Amendments of the Constitution

Introduction:

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.

Facts for prelims:

• It was borrowed from the South African constitution
• Article 368 in Part XX of the constitution: Powers of Parliament to amend the constitution.
• Keshavananda Bharati judgment: Parliament cannot amend those parts which are part of the ‘Basic Structure’ of the constitution.

Article 368: “Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution”. Article 368 of Part XX of Constitution of India provides for two types of amendments.

• By a special majority of Parliament
• By a special majority of the Parliament with the ratification by half of the total states.

Types of Amendments:

Special majority:

In Indian constitution, the provisions related to special majority can be categorized into the following:

• Article 249: 2/3^rdmembers present and voting. This is required in the case of empowering Parliament to make laws on those issues included in state list
• Article 368: It refers to a majority of 2/3rd members present and voting supported by over 50% of the total strength of the House.
• Article 368+ fifty percent: As above plus that bill should be passed by a simple majority by half of the state legislatures in India
• Article 361: 2/3^rdof the total membership of the house

Absolute majority: A bill is said to be passed, if more than 50% of the total strength of the house pass it

Effective Majority: This refers to a majority of more than 50% of the effective strength of the House.

Procedure for amendment of constitution:

• Amendment can be initiated only by the introduction of a bill for the purpose in either house of the Parliament
• The bill can be introduced either by a minister or by a private member and does not require the permission of the President
• The bill must be passed in each house by a special majority, that is, a majority 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. If there is any disagreement, there is no provision for joint sitting of the houses
• If the bill seeks to amend the provisions of the constitution, it must be ratified by the legislatures of half of the states by a simple majority
• After passage of the bill by both the houses, it is presented to the President for his 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 of the Parliament
• After the President’s assent, the bill becomes an act

Criticism of the amending procedure

• An amendment can be invoked in the Parliament only
• The procedure is very rigid if a private member of the parliament wants to move a constitutional amendment bill
• Vesting of even the constituent power in the Parliament gives the ruling party a greater probability to pass amendments if they have requisite numbers in both the Parliament. This might result in bills being passed in a hasty manner
• The consent of the states is limited to just a few provisions
• No time frame has been prescribed in the constitution for states to ratify or reject the amendment bill.

Various Provisions and Types of Majority Required

Recent Important Constitutional Amendments:

Conclusion:

What we must realize is that the constitution is the backbone of this democracy. While it was revolutionary of the fathers of our constitution to provide provisions to amend the constitution, it is essential that such provisions are not misused. Misuse could result in excessive power of the legislative or the executive which could tear the fabric of our democracy.

Previous years questions: 

Prelims:

1. Under which article of the Indian constitution did the president gives assent to the ordinance on electoral reforms when it was sent back to him by the union cabinet without making any changes (in the year 2002)? (2003) 

1. Article 121  
2. article 122 
3. article 123 
4. article 124 

2. Which of the following constitutional amendments are related to raising the number of members of Lok Sabha to be elected from the states? (2003) 

1. 6th and 22nd 
2. 13th and 38th 
3. 7th and 31st 
4. 11th and 42nd 

3. The constitution (98th amendment) act is related to: (2005) 

1. Empowering the center to levy and appropriate service tax 
2. the constitution of the national judicial Commission 
3. readjustment of electoral constituencies on the basis of the population census 2001 
4. the demarcation of new boundaries between states 

4. What does the 104th constitution amendment bill related to? (2006) 

1. abolition of legislative councils in certain states 
2. introduction of dual citizenship for persons of Indian origin living outside India 
3. providing quota to socially and educationally backward classes in private educational institutions 
4. providing quota for religious minorities in the services under the central government 

5. Which of the following constitution amendment acts seek that the size of the councils of ministers at the center and in the state must not exceed 15% of the total number of members in the Lok Sabha and the total number of members of the legislative assembly of that state respectively? (2007) 

1. 91st 
2. 93rd 
3. 95th 
4. 97 

6. Under which one of the following constitution amendment acts 4 languages were added to the list of languages under the 8th schedule of the constitution of India there were raising their number 22? (2008) 

1. Constitution 19th amendment act 
2. constitution 91st amendment act 
3. constitution 92nd amendment act 
4. constitution 93rd amendment act 

7. Which one of the following constitutional amendments states that the total number of ministers including the Prime Minister in the Council of Ministers shall not exceed 15% of the total number of members of the House of the people? (2009) 

1. 90th 
2. 91st 
3. 92nd 
4. 93rd 

8. consider the following statements: 

1. an amendment to the constitution of India can be initiated by an introduction of a bill in the Lok Sabha only 

2. if such an amendment seeks to make changes in the federal character of the constitution the amendment also requires to be ratified by the legislature of all the states of India 

Which of the statements given above is/ are correct? 

