Debate in Rajyasabha on use of Private bills to amend Preamble of Constitution

• Recently a debate took place in the Rajya Sabha on introduction of Private Member's Bill to amend the Preamble to the Constitution
• It happened after a BJD MP moved a Private Member's Bill to amend the Preamble to the Constitution to insert the word 'Ahimsa'.
• During this debate it was highlighted by the Deputy Chairman of RS that the decision on this matter is to be taken by the House and not the Chair

SC Judgements on amendment of Preamble

• Berubari case: The SC held that ‘Preamble is the key to open the mind of the makers’ but it can not be considered as part of the Constitution. Therefore it is not enforceable in a court of law.
• Kesavananda Bharati Case: The SC in this case,for the first time, held that the Preamble of the Constitution would be considered as part of the Constitution.
• The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role in the interpretation of statutes and provisions of the Constitution.
• So, it can be concluded that preamble is part of the introductory part of the Constitution.
• Union Government Vs LIC of India,1995: The SC reiterated that Preamble is the integral part of the Constitution but is not directly enforceable in any court of India.

Amendments of the preamble

• The preamble has been amended only once since introduction of Constitution of India by 42nd constitutional amendment act in 1976 , the terms ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through this act

Types of constitutional amendments

• Article 368 of the constitution provides for amendment and it can be done in 3 ways-
• Amendment by Special majority: the Majority of the total membership of each House and a majority of two-thirds of the members of each House should be present and voting for it
• The provisions to be amended under it include: Fundamental Rights; Directive Principles of State Policy and others
• Amendment by simple Majority: There should be Majority of the members present and voting i;e > 50%
• The provisions to be amended under it include: Admission or establishment of new states,Formation of new states and alteration of areas, boundaries or names of existing states, Abolition or creation of legislative councils in states.
• Amendment By Special Majority of Parliament and Consent of States: it includes provisions of the Constitution related to federal structure of polity.
• Only ratification of half of the states is required for it
• There is no time limit within which the states should give their consent to the bill.
• The provisions to be amended under it include: Election of the President and its manner, Extent of the executive power of the Union and the states,Distribution of legislative powers between the Union and the states, Goods and Services Tax Council,etc.

Procedure for amendment

• It can be initiated only in either House of Parliament and not in the state legislatures.
• It can be introduced either by a minister or by a private member and prior permission of the president is not required.
• It must be passed in each House by a special majority.
• Each House must pass the bill separately. No provision of Joint sitting in case of disagreement between two Houses.
• If the bill amends federal provisions of the Constitution it must be ratified by the legislatures of half of states by a simple majority.
• After being passed by both Houses of Parliament and ratified by the state legislatures the bill is presented to the President for assent.
• The President must give his assent to the bill. He can neither withhold his assent nor return the bill for reconsideration of the Parliament.
• After the President's assent, the bill becomes a constitutional amendment act and the Constitution stands amended.

Criticism Of The Amendment Procedure

• There is no provision for a special body to change the Constitution, such as the Constitutional Convention (USA) or the Constitutional Assembly.
• Parliament has authority to propose a constitutional modification - state legislatures are prohibited.
• There is no provision for state legislatures to ratify or reject an amendment.
• There is no provision for a joint sitting of both Houses of Parliament in case of deadlock.
• Amending procedure provisions ambiguous.
• It gives a lot of room for the courts to intervene.

Private member bill

• A private member of Parliament (MP) is a member of Parliament who is not a minister.
• Aim: to attract the government's attention to flaws and gaps in the current legal system that require legislative action, as identified by individual MPs.
• As a result, it represents the opposing party's viewpoint on public issues.
• It is the obligation of the member involved to draft it.
• It must be introduced in the House with one month's notice.
• Government legislation can be introduced and debated on any day of the week, while private member bills can only be introduced and debated on Fridays.
• Its rejection by the House has no bearing on the government's parliamentary confidence or resignation.
• Following the completion of the discussion, the member piloting the bill has the option of withdrawing it at the request of the minister involved, or proceeding with its passage.
• The last time both Houses passed a private member's bill was in 1970.
• It was the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968.