By Hridhya P
a) PROCEDURE TO AMEND THE CONSTITUTION b)MAJOR CONSTITUTIONAL AMENDMENTS WITH SPECIAL REFERENCE TO 1, 42, 44, 52, 86, 101 a)PROCEDURE TO AMEND THE CONSTITUTION
Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.
However, there is another limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power. This has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala . The procedure for amendment is detailed under Article 368 in Part XX of the Constitution.
This article specifies the power of the Parliament to amend the Constitution. There are three ways
of amending the Constitution.
- Amendment by simple majority: There are a good number of articles in the Constitution
which are of transitory nature. Though they can be changed by Parliament by passing a law
by simple majority, technically speaking changes made therein, are not to be considered as
amendment of the Constitution. By simple majority is meant, simple majority of the
members present and voting. For example, admission or establishment of new states (Art.2),
formation of new states, changes in the names and boundaries of the States (Art.3), creation
or abolition of Legislative Councils in the States (Art.169), salaries and allowances of the
President, Governors and Judges of Supreme Court and High Courts, etc. can be made by
the Parliament by passing a law by simple majority.
The following provisions of the Constitution also fall under the same category.
(i). Second schedule of the constitution.
(ii). Article 100(3) of the Constitution which fixes the quorum of transaction of business in the
Parliament.
(iii).Article 105 of the constitution which deals with powers, privileges and immunities of members
of Parliament.
(iv).Article 11 regarding acquisition and termination of citizenship.
(v). Article 81 relating to the delimitation of constituencies. - Amendment by special majority: An amendment of the Constitution may be initiated only by the
introduction of a bill for the purpose in either House of Parliament. When the bill is passed in each
House by a majority of the total membership of that house and by a majority of not less than two-
thirds of the members of that house present and voting, it shall be presented to the President for his
assent. When the President gives hid assent, the Constitution stands amended in accordance with
the terms of the bill. Part III dealing with Fundamental Rights and Part IV dealing with Directive
Principles of State Policy come under this category. Also, all parts of the Constitution, with the
exception of the specific provisions mentioned in Art.368 can be amended by this method
[17/07, 9:37 AM] Nanna Mol: 3.Ratification by the State Legislatures : For the amendment of certain other provisions of the
constitution, a Bill has to be passed by each House of the Parliament by a majority of the total
membership of that House and by a majority not less than two-thirds of the members present and
voting., then the amendment must be ratified by the state legislatures of not less than one-half of the
states by resolution to that effect is required before the amendment Bill is presented to the President
for his assent. The following provisions of the constitution fall under this category:
(i). Election and Manner of Election of the President (Article 54 and 55);
(ii). Extent of the executive power of the Union (Article 73);
(iii). Extent of the executive power of the States (Article 162);
(iv). Union Judiciary (Chapter IV of Part V);
(v). High Courts in the States (Chapter V of part VI);
(vi). Legislative Relations between Centre and States (Chapter I of Part XI)
(vii). Any of the Lists in the Seventh schedule;
(viii). Representation of states in the Parliament; and
(ix). Provisions dealing with the amendment of the Constitution.
SALIENT FEATURES OF THE AMENDMENT PROCESS
The salient features of the Amendment Process are:
Introduction only in either house of the Parliament: The Bill for the amendment of the Constitution
can be introduced in either House of Parliament and not in any State assembly.
No advance sanction of the President is necessary- To introduce a Constitution Amendment Bill in
the Parliament, no prior permission of the President is required.
Both Houses of Parliament must pass it separately: An Amendment Bill should be passed by both
Houses of Parliament separately. The Constitution cannot be amended in case of a deadlock
between the two houses. There is no provision for a joint sitting if both the Houses differ.
Meaning of Membership of total majority : The expression ‘majority of the total membership’
means that it is not the majority of the actual membership of the House but the majority of the total
prescribed strengths of the House notwithstanding the vacancies therein.
Special majority at every stage of passing the bill: Whether this special majority is needed at the
time of final voting of the bill or even on the earlier stages of the bill. The Constitution amendment
Bill even at its introduction stage must be supported by a two-thirds majority of members present
and voting which should not be less than 50 percent of the total strengths. It means special majority
is needed at the passing of every stage of the bill Ratification of the Legislatures of not less than one-half of the states: the amendment of the articles
mentioned in the provision of Article 368, must be ratified by one-half of the state legislatures by
passing resolution in that respect. The expression State Legislature does not include the legislatures
of the Union Territories. Wherever the State Legislature is bicameral, the resolutions must be
passed by both the houses separately and the resolutions so passes do not require the signature or
assent of the Governor.
Presidential assent: In the final stage, the Constitution Amendment Bill is presented to the
President for his assent which the president cannot refuse. But there is no time limit within which
the President must give his assent. He can keep it pending for some time in the first instance,
though ordinarily it is expected that he gives is assent as soon as possible.
Basic Structure of the Constitution:
It is to be mentioned here that even though the Parliament has the power to amend the
Constitution as per Art. 368, it cannot amend the basic structure of the Constitution, or, in other
words, certain basic features of the Constitution. In the Golak Nath Case of 1967, the Supreme
Court gave the historical ruling that the Parliament had no power to amend Part III of the
Constitution even in accordance with the provisions of Art.368. This judgement gave rise to a
controversy over the issue of the power of the Parliament to amend the Constitution. The
Parliament passed the 24th and the 25th Amendments to assert its power to amend every part of the
Constitution including Part III dealing with Fundamental Rights. The Kesavananda Bharati Case,
1973 reversed its judgement in the Golak Nath case and accepted the power of the Parliament to
amend Part III and all other parts of the Constitution, however without changing the basic structure
of the Constitution. It was a landmark decision of the Supreme Court of India and the basis for the
power of the Supreme Court to review, and strike down, amendments to the Constitution of India
passed by the Indian parliament which conflict with or seek to alter the constitution’s ‘basic
structure’.
The basic structure of the Constitution of India includes the Preamble emphasizing upon
sovereign, secular, democratic, republic, unity and integrity of the nation; supremacy of the
Constitution, independence of the judiciary, federal structure, balance between fundamental rights
and directive principles of state policy, Parliaments power to amend the Constitution, judicial
review of the Supreme Court and rule of law.
As of January 2012, there have been 97 amendments to the Constitution of India since it
was first enacted in 1950.
A National Commission to Review the Working of the Constitution was set up by the
Government of India in February 2000 during the regime of the NDA Government. The
commission was headed by the former Chief Justice of India, Justice Venkatachaliah. It had eleven
members including judges, legal luminaries, constitutional and parliamentary experts, politicians,
diplomats and media representatives. The main function of the commission was to review analyze
and suggest amendments in the Constitution of India within the framework of the basic structure
concept. The commission submitted its report on 31st March, 2002 with several recommendations.
Littérateurs 