The scope and ambit of amendment of the constitution; a comparitive study of the constitutions of India, U.S.A and Ethiopia

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Author: 
Raveendran Nair and Legesse Tigabu Mengie
Abstract: 

Constitution of a country is the basic law of the land which provides the rights and duties of citizen along with organization of government, its powers. All the constitutions are equipped with provision for amendment to cope with future needs of the people. This study deals with what extent and range of amendment can be permitted in case of the constitutions of USA, India and Ethiopia. The three constitutions are amendable according their amending provisions and that of India is more flexible to amendments when compared with other two constitutions. As per Article V of US constitution, amendment can be made by 2/3 majority of both senate and congress with ratification of ¾ of the state legislatures or amendments can be ratified by the convention of legislatures by ¾ majority whichever is decided by the congress. But Ethiopian constitution, Article 104, provides that when the parliament has an opinion to amend constitution, it must prepare a draft and cause it for public debate and decision and thereafter it can be amended accordingly subject to the ratification by more than one- half of state legislatures and if the amendment relates to fundamental rights or with respect to the amending provision it should be ratified by all state legislatures. But Indian constitution can be amended by the parliament with majority and with 2/3 majority of the members present and voting. A few articles which require ratification of the State legislatures. Interestingly it can be seen that fundamental rights enshrined in the constitution which is kept under the guardianship of the Supreme Court of India, can be easily amended without the ratification by the state legislatures. From 1951 to 1967 different amendments were made to the Indian constitution encroaching fundamental rights and 42 nd amendment assumes unlimited power to parliament to make any amendment. But Supreme Court ruled in 1967 that parliament has no power to amend fundamental rights and later in 1973, it held parliament is a creature of the constitution cannot assume unlimited power and cannot amend the basic features such as independent judiciary, parliamentary form of government, federal system of government etc, and also determined by the court from time to time. As per this ruling 42 nd amendment was declared null and void. Thus the Supreme Court decision brought some rigidity for amending India constitution. But US constitution and Ethiopian constitution explicitly limit the powers of the congress and parliament respectively to make amendments in their constitutions. But Indian constitution has not expressly limited the power of Indian parliament to make amendment but Supreme Court drew implicit limitations of power of parliament to make amendment from the constitution itself. This decision of the Supreme Court saved the Indian democracy as well as the fundamental rights of the people. Constitutions must be amended with the needs and development of the country and needs, but with abundant caution for salvaging the basic rights of people. Amendment is a safety valve provided to the constitution and if it is not provided, it may cause to the blasting of the entire structure and if any political party commands thumping majority in the parliament, they can amend the constitution even denying the basic rights. Hence there should be protection of fundamental rights from encroachment.

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