Methods Of Amendments In Different Countries | Fundamental Laws | Amendment Act | The National TV
- by Aditi-Harshraj
- Apr 08, 2020 17:29
METHODS OF AMENDMENT IN DIFFERENT COUNTRIES
A Constitutional amendment is a modification or changes made in the constitution to improve the text and for the betterment of the acts. It is the official change made to the nation’s fundamental law or supreme law.
INDIA: Amending the constitution of India is the process of making changes that are laid down in Article 368 of the Indian Constitutional. The process of amending the constitution keeps a check on the arbitrary power of the parliament of India. There are certain limitations imposed on the amending power of the constitution of India as a result of which there is various doctrine or rules in re MNMgard for checking the validity of an amendment. Basic structure doctrine laid down in Kesavananda Bharti v. the State of Kerala is most famous among them.
The basic structure doctrine is an Indian judicial principle that the constitution of India has certain basic features that can’t be altered or destroyed through amendments by the parliament. Key among these “basic structure”, as expounded by its most prominent proponent Justice Hans Raj Khanna, is the fundamental rights granted to individuals by the constitution. In Shankari Prasad v. Union of India the validity of the first Amendment Act to the Constitution was challenged on the ground that it purported to abridge the Fundamental Right can be amended under Article 368 which is the power to amend the constitution. An amendment is not a law within the meaning of Article 13(2) which states that state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention, be void and still, in this case, an amendment is valid even if it abridges any Fundamental Right.
In Sajjan Singh v. the State of Rajasthan The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the amendment in the 9th schedule affected the petitioner on the basis that amendment fell within the purview of Article 368. In this case, Supreme Court said that all provisions of the constitution can be amended and the judgment in the Shankari Prasad case was approved and held that on Article 13(2) the case was rightly decided. In I.C. Golaknath v. the State of Punjab, the Supreme Court reversed its earlier decisions and declared that any amendment that takes away or abridges a Fundamental Rights conferred by Part 3 as unconstitutional. It also added that Article 368 merely lays down the procedure for the purpose of Amendment and the court also said that an Amendment is a law under Article 13(2) of the Constitution of India.
In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively and paved the way for the restoration of Indian democracy. The procedure through which the constitution of India can be amended is laid down in Article 368 which provides three methods and was borrowed from South Africa. The first one is by a simple majority of Parliament. In this, the amendment can be made by a simple majority of members present and voting before sending them for the President’s assent. The second procedure is by a special majority of the Parliament. In this, the amendment can be made by a two-thirds majority of the total no. of members present and voting, which should not be less than half of the total membership of the houses and the last procedure is through a special majority of the Parliament and approval of at least half of the state legislatures by the special majority and then it is sent or the assent of President.
FRANCE: The constitution of France was adopted on the 4th Oct 1958 and it is known as the Constitution of the Fifth Republic while it was called as the Fourth Republic dating from 1946. The person behind the concept of introducing the new constitution and inaugurating the Fifth Republic was Charles de Gaulle and the text was drafted by Michel Debre. The Constitution of France was amended twenty-four times since the year 1958 and the most recently in 2008 in which the Constitutional law on the Modernization of the Institution of the Fifth Republic was enacted into French constitutional law by the Parliament of France in July 2008, to reform state institutions. Under Article 84 of the Constitution of Franc, rules for amending the constitution are defined. The method of amending the Constitution is through getting approval by both houses of Parliament on the Constitutional bill then the bill must be approved by Congress, a special joint session of both houses; alternatively, the bill can be submitted to a referendum. Another procedure is defined under Article 11 of the constitution which allows the President to hold a referendum without the consent of Parliament. In 1962, President Charles de Gaulle controversially submitted a bill to a referendum through the procedure of Art 11 of the constitution. The Constitutional Council declared itself incompetent to rule on a Constitutional revision.
CHINA: The constitution of the People’s Republic of China is the supreme law within the People’s Republic of China. The Constitution has five sections which are the preamble, general principles, fundamental rights and duties of the citizens, structure of the state, the national flag and the emblems of the state and was first declared in 1954 and the current constitution was declared in 1982. The 1982 constitution has been amended several times which led to significant changes in the structure of the Chinese government in the absence of changes in the text of the constitution. The amendment procedure of the Constitution of China is under Article 64 of Chapter 3 which says that amendments to the constitution are to be proposed by the Standing Committee of the National People’s Congress and adopted by a majority vote of more than two-thirds of all deputies to the Congress.
UNITED STATE: The process of altering the United States Constitution is given under Article 5. Amendments may be proposed either by the congress with two-third votes in both the Houses of Representatives and the Senate or by a convention of states called for by the two-thirds of the state legislatures. To become part of the constitution, an amendment must be ratified by either as determined by Congress – the legislatures ratifying conventions in three-quarters of the state. Thirty-three amendments to the United States Constitution have been approved by Congress and sent to the State for ratification. Twenty-seven of these amendments have been ratified & are now part of the constitution. Approximately 11,539 measures to amend the constitution have been proposed in Congress since 1789(through Dec 16, 2014). The duality in Article 5 is the result of compromises made during the 1787 Constitutional Convention between two groups, one maintaining that the national legislature and their ratification should be decided by state legislatures or state conventions.
IRELAND: The Constitution of Ireland entered into force on 29 Dec 1937, there have been 35 amendments to the Constitution and the amendments to the constitution and the amendments to the constitution are only possible by way of referendum. The procedure for amending the constitution is specified in Article 46. A proposed amendment must take the form of a bill to amend the constitution originated in Dail Eireann i.e. lower house of the Oireachtas (Parliament). It must first be formally approved by both the Dail & the Sean and, although in practice the Sean and has only the power to delay amendment adopted by the Dail. The amendment must be endorsed by the electorate in a referendum. A simple majority of votes cast is sufficient to carry an amendment, with no minimum turnout required for a constitutional valid.
DENMARK: The Constitution of Denmark provides an example of multiple special procedures that must be followed. After an amendment has been approved by parliament, a general election must be held; the new parliament must then approve the amendment again before it is finally submitted to a referendum. There is also a requirement that at least forty percent of eligible voters must vote at the referendum in order for an amendment to be validly passed. Therefore, every country is having different amendment procedures as per their constitution and their requirement in their countries. The methods of amending the constitution are dependent upon their legislature. In some, the procedure is rigid and in other flexible as in the Indian amendment is rigid in nature. Modification in Constitution is done to solve the problems and for the betterment of their own citizens. Therefore amendments are required for the effective and efficient impact on the constitution in countries.
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