Amendment of the Constitution – UPSC Notes – Indian Polity

Just like any other written Constitution, India’s Constitution can be amended to adapt to new situations and needs. The process for changing it is not as simple as in Britain or as difficult as in the USA. In other words, India’s Constitution is not too flexible or too rigid; it’s a mix of both. In this article, we will cover the amendment of the Indian Constitution in detail!

Article 368 in Part XX of the Constitution talks about how Parliament has the power to change the Constitution and the steps it has to follow. It says that Parliament can make changes by adding, modifying, or removing any part of the Constitution following a set procedure. However, there are some parts of the Constitution, known as the ‘basic structure,’ that Parliament cannot change. The Supreme Court decided this in the Kesavananda Bharati case in 1973.

Procedure for Amendment

The steps to change the Constitution, as explained in Article 368, are as follows:

  1. Only a bill introduced in either House of Parliament, not in state legislatures, can start the process of amending the Constitution.
  2. The bill can be introduced by a minister or a private member and doesn’t need prior permission from the president.
  3. The bill must be approved by a special majority in each House. This means more than 50% of the total members must vote in favor, and there must be a two-thirds majority among the members present and voting.
  4. Each House must pass the bill separately. If there’s a disagreement, there is no provision for a joint meeting to discuss and pass the bill.
  5. If the bill aims to change the federal aspects of the Constitution, it must also be approved by half of the states’ legislatures with a simple majority.
  6. Once both Houses of Parliament and, if needed, state legislatures pass the bill, it goes to the president for approval.
  7. The president must approve; they can’t refuse or send it back for further discussion in Parliament.
  8. After the president’s approval, the bill becomes an Act (a constitutional amendment act), and the Constitution changes according to the terms of the Act.

Types of Amendments

Article 368 talks about two ways to change the Constitution:

  1. Special Majority of Parliament: This means more than half of the total members must vote in favor, and two-thirds of the members present and voting must approve.
  2. Ratification by Half of the States: Half of the states’ legislatures must agree by a simple majority for certain changes.

But, other articles allow changes with a simple majority of Parliament, similar to regular laws. Importantly, these changes aren’t considered amendments to the Constitution under Article 368.

So, the Constitution can be changed in three ways:

(a) Simple Majority of Parliament: Like passing regular laws.

(b) Special Majority of Parliament: More than half must vote in favor, and two-thirds of those present and voting must approve.

(c) Special Majority of Parliament and Ratification by Half of the State Legislatures: Both Parliament’s special majority and approval from half the states’ legislatures are needed for these changes.

By Simple Majority of Parliament

Some parts of the Constitution can be changed by a regular vote in both Houses of Parliament, not needing the special process mentioned in Article 368. These changes include:

  1. Admission or establishment of new states.
  2. Formation of new states and changes to areas, boundaries, or names of existing states.
  3. Abolition or creation of legislative councils in states.
  4. Details about the president, governors, Speakers, judges, etc. (Second Schedule—emoluments, allowances, privileges, etc.)
  5. Determining the minimum number of members needed for a meeting in Parliament (Quorum).
  6. Payment and allowances for Members of Parliament.
  7. Rules for how Parliament operates.
  8. Special rights and advantages for Parliament, its members, and its committees (Privileges).
  9. The use of the English language in Parliament.
  10. Deciding the number of additional judges in the Supreme Court (Number of puisne judges).
  11. Giving the Supreme Court more authority (Conferment of more jurisdiction).
  12. Determining the official language.
  13. Rules for acquiring and losing citizenship.
  14. The process for elections to Parliament and state legislatures.
  15. Setting boundaries for constituencies.
  16. Rules for Union territories.
  17. Administration of scheduled areas and tribes (Fifth Schedule).
  18. Administration of tribal areas (Sixth Schedule).

By Special Majority of Parliament

To change most parts of the Constitution, a special majority of Parliament is needed. This means more than half of all members in each House must vote in favor, and two-thirds of the members present and voting must agree. The term ‘total membership‘ refers to the entire number of members in the House, regardless of any vacancies or absentees.

Technically, the special majority is crucial only during the final voting stage of the bill. However, as an extra precaution, the rules of the Houses require a special majority at all important stages of the bill.

This process applies to amending:

  1. Fundamental Rights
  2. Directive Principles of State Policy
  3. All other provisions not covered in the first and third categories.

