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Gopal Krishna Behera (Advocate Orissa High Court Cuttack.)     08 June 2009

Amendment of the Constitution.

'The Constitution of India confers only a limited power on Parliament to amend the Constitution.'

         Invites for group discussion.

                  With Best regards.

   Gopal

 



Learning

 11 Replies

prabhu selvarasu (advocate)     08 July 2009

 DEAR SIR,

ART368 giving limited power only , i think it is right otherwise legislature spoiled the scope of our constitution. 

regards

prabhu

aayog (law student)     09 July 2009

the parliament can ammend the constitution only upto a certain extent.it cannot violate the basic structure of the constitution as decided in kesavananda bharti v/s state of kerala case. judicial review,secular character of state,balance between fundamental rights and directive principles of state policy etc. are few inclusions of basic structure. the supreme court checks the amending power of parliament and nullifies an act if it contradicts the constitution.

kirtirani sole (Student)     27 August 2009

As  we know what happened after 39th constitutional amendment......  Basic Structure theory is mile stone in Indian Constitutional history... In true sense Supreme Court is protector & guardian of Indian Constitution...

 

Anil Agrawal (Retired)     14 September 2009

 Pray what is basic structure. Some say it is parliamentary system, others say institution of judiciary, yet others say democracy etc. etc.

Come clean and define it. Why leave it to interpretation?

Anil Agrawal (Retired)     14 September 2009

 If another Constituent Assembly is convened which changes the constitution lock, stock and barrel, what will happen. Will it be prevented from changing what is called the basic structure? Suppose presidential and unitary form of government is insalled. Will it be struck down?

A Mishra (Director)     26 September 2009

1.     It is true that under the present/current legal dispensation & regime, Parliament has limited amending powers of the Constitution.The fetters on Parliament’s power was put by the seminal case of Kesavanand Bharati. The ambit & scope of ‘Basic structure theory’ have been expanded by subsequent decisions of Hon’ble Supreme Court.

2.     The situation can change if a larger bench than the one which decided Kesavanand Bharati’s case decides otherwise or redefines & recasts, the ‘Basic structure theory’.

3.     In a time horizon longer than short term, & as a theoretical construct. It can’t be denied that Parliament, working as a constituent assembly, is supreme. In this kind of setting, Parliament, can abrogate or recast the entire constitution and all organs of the state, as was observe by Chief Justice John Marshall,” House of Representative which is a manifestation of people’s will can even abrogate or abolish U.S. Supreme court by following due process of law”.

4.     Now in a paradigm shift, if we take a long term time horizon, the answer to the ultimate theoretical construct/question of what is the source of Pariament’s/Constituent Assembly’s power, is “ democracy/people’s will ”.

In this setting, undoubtedly, people’s wish/democracy is supreme. But as we all know, theories are mere theories. How far these are of real help to people, is for the esteemed readers to judge and decide.

Anil Agrawal (Retired)     26 September 2009

 But MPs say that not the Constitution but Parliament is supreme.

A Mishra (Director)     26 September 2009

Well, if they use Parliament as a euphemism for Constituent Assembly, then only they are right. In all other scenarios, they are wrong as per the current legal enunciation in vogue in India.

Adinath@Avinash Patil (advocate)     27 September 2009

I think Mishra is rghtly discussed matter,

Anil Agrawal (Retired)     27 September 2009

 Were the framers of the Constitution who are held in such high esteem farsighted people? Obviously, they could not have imagined that their successors would not be able to implement it even for 60 years without amending it 109 times and counting more like changing socks. If SC says anything against the Government, put the law in the 9th Schedule i.e. beyond judicial review.  It is a shameless exercise. Why not put all the laws mentioned in the India Code in the 9th Schedule so that SC is a mute spectator? If Parliament assumes sovereignty no part of the Constitution is safe from amendment. Even the concept of Basic Structure will be changed. Successive governments have played with it and coming governments will do the same.

Read this quote reported to be that of Churchill when India was granted independence:

Power will go to the hands of rascals, rogues and freebooters. All Indian leaders will be of low caliber and men of straw. They will have sweet tongues and silly hearts. They will fight among themselves for power and India will be lost in political squabbles.

A Mishra (Director)     28 September 2009

This is far to negative view of how the future may turn out to be. I have  great faith in the maturity,pragmatism of the youthful India.See how much we have evolved and progressed as a nation and compare with UK.In next 50 years we shall be equal to that country.Don't forget we have led the world for many thousands of years in the past,save a few centuries.As far as Parliamentarians go,make no mistake,each country gets the leadership they deserve.Unless we realise that each person is an asset and put our energy in improving the human capital,nothing concrete will come.But all this is true only in short term,in the long term we have a very bright future,notwithstanding our Parliamentarians and their fantastic contribution!!!


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