Amendment of the Indian Constitution

The amendment of the Indian Constitution ensures its relevance and adaptability to changing societal needs. Parliament has the authority, as detailed in Article 368, to introduce changes by adding, altering, or abolishing any part of the Constitution. Amendments can be made through three methods – simple majority of Parliament, special majority of Parliament, or special majority of Parliament with the consent of half the state legislatures. Each method has its respective applications and provisions. In this article, you will learn about meaning and procedure for the amendment as well as various types of amendments in Indian Constitution, which are very important topic for GS Paper-2 Polity & Governance of UPSC CSE Exam. To explore more interesting UPSC Polity concepts similar to amendment of the Constitution in India, check out other articles of IASToppers

Table of Content

• Introduction
• Procedure for the amendment of the Constitution
• Types Of Amendments
  • Amendment through a simple majority of Parliament
  • By Special Majority of Parliament
  • By Special Majority of Parliament and Consent of States
• Criticism of the Amendment Process
• Conclusion
• FAQs on Amendment of the Indian Constitution

Introduction

• The Indian Constitution has the provision for amendments, allowing it to adapt to evolving situations and demands.
• The method prescribed for these amendments is not as simple as the one in Britain but also not as complex as that in the USA. This means that India’s Constitution strikes a balance between being too flexible or too stiff.
• The power and the process for Parliament to make amendments to the Constitution are outlined in Article 368, in Part XX of the Constitution.
• The Parliament can introduce changes to any part of the Constitution by means of adding, altering, or abolishing it.
• However, there are restrictions, as Parliament is not allowed to modify the provisions that constitute the ‘basic structure’ of the Constitution.
• This limitation was established by the Supreme Court in the landmark Kesavananda Bharati case in 1973.

Procedure for the amendment of the Indian Constitution

The process for amending the Constitution, as defined in Article 368, is as follows:

• The initiation of a constitutional amendment can only be made through the presentation of a bill in either House of Parliament, not in state legislatures.
• This bill can be presented by either a minister or a private member, without needing any prior approval from the president.
• A special majority is required for the bill to be passed in each House.
  • This means that the majority of the total members of the House and two-thirds of the members present and voting must approve it.
• Both Houses must approve the bill independently.
  • If there is a disagreement between the two Houses, no joint sitting is held for discussion and passage of the bill.
• If the bill proposes changes to the federal aspects of the Constitution, it must also receive approval from half of the state legislatures through a simple majority vote, which means a majority of the members present and voting.
• Once the bill has been approved by both Houses of Parliament and ratified by the state legislatures when required, it is presented to the president for approval.
• The president is obligated to give his assent to the bill. He doesn’t have the power to withhold his assent or send the bill back to Parliament for reconsideration.
• Once the president gives his assent, the bill is converted into an Act (specifically, a constitutional amendment act).

Types of Amendments of the Indian Constitution

Article 368 outlines two amendment methods: A special majority of Parliament and through the ratification of half of the states by a basic majority.

However, several other articles allow for the amendment of specific parts of the Constitution by a basic majority of Parliament, which means a majority of the members of each House who are present and voting (akin to the regular legislative process). These types of amendments are not considered to be Constitution amendments under Article 368.

Thus, there are three paths to amend the Constitution:

(a) Amendment through a simple majority of Parliament,

(b) Amendment through a special majority of Parliament, and

(c) Amendment by special majority of the Parliament and the ratification of half of the state legislatures.

Amendment through a simple majority of Parliament

Certain aspects of the Constitution can be changed through a plain majority vote in both houses of Parliament. This procedure operates outside the boundaries of Article 368.

