Amendment of the Constitution

Introduction

👉 Every written Constitution must have a system of amendment, because society is dynamic. With changing times, new needs, new challenges, and new aspirations arise. If the Constitution cannot adapt, it becomes outdated.

The Indian Constitution too provides a method of amendment. But here lies a peculiarity:

• The Indian Constitution is not as flexible as the British Constitution (which can be changed by a simple majority of Parliament).
• Nor is it as rigid as the American Constitution (where amendments require a very complex process involving both Congress and states).

✅ Instead, it is a balanced synthesis — partly rigid, partly flexible.

Article 368 – The Core of Amendments

• Article 368, located in Part XX of the Constitution, gives the Parliament the power to amend the Constitution.
• The power is called “constituent power”, meaning this is different from ordinary law-making power.
• Parliament can add, vary, or repeal any provision of the Constitution following the prescribed procedure.

⚠️ But, there is one limitation:
Parliament cannot touch the “Basic Structure” of the Constitution.

• This principle was laid down by the Supreme Court in the famous Kesavananda Bharati case (1973).
• Meaning: Parliament can amend, but it cannot destroy the fundamental essence (like democracy, secularism, judicial review, etc.).

Procedure of Amendment (As per Article 368)

Now let’s understand the step-by-step process of how a constitutional amendment happens:

1. Initiation of the Bill
   • An amendment can be introduced only in Parliament (Lok Sabha or Rajya Sabha).
   • It cannot be introduced in a state legislature.
2. Who can Introduce?
   • Both a minister and a private member (any MP) can introduce the bill.
   • No prior permission of the President is required.
3. Special Majority Requirement
   • The bill must be passed in each House separately with a special majority:
     • Majority of the total membership of the House (i.e., >50% of total strength).
     • Plus, two-thirds of members present and voting.
4. No Joint Sitting
   • If there is disagreement between Lok Sabha and Rajya Sabha, there is no provision for joint sitting (unlike ordinary laws under Article 108).
5. When States are Involved
   • If the amendment relates to federal provisions (like distribution of powers, representation of states in Parliament, etc.), it also needs ratification by half of the state legislatures.
   • Ratification is done by simple majority in those state legislatures.
6. President’s Role
   • Once Parliament and states (where required) pass the bill, it goes to the President.
   • Here, the President has no veto power:
     • He cannot withhold assent.
     • He cannot return the bill for reconsideration.
   • He is bound to give assent.
7. Becomes Law
   • After the President’s assent, the bill becomes a Constitutional Amendment Act.
   • The Constitution then stands amended accordingly.

Quick Analogy

If you imagine the Constitution as a “living book,” then:

• Parliament is the editor who can make corrections or add new chapters.
• But the Supreme Court acts like the guardian of the book, saying:
  • “You can edit, but you cannot destroy the soul of the book.”

That is why the Indian Constitution is dynamic, yet its basic spirit is preserved.

👉 So, in summary:
The amendment process in India balances rigidity with flexibility. It ensures that Parliament can change the Constitution when required, but cannot alter its basic structure.

Types of Amendments in the Indian Constitution

👉 The framers of our Constitution created a three-tier system of amendment. Why? Because not every provision of the Constitution has the same importance. Some are routine matters (like salaries), while others strike at the very foundation (like federal structure or Fundamental Rights).

So, the procedure of amendment varies according to the significance of the provision.

In simple terms, the Constitution can be amended in three ways:

1. By Simple Majority of Parliament
2. By Special Majority of Parliament
3. By Special Majority of Parliament + Consent of Half of the States

1. Amendment by Simple Majority of Parliament

• This is the easiest method, similar to passing an ordinary law.
• Here, only a simple majority of members present and voting in both Houses is required.
• Importantly, such changes are outside the scope of Article 368.

Examples of provisions amended this way:

1. Admission or establishment of new states.
2. Formation, boundaries, or renaming of states.
3. Creation or abolition of Legislative Councils in states.
4. Second Schedule matters (emoluments, allowances of President, Governors, Judges, etc.).
5. Quorum in Parliament.
6. Salaries and allowances of MPs.
7. Rules of procedure in Parliament.
8. Privileges of Parliament, its members, and committees.
9. Use of English in Parliament.
10. Number of puisne judges in Supreme Court.
11. Conferment of more jurisdiction on the Supreme Court.
12. Use of official language.
13. Citizenship (acquisition, termination).
14. Elections to Parliament and State Legislatures.
15. Delimitation of constituencies.
16. Union Territories.
17. Fifth Schedule (Scheduled Areas & Tribes).
18. Sixth Schedule (Tribal Areas).

👉 Clearly, most of these are administrative or structural provisions, not fundamental in nature.

Example:

• Creation of new states under Article 3.
  • Andhra Pradesh Reorganisation Act, 2014 (created Telangana).
  • This was done by a simple majority in Parliament.
• Another example: Abolition of Legislative Council in Punjab (1969).

2. Amendment by Special Majority of Parliament

• This is the standard method used for most provisions.
• Requires a special majority:
  • Majority of total membership of each House (not just those present).
  • Two-thirds of members present and voting.

🔑 Note: “Total membership” means the full sanctioned strength of the House, irrespective of vacancies.

• Technically, this special majority is required at the third reading stage of the bill. But, as a precaution, the rules of procedure of both Houses demand it at all effective stages.