1. 1 only 
2. 2 only 
3. Both 1 and 2  
4. Neither 1 nor 2 

Answers: 

1. (c)
2. (c)
3. (b)
4. (c)
5. (a)
6. (c)
7. (b)
8. (d)

Mains:

1. Parliaments power to amend the constitution is a limited power and it cannot be enlarged into absolute power. In the light of the statement explain whether parliament under article 368 of the constitution can destroy the basic structure of the constitution by expanding its amending power. (2019) 
2. Highlight the significance of 44th amendment to the Constitution of India. (2003)
3. How is the constitution of India amended? do you think that the procedure for amendment make the constitution a plaything in the hands of the centre? (2002)
4. What are the main differences between the passage of our constitution amendment bill and other legislative bills? (2001)
5. Highlight the significance of the 24th amendment to the constitution of India. (1999)

Answers:

1. Article 368 of the constitution deals with the powers of parliament to amend the constitution and its procedure. It states that the parliament can amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down for the purpose. The basic structure doctrine advocates that the constitution of India has certain basic features which cannot be altered or repealed through amendments by the parliament. 

This was decided by Supreme Court in the landmark keshav nanda Bharti 1973 case. judiciary has the power to declare an amendment null and void if it violates the elements of basic structure of constitution. parliament cannot damage or destroy the basic features of the constitution 

India shankari Prasad case 1951 the Supreme Court ruled that the power of parliament to amend the constitution under article 368 also includes the power to amend the fundamental rights. However in golf Nath case 1967 the Supreme Court reversed this earlier stand and ruled that the fundamental rights are given a transcendental and immutable position and hence parliament cannot take away of these rights. the parliament reacted to s supreme courts judgement by enacting 24th amendment act 1971 and stated that the parliament has the power to take away any of the fundamental rights under article 360 and such an act will not be a law under the meaning of article 13. however indication and Bharti case 1973 the Supreme Court overruled its judgment in the golakhnath case (1967). pit upheld the validity of the 24th amendment act 1971 and stated that parliament is empowered to take away any of the fundamental rights until it does not violate basic structure of the constitution. thus the constituent power of parliament under article 368 does not enable it to alter the basic structure of the constitution 

the doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case 1975. in this case the Supreme Court invalidated a provision of the 39th amendment act 1975 which kept the election disputes involving the Prime Minister and the speaker of Lok Sabha outside the jurisdiction of all courts. the court said that this provision was beyond the amending power of parliament as it effected the basic structure of the constitution.  

again the parliament reacted to this by enacting the 42nd amendment act 1976. this act amended article 368 and declared that there is no limitation on the constituent power of parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the fundamental rights. however the Supreme Court in the Minerva mills case 1980 invalidated this provision as it excluded judicial review which is a basic feature of the constitution. it stated that parliament cannot increase its amending power bi amending article 368. 

from various judgements supremacy of constitution secular character of constitution unity and integrity of the nation judicial review parliamentary system free and fair elections independence of judiciary etc have emerged as the elements of the basic structure of constitution. these cannot be amended by parliament by using parse amending power under the article 368, does limiting parliaments power to amend the constitution. 

2. The 44th amendment of the constitution was enacted by the Janata government mainly to nullify some of the amendments made by the 42nd amendment act 1976. It has made wide scale changes to the Indian constitution to make the Indian polity more democratic. Some of the changes introduced by the act are as follows: 

• constitutional protection to publication in newspaper of the proceedings of the parliament and state legislature. 
• the president may only once send advice of the cabinet for reconsideration 
• Restoration of some powers of the Supreme Court 
• fundamental rights guaranteed by article 20 and 21 cannot be suspended during a national emergency 
• the right to property was deleted from the list of fundamental rights. It is now only a legal right under the constitution. 

These amendments clearly suggests that the amendment tried to confirm to the values included in the preamble. however the most important change made by the 44th amendment act was the deletion of the right to property from the list of fundamental rights. making it a legal right under the constitution serves 2 purposes: firstly it gives emphasis to the value of socialism included in the preamble and secondly in doing so it confirmed to the doctrine of basic structure of the constitution. 

the 44th amendment act repealed article 19 1F and also took out article 31 one that has been taken out of Part 3 and made a separate article 300 a in chapter 4 of part 12. this amendment may have taken away the scope of speedy remedy under article 32 for the violation of right to property because it is no more a fundamental right. it is also argued that unlimited power of amendment is necessary to meet the democratically expressed will of the people and that the peoples representatives should be trusted not abrogate in basic freedoms. 

as the effect of the majority judgement of the Supreme Court the parliament cannot in the exercise of its amending power, alter the basic structure or framework of the constitution. In keshav nanda Bharti case the second part of article 31 C in Mrs Indira Gandhi case article 32984 and in Minerva mills case sections 4 and 55 of the 42nd amendment act were struck down precisely because it affected the basic structure of the constitution. 

the basic features are those which are vital to the constitutional scheme and which give the constitution its identity and integrity. it is a fair assumption that those who seek to amend the constitution would have at least sufficient understanding to perceive its basic structure because it continues in the constitution as legal right. 

