This article is written by Astitva Kumar, an advocate. The article is the result of extensive research and analysis on the procedure for amending the Indian Constitution, as well as a detailed examination of Amendments 100, 101 and 102.
This article has been published by Sneha Mahawar.
Table of Contents
“All Constitutions are the heirs of the past as well as the testators of the future.” -Sir Ivor Jennings
A Constitution is a country’s supreme law. Considered the father of political science, Aristotle, in his book, ‘politics’ defines Constitution or polity as the organization of a polis in respect of its offices generally, but especially in respect of that particular office which is sovereign in all issues.
The process of amending the nation’s fundamental Constitution, or supreme law, is known as amending the Indian Constitution. The mechanism for amending the Constitution is outlined in Part XX (Article 368) of the Indian Constitution. The most well-known concept or guideline for determining the legitimacy of an amendment is the ‘Basic structure doctrine,’ which was established by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala (1973).
The article is divided into four sections, dealing with a constructive approach to help the reader understand the fundamentals of the procedure for amending the Indian Constitution and later explaining in detail, 100th Amendment to the Indian Constitution- this Amendment is the Land Boundary Agreement (LBA) between India and Bangladesh. The 101st Amendment to the Indian Constitution- is about the Goods and Services Tax which was implemented in the country on July 1, 2017. The 102nd Amendment to the Indian Constitution- granted the National Commission for Backward Classes constitutional standing.
Amendments in the Indian Constitution
The Indian Constitution is the document and related procedures that form the Republic of India’s primary organizing principle. On January 26, 1950, it went into effect. The country is described in the Constitution as a “sovereign socialist secular democratic republic.” It established India as a parliamentary democracy with the Union (central) government and state governments sharing power. Austin describes the Constitution as “something which establishes the ultimate government’s framework.”
As a result, the Constitution determines:
- The organization of government,
- The relation between various departments of government,
- The powers and functions exercised by each department of government,
- The relationship between the governors and the governed.
To be a living document, a Constitution must be capable of adapting to socioeconomic changes when the society so wants. The Constitution should not be too strict to prevent meaningful amendments, nor should it be too flexible to make the Constitution a toy in the hands of politicians.
Globally, all Constitutions are believed to grow and expand over time as our society’s situations, needs, and values change. Missouri v. Holland, 252 U.S. 416, 433 (1920), is the locus classicus of the metaphor of the living Constitution, in which Justice Holmes compared the Constitution to an “organism” and argued that the words of the text “have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”.
As a result, the amendment method, like a safety valve, must accommodate the amendments necessary by a nation’s changes. Article 368 of the Indian Constitution allows for revisions by granting amending authority to Parliament and subjecting it to judicial review. The nature of the amendment process anticipated by our Constitution’s creators is best illustrated by referring to Pandit Nehru’s statement that the Constitution should not be so rigid that it cannot be modified to changing demands, development, and strength. The amendment of the Fundamental Rights has been a historical controversy as to whether an amendment of the Constitution was made in the manner provided for under Art. 368 must conform to the requirement of Art.13(2), as a ‘law’ as defined in Cl. (3) of Art. 13; or, in other words, whether a Constitution Amendment Act would be void if it did not conform to the requirement of Art.13(2); or, in other words, whether a Constitution Amendment Act would be void if it did not.
In Sajjan Singh v. The State of Rajasthan (1964), the definition of the phrase ‘amendment’ was sought to be explained for the first time. The Court ruled that a provision of the Constitution may be amended by deleting one or more of its provisions and substituting new provisions in their place.
Procedure for amending the Constitution in India
In comparison to the country’s major Constitutions, India’s Constitution provides for a separate amendment mechanism. It can be described as semi-flexible and semi-rigid. The Indian Constitution allows for a wide range of amendments. The Indian Constitution allows for three types of modifications.
Article 368(2) of the Indian Constitution governs the procedure for amending the Constitution.
Amendment by a simple majority
Certain provisions of the Constitution can be altered by a simple majority (i.e., more than 50%) of the total members present and voting. This category can be altered to allow for the admission of a new state under Article 2, Schedule IV, and Article 11.
Amendment by special majority
Some Articles in the Constitution can be amended by a special majority (i.e., 66%) of not less than two-thirds of the members of that House present and voting.