Provisions amended this way include:

• Fundamental Rights (Part III).
• Directive Principles of State Policy (Part IV).
• Any other provision not covered under the “simple majority” or “federal” category.

👉 In short: This is the real core amendment process.

Example:

• 42nd Constitutional Amendment Act, 1976
  • Added the words “Socialist, Secular, Integrity” to the Preamble.
  • Also made major changes to Directive Principles of State Policy (like adding Article 39A on free legal aid).
  • This required special majority in both Houses, but no state ratification.

3. Amendment by Special Majority + Consent of Half the States

• Some provisions affect the federal character of India.
• For these, the Constitution requires double consent:
  • Special majority in Parliament
  • Ratification by at least half of the State Legislatures, by a simple majority.

⚠️ Points to note:

• If half of the states approve, the amendment goes through — no matter if the remaining states reject or do nothing.
• There is no time limit within which states must give consent.

Provisions needing this method include:

1. Election and manner of the President.
2. Extent of executive power of Union and States.
3. Supreme Court and High Courts.
4. Distribution of legislative powers (Union–State).
5. Goods and Services Tax (GST) Council.
6. Any list in the Seventh Schedule.
7. Representation of states in Parliament.
8. Article 368 itself (amendment procedure).

👉 These provisions ensure that states also have a voice in any change to India’s federal setup.

Example:

• 101st Constitutional Amendment Act, 2016
  • Introduced Goods and Services Tax (GST) and created the GST Council.
  • Since it altered the distribution of legislative powers (Union List, State List, Concurrent List), it required:
    • Special majority in both Houses of Parliament.
    • Ratification by more than half of the states.
• Another example:7th Amendment Act, 1956
  • Reorganized states on linguistic basis, changed representation of states in Parliament.

A Simple Analogy

Think of the Constitution as a house 🏠:

• Simple majority changes = rearranging furniture inside (small adjustments).
• Special majority changes = modifying rooms, walls, or interiors (major but manageable changes).
• Special majority + states’ consent = altering the foundation or structure of the house — which requires not just the owner (Union) but also the co-owners (States) to agree.

👉 In summary:

• The amendment system in India is flexible in minor matters,
• Rigid in federal matters,
• And balanced in most other cases.

Criticism of the Amendment Procedure

The amendment procedure in India, though carefully designed, has faced several criticisms. Critics often compare it with systems in the USA, Canada, or Australia, and point out shortcomings. Let’s try to understand this:

1. No Special Constitutional Body

• In the USA, amendments are made through a Constitutional Convention or a special body representing the people.
• In India, the Parliament itself acts as the amending authority.
• Critics argue this reduces the “specialness” of amendments, since MPs amend the Constitution in the same forum where they pass ordinary laws.

2. States Cannot Initiate Amendments

• In India, only Parliament can introduce amendment bills.
• State legislatures have no power to initiate constitutional amendments.
• The only exception: they can pass a resolution requesting creation or abolition of a Legislative Council in the state. But even then, Parliament may accept, reject, or ignore the resolution.
  👉 Contrast with USA: State legislatures can initiate amendments.

3. Parliament’s Dominant Role

• A large part of the Constitution can be amended by Parliament alone, either by simple majority or special majority.
• Only in a few cases, consent of half of the state legislatures is needed.
• And even there, the threshold is just half of the states, unlike in USA where three-fourths of states must agree.

4. No Time Frame for States

• When amendments require state ratification, the Constitution is silent on deadlines.
• States may take years to respond, and there is also ambiguity: can a state withdraw its approval later?
• This lack of clarity has led to confusion and judicial interpretation.

5. No Joint Sitting Provision

• If Lok Sabha and Rajya Sabha disagree on an amendment bill, there is no provision for a joint sitting.
• For ordinary bills, Article 108 allows a joint sitting.
• Critics say this weakens the scope for consensus-building.

6. Too Similar to Ordinary Law-Making

• Except for the requirement of special majority, the process of amendment is almost identical to passing an ordinary law.
• Critics say constitutional amendments should have been treated as more solemn and distinct.

7. Sketchy Provisions → Judicial Intervention

• The provisions on amendment are brief and incomplete.
• This leaves wide scope for disputes, often pushing matters to the Supreme Court for interpretation.
• Example: The entire Basic Structure Doctrine emerged because the Constitution was silent on limits of Parliament’s amending power.

Balanced Assessment

Despite these criticisms, we must note:

• The amendment procedure is not too rigid (like USA), where amendments are extremely rare.
• Nor is it too flexible (like Britain), where Parliament can change the Constitution at will.
• Instead, India strikes a middle path.
• K.C. Wheare praised this balance: it is both flexible and rigid in the right measure.
• Jawaharlal Nehru said: “There is no permanence in a Constitution. If you make it rigid, you stop the nation’s growth.”
• Dr. B.R. Ambedkar added: the framers provided a facile but not reckless procedure, unlike Canada or USA.
• Granville Austin observed: though it appears complicated, it is really just diverse, and has worked well.

In Summary

• Yes, the procedure has flaws: over-dependence on Parliament, weak role for states, no joint sitting, sketchy drafting.
• But, in practice, it has worked remarkably well — allowing India to pass over 100 constitutional amendments while preserving stability.
• Thus, India’s amendment system is one of the most wisely crafted and functional features of our Constitution.