In an earlier post we began an analysis of constitutional amendments to the Constitution of India by exploring whether constitutional amendments are more likely when a single party has a threshold majority in the Lok Sabha. We noticed that this was not as likely as is commonly assumed. In this second post, we begin assessing constitutional amendments using some qualitative parameters to identify significant amendments which have reshaped the Constitution.
A constitutional amendment may be significant in many ways: in this post, we identify three simple parameters to evaluate significance. First, we assess the scale of textual alteration of the Constitution, including insertions, modifications and deletions. Secondly, we assess the structural impact of amendments on institutional design, patterns of social and economic redistribution and citizens’ rights. Thirdly, we highlight amendments declared unconstitutional by the Supreme Court indicating areas of constitutional disagreement between Parliament and the Supreme Court.
A. Scale of Textual Alteration
In the graph above, all constitutional amendments, in chronological order, are on the x-axis with the corresponding number of changes made in the text of the Constitution on the y-axis. The number of changes made through each amendment can be viewed by hovering over the dot corresponding to the amendment year.[1]
The 42nd Amendment, enacted in 1976, amended 57 provisions of the Constitution, the highest number till date. Provisions amended ranged across Part III (Fundamental Rights), Part IV (Directive Principles of State Policy), Part IVA (Fundamental Duties), Part V (the Union), Part VI (the States), Part XI (Relations between the Union and States), Part XIV (Services under the Union and States), Part XIVA (Tribunals), Part XVI (Special Provisions Relating to Certain Classes), Part XVIII (Emergency Provisions), Part XX (Amendment of the Constitution), Part XXI (Temporary, Transitional and Special Provisions) and the Seventh Schedule.
The 44th Amendment, enacted in 1979 primarily to undo the impacts of the 42nd Amendment, changed 43 provisions of the Constitution, the second highest. This amended Parts III, IV, V, VI, XI, XVIII and XXI – parts amended by the 42nd Amendment – as well as a few others, including Part VIII (the Union Territories), Part XII (Finance, Property, Contracts and Suits), Part XIV (Services under the Union and the States), Part XIX (Miscellaneous) and the Ninth Schedule.
The third-highest number of provisions were amended by the 7th Amendment, enacted in 1956. This amended 35 provisions of the Constitution and set the constitutional basis for the States Reorganization Act, 1956. The four-fold categorization of states in place at the time was replaced with a two-fold categorization, namely States and Union Territories.
More recently, in 1993, the 74th and 73rd Amendments amended 20 and 18 provisions respectively, the fourth and fifth highest so far. The former added provisions for urban governance bodies, or municipalities, in Part IXA and the Twelfth schedule to the Constitution. The latter added analogous provisions for rural local governments, or Panchayats, in Part IX and the Eleventh schedule. They also amended Article 280 to mandate the Finance Commission to account for the devolution of resources by State Governments to these local bodies in its recommendations.
B. Structurally Significant Amendments
When we move from the scale of textual alteration, to isolate constitutional amendments that have shifted the structural scaffolding of the constitution, we will generate a different list of significant constitutional amendments. We focus on amendments which change the federal design of the Indian state, the normative frameworks for social and economic redistribution, and those affecting rights of citizens.
The 7th, 73rd and 74th amendments transform the federal structure of the Indian state; the seventh by enabling the redrawing of the territorial boundaries of States and Union Territories, and the 73rd and 74th by establishing a new third, local layer of governance. The 7th amendment also included special provisions for the States of Andhra Pradesh, Punjab and Bombay through Article 371. This made it the first amendment to the Constitution which introduced such an asymmetric arrangement for a State, as Article 370 granting a special status to the then State of Jammu and Kashmir existed at the time of its enactment. Similar asymmetric arrangements are now in place for the States of Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim and Mizoram.
The normative framework for social and economic redistribution – more ambiguously described as the ‘social question’ – has been a significant concern for constitutional design in India. The 1st amendment, enacted in 1951, inserted the Ninth Schedule into the Constitution, shielding land reform and zamindari abolition laws from judicial review. The 44th Amendment eventually relegated the right to property from a fundamental right under Article 19(1)(f) to an ordinary constitutional right under Article 300A in 1979. The 1st amendment also provided for the insertion of clause (4) in Article 15 to confirm the justification for ‘special provisions’ (affirmative action) for Scheduled Castes and Scheduled Tribes to be integral to the constitutional guarantee of equal treatment. The 93rd and 103rd amendments, enacted in 2006 and 2019 respectively, extended a similar justification for ‘special measures’ (affirmative action) for any ‘socially and educationally backward classes of citizens’ and for any ‘economically weaker sections of citizens’.
