PROCEDURE OF AMENDMENT OF CONSTITUTION

Authored by Saksham Agarwal First year law student from Symbiosis Law School Pune

Introduction

The Constitution of a nation is the document which draws the line between order and anarchy, it is the supreme law of the land. Without a well drafted constitution which represents the political, social, geographical and economic needs of a nation and contains provisions to satisfy these needs and binds the population into one, a country would fall into chaos and mayhem.

India is the world’s largest republic and houses one on the most culturally and religiously populations on the face of earth. A piece of paper written at one point of time would not be sufficient for the evolving and dynamic population, which the lawmakers of our constitution realized and hence included the provisions which would enable the future generations to amend the constitution according to the needs of the society. An act which was considered immoral or unlawful in the 20th century, might not be regarded as a similar offence in the 21st century. The constitutions which have scope for amendments are referred to as ‘Flexible Constitution’, the most ideal example being the Unwritten Constitution of the UK, where the parliament has the absolute authority. Contrary to the UK, some nations have a ‘Rigid Constitution’, where amending the constitution is a laborious task and the legislative body has limited authority.

While drafting our Constitution, an ideal solution was sought, and as a result the Indian Constitution is rigid as well as flexible. It is not as flexible as to allow the misuse of the provisions of amendment, and it is not as rigid as to prevent the legislation from formulating laws which would suit the needs of the society. For this, Article 368 was added to the constitution which facilitates the amendments and reads “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution”.[1] The parliament can add any provision, make changes to any existing provision, or repeal a provision entirely from the constitution if that works for the benefit of the society. The Parliament is considered to be a representation of the citizen’s will, and acts of Parliaments are deemed to be as per the will of the majority of citizens of the country and hence in their best interests.

Article 368 provides for three procedures to amend the constitution, all three of which apply to different provisions as per their importance and effect they could bring if amended imprudently.

Procedure of Amendment

Amending the constitution requires a bill to be introduced in either house of the parliament, which after being passed by both houses requires the assent from the President. Article 368 defines three different types of majorities by which the amendment bills need to be passed with respect to the different provisions they seek to amend.

Amendment by Simple Majority– Certain articles require a simple majority from both houses of parliament from the total members present and voting, similar to the majority required to pass an ordinary law.

Amendment by Special Majority- The provisions which are cannot be amended by a simple majority, require the amendment bill to be passed in the Parliament by a special majority which is prescribed in article 368(2)[2] of the Constitution. This implies that the bill must be passed by a majority of the total membership of the house, and not less than two thirds of the members present and voting.

Amendment by Ratification by State- Article 368(2) contains a list of the provisions whose amendment bills in addition to being passed by a special majority, also require to be ratified by not less than one-half of the state legislatures. These are the articles which deal with the powers or the representation of the states, and hence require a ratification by the states and cannot be left to the sole discretion of the central government. These provisions include;

  • Article 73, Article 162, Article 54, Article 55 and Article 241
  • Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI
  • Lists in the 7th Schedule

The judiciary has been given the power to review the amendments made by the Parliament, and time and again it has been observed in landmark judgements that judicial review stands in the way of arbitrary amendments and safeguards the rights of the citizens of India.

In the case of Shankari Prasad v. Union of India[3], the question was raised whether the Fundamental Rights under Part III of the constitution could be amended under article 368. The judges stated that Fundamental Rights could be amended under the powers of the Parliament, rationale which was later overruled in the case of LC Golaknath v State of Punjab[4] where it was held that the Parliament had no power to amend the provisions of Part III.

In the landmark judgement of His Holiness Kesavananda Bharati Sripadagalvaru v State of Kerala[5], the Supreme Courttested the validity of the 24th, 26th and 29th Constitutional Amendments. The case was heard by the largest ever Constitution Bench of 13 Judges and while it analysed a plethora of issues, by a ratio of 7:6 it was held that the Parliament did not have the power to amend the basic structure of the Constitution. The bench upheld the validity of the 24th Amendment, and overruled the Golaknath judgement by clarifying that the Parliament did have the power to amend the Fundamental Rights, i.e. the provisions of the Part III of the Constitution. As long as the foundation and the structure of the Constitution, and the objectives of the Preamble are not disturbed, any provision can be amended.

The theory of basic structure has been applied in various landmark judgements including Indira Nehru Gandhi vs. Raj Narain[6] where the Supreme Court held Article 329 A added by the Parliament as unconstitutional and to be against the basic structure, Minerva Mills Ltd. vs. Union of India[7], where certain sections of the 42nd amendment were found to be violative of the basic structure, and hence rendered void.


[1] The Constitution of India, 1950, Art. 368

[2] The Constitution of India, 1950, Art. 368(2)

[3]Shankari Prasad vs. Union of India, A.I.R. 1951 S.C. 455.

[4]. 1967 AIR 1643; 1967 SCR (2) 762

[5] Kesavananda Bharati Sripadagalvaru v State of Kerala, A.I.R. 1973 S.C. 1461.

[6] Indira Nehru Gandhi vs. Raj Narain, A.I.R. 1975 S.C. 2299

[7] Minerva Mills Ltd. vs. Union of India, A.I.R. 1980 S.C. 1789.

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