Amendment Procedure of the Indian Constitution

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The Amedment Procedure

With the development of the State in every sphere, amendment has become necessary. The Constitution should be able to serve the needs of the society. People would have opted for extra constitutional remedies like Revolution, had there been no amendment procedure[i]. The framers of the Constitution were anxious to have a document which could grow with a growing nation, adapt itself to the changing need and circumstances of growing people[ii]. When a Constitution is too flexible, it results in wrong exercise of power and thus harms its original provisions. When a Constitution is too rigid, it fails to grow according to the needs of a state. Therefore, the Indian Constitution is partly flexible and partly rigid.

Article 368 contains the provisions for the Amendment of the Indian Constitution. The Constitution provides three ways for amendment. They are:

Amendment by Simple Majority

Certain Articles of the Constitution can be amended by simple majority. Article 368 does not deal with this category of amendment. The following provisions require amendment by simple majority:

  • Citizenship
  • Abolition or creation of Legislative Councils in States
  • Creation of Local Legislatures or Council of Ministers or both for certain Union Territories
  • Admission or establishment of new states
  • Use of English language in the Parliament
  • Quorum of the Parliament
  • Rules of procedure in the Parliament
  • Delimitation of Constituencies
  • Fifth schedule
  • Sixth schedule, etc.

Amendment by Special Majority

Articles which require amendment by special majority come under the ambit of Article 368. The Articles which require amendment by special majority shall be brought into effect by a majority of the total members of each House of the Parliament and by majority of not less than 2/3 of the members of that House who are present and voting.

  • The impeachment of the President under Article 61
  • Approval of national emergency, etc. comes under this category.
  • The Provisions which cannot be amended by Simple Majority and which do not require Ratification by States are amended by Special Majority.

Amendment by Special Majority and Ratification by States

Some Articles require Amendment by Special Majority as well as ratification by not less than ½ of the State Legislatures. The States have an important role in the amendments of these matters. The following provisions require ratification by the States:

  • Election of President – Articles 54, Article 55
  • Extent of Executive powers of the Union and States – Article 73, Article 162
  • Articles dealing with Judiciary, Supreme Court, High Court in the States and Union Territories – Articles 124 to 147, Article 214 to 231, Article 241
  • Distribution of Legislative powers between the Centre and the State – Article 245 to Article 255
  • Any of the Lists of Seventh Schedule
  • Representation of States in Parliament Forth Schedule
  • Article 368 (Amendment)

Procedure for Amendment

A Bill in order to amend the Constitution may be introduced by any House of the Parliament and must be passed by each House by a majority of the total membership of that House and by a majority of not less than 2/3 of the members of that House who are present and are voting. After being passed by both the Houses, it shall be presented to the President and he shall give his assent to the Bill. In this process the Constitution is amended.

Position in Australia

In Australia, amendment of the Constitution shall be proposed by an absolute majority of both the Houses of the Parliament. Then it shall be submitted to the electors for approval within 6 months and on being approved by a majority of the electors in majority of the states, the Constitution stands amended.

Position in America

The American Constitution can be amended by 2/3 of the votes of both Houses or by a convention called on the application of the Legislatures of 2/3 of the States. The amendment procedure followed in Australia and America is difficult as compared to the procedure in India.

Amendment of Fundamental Rights    

The topic of amendment of Fundamental Rights arose in the case of Shankari Prasad V Union of India[iii]. In this case, it was held that the power to amend the Constitution includes the power to amend Part III of the Constitution too. In the subsequent case that is Sajjan Singh V State of Rajasthan[iv] the Court approved its previous decision and held that Fundamental Rights can also be amended.

In the case of Golak Nath V State of Punjab[v] the Supreme Court held that Part III of the Constitution cannot be amended and Parliament cannot abridge the fundamental rights of the citizens.

In the case of KesavanandaBharati V State of Kerala[vi] the Supreme Court held that the Parliament can amend any part of the Constitution but the basic structure of the Constitution must be maintained.

Basic structure of Indian Constitution

The Supreme Court has held that the basic structure of the Constitution cannot be amended. Basic structure includes provisions like Supremacy of the Constitution, Democratic and Republic form of Government, Sovereign, Secular, Socialist character, Judicial Review, Fundamental Rights.

Criticism of Amendment Procedure

The following are the criticisms of the Amendment procedure:

  • The State Legislatures have a mere voice in the Amendment procedure.
  • India lacks the provision of seeking public opinion on any Constitutional Amendment.
  • Any time limit regarding ratification by States has not been provided. As a result such amendments can be killed if the States take no action.
  • An amendment in order to be valid should be passed by both the Houses. There may be differences in opinion between the Houses but any procedure regarding solving it has not been provided in the Constitution.

Illustrations

Simple Majority – For example, the strength of Lok Sabha is 545. 500 Members were present. 400 Members were present and voting. So the Simple majority is 50% of 400+1 that is 201.

Special Majority – For example, the strength of Rajya Sabha is 245. The number of members who are present and are voting is 150. The special majority will be 2/3 of 150+1 that is 101.

Frequently Asked Questions

1. What is Amendment and why is it needed?

Amendment refers to any alteration or change in the provisions of the Constitution. It is done by the procedure mentioned in the Constitution. With the development of the nation in every sphere, amendment has become important. It is necessary to serve the needs of the growing State.

2. What is Ratification?

Ratification is the procedure by which a State approves a decision or gives consent for an Act. There are certain provisions in the Constitution which require ratification by States along with Special Majority for Amendment.

3. Can the President reject Bill for Amendment of the Constitution?

After being passed by both the Houses, the Bill is presented to the President for assent. According to the 24th Amendment Act of 1971 it is obligatory for the President to give his assent to a Bill relating to amendment of the Constitution.

Edited byMadonna Jephi

Approved & Published – Sakshi Raje

Reference

[i]Kesavananda Bharti V Stateof Kerela, AIR 1973 SC 1461

[ii]DR.J.N.Pandey, Constitutional Law of India, 775 (53rd edition, 2016), Central Law Agency, Allahabad

[iii]Shankari Prasad V Union of India, AIR 1951 SC 455

[iv]Sajjan Singh V State of Rajasthan, AIR 1965 SC 845

[v]Golak Nath V State of Punjab, AIR 1971 SC 1643

[vi]Kesavananda Bharati V State of Kerela, AIR 1973 SC 1461