Melbourne, 1965, p. 51
 Conclusion

The provision for amendment in a constitution is as necessary as a vehicle requires service

during its life. However it cannot be interpreted as like changing clothes, for a state to survive,
needs some permanency in constitution. In Indian context the concerned provision and
procedure has already been discussed in the paper. What makers of the Indian Constitution had
in mind was ‘flexibility’. They wanted a constitution which could efficiently regulate the
coming generations and their societies. For the same provision of amendment was kept in the
constitution. It was nearly impossible to fully calculate the circumstances which would arise in
future and their complete solutions. As a result article 245 was kept in the constitution. From
this article merely the power of Parliament to amend laws and make amendments was derived.
However article 368 which has itself been amended in 24th and 42nd amendments provides a well
written procedure for the same. Article 368 does not constitute the complete code and it has been
also interpreted differently at different times. Supreme Court in a judgment stated that Article
368 defines merely the procedure for amendment.

Despite this provision is present in the constitution, the power and procedure of amendment has
been a controversial issue in the subcontinent till now. The Supreme Court which is regarded as
the guardian of the Constitution has many times limited the power of the Constitution by
striking down amendments and laying guidelines. This can be understood by studying the cases
of Golaknath v. state of Punjab, Sajjan Singh v. State of Rajasthan and the Fundamental rights
case (Keshavananda Bharti v. State of Kerala) While in both the former cases the exclusive right
of the Parliament was recognized to amend any part of the Constitution in any way. In the
fundamental rights case the judgments of previous two cases were overruled and it was held that
the parliament cannot change the basic structure of the constitution in the name of amendment.
Certain features were defined as the basic structure in this case. Further in the cases of Indira
Nehru Gandhi v. Raj Narayan and Minerva Mills certain more features were added to the list of
basic structure.

The conclusion can be drawn from this that though the makers of Constitution wanted it to be
flexible but to some extent they were unable to recognize misuse of the provision. In the light of
such belief Supreme Court laid down the Doctrine of Basic Structure.

However, The Supreme Court itself has not defined clearly as to what is basic structure. Its
boundaries have been defined in a no. of cases and are yet to be defined in coming cases but
there is no perfect definition as to what constitutes basic structure.

On the other hand an inference can also be drawn that the basic structure is not some part of the
constitution but it is what makers had in mind while writing each and every part and its
relevance in present scenario. The answer to the question- what is basic structure, is to be
interpreted by the Supreme Court in each and every such case which comes before it.
On one hand the Parliament has an exclusive power to amend the constitution without any well
written restrictions, the Supreme Court has power to strike down such amendment which it
thinks is unconstitutional.

The procedure defined in Australian Constitution under article 128 is not so complicated and has
been clearly defined but what the provision says is definitely complicated.

In order to amend the constitution a bill has to be introduced in the House of Representatives.
After the bill gets passed from the Parliament by absolute majority, it has to go through a
referendum. In a referendum a pamphlet is provided to the voters on which arguments, both in
favour and against of the amendment, is written. And the voters have an option either to say
YES or NO.

The procedure is not only complicated but is a hurdle in the way of necessary and required
constitutional amendments. As a result of such a hard procedure of amendment most of the
proposed amendments which get passed from the Parliament fail in the referendum. Only eight
amendments to the Australian Constitution have been possible till date All the 8 amendments
have been briefly discussed in the paper.

A number of writers have criticized this system for a number of reasons. These reasons include.
First of all the double majority required in a referendum is itself a hurdle. If referendums
required only a national majority much more amendments would have passed. Secondly some
scholars are of the view that the decision of parliament is itself the representation of the will of
the people and there is no requirement of a referendum after a bill is passed from the Parliament.
The approach of governments in presenting the bills has also been criticized by some writers on
the ground that they ask too much from people in a single proposal of amendment on which they
have to answer either in ‘yes’ or ‘no’. Richardson goes one step ahead and says that the
argument in against of the amendment should not be included in the pamphlet as they confuse
the voters.

The possible solution for the problem of uncertainty in India is making the legislators liable for
such amendments as are clearly unconstitutional and are passed in order to lure the voters. But
such a step could not be taken as it would restrict the free and effective working of the
Parliament. The present scenario in India though is chaotic but is sufficient to ensure that no
such amendment is made which destroys the basic structure of the constitution. Supreme Court
is capable enough to give a free and fair judicial review and strike down what is
unconstitutional. However in case of Australia, the system of referendum is so rigid that
amendments have rarely been made in History. This is the reason that Australia till now has not
been declared a republic, which many scholars emphasize on. The process of referendums
should be struck down in Australia by the interference of judiciary on the grounds that the
House of Representatives itself represents the will of the people and moreover if some
unconstitutional amendment is made the Highest court has a power to strike it down on
sufficient grounds. This single measure alone is capable of removing all the hurdles in way of
required constitutional amendments in Australia. It is a general belief that federal Constitutions
are generally rigid and are very difficult to amend. Because of this they are behind the times.
And same can be said in case of Australia. The argument that it is still not a republic is sufficient
to prove this statement. Thus the procedure of amendment followed and powers incurred are far
better in India than Australia. Though problems are in Indian system too, but it does not put up
unnecessary hurdles. The federal countries should learn the system Federalism from India.