These provisions include:

• 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.
• Second Schedule–emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
• Quorum in Parliament.
• Salaries and allowances of the members of Parliament.
• Rules of procedure in Parliament.
• Privileges of the Parliament, its members and its committees.
• Use of English language in Parliament.
• Number of puisne judges in the Supreme Court.
• Conferment of more jurisdiction on the Supreme Court.
• Use of official language.
• Citizenship–acquisition and termination.
• Elections to Parliament and state legislatures.
• Delimitation of constituencies.
• Union territories.
• Fifth Schedule–administration of scheduled areas and scheduled tribes.
• Sixth Schedule–administration of tribal areas.

By Special Majority of Parliament

• To modify most parts of the Constitution, a special majority in the Parliament is required.
• This special majority refers to a majority of the total members of each House and a majority of two-thirds of the members of each House who are present and voting.
• The term ‘total membership’ means the total count of members in the House, regardless of any vacancies or absent members.

Special Majority’s Specific Use

• The special majority is typically required only for the final voting stage of the bill.
• However, to ensure thoroughness, the rules of the Houses mandate the special majority requirement at all crucial stages of the bill’s progress.

Scope of Special Majority Amendments

The parts of the Constitution that can be amended in this manner include:

• Fundamental Rights;
• Directive Principles of State Policy; and
• All other aspects not encompassed by the first and third types of amendments

By Special Majority of Parliament and Consent of States

• Certain aspects of the Constitution tied to the country’s federal configuration can be altered by a particular majority in the Parliament.
• This process also requires approval from a simple majority of half the state legislatures.
• The amendment is not affected if some or all of the remaining states do not act on the bill.
• Once half of the states give their approval, the requirement is fulfilled. There’s no specified period within which the states need to approve the bill.

The subsequent elements of the Constitution can be revised in this manner:

• Election of the President and its manner.
• Extent of the executive power of the Union and the states.
• Supreme Court and high courts.
• Distribution of legislative powers between the Union and the states.
• Goods and Services Tax Council.
• Any of the lists in the Seventh Schedule.
• Representation of states in Parliament.
• Power of Parliament to amend the Constitution and its procedure (Article 368 itself)

Criticism of the Amendment Process

• Absence of a Dedicated Amendment Body: A significant point of contention is the absence of a dedicated body, similar to the Constitutional Convention in the USA or a Constitutional Assembly, that would be in charge of constitutional amendments.
• Exclusive Authority of Parliament: The authority to propose a change to the Constitution is entrusted to the Parliament. As a result, unlike the situation in the USA, state legislatures do not have the power to propose a bill or a proposal to alter the Constitution, except in one circumstance – when passing a resolution to request the Parliament to establish or disband legislative councils in the states. Even in this case, the Parliament has the discretion to either accept or reject such a resolution, or take no action.
• Parliament’s Power in Amendments: The majority of the Constitution can be changed by the Parliament alone, either by a special majority or a simple majority. Consent of state legislatures is only needed in a few instances, and then only from half of them. This contrasts with the USA, where three-fourths of the states need to agree.
• Lack of Specified Time Limit: The Constitution does not specify a time limit for state legislatures to approve or reject a proposed amendment. It also does not address the question of whether states can retract their approval once given.
• Absence of Joint Session Procedure: There’s no procedure for conducting a joint session of both Houses of Parliament in the event of a stalemate over a constitutional amendment bill. This differs from the procedure for an ordinary bill, where a joint session can be arranged.
• Amendment Process Similar to Legislation: The procedure for amending the Constitution is analogous to the legislative process. Except for the need for a special majority, constitutional amendment bills are passed by the Parliament in the same manner as ordinary bills.
• Room for Judicial Involvement: The sections pertaining to the amendment process are quite brief, leaving considerable room for judicial interpretation and involvement.

Conclusion

Despite certain limitations, the constitutional amendment process in India is appreciated for its simplicity and adaptability. It intelligently balances the need for stability and the capacity to adapt to changing circumstances. Eminent figures, including Nehru and Ambedkar, have stressed the importance of this balance. As a result, the Indian constitution, while exhibiting various amendment procedures, stands as a well-structured and thoughtfully conceived document.

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FAQs(Frequently Asked Question)