Model Answer
0 min readIntroduction
The Indian Constitution, a product of meticulous deliberation, embodies the concept of constituent power – the authority to create and modify a constitution. This power manifests in two distinct forms: the constituent power to frame the Constitution during the Constituent Assembly and the constituent power to amend it post-enactment. While both derive from the same sovereign source, they possess differing scopes, processes, and limitations. The Constituent Assembly, composed of elected representatives, framed the original Constitution, while Article 368 grants Parliament the power to amend it, albeit subject to certain restrictions. Understanding these distinctions is crucial to appreciating the dynamic nature of the Indian Constitution.
Defining Constituent Power
Constituent power, in its broadest sense, refers to the power of a body to create or fundamentally alter a constitution. It’s derived from the inherent sovereignty of the people. The Indian Constitution showcases this power through two distinct phases:
- Constituent Power to Frame: This refers to the power exercised by the Constituent Assembly (1946-1950) to draft and adopt the original Constitution. It was a unique, non-permanent body established under the Cabinet Mission Plan of 1946.
- Constituent Power to Amend: This refers to the power vested in the Parliament of India, as per Article 368, to make changes to the Constitution after its adoption. This power isn't absolute but is subject to judicial review and specific procedures.
Scope and Process: Constituent Assembly
The Constituent Assembly held the plenary power to frame the Constitution. Its scope was virtually unlimited, though guided by the Objectives Resolution drafted by Jawaharlal Nehru. The process involved:
- Drafting Committee: A committee led by Dr. B.R. Ambedkar drafted the Constitution.
- Debate and Adoption: The draft was debated extensively and adopted clause by clause.
- Ratification by Provinces: The Constitution was ratified by the legislative assemblies of the provinces.
The Assembly’s power was considered ‘original’ and ‘complete,’ unlike the amendment power which is derivative.
Scope and Process: Amendment of the Constitution
Article 368 outlines the procedure for amending the Constitution. The scope, however, is limited and categorized into different procedures:
Amendment by Simple Majority (Article 368, Clause 2)
Deals with provisions related to representation, delimitation of constituencies, etc. Requires a vote in both Houses of Parliament.
Amendment by Special Majority (Article 368, Clause 3)
Requires a majority of not less than two-thirds of the members present and voting in each House of Parliament, and also a majority of the total membership of each House. This applies to fundamental rights, election procedures, etc.
Amendment by Special Majority Plus Ratification (Article 368, Clause 4)
Requires the same special majority as above, plus ratification by at least half of the state legislatures. This is for provisions in the Ninth Schedule (added in 1951 to shield certain laws from judicial review – though its validity has been questioned).
Limitations and Differences
The following table highlights the key differences:
| Feature | Constituent Power (Framing) | Constituent Power (Amendment) |
|---|---|---|
| Scope | Unlimited, plenary power | Limited by Article 368 and judicial review |
| Process | Deliberation, drafting, adoption by Constituent Assembly & ratification by provinces | Specific procedures outlined in Article 368 (Simple, Special, Special + Ratification) |
| Sovereignty | Directly derived from the people through elected representatives | Derived from the Parliament, acting as the representative of the people |
| Judicial Review | Not applicable during framing | Subject to judicial review (Kesavananda Bharati case, 1973 established the “basic structure” doctrine) |
Significance
The distinction between these two forms of constituent power highlights the Indian Constitution’s adaptability. The Constituent Assembly provided the foundational framework, while the amendment power allows for necessary adjustments to meet evolving societal needs. However, the limitations on the amendment power, particularly the ‘basic structure’ doctrine, ensure that the core principles of the Constitution remain intact.
Conclusion
In essence, the constituent power to frame and the constituent power to amend represent two phases of constitutional evolution. While the former laid the groundwork, the latter ensures the Constitution remains a living document responsive to the changing needs of the nation. The limitations imposed on the amendment power, especially the basic structure doctrine, are vital for preserving the essence of the Indian Constitution and upholding its democratic values. This dynamic interplay between original intent and necessary adaptation is a testament to the enduring strength of the Indian constitutional framework.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.