Constitutional Amendments – Procedure and Types

Constitutional Amendments: Procedure and Types

“If you make anything rigid and permanent you stop the nation’s growth …. In any event, we could not make this Constitution so rigid that it cannot be adopted to changing conditions. When the world is in a period of transition; what we may do today may not be wholly applicable tomorrow.”

-Pt. Jawaharlal Nehru

Introduction

The Constitution of India is the longest written Constitution in the world which is thirty times longer than that of America and is still growing. The Constitution  of India is called “a living document” because of its ever-evolving and erratic nature which makes it adjust itself according to the ever changing needs of society. Our Constitution is a perfect combination of flexibility and rigidity. On one hand it shows dynamism and on the other stillness. Article 368 provides for the amendments of the Constitution and procedure for the same. Some provisions of the Constitution can be amended easily while some need a special procedure. 

Meaning of Constitutional Amendments

Amendments basically mean to alter or change something. The term Constitutional Amendment means to modify or add or remove any provision to the Constitution which should be ratified by the legislature.

Why do we need to amend the Constitution?

The framers of our Constitution were anxious to make a Constitution which is suitable for the new born democracy of India.The onus was on the Constituent Assembly to make a Constitution that stands out of all the other Constitutions and fulfils the dynamic aspirations of Indian masses. On one hand they stressed on avoiding rigidness and on the other they were refraining from excessive flexibility as it can cause damage to our Constitutional values. Main objective was to create a masterpiece that could adjust itself according to the changing times and situations. The Constitution had to be the guiding light for the generations to come so it was formulated in such a way that neither it is so rigid that it could not admit necessary amendments, nor it is so flexible that it accepts undesirable changes. We need to amend the Constitution to adjust our democracy according to the changes in the society. Amendments ensure that changes are added into our supreme law of land to ensure unobstructed governance. Our Constitution has been amended 104 times till now.

In Kesavananda Bharati v. State of Kerala(i) the Supreme Court quoted that- “the purpose for providing for the amendment of the Constitution is to make it possible gradually to change the Constitution in an orderly fashion as the social conditions make it necessary to change the fundamental law to correspond with such social changes.”

Procedure for Amendments 

Article 368 of Indian Constitution provides for the amendment of the Constitution. Our Constitution being a blend of rigidity and flexibility has the procedure of amendment also of the nature of flexible and rigid. The procedure for amendment is as follows- 

  • Step 1: A Bill to amend the Constitution is presented in either house of the Parliament viz Lok Sabha or Rajya Sabha. The Bill can be presented by any minister or a private member. Also, it does not require prior assent of the President.
  • Step 2: The Bill has to be passed by both houses of the Parliament by majority of sitting members as required according to the Amendment Bill i.e simple majority or special maj ority or special majority along with assent of half of the states. Each house has to pass the bill separately and there is no provision for joint sitting.  
  • Step 3: Bill is then sent to the president who shall give the assent. The President can neither withhold his assent nor he can send it back for reconsideration. 
  • Step 4: After getting the assent of The President the Bill turns into an Amendment Act and then Amendment in enforced.

Kinds of Amendments

Constitutional Amendments can be divided into the following categories-

  1. Amendment by Simple Majority
  2. Amendment by Special Majority
  3. Amendment by Special Majority and Ratification by States

1. Amendment by Simple Majority

Some provisions of the Constitution are out of the purview of Article 368. These provisions can be amended by a Simple Majority that is fifty plus one (50+1) percent of votes of the sitting members just like any other ordinary law. The provisions which 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 the legislative councils in the states.
  • Second Schedule- Emoluments,
  • Allowances, privileges and etc of the President, the Governor(s), the Speakers, Judges, etc.
  • Quorum in the Parliament.
  • Salaries and allowances of the members of the Parliament.
  • Rules of procedure in the Parliament.
  • Privileges of the Parliament, its members and its committees.
  • Use of the official language.
  • Number of puisne judges in the Supreme Court.
  • Conferment of more jurisdiction on the Supreme Court.
  • Citizenship-acquisition and termination.
  • Elections to the Parliament and state legislatures.
  • Delimitation of constituencies.
  • Union territories
  • Fifth Schedule- Administration of scheduled areas and scheduled tribes.
  • Sixth Schedule- Administration of tribal areas.

2. Amendment by Special Majority

Majority of the provisions of the Constitution are to be amended by special majority as under Article 368.

Special majority means the majority of the total membership of that house and majority of not less than two-third (2/3) members present and voting. Some of these provisions are- Fundamental Rights, Directive Principle of State Policy, etc.

3. Amendment by Special Majority and Ratification by States 

The provisions of the Constitution that are related with the ‘federal structure’ of the Constitution can only be amended by a special majority of the Parliament along with ratification/ consent of (not less than) half of the state legislatures passed by a simple majority. The provisions that need this kind of majority are-

  • Election of The president- Article 54
  • Manner of election of the President- Article 55
  • Extent of the executive power of the Union- Article73
  • Extent of executive power of the State- Article 162
  • High Courts of Union Territories- Article 241
  • Chapter IV of V (Union Judiciary)
  • Chapter V of Part IV (High Courts in States)
  • Chapter I of Part XI (Legislative relations)
  • Any of the list in the Seventh Schedule
  • The representation of the States in the Parliament
  • Provisions regarding amendments- Article 368

Can Fundamental Rights be amended?

The question whether fundamental rights can be amended under Article 368 or not came for the consideration of the Supreme Court for the first time in Shankari Prasad case(ii) and was finally answered in Kesavananda Bharati case(iii). 

Shankari Prasad v. Union of India(iv): The Supreme Court held that an amendment is not law under Article 13(2).

Sajjan Singh v. State of Rajasthan(v): The Supreme Court upheld the judgement in Shankari Prasad case.

Golaknath V. State of Punjab(vi): The Supreme Court overruled its decision in Shankari Prasad case and Sajjan Singh case and held that Parliament had no power to amend part 3 of the Constitution so as to abridge any of the Fundamental Rights guaranteed by the Constitution. Also it was added that Article 368 only lays down the procedure for the purpose of amendment; an amendment is a law under Article 13(2) of the Constitution of India and if it violates any of the fundamental rights, it may be declared void.

24th Amendment Act(vii): It restored the power of the Parliament to amend any part of the Constitution including Fundamental Rights. 

Kesavananda Bharati v. State of Kerala(viii): The Supreme Court upheld the decision delivered in Golak Nath case and ruled that the entire Constitution can be amended subject to the condition that it should not violate the basic structure of the Constitution. 

Conclusion 

Our Constitution is the soul of our country and it has to keep changing itself according to the continuous social, economic or political changes. Today the world is going through changes daily. The Constitution which was made in 1950 has to match its standards according to the changes in the nation. The makers of the Constitution had a futuristic approach and it is the duty of our citizens and mainly the legislature to keep that spirit alive. 

(i). 1973 AIR  SC 1461

(ii). 1951 AIR 458

(iii). 1973  4 SCC 225

(iv). AIR 1951 SC 458

(v). AIR 1965 SC 845

(vi). AIR 1971 SC 1643

(vii). 1971

(viii). 1973  4 SCC 225

Author: Poorva G Chaturvedi,
Modi Law College, Kota

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