By Special Majority of Parliament and Consent of States

Some parts of the Constitution related to the federal structure of the country can be changed. This requires a special majority in Parliament and also the approval of half of the state legislatures by a regular vote. If some states don’t act on the bill, it doesn’t matter. As soon as half of the states agree, the process is complete. There’s no time limit for the states to give their approval.

The following aspects can be changed in this way:

  1. Election of the President and its procedure.
  2. Extent of the executive power of the Union and the states.
  3. Supreme Court and high courts.
  4. Distribution of legislative powers between the Union and the states.
  5. Any of the lists in the Seventh Schedule.
  6. Representation of states in Parliament.
  7. Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

Criticism of the Amendment Procedure

Some people have raised concerns about how the Constitution can be changed, pointing out the following issues:

  1. No Special Body: Unlike the USA, there’s no special body like a Constitutional Convention or Constitutional Assembly for amending the Constitution. The power lies mainly in Parliament and occasionally in state legislatures.
  2. Initiating Amendments: Only Parliament can start the process of amending the Constitution. Unlike the USA, state legislatures can’t propose changes, except in one case related to legislative councils in states. Even in this case, Parliament has the final say.
  3. Power with Parliament: Most of the Constitution can be changed by Parliament alone, either with a special majority or a simple majority. Consent from state legislatures is needed only in a few cases and that too, just half of them, while in the USA, it’s three-fourths of the states.
  4. No Time Frame: The Constitution doesn’t set a time limit for state legislatures to agree or reject an amendment. It’s also unclear if states can change their approval once given.
  5. No Joint Sitting: If there’s a deadlock in passing a constitutional amendment bill, there’s no provision for a joint sitting of both Houses of Parliament, unlike in the case of an ordinary bill.
  6. Similar to the Legislative Process: The amendment process resembles the regular legislative process. Besides needing a special majority, constitutional amendment bills go through Parliament just like ordinary bills.
  7. Sketchy Provisions: The rules about the amendment procedure are not detailed, leaving room for legal matters to be taken to the judiciary.

Despite these drawbacks, it’s acknowledged that the process has been straightforward and effective in adapting to changing needs. It’s neither too flexible for ruling parties to alter it at will nor too rigid to resist necessary changes. As K C Wheare rightly stated, it ‘strikes a good balance between flexibility and rigidity.’

Pandit Jawaharlal Nehru emphasized the need for flexibility, saying, ‘While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution.’ Similarly, Dr B R Ambedkar noted that the Constitution provides an accessible procedure for amendments, avoiding extreme conditions seen in other countries.

K C Wheare and Granville Austin appreciated the diverse amendment procedures in the Indian Constitution, considering them wise and well-conceived.

FAQs on Amendment Procedure in India’s Constitution:

1. How can India’s Constitution be amended?

  • The Constitution of India can be amended through the process outlined in Article 368. This involves the introduction of a bill in either House of Parliament, approval by a special majority in each House, and, if federal aspects are involved, ratification by half of the states’ legislatures.

2. What is the significance of the ‘basic structure’ in the amendment process?

  • The ‘basic structure’ of the Constitution, as established by the Supreme Court in the Kesavananda Bharati case in 1973, cannot be changed by Parliament. This concept acts as a limitation, preserving fundamental features and values of the Constitution.

3. Are there different types of amendments in India’s Constitution?

  • Yes, there are three ways to amend the Constitution: (a) a Simple Majority of Parliament, (b) a Special Majority of Parliament, and (c) a Special Majority of Parliament and Ratification by Half of the State Legislatures. Each type has specific requirements and is applied based on the nature of the proposed changes.

4. Can states propose amendments to the Constitution in India?

  • No, unlike the USA, only Parliament can initiate the process of amending the Constitution in India. State legislatures are not empowered to propose changes, except in specific cases related to legislative councils, where Parliament has the final say.

5. What criticisms have been raised regarding the amendment procedure?

  • Some concerns include the absence of a special body like a Constitutional Convention, the exclusive power of Parliament to initiate amendments, the lack of a time frame for state legislatures to approve or reject amendments, and the absence of a provision for a joint sitting of Parliament in case of a deadlock. Despite these, the procedure is acknowledged for its adaptability and balance between flexibility and rigidity.

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