Procedure for Amendment of Constitution

In the intricate framework of governance, the Constitution stands as the cornerstone, providing the bedrock principles that guide a nation’s identity and functioning. However, the dynamic nature of society often necessitates adjustments to this foundational document to address contemporary needs and challenges.

The procedure for amendment of Constitution serves as the legal pathway through which these adjustments are made. In this article, we will discuss the power and procedure for amendment of Constitution.

Power to Amend The Constitution [Art.368(1)]

The authority to amend the Constitution in India lies with the Parliament, as specified in Article 368. This grants Parliament the ability to modify any aspect of the Constitution, including fundamental rights, with some constraints.

However, this power is not absolute. The Constitution itself imposes limitations to safeguard the fundamental principles and basic structure of the Constitution from being altered in ways that would compromise its integrity. The doctrine of the basic structure, as established by the Supreme Court of India, asserts that certain fundamental features of the Constitution are immune to alteration through amendments. These features encompass the supremacy of the Constitution, the sovereignty of India, the democratic form of government, the federal character of the Constitution and the protection of fundamental rights.

In addition to these constraints, specific types of amendments necessitate ratification by state legislatures, alongside obtaining a special majority in both houses of Parliament. Such amendments relate to changes in the federal nature of the Constitution, particularly those affecting the distribution of powers between the Centre and the states.

In summary, while Parliament possesses the authority to amend the Constitution, this authority is circumscribed by specific limitations. These restrictions aim to uphold the basic structure of the Constitution, ensuring that its core principles are preserved and that any amendments align with the fundamental values of the Constitution.

What is the Procedure for Amendment of Constitution of India?

The procedure for amendment of Constitution is outlined in Article 368, which is part of Part XX of the Constitution. This article empowers the Parliament to amend the Constitution through addition, variation, or repeal of any provision according to the laid-down procedure.

However, certain provisions that make up the ‘basic structure’ of the Constitution cannot be amended, as established by the Supreme Court in the Kesavananda Bharati case (1973).

There are two types of amendments provided for:

• Special Majority of Parliament: Amendments can be made by a special majority of Parliament.

• Special Majority of Parliament and Ratification by States: Amendments can be made by a special majority of Parliament along with the ratification of at least half of the state legislatures by a simple majority.

To initiate a procedure for amendment of Constitution, a bill must be introduced in either House of Parliament (Lok Sabha or Rajya Sabha). The bill doesn’t need prior approval from the President and can be introduced by any member or minister.

The bill must then be passed by each House with a simple majority (more than 50% of those present and voting) or a special majority (majority of the total members in the House and two-thirds majority of those present and voting). If the bill fails to pass in either House, there is no provision for a joint sitting.

After passing both Houses, the bill is presented to the President for assent. Once the President assents to the bill, it becomes a Constitutional Amendment Act.

Note: It’s important to note that certain provisions of the Constitution can be amended by a simple majority of each house present and voting and these amendments are not considered under Article 368.

What is Simple Majority?

A simple majority refers to a situation where more than half of the total votes or members involved in a decision are in favor of a particular proposition or choice. In a simple majority system, the option with more than 50% support is considered the winning or prevailing choice.

What is a Special Majority?

A special majority, as stipulated under Article 368(2) of the Indian Constitution, refers to the specific level of support required in Parliament to pass a Constitutional amendment. This is a higher threshold compared to a simple majority.

The special majority entails two conditions:

Majority of the Total Members:

The amendment must be supported by a majority of the total members in each House of Parliament.

Two-Thirds Majority of Those Present and Voting:

In addition to the majority of the total members, the amendment must also be backed by a two-thirds majority of the members present and voting during the proceedings.

Under Article 368(2), Parliament can use this special majority to amend various provisions of the Constitution. Notably, amendments related to Fundamental Rights and Directive Principles of State Policy (DPSP) can be made through a special majority. However, such amendments must remain within the basic structure of the Constitution, as determined by the Supreme Court in the Kesavananda Bharati case (1973).

Special Majority with Consent of Half of States

The special majority with the consent of half of the states is a Constitutional requirement for amending certain provisions related to the federal structure of India. This process involves obtaining not only a special majority in Parliament but also the approval of at least half of the state legislatures through a simple majority.

Key points regarding this process include:

Federal Structure Amendments:

Provisions of the Constitution tied to the federal structure of the polity can only be amended through a special majority in Parliament and with the consent of at least half of the state legislatures by a simple majority.

