Consider the differences between the authority granted by Article 368 to change a Constitution and the authority to create new ones or to replace the current one in its entirety. What ramifications does this divide have for law and politics?
The 103rd Constitutional Amendment Act, enacted in 2019, introduced a 10% reservation for economically weaker sections (EWS) in education and public employment, marking a significant shift in India's reservation policy. Earlier, reservations were aimed at addressing historical injustices and socialRead more
The 103rd Constitutional Amendment Act, enacted in 2019, introduced a 10% reservation for economically weaker sections (EWS) in education and public employment, marking a significant shift in India’s reservation policy. Earlier, reservations were aimed at addressing historical injustices and social disadvantages faced by Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC). This amendment extends benefits based on economic criteria, regardless of caste. Its relevance lies in acknowledging economic hardship as a barrier to social mobility, broadening the scope of social justice. The Supporters argue that it addresses the needs of economically disadvantaged groups who do not fall under existing reserved categories, promoting inclusive growth. Critics says that this economic-based reservation may dilute the original intention of reservations, which is to rectify systemic social discrimination. Additionally, the 10% EWS quota raises questions about the practical implementation and potential overlap with existing quotas, which already account for 50% of seats. The amendment also risks perpetuating the reliance on quotas as a solution, rather than addressing structural inequalities through comprehensive socio-economic reforms. Thus,the 103rd Amendment aims to expand the ambit of social justice, its long-term impact on achieving genuine equity and inclusion remains to be critically evaluated.
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The Distinction between the Amending Power under Article 368 and the Power to Make New Constitutions or Replace the Existing One The Indian Constitution provides for two distinct mechanisms for making changes to the fundamental law of the land: The Amending Power under Article 368: Article 368 of thRead more
The Distinction between the Amending Power under Article 368 and the Power to Make New Constitutions or Replace the Existing One
The Indian Constitution provides for two distinct mechanisms for making changes to the fundamental law of the land:
The Amending Power under Article 368:
Article 368 of the Indian Constitution outlines the procedure for amending the Constitution.
This power allows for specific changes or additions to be made to the existing constitutional provisions.
Amendments under Article 368 require a special majority in the Parliament (two-thirds of members present and voting, and an absolute majority of the total membership of each House).
Certain provisions of the Constitution, like the fundamental rights and the basic structure of the Constitution, are considered unamendable under this power.
The Power to Make New Constitutions or Completely Replace the Existing One:
This power goes beyond the scope of Article 368 and allows for the creation of an entirely new Constitution or the complete replacement of the existing one.
This power is typically exercised by a Constituent Assembly or a similar body with the specific mandate to draft a new Constitution.
The process of making a new Constitution or replacing the existing one is not subject to the constraints of Article 368 and usually involves a more extensive and involved process.
It may require the dissolution of the existing political order and the establishment of a new one.
Legal and Political Implications of this Distinction:
Scope of Changes: The amending power under Article 368 is limited to making specific changes or additions to the existing constitutional provisions. In contrast, the power to make a new Constitution or replace the existing one allows for a more comprehensive and fundamental overhaul of the entire legal and political framework.
See lessDegree of Difficulty: Amending the Constitution under Article 368 is generally considered a more straightforward process, as it requires a special majority in the Parliament. Creating a new Constitution or replacing the existing one, on the other hand, typically involves a more complex and challenging process, often requiring the convening of a Constituent Assembly or a similar body.
Preservation of Continuity: Amendments under Article 368 aim to preserve the overall continuity and stability of the existing constitutional framework, while the power to make a new Constitution or replace the existing one may involve a more fundamental disruption of the political and legal order.
Implications for Fundamental Rights and the Basic Structure: The Supreme Court has interpreted the basic structure of the Constitution as being unamendable under Article 368. However, the power to make a new Constitution or replace the existing one may potentially allow for a reconsideration of the fundamental rights and the basic structure of the Constitution.
Political Significance: The power to make a new Constitution or replace the existing one is typically associated with significant political events, such as the creation of a new nation or a major constitutional crisis. The exercise of this power can have far-reaching political implications, potentially leading to the reconfiguration of the power dynamics and the establishment of a new political order.
In summary, the distinction between the amending power under Article 368 and the power to make new Constitutions or completely replace the existing one lies in the scope, degree of difficulty, preservation of continuity, implications for fundamental rights and the basic structure, and the political significance associated with each process. This distinction is crucial in understanding the legal and political dynamics of constitutional change in India.