Amendment of the Indian Constitution

“While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution.”

-Jawaharlal Nehru

The Constitution of a country is the fundamental law of the land. It has higher sanctity and more permanence than ordinary legislation. However, a democratic constitution has to be particularly responsive to the changing conditions. A government based on popular sovereignty cannot ignore the changing will of the people.

The power of the Indian Parliament to amend the Constitution is given in Article 368 in part XX of the Constitution. It provides that Parliament may alter any provision of this Constitution through addition, variation, or repeal in accordance with the process outlined in this article when exercising its constituent authority. However, this is subject to the ‘doctrine of basic structure’ introduced by the Supreme Court in the Kesavanand Bharti Case.

Nature of the Amendment Process

Constitutions are generally classified into ‘rigid’ and ‘flexible’ depending on how they can be amended.

• Constitutional theorist AV Dicey defines two types of Constitutions:

1. 1. Flexible one, under which every law can be changed with the same ease and in the same manner as an ordinary law (i.e. there is no difference between Constitutional law and ordinary law).
   2. Rigid one, under which certain laws, generally known as Constitutional laws, cannot be changed like ordinary laws.

• The United Kingdom, with an unwritten Constitution, is the best example of a very flexible constitution, as there is no distinction between legislative power and constituent power. The Parliament can change the Constitution through an ordinary process.
• The United States, which has a written Constitution and a federal polity, is considered a rigid constitution. In a federal setup, it is crucial to involve the legislatures of the states.
• India has adopted a synthesis of both features, which means amending the Indian Constitution is neither easy nor difficult. In the words of KC Wheare, the Indian Constitution ‘strikes a good balance between flexibility and rigidity”.             

The procedure of the Amendment of the Constitution

The Constitution of India provides a very distinctive amendment process compared to other leading countries of the world. It provides for a variety in the amendment process, a feature commended by KC Wheare, who describes the uniform procedures as “unnecessarily restrictive”.

• Some provisions of the Constitution can be changed by a simple majority. However, they are not deemed to be an amendment for the purpose of Article 368. (Type-1)
• The Constitution provides for two types of amendments under Article 368:

1. 1. Those amendments require a special majority. (Type-2)
   2. Those who require, in addition to a special majority, ratification by at least half of the state legislature. (Type-3).

By Simple Majority

It is similar to the ordinary legislative process. It requires a simple majority of Parliament, i.e., a majority of members of each house present and voting in each of the houses.

The provisions that can be amended by this procedure are:

Related to States:

1. Formation of new states, alteration of areas, boundaries and name of state.
2. Admission or establishment of new states.
3. Union territories

Related to Parliament

• Salaries and emoluments of the members of Parliament.
• Rules of procedure in Parliament.
• Use of English language in the Parliament.
• Privileges of Parliament, its members and committees.

Related to the Supreme Court

• Number of judges in the Supreme Court
• Expansion of jurisdiction of Supreme Court

Related to Elections

• Elections to Parliament and the state legislature.
• Delimitation of Constituencies.

Related to Schedules of the Constitution

• 2nd Schedule- emoluments, allowance and privileges of the President, the Governor, the speaker, judges etc.
• 5th Schedule- administration of scheduled regions and scheduled tribes
• 6th Schedule- administration of tribal regions. 

Other Provisions

•  Use of official language
• Citizenship
  
  

By Special Majority

The majority of the Constitutional provisions are required to be amended by a special majority, i.e. majority (50%) of the total membership of the house and 2/3^rd majority of members present and voting. Total membership means total members comprising the house, irrespective of any vacancies or absentees.

• While the Constitution only mandates the requirement of a special majority at the time of voting in the third reading of the bill, rules of houses, as a precautionary measure, require a special majority at all stages of the bill.
• The provisions can be amended through this provision.

1. 1. Fundamental Rights
   2. Directive Policy of State Policy
   3. Other provisions which are not covered by Type-1 and Type-2.

By Special Majority and Ratification of States

Those provisions which have implications on the federal structure of the polity are required to be amended by a special majority along with ratification by at least ½ of the state legislature.

• If the remaining states do not take any action, it will not change anything; the amendment will be applicable to them as well.
• There is no time limit in which states have to give consent.
• The following provisions can be amended this way:

1. 1. Election of the President
   2. The extent of executive powers of the state
   3. Supreme Court and High Court
   4. Supreme Court and High Court
   5. Distribution of legislative powers between the Union and the state
   6. Seventh Schedule
   7. Representation of states in Parliament

Procedures under Article 368The Constitution has prescribed the following procedures under Article 368:

1. A constitutional amendment can only be initiated by introducing it in either house of the Parliament.
2. The bill can be introduced by either a minister or any private member.
3. The introduction of the bill does not require prior permission of the President.
4. The introduced bill must be approved by each house by a majority of the total membership of that house and by a majority of not less than 2/3^rd of the members of that house present and voting.
5. The bill seeking change in the federal provisions of the Constitution must also be ratified by half of the states by a simple majority, i.e., a majority of members present and voting.
6. There is no provision for convening a joint sitting of both houses in the case of the Constitutional Amendment.
7. When the bill is so passed and ratified by states (if required), it must be presented to the President, who shall give his assent to the bill.
8. The President must give assent to the bill. He can neither withhold the bill nor return the bill for reconsideration. The 24^th Constitutional Amendment Act of 1971 made it binding for the President to give assent to a Constitutional Amendment Act.
9. After the President’s assent, the bill becomes an act.

Criticism of the Amendment Procedure

• No separate Body: There is no provision for a special body for Constitutional amendment. Both constituent and legislative power are vested in the Parliament, unlike in the USA, where a special body is set up.
• Role of State Legislatures: Despite having a federal polity, the Constitutiondoes not allow states to initiate or propose a Constitutional Amendment, except in case of the creation and abolition of a Legislative Council. In the USA, states are empowered to initiate a Constitutional amendment (joint proposal of 2/3^rd state legislatures).
  • Also, most of the provisions of the Constitution can be amended by either a simple majority or a special majority; only in some cases ratification by states is required, of only ½ of them. In the USA, 3/4^th of the states are required to ratify.
• Ambiguous Provisions: The provisions related to the amendment are ambiguous and vague, leaving scope for judicial interventions.
• No Joint Session: There is no provision for a joint session to resolve a deadlock over a Constitutional amendment bill.

Explore additional significant articles on Indian Constitution listed in the table below:

What is a Constitution?	Evolution of Indian Constitution
The Crown Rule	Features of Indian Constitution
The Making of the Constitution	Sources of the Indian Constitution
The Preamble of Indian Constitution	Union and Its territory
Citizenship	Fundamental Rights
DPSP	Fundamental Duties
The Doctrine of Basic Structure	Parliamentary System
Federal System	Centre-State Relations
Inter State Relations	Reforms in Centre State Relations
Emergency Provisions	Polity