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Procedure For Amendment In Constitution Of India

The amending process in our Constitution of India is envisaged by the makers can be best explained by referring to the observation of Pandit Jawahar Lal Nehru "that the Constitution should not be so rigid that it can not be adapted to the changing needs of national development and strength.

There was also a political significance in adopting a "facile procedure" for amendment, namely, that any popular demand for changing the political system should be capable of realization, if it assumed a considerable parameter. The famous words of Dr. Ambedkar, explaining the proposals for amendment introduced by him in the Constituent Assembly.

History of the Constitution:

Since the commencement on January 26, 1950, Constitution of India has been amended 105 times till 2022 by passing Acts of parliament in the manner prescribed by Article 368. The 42nd, 43rd and 44th Amendments must be given a fuller treatment in view of its serious repercussions in the political as well as the legal world.

All previous amendments paled into insignificance after the passing of the 42nd Amendment Act, 1976 which alone would illustrate how momentous is the amending power under the Indian Constitution, and how easy it is to change extensive and significant provisions of our Constitution, without covering any detailed formalities.

Theory of federalism:

Provisions of flexibility were therefore taken from Federal Constitution which is inherently rigid in its nature. According to the traditional theory of federalism, either the process of amendment of the Constitution is entrusted to a body other than the ordinary Legislature or a special procedure is prescribed for such amendment in order to ensure that the federal compact may not be disturbed at the will of one of the parties of the federation.

But the framers of our Constitution were also inspired by the need for the sovereignty of the parliament elected by universal suffrage to enable it to achieve dynamic national progress. Therefore, they prescribed the easier mode for changing those provisions of the Constitution which did not primarily affect the federal system.

Procedure for Amendment:

  1. An amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by majority (i.e., more than 50%) of the total membership of that House and by the majority of not less than two-thirds member of that House present and voting, it shall be presented to the President for his assent an upon such assent being given to the bill, the Constitution shall stand amended in accordance with the terms of the Bill.
  2. However, such amendment seeks to make any changes in the following provisions:
    • The manner of election of the President (Article 54,55)
    • Extent of the executive power of the Union and the States (Article 73,162)
    • The Supreme Courts and High Courts (Article 241, Chapter IV of Part V, Chapter V of part VI
    • Distribution of legislative powers between Union and the States (Chapter 1 of Part XI)
    • Any of the entries and list provided in Schedule 7
    • Representation of States in the Parliament (Article 80-81, 4th Schedule)
    • Provisions enumerated under Article 368 itself

Provided the following provisions, the amendment shall also require to be ratified by the legislature of not less than one-half of the States by resolution to that effect passed by those legislatures before the Bill making provisions for such amendment is presented for assent.

After considering the mentioned above provisions, it is very clear that the amending process prescribed by our Constitution has several distinct features as compared with the corresponding provisions in the leading Constitutions of the world. The procedure for amendment must be classed as "rigid" insofar as it requires a special majority and, in some cases, a special procedure for amendment as compared with the process or procedure prescribed for ordinary legislation. But the procedure is not as complicated as difficult as in the USA or in any other rigid constitution.
  • Subject to the special procedure laid down in Article 368 our constitution vests constituent power upon the ordinary Legislature of the union, the Parliament and there is no separate body for amending the constitution as exist in some other constitutions.
  • The state legislature cannot initiate any bill or proposal for amendment of the constitution. The only mode of initiating a proposal for amendment is to introduce a Bill in either House of the Parliament.
  • Subject to the provisions of Article 368, Constitution Amendment Bills are to be passed by the Parliament in the same way as ordinary bills. In other words, they may be initiated in either House and may be amended like other bills subject to the majority required by Article 368, but for the special majority prescribe, they must be passed by both the houses like any other bill.

No Joint Session for Constitution Amending Bills

  • It would be pointed out, in this context, that there is another important point on which the passage of a Constitution Amendment Bill differs from the procedure relating to the passage of a Bill for ordinary legislation: Art, 108 provides that if there is a disagreement between the Houses of Parliament regarding the passage of a Bill, the deadlock may be solved by calling a joint session of the two Houses of Parliament.

