Amendment of Constitution: A comparative analysis in USA and India

Amendment of Constitution

This article is written by Nivnshika Jinta, a student of Lovely Professional University, Punjab. In this article, she has written about the Amendment of Constitution.

Introduction

As we all know, the Constitution is a living document rather than a dry one. A document with a unique legal status. It is the supreme law of the land and the supreme law that must be obeyed. The country’s constitution represents the goals and aspirations of citizens. The United States of America has become the first country in the world to write its constitution.  Wherein the Constitution of India is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. Finally, there are two types of constitutions: solid and flexible. The best example of a strong constitution is the United States Constitution, which is why amendments are so difficult. That is why changing the US constitution is so difficult. The Constitution of India is a mixture of strong and flexible principles America has become the first country in the world to write its constitution.

Meaning of constitution

The constitution is a set of rules and regulations that establish the mechanisms of the provincial government and define and determine the relationship between the executive, judiciary, and judiciary, as well as the central, district, and local government. The Constitution is the source, the legal source from which all other laws should come, concisely and concisely. The written Constitution of the United States of America was the first known example of a written Constitution, which established a unique pattern and was unanimously adopted as a remarkable text “for its shortness, restraint, and simplicity.” Many other constitutions have adopted many of its features, but not its brevity. One such text is the Constitution of India. India’s constitution, the longest in the world, is believed to represent the political, economic, and social views and aspirations of the Indian majority at the time of writing (1947-1949). This is true of all constitutions to some degree.

What is the need for a Constitution?

This topic has been discussed in two ways by scholars and readers of the comparative constitution: First and foremost, the answer to The Constitution is the natural desire of politically organized people to have a tolerant law that defines national form and government planning. jobs, by the nature of the public contract. This planning and design are essential to the stability of national government and law.

The procedure of Amendment: Nature and Scope

The country’s constitution is like another practical tool that must change through social change. Constitutional changes are brought about by two processes:

  1. De jure or formal modification – this is made through amending process provided in the constitution itself.
  2. De facto or informal modification it can be made through judicial interpretation for amendment.

 Such changes can be affected by: –

  1. the Courts interpretation
  2. legislation- by filling gaps or supplementing the Constitution
  3. changes in conventions and constitutional usages.

Flexible and Rigid Constitutions -The amendment procedures can be classified into two heads as rigid and flexible.

  1. Rigid procedures mean difficult to amend the constitution like that of the U.S., Australia, Canada, and Switzerland.
  2. The flexible procedure means in the procedure to amend is easy and can be done even by bypassing normal legislation like that of the United Kingdom.

 Even though this approach is defined as strong under the Indian constitution, it has shown flexibility in operation.

Article 368 of the Constitution of India provides for the right to amend. The process to be followed in India is simple and consistent, and there are differences in procedure when it comes to the state of the Union government. In any House, an amendment bill may be introduced. In India, all constitutional amendments require a Special Majority, which means that they must be approved by both houses with more than half the total number of members present and voting.

Process of amendment in the Constitution of India

The Provisions related to amendment in the constitution are as follows: –

  1. Many of the articles that can be amended by Parliament, in general, are article 4 Article 189, and article 243 which is not subject to the procedure set out in Article 368 of the constitution.
  2. Articles of the constitution that can be amended by a special majority such as FRs, apps
  3. Articles which required in addition to the special majority mentioned above, ratification by not less than ½ of the state legislatures, are as follows–

  1. Election of the president (Art. 54 and55)
  2. The extent of the executive powers of the Union and the states (Art. 73 and162)
  3. Articles dealing with the judiciary in union and high courts in the state (Art.214-231, Art.133-147)
  4. Legislative relation between power and state (Art. 245 –255)
  5. Representation of state in parliament (IV schedule)
  6. Article 368

 The process of amendment under Section 368 – a constitutional amendment bill that may be introduced in Parliament must be passed by each house with most of the total membership in the house and by a minimum of two-thirds of the members present and voting. Once a bill has been passed by both houses it is presented to the president for approval, who will provide access to the bill and the constitution will be amended.

Amendment Procedure of the US Constitution

Amendments (amendments) to the US Constitution are permitted under Article V of the Constitution.

Article V: “Congress shall propose amendments to this Constitution whenever two-thirds of the two Houses deem it appropriate or shall call for a Bill to propose Legislative Amendments to two-thirds of the various States.”

The Article provides that the Constitution can be amended either through:

  1. an act of Congress (parliament)
  2. a national constitutional convention.

 The procedure for amendments in the US follows this path:

  1. Proposal by Congress
  2. Submission to States
  3. Ratification

Two-thirds votes for each house are required. Also, unlike in India and the United Kingdom, the proposed amendment is not forwarded to the President after it has been approved. Instead, it is sent to the provinces. To date, only one constitutional conference has taken place: The 1787 Constitutional Conference that established the United States Constitution.

 Provincial legislatures play a significant role in changing the constitution in the United States, and the US Congress is not fully empowered. Apart from voting as the ANC, the President of the United States has no significant role to play in the constitutional amendment. In the United Kingdom and India, every amendment passed by Parliament by its constitution is referred to the President of the Prime Minister for his approval. And an amendment becomes part of the constitution only when approval is granted, but in the United States, any amendment becomes part of the constitution only after the required number of provinces have been approved.

Comparative study of the United States and India

All these countries are democratic, with America being the oldest democratic country in the world, with a constitution drafted in 1789. Although India was an English colony until 1947, the Indian Constitution was ratified in 1950. Even though the United Kingdom is a democratic country, the king is the head of state. Besides, the UK constitution is different from the United States and India because it is not compiled.

Merits and Demerits of the amending Constitution

The merits of amending a constitution include:

  • It will assist in the evolution of law with the change in needs and time.
  • It will help in the removal of vague and unnecessary laws.
  • It will help in the addition of new provisions which might not have been required to be enacted during the time of the making of the constitution.
  • It prevents internal revolts by making timely laws
  • Assists in taking quick decisions

 The demerits of amending a constitution include:

  • It makes the constitution highly unstable
  • The constitution would become a puppet of the ruling government
  • Fundamental rights can be infringed
  • The doctrine of constitutional supremacy would lose its identity.
  • It may lead to democracy turning into tyranny

Conclusion and Suggestions

We can conclude that, although both the United States and India are democratic countries, their mechanisms, laws, and amendments are quite different. In India, there is no special constitutional amendment body as there is in the United States. The Constitution of India can only be amended by the Parliament of India. In India, the role of the state in the constitutional amendment is limited, but in the United States, the states play a key role, and the United States can even propose a constitutional amendment. Countries, on the other hand, are unable to propose constitutional amendments to India. Article 368 gives the Indian Parliament the power to amend the constitution in some cases, but it also requires the approval of at least half of the provinces. A crucial point to note is that neither the Indian nor US constitutions provide a time limit for verification. India’s constitution is weak and flexible. On the other hand, the US, Australia, Canada, and Switzerland have strong constitutions.

References

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