Amendment of the Constitution

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Amendment of the Constitution

Amendment of the Constitution

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Need for Amendment

Like other written constitutions, the Indian Constitution provides for its own amendment to adapt to evolving social, political, and economic conditions.
The amendment process reflects a balance between flexibility and rigidity—it is not as easy as in the British Constitution (which is unwritten and highly flexible), nor as difficult as in the US Constitution (which is very rigid).

Constitutional Provision

- Article 368, located in Part XX of the Constitution, provides the procedure and power of the Parliament to amend the Constitution.
- Parliament may amend the Constitution through:
  - Addition
  - Variation
  - Repeal of any provision
Limitations Imposed by Judiciary
- In the landmark Kesavananda Bharati case (1973), the Supreme Court ruled that Parliament cannot amend or alter the ‘basic structure’ of the Constitution.
- This judicially imposed limitation ensures that while Parliament enjoys wide powers to amend, it cannot destroy the core ideals and principles of the Constitution.

Procedure for Amendment of the Constitution

The amendment process under Article 368 is designed to ensure both parliamentary scrutiny and federal consent (where necessary). It consists of the following steps:
Introduction of the Bill
- An amendment can be initiated only in either House of Parliament, not in the state legislatures.
- The bill can be introduced by a minister or a private member.
- No prior permission of the President is required for introduction.
Passage by Special Majority
- The bill must be passed in each House by a special majority:
  - A majority of the total membership of the House, and
  - A two-thirds majority of members present and voting.
The bill must be passed separately by each House.
No provision exists for a joint sitting in case of disagreement between the Houses.
Ratification by States (If Required)
- If the amendment involves federal provisions (e.g., the distribution of powers between the Centre and states), it must be ratified by at least half of the