    But it is very clear from Art, 108 (1) that the procedure for joint session is applicable only to Bills for ordinary legislation which come under Chapter II of Part V of the Constitution of India and not to Bills for amendment of the Constitution, which are self-contained procedure contained in Article 368(2). The requirement of a special majority in both Houses, in Article 368(2) would have been insignificant to the provision as to calling the joint session been available in this sphere.
  • The previous sanction of the President is not required for introducing in Parliament any Bill for amendment of the Constitution.
  • The requirement relating to ratification by the State Legislatures is liberal than the corresponding provisions in the American Constitution. While it requires ratification by not less than three-fourths of the States in the Country.
  • In the case of an ordinary Bill, governed by Article 111, when the Bill after being passed by both Houses of Parliament, it is presented to the President, he may, instead of giving assent to it, declare that he 'withholds his assent". In the latter case, the Bill cannot become an Act. But the amendment of Article 368 in 1971 has made it obligatory for the President to give his assent to a Bill for amendment of the Constitution when it is presented to him after its passage by the house of Parliament.
  • In short, though the formality of the President's assent has been retained in the case of an amendment of the Constitution Bill. In order to signify the date when the amendment becomes operative as a part of the Constitution, the President's power to veto a Bill for amendment of the Constitution has been taken away, by substituting the words "shall" give his assent in Clause (2) of Article 368, as it stands after the Constitution (24th Amendment) Act 1971.

Fundamentals Rights Amenable:

As a result, Fundamental Rights in India can be amended by an act passed under Article 368, and the validity of a Constitution on the ground that the Act invades or encroached upon any Fundamental rights.

Another question which has been mooted since the case of Golaknath, whether outside Part III (Fundamental Rights), there is any other amendment in Article 368. Though the majority in Keshavanandas's case has overturned the majority view in Golak Nath that Fundamental Rights cannot be amended under Article 368, it has affirmed another proposition asserted by the majority in Golak Nath's Case.

Basic features of the Constitution not amenable:

  • There are certain basic features of the Constitution of India which cannot be altered in exercise of the power to amend it under Article 368. If, therefore, a Constitution Amendment Act seeks to alter the basic structure or framework of the constitution. The court would be entitled to annul it on the ground of ultra vires, because the word "amend" in Article 368 means only changes other than altering the very basic structure of the constitution, which would be tantamount to making a new constitution.
  • These basic feature without being exhaustive are sovereignty and territorial integrity of India, the federal system, Judicial Review, Parliamentary system of government.
  • Applying this Doctrine that Judicial review is a basic feature of the Constitution of India the majority in "Keshavnanda Bharti case". Held the second part of section 3 of the Constitution 25th Amendment Act 1971 relating to article 31C as invalid.

List of Basic Feature:

After the various decisions of the Hon'ble Supreme Court and interpretation of Article 368 of the Constitution of India, the Court framed the list of basic structures of the Constitution which are as follows:
  • Supremacy of the Constitution
  • Rule of law
  • The principles of separation of power
  • Judicial review
  • Objectives of the Preamble to the Constitution
  • Federalism
  • Secularism
  • Unity and integrity of nation
  • Freedom and dignity of an individual
  • Sovereign, democratic and republic structure
  • The principles of equality
  • Fundamentals Rights enshrined in Part III
  • Provisions of social and economic Justice
  • Balance between Fundamentals Rights and DPSP
  • Parliamentary form of Government
  • Free and Fair Elections
  • Limitations on amending power under Article 368
  • Independence of Judiciary
  • Social justice
  • Power of Supreme Court and High Courts
  • Effective access to justice

It is evident that, instead of being rigid, as some critics supposed during the early days of the Constitution, the procedure for amendment has rather proved to be too flexible in view of the ease with which as many as amendments have been made during the first 63 years of the working of the Constitution.

So long as the party in power at the centre has a solid majority in Parliament and in more than half of the State Legislatures, the apprehension of impartial observers should not be as to the difficulty of amendment, but as to the possibility of its being used too often either to achieve political purposes or to get rid of judicial decisions which may appear to be unwholesome to the party in power. Judges may of course, but has already been demonstrated in the highest Tribunal is likely to change its views in the light of their experience.

The Hon'ble Supreme Court finally settled the law that all the amendments to the constitution made on or after 24th April1973 by which 9th schedule is amended by inclusion of various laws therein shall be tested on the text on the basic or essential features of the Constitution as reflected in article 21 read with Article 14 article 19 and the principal underlying them.

Written By: Preeti Dalal, Advocate, Supreme Court of India
Member, Executive Council- AGISS Research Institute

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