Provisions Requiring State Ratification:

Important provisions that necessitate ratification by the states include aspects related to the election of the President, functioning of the Supreme Court and High Courts, representation of states in Parliament, distribution of legislative powers between the Union and the states and the extent of executive power of the Union and the states.

Amendment to Article 368:

Notably, even an amendment to Article 368 itself, which outlines the procedure for amending the Constitution, requires ratification by the states.

This dual requirement ensures a balanced approach to Constitutional amendments, particularly those impacting the federal structure and relationships between the Union and the states. It underscores the need for widespread support and agreement across both the national and state levels before making significant changes to the Constitutional framework.

Procedure for Amendment of Constitution’s Fundamental Rights

Shankari Prasad v. Union of India

In this case, the validity of the First Amendment, which added Article 31A and 31B to the Constitution, was challenged. The Supreme Court, in a five-judge bench, ruled that Article 368 provides general and strict power to Parliament to amend the Constitution following the proper procedure.

Sajjan Singh v. State of Rajasthan

The Seventeenth Amendment’s validity was questioned in this case. While the court did not address the challenge to the Seventeenth Amendment’s impact on the High Court’s jurisdiction, it stated that even if Article 368 doesn’t explicitly grant power to amend Fundamental Rights (FR), Parliament could assume those powers through a suitable amendment.

Golaknath v. State of Punjab

The validity of the First, Seventeenth and Fourth Amendments was challenged in this case. A majority of six judges out of eleven ruled that Parliament has no power to amend Part III (Fundamental Rights) of the Constitution. The court introduced the doctrine of prospective overruling, declaring the discussed amendments valid but limiting Parliament’s future power to amend Part III.

24th Amendment

After the Golaknath case, the 24th Amendment was passed in 1971. It added a new clause to Article 13, stating that Article 13, which deals with laws inconsistent with or in derogation of Fundamental Rights, does not apply to amendments made under Article 368. New clauses were added to Article 368, specifying Parliament’s power to amend the Constitution.

Kesavananda Bharati v. State of Kerala

Considered a landmark case, this involved the challenge of the 25th, 24th and 29th Amendments. The Supreme Court, in a majority decision, overruled Golaknath, recognising the concept of the basic structure. It held that Parliament, even before the 24th Amendment, has limited power to amend the Constitution and declared that Article 368 does not allow Parliament to change or damage the basic structure of the Constitution. This judgment significantly impacted the understanding of the Constitution’s amendments.

Indira Nehru Gandhi v. Raj Narayan

In Indira Nehru Gandhi v. Raj Narayan, the Supreme Court reaffirmed the basic structure concept, striking down the 4th clause of Article 329 A. The amendment regarding the jurisdiction of courts, including the Supreme Court, in disputes over the election of the Prime Minister, was deemed beyond Parliament’s power and detrimental to the basic structure of the Constitution.

42nd Amendment

Following the decisions in Kesavanada Bharti and Indira Gandhi cases, the Parliament introduced the 42nd Amendment. This amendment added the words “secular” and “socialist” to the preamble and inserted clauses 4 and 5 to Article 368. It indirectly asserted that there were no limitations on Parliament’s power regarding amendments, challenging the concept of basic structure. The amendment raised questions about the supremacy of Parliament versus the Supreme Court.

Minerva Mills v. Union of India

The validity of the 42nd Amendment was challenged in Minerva Mills v. Union of India. The Supreme Court, in the majority, struck down clauses added by the 42nd Amendment, emphasising that the limited power of Parliament lies within the basic structure itself.

L. Chandra Kumar v. Union of India

In this case, the validity of Article 323A and 323B, inserted by the 42nd Amendment, was challenged. These articles dealt with the exclusion of the High Court under Article 226 and 227 and the Supreme Court under Article 32. The Supreme Court declared both provisions unConstitutional, stating that the power of judicial review under Article 226, 227 and 32 is part of the basic structure and Parliament has no authority to amend that.

Evaluation of Supreme Court Judgments on Procedure for Amendment of Constitution

Considering judgments in cases like Golaknath, Kesavananda Bharati, Indira Gandhi and others, the Supreme Court has consistently implied limitations on Parliament’s amending powers. Summarising these judgments, the court has consistently emphasised the following on procedure for amendment of Constitution:

Limited Power of Parliament:

Parliament has restricted power to amend the Constitution.

Protection of Basic Structure:

Parliament cannot damage the basic structure of the Constitution.

Article 368 Limitations:

Article 368 does not grant Parliament power for amendments in Part III of the Constitution.

No Increase in Amendment Powers:

Parliament, by amending Article 368, cannot augment its amendment powers.