3. article 368 in part 20 of the constitution specifies the powers of parliament to amend the constitution. the amending procedure is neither rigid nor flexible. however since the decision of the Supreme Court in the case of keshavananda Bharti case the parliament cannot amend the basic features of the constitution. 

provisions for the amendment of the constitution are: 

• Any bill for amendment of the constitution can be introduced in either House of the parliament. 
• the bill may be introduced by a minister or a private member for which prior sanction of the president is not required. 
• The bill need to be passed in each house buy a special majority of the total membership of the house and a majority of 2/3 of the members of the house present and voting. 
• The bill must be duly passed by both houses separately because joint sitting is not available. 
• Any such bill which tends to amend any federal provision must be ratified by the legislative of half on behalf the states by a simple majority. 
• After being duly passed it must be presented to the president for assent, to which he must gave his assent because such a bill can never be withheld or return for reconsideration. Double becomes an act after being assented by the president. 

however this procedure has been criticised on several grounds. the most significant of which is the absence of a separate body for amending the constitution. The amending powers have been wasted in the parliament which can amend either buy a special majority or by simple majority. 

Only in case of amending the federal features of the constitution, consent of the states is required. this has exposed the power of amendment to the possibilities of being misused by the central government. Some instances would amply clarify the situation. The 38th amendment bad judicial review of presidential order suspending the enforcement of fundamental rights. Followed by 39th amendment which ouster the jurisdiction of courts with retrospective effect, in respect of any petition challenging the prime ministers election to the Lok Sabha. 

The amendment put the representation of the people act, 1951 together with the motivated 1975 amendment in the 9th schedule to constitution, so that it became protected against challenge on the ground that it violated the fundamental rights. Then there was the historic 42nd amendment which site to institutionalised national emergency of 1975. These are sufficient to indicate that the amendment of the constitution have often been handmade of the center to satisfy petty interests of enhancing the powers of the party in power at that point of time. 

4. The legislative procedure is initiated in the form of a bill. A bill is a proposed legislation and becomes a law when it is entered by the president. The bills are classified as ordinary, financial, money and the constitutional amendment bills. all the bills other than financial bills, money bills and the constitutional amendment bills are ordinary bills. 

The constitution amendment bills change the provisions of the constitution without violating the basic structure of the Indian constitution. part 20 of the constitution deals with the amendment of the constitution. article 368 specifies the power of parliament to amend the constitution. acceptable for the reorganization of the territory of a state, an ordinary bill may be introduced in any House of the parliament. likewise an amendment bill may be introduced in any House of the parliament, without the recommendation of the president. an ordinary bill/ money bill/ financial bill require simple majority of both the houses of the parliament but amendment bill requires special majority from both houses to get it passed. 

However, in case of a deadlock with regard to the passage of the ordinary bill, a joint sitting of the 2 houses may be summoned. an amendment bill can never be passed by a joint sitting of the houses, it must be passed by both houses separately. the passage of the ordinary bill passes through 3 stages. in the first stage, the bill is introduced in the house but no discussion takes place. in the second stage, after consideration the bill is discussed clause by clause. in the 3rd stage, after a general discussion of the bill, it is finally passed. after its passage in one house, it is sent to the other house for its consideration. 

the passage of the amendment bill me take in any of the following methods: 

• the amendment contemplated under articles 5 to 11 (citizenship), 169(abolition or creation of legislative councils in states), 239-A (creation of local legislatures or Council of Ministers or both for certain union territories, as these excluded from the preview of the procedure under article 368 to be done by single majority). 
• Some articles are mentioned in article 368, which require special majority to be amended. 
• articles like 54, 55, 73, 162, 124-147, 214- 231, 241, 245- 255, 368 itself required to be amended by special majority and ratification behalf of the states. 

5. The procedure for amending the Indian constitution is neither flexible nor rigid, but a combination of both. Article 368 in part 20 of the constitution deals with the powers of the parliament to amend the constitution and its procedure. the parliament me in the exercise of its constituent power amend way of addition, variation or repel any provision of the constitution in accordance with the procedure laid down. prior to the golak Nath case, The Supreme Court maintained that fundamental rights were also amendable. the case ruled that the fundamental rights were transcendental in nature and the parliament cannot a bridge or take away any fundamental rights. 

Reacting to this judgement of the Supreme Court, the parliament through the 24th amendment act, 1971 broad certain changes to the amending ability of the fundamental rights. the 24th amendment act, 1971 amended articles 13 and 368. it declared that the parliament has the power to a bridge or takeaway any of the fundamental rights under article 368 and such an act, will not be allowed under the meaning of article 13. 

The Supreme Court upheld the validity of the 24th amendment act, and stated that the parliament is empowered to a bridge or take away any of the fundamental rights, but at the same time laid down the new doctrine of the “basic structure of the constitution”. thus it may be said that the 24th amendment enhanced the powers of the parliament to amend the fundamental rights.