The most significant amendments to fundamental rights are the 25th, 42nd and 43rd amendments. The 25th amendment inserted Article 31C into Part III of the Constitution, providing that no law passed to give effect to Article 39(b) and (c) – directing the State to provide for equitable wealth distribution – could be struck down by the judiciary on account of violating Articles 14, 19 or 31. It also specified, crucially, that ‘no law containing a declaration that it is for giving effect to such policy’ could be questioned by a court ‘on the ground that it does not give effect to such policy’.
The 42nd amendment expanded this protection to all the Directive Principles of State Policy (contained in Part IV). It also inserted Article 31D into Part III, allowing Parliament to make laws against any ‘anti-national activity’ while being immune from violating the same Articles 14, 19, 31. These broad restrictions on fundamental rights were partly lifted by the 43rd amendment, which repealed Article 31D.
We aim to develop a more rigorous typology of impact as we survey and analyse every constitutional amendment against the background of the parliamentary debates and their post enactment impact. In this post, we now turn to examine how the Indian courts have reacted to the extensive political practice of amendment of the Indian constitution.
C. ‘Unconstitutional’ Constitutional Amendments
The Supreme Court in Kesavananda Bharati v Union of India (1973) developed a new doctrine of judicial review called basis structure review. In this case, the court limited the impact of Article 31C inserted by the 25th amendment, discussed above, on the grounds that it was unconstitutional.
The basic structure doctrine has been applied to various constitutional amendments, However, amendments that disturb the separation of powers by depriving the courts of jurisdiction or autonomy have drawn special attention. The 99th amendment, enacted in 2014, that sought to establish a National Judicial Appointments Commission and move away from a collegium-led judicial appointments process was struck down in its entirety.
Five other amendments affecting judicial power have been struck down partially. This includes, apart from the 25th amendment’s exclusion of judicial review in Article 31C, the 32nd amendment’s inclusion of clause 5 in Article 371D dealing with Administrative Tribunals, and the 39th amendment’s attempt to immunize the election of the Prime Minister and Lok Sabha Speaker from judicial review. Fourthly, the 42nd amendment’s exclusion of administrative tribunals’ decisions from judicial review under Article 323A(2)(d) was struck down in 1997. The same amendment inserted clauses (4) and (5) in Article 368, effectively dismantling any judicial constraints over Parliament’s power to amend the Constitution, and was struck down in 1980 for violating the basic structure doctrine laid down in Kesavananda Bharati.
Finally, the 52nd amendment’s exclusion of the court’s jurisdiction in relation to any member’s disqualification from a legislature under the Tenth Schedule was struck down in 1992, even while the remaining part of the Tenth Schedule was upheld as constitutional.
While basic structure review cases engage in substantive judicial review of constitutional amendment, there is one case that strikes down a constitutional amendment on procedural grounds. The establishment of State cooperative societies under the 97th amendment was struck down for not having secured the ratification of one-half of the State legislative assemblies as required under Article 368(2).
The amendments discussed in this section are significant as they have been declared ‘unconstitutional’. The unconstitutionality of constitutional amendments is a notable contribution of the Indian Supreme Court to constitutional practice and theory. A closer analysis of the amendments to which this doctrine as have been applied is educative in any study of constitutional amendments.
Conclusion
In this post we have begun developing an elementary framework to assess the significance of constitutional amendments in India. While some amendments like the 42nd Amendment will retain salience irrespective of the framework chosen, most amendments are only significant along a single axis.
We invite readers to propose other frameworks and amendments for closer analysis in the weeks to come. We are currently preparing a comprehensive database of all successful and failed constitutional amendment proposals and the legislative debates that accompanied them, to be hosted on constitutionofindia.net in the coming months.
[Assisted by Niharika Mukherjee, Chrisma Gabriela and Anushka Vinay]
[1] A note on method: We have counted every individual Article, Part, or Schedule of the Constitution that was actually added, repealed or changed by an amendment, instead of counting the provisions of the amendment act. For instance, the 73rd Amendment Act, 1992 has only 4 sections but Section 2 inserts 16 articles into the Constitution. We have counted this as 16 changes rather than 1, as it is a more accurate representation of the textual impact of the amendment on the Constitution.