The Indian Constitution, being a living document, provides for its amendment. The detailed provisions regarding the Amendment of the Constitution of India are contained in Article 368 in Part XX of the Indian Constitution. These provisions define the process and scope of amending the Constitution.
Procedure for Amendment to the Indian Constitution
The procedure for the Amendment of the Constitution of India as per Article 368 is as follows:
- A bill for the amendment of the Constitution can be introduced only in either house of the Parliament, not in the State Legislatures.
- The bill can be introduced either by a minister or by a private member and does not require prior permission of the President.
- The bill must be passed in each House by a Special Majority, that is, a majority (more than 50 percent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
- Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for deliberation and passage of the bill.
- If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a Simple Majority, that is, a majority of the members of the House present and voting.
- After duly passed by both Houses of Parliament and ratified by the State Legislatures, where necessary, the bill is presented to the President for his/her assent.
- The President must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration by the Parliament.
- After the President’s assent, the bill becomes an Act (i.e. a Constitutional Amendment Act), and the Constitution stands amended as per the changes made by the Act.
Types of Amendments in the Indian Constitution
- Article 368 of the Indian Constitution provides for two types of amendments:
- By a Special Majority of Parliament (50% of the total membership of the House + 2/3rd of the members present and voting),
- By a Special Majority of Parliament plus ratification of 1/2 of the states by a Simple Majority,
- One other type of amendment can be done by a Simple Majority of Parliament.
- However, these amendments are not deemed to be amendments to Article 368.
- Therefore, the Constitution can be amended in three ways:
- Amendment by a simple majority of the Parliament,
- Amendment by a special majority of the Parliament, and
- Amendment by a special majority of the Parliament and the ratification of half of the State Legislatures.
- The process and scope of each type of amendment are discussed in detail below.
By Simple Majority of Parliament
- Several provisions in the Indian Constitution can be amended by a Simple Majority i.e. 50 percent of members present and voting.
- It is to be noted that these amendments fall outside the scope of Article 368.
- A few examples of the provisions that can be amended by simple majority are:
- Admission or establishment of new states,
- Formation of new states and alteration of areas, boundaries, or names of existing states,
- Abolition or creation of Legislative Councils in states, etc.
By Special Majority of Parliament
- The majority of the provisions in the Constitution can be amended only by a Special Majority (more than 50 percent of the total membership of the House and a majority of two-thirds of the members of that House present and voting).
- The provisions that can be amended by Special Majority are:
- Fundamental Rights,
- Directive Principles of State Policy,
- All other provisions that are not covered by the first and third categories.
By Special Majority of the Parliament and Consent of Half States
- The provisions of the Constitution that are related to the federal structure of the Indian polity require for their amendment a Special Majority of the Parliament along with the consent of half of the state legislatures by a Simple Majority.
- The following points are to be noted w.r.t. these types of amendments:
- It does not require that all the states give their consent to the bill. The moment half of the states give their consent, the formality is completed and the bill is passed.
- The constitution has not prescribed any time limit within which the states should give their consent to the bill.
- A few examples of the provisions that can be amended this way are:
- Election of the President and its manner,
- Extent of the executive power of the Union and the States,
- Provisions related to the Supreme Court and High courts, etc.
Basic Structure of the Constitution
- The Basic Structure of the Indian Constitution refers to a set of core principles deemed essential, which cannot be destroyed or altered through amendments by the Parliament. This concept, though not explicitly mentioned in the Constitution, was established by the Supreme Court in the landmark Kesavananda Bharati case (1973).
- The Doctrine of Basic Structure is a check on the amending power of the Parliament and ensures that the fundamental ethos, principles, and underlying framework of the Constitution remain intact, preserving its spirit.
Significance of the Constitutional Amendment
The provision for amendment of the Indian Constitution carries multifarious significance as listed below:
- Adaptability in Governance: The Constitution lays down fundamental principles of governance. A diverse and constantly evolving country like India cannot be governed by a set of fixed rules. The amendment of the constitution enables to bring changes in governance as per needs and situations.
- Accommodating New Rights: With rising awareness, various sections of society are becoming assertive of their rights. For example, of late, the LGBT community has been demanding their rights. The amendment enables providing for such rights.
- Evolution of New Rights: New interpretations of the Constitution led to the evolution of new rights. For example, a new interpretation of the Right to Life and Personal Liberty gave rise to the Right to Privacy. The amendment enables accommodating such rights.
- Addressing Emerging Issues: It enables addressing new emerging trends like bans, vigilantism, etc.
- Bringing Social Reform: It enables the eradication of outdated socio-cultural practices to usher in modernity.
Criticism of the Amendment Procedure
The procedure for amendment of the Indian constitution has been criticized on the following grounds:
- There is no provision for a special body for amending the Constitution such as the Constitutional Convention or Constitutional Assembly. The constituent power is vested in the Legislative Body itself i.e. the Parliament and the State Legislatures (in a few cases).
- There is no provision for a special process for amending the Constitution. Except for the requirement of Special Majority, the process of amendment is similar to that of a legislative process.
- The power to initiate an amendment lies only with the Parliament. The states have no such powers (except for passing a resolution to create or abolish state legislative councils).
- A major part of the Constitution can be amended by the Parliament alone. Only in a few cases, the consent of the state legislatures is required, and that too, only half of them.
- Lack of provision for holding a joint sitting of both Houses of Parliament for a constitutional amendment bill, sometimes, leads to the situation of a deadlock.
- The provisions relating to the amendment procedure, being too sketchy, leave a wide scope for creating disputes and taking the matters to the judiciary.
The process of amending the constitution is a crucial aspect of maintaining the relevance and adaptability of India’s legal framework to changing societal needs and circumstances. These constitutional amendments have played a significant role in shaping the country’s governance and legal framework. It ensures that the Constitution remains a living document, reflective of its people’s aspirations, challenges, and evolving societal values, ensuring its relevance and efficacy for generations to come.