The Amendments envisioned in Articles 410, 169, para 7(2) of Schedule V, and Para 21(2) of Schedule VI fall into this category and are expressly excluded from the purview of Article 368, which is a specific provision in the Constitution dealing with the power and procedure for the constitutional amendment.
Special majority amendment and ratification by state legislatures
Article 368 states that if the amendment attempts to change ‘certain specific elements of the Constitution’, it must be ratified by a special majority (66%) in Parliament, following that, at least half of the state legislatures must ratify it. When this procedure is completed, the Bill is forwarded to the President for his assent.
100th Amendment of Indian Constitution : The Constitution (One-Hundredth Amendment) Act, 2015
The Land Border Agreement (LBA) between India and Bangladesh was ratified by the Constitution (100th Amendment) Act of 2015. The Act amended the Constitution’s First Schedule to give effect to the agreement dated May 16, 1974, and its protocol dated September 6, 2011, entered into by the Governments of India and Bangladesh for the acquiring of territories by India and the transfer of certain areas to Bangladesh.
Following India’s split in 1947, the subject of border division between India and Pakistan was referred to the Supreme Court of India for decision. The Court concluded that transferring the land would necessitate a constitutional amendment. The Ninth Amendment to the Indian Constitution, concerning the division of Pakistan’s borders, was based on the Supreme Court of India’s advisory judgment issued in 1959.
Following Bangladesh’s independence from Pakistan in 1971, India and Bangladesh worked together to resolve the two countries’ territorial boundary dispute. On March 19, 1972, in Dhaka, the Prime Ministers of Bangladesh and India, Sheikh Mujibur Rahman and Indira Gandhi signed a Treaty of Friendship, Cooperation, and Peace for a term of 25 years, extendable by mutual consent. This agreement was the first step towards resolving the border dispute. The two countries’ Prime Ministers signed the Land Boundary Agreement in 1974.
Implementation of Land Boundary Agreement
The assassination of Bangladeshi President Sheikh Mujibur Rahman in 1975 hampered the implementation of the 1974 accord. After multiple discussions between the leaders of India and Bangladesh, India and Bangladesh eventually resolved to execute the 1974 Land Boundary Agreement on June 6, 2015, four decades later. To assist the agreement’s implementation, India modified its Constitution. The 2015 LBA was signed on June 6, 2015, in Bangladesh. The historic deal permitted the handover of 111 enclaves totalling 17,160.63 acres from India to Bangladesh. India, on the other hand, gained 51 enclaves totalling 7,110.02 acres in Bangladesh. Prior to this landmark agreement, the 2011 Protocol signed by Manmohan Singh of India and Sheikh Hasina of Bangladesh agreed to preserve the status quo in dealing with the issue of adverse possessions of land, with India receiving 2,777.038 acres from Bangladesh and transferring 2,267.682 acres to Bangladesh.
The 2011 Protocol was developed in collaboration with the state governments of Assam, Meghalaya, Tripura, and West Bengal, however, it was unable to be implemented due to bad political conditions. Thereby, the 2015 LBA addresses the unsettled issues stemming from the approximately 6.1-kilometre-long land boundary in three sectors: Daikhata-56 (West Bengal), Muhuri River–Belonia (Tripura), and Lathitila–Dumabari (Assam); exchange of enclaves; and adverse possessions, which were first acknowledged in the 2011 Protocol.
101st Amendment of Indian Constitution : The Constitution (One Hundred and One Amendment) Act, 2016
The establishment of the Goods and Services Tax regime by the One Hundred and First Amendment to the Constitution marks a watershed milestone in the history of cooperative federalism.
Article 366(12A) defines the term goods & services tax. It refers to any tax on the supply of goods, services, or both, except taxes on the sale of alcoholic beverages for human consumption.
The introduction of the Goods and Services Tax (GST) is a big step forward in India’s indirect tax reforms. By merging a significant number of Central and State taxes into a single tax, GST will significantly reduce the negative consequences of double taxation and lay the groundwork for a common national market. The main advantage for consumers would be a reduction in the overall tax burden on goods, which is expected to be between 25% and 30%. This would also mean that the consumer would be far more aware of the true cost of indirect taxes on goods and services. Due to the full neutralization of input taxes across the value chain of production and distribution, the introduction of GST would make Indian products competitive in both domestic and international markets. Last but again not least, this tax would be easier to administer due to its transparency and self-policing nature. It would also promote a transition from an informal to a formal economy.
Article 246 of the Indian Constitution divides legislative powers, including revenue, between the Parliament of India and the State Legislatures.
The Constitution divides fiscal authorities between the Centre and the States, with essentially no overlap between the two spheres. The Centre has the authority to tax the manufacture of commodities (except for alcoholic beverages for human use, opium, drugs, and similar substances), while the States have the power to tax the sale of goods. In the context of inter-state sales, the Centre has the authority to impose a tax (the Central Sales Revenue), but the tax is wholly collected and held by the originating states. In terms of services, only the Centre has the authority to charge service tax. Because the states lack the authority to levy taxes on the sale or purchase of products during their importation or exportation from India, the Centre imposes and collects this tax in supplementary to the Basic Customs Duty. This customs duty (also known as CVD and SAD) offsets excise duty, sales tax, state VAT, and other taxes levied on similar domestic products. The introduction of GST demanded constitutional adjustments to allow the Centre and the States to tax and collect GST at the same time.
Legislative Basis Of GST
The GST Bill was initially introduced in India in the 16th Lok Sabha in 2014. The Lok Sabha passed the Constitution Amendment Bill in May of 2015. The Bill was finally passed in the Rajya Sabha in August of 2016, with some revisions. Furthermore, the Bill was ratified by the required number of states and gained the President’s assent on September 8, 2016, resulting in the 101st Constitution Amendment Act, 2016. With effect from September 12, 2016, the GST Council has also been established. The GST Council is directed by a Secretariat. In order to facilitate the smooth implementation of the GST, numerous committees and sectoral groups composed of members from both the Centre and the States have been constituted.
Important provisions of the Bill:
- Central GST will cover excise duty, service tax, and other taxes, while state GST will cover VAT, luxury tax, and other taxes.
- GST is integrated to cover interstate trade. The IGST is not a tax in and of itself, but rather a method for coordinating state and union taxes.
Key aspects of Article 246 (A)
This Article states that:
- In India, both the Union and the States now have ‘concurrent powers’ to enact laws governing goods and services.
- Intra-state trade now falls under the jurisdiction of both the centre and the state, although inter-state trade and commerce remain ‘exclusively’ under the jurisdiction of the central government.
Key aspects of Article 269 A
- According to this Article, in the case of inter-state trade, the tax will be imposed and collected by the Government of India and allocated between the Union and the States based on the GST Council’s decision.
- The Article further states that the proceeds would not be credited to the consolidated fund of India or any state, but rather that the relevant part will be allotted to that state or centre. The reason for this is that under GST, where the centre collects the tax, the state’s portion is assigned to the state, whereas where the state collects the tax, the centre’s part is assigned to the centre. If that proceeding is deposited in the Consolidated Fund of India or a state, an appropriation tax will be required every time. As a result, under GST, tax income will be allocated outside of the Consolidated Funds.
Key aspects of Article 279-A
The Article requires the President to form a GST council within sixty days of the act’s enactment. The GST council will be comprised of the following individuals:
- The Chairman of the council will be the Union Finance Minister,
- Union Minister of the State in charge of Revenue or Finance,
- Each state has one nominated member in charge of finance or taxation,
- The Council is designed in such a way that the centre will have one-third of the voting power and the states will have two-thirds,
- Decisions are made with a 3/4th majority.
Key Aspects of List I
Previously, entry 84 of the Union List included tariffs on tobacco, alcoholic beverages, opium, Indian hemp, narcotic medications and narcotics, medical and toilet preparations. It will now include petroleum crude, high-speed diesel, motor spirit (petrol), natural gas, and aviation turbine fuel, as well as tobacco and tobacco products. Entry 92 (newspapers and adverts published in them) has been removed; they are now subject to GST. Entry 92-C (Service Tax) has been removed from the union list. Entry 52 (entry tax for sale in-state) has likewise been removed from the State list. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of List I Entry 92-A, has been supplanted by taxes on the sale of petroleum crude, high-speed diesel, motor spirit (petrol), natural gas, aviation turbine fuel, and alcoholic liquor for human consumption, but not on the sale of such goods in the course of interstate trade or commerce or on the sale of such goods in the course of international trade or commerce. Entry 55 (advertising taxes) has been removed. Entry 62 (Taxes on luxuries, including taxes on entertainments, amusements, betting, and gambling) has been superseded by these taxes, which can only be levied by local governments (panchayats, municipality, regional council, or district council).
Main features of GST
- Applicable on the supply side: GST is levied on the supply of goods or services, as opposed to the old concept of being levied on the manufacture of things, the sale of goods, or the provision of services.
- Destination-based taxation: GST is based on the principle of destination-based consumption taxation as against the present principle of origin-based taxation.
- Dual GST: It is a dual GST, with the Center and the States both levying tax on a common base at the same period. The GST charged by the Center is known as Central GST (CGST), while the GST levied by the States is known as State GST (SGST).
Imports of goods or services would be considered inter-state supplies and subject to the Integrated Goods and Services Tax (IGST) in addition to the applicable customs charges.
- GST rates to be mutually decided: The CGST, SGST, and IGST are levied at mutually agreed-upon rates between the Center and the States. The rates are announced based on the GST Council’s suggestion.
- Multiple rates: Initially, GST was levied at four different rates: 5%, 12%, 16%, and 28%. The GST Council develops the schedule or list of things that fall under these various slabs.
102nd Amendment of Indian Constitution : The Constitution (One Hundred and Second Amendment) Act, 2018
The 102nd Amendment Act was approved by the President and came into effect in August 2018.
- Articles 338B and 342A were added to the Indian Constitution as a result of the Amendment. Article 338B governs the structure, functions, and powers of the National Commission for Backward Classes (NCBC).
- Article 342A deals with the President of India’s authority to designate a certain caste as a Socially and Educationally Backward Class (SEBC) and the Parliament’s authority to modify the list.
The Amendment also brings about changes in Article 366 of the Indian Constitution.
This Amendment gave the NCBC constitutional status. The Commission was originally set up in 1993.
The 102nd Amendment did take away the power of states to identify socially and educationally backward classes within their territory to provide reservations in admissions and employment, according to a Supreme Court Constitution Bench that ruled 3:2 that the 102nd Amendment did take away the power of states to identify socially and educationally backward classes within their territory to provide reservations in admissions and employment. According to the ruling, only the President has the authority to declare a caste SEBC. After the 102nd Amendment, states lost their ability to identify backward classes in their area.
- According to the consensus opinion, “By introducing Articles 366 (26C) and 342A through the 102nd Constitution, the President alone, to the exclusion of all other authorities, is authorized to recognize SEBCs and include them in a list to be published under Article 342A (1), which shall be regarded to include SEBCs with each state and union territory for the Constitution.”
- The states can only offer recommendations to the President or the NCBC to remove, add, or change the list of backward classes. However, the states’ ability to make reservations in favour of communities, choose the number and type of reserves, and the nature of benefits (other than designating the communities/castes) remains intact.
- The Court also ruled that the 102nd Amendment was legitimate and that it had no effect on the federal nature of Indian polity or the core framework of the Constitution
“We have full and detailed Constitution …it depends ultimately on the people … and more especially on those in positions of responsibility … Thus, the element of cooperation, of seeking friendly counsel with each other and of ever keeping the larger end in view, are of paramount importance.” -Jawaharlal Nehru
The purpose of this article was to emphasize the importance of the Amendment provision in the Indian Constitution and to critically examine the100, 101 and 102 Amendments.
The Indian Constitution is believed to be of the Euro-American tradition in the family of Constitutions. In terms of its length, early constitutional writers expected that it would rise to legalism and rigidity. Fortunately, this did not occur, and the Constitution, as envisioned by its authors, has proven to be highly adaptable and has garnered some favourable comments from some foreign scholars.
Thus, for a written constitution such as India’s, the Amendment is an absolute necessity, and its relevance inside the body of a constitutional document is as great, if not greater, than the document itself. The development of a Constitution is a difficult and time-consuming task, and its building in a form acceptable to the people, particularly future generations, is nearly impossible. In this regard, Sir Ivor Jennings puts it succinctly: “… The framers of the Constitution can’t foresee the conditions under which it will apply and the issues that will develop. They do not have the gift of prophecy.” In other words, no amount of drafting competence can be anticipated to prevent the need for revising and developing a Constitution to accommodate the unexpected and unforeseeable. To address the needs of the people, it is therefore vital to include an amending clause in the framework of a constitutional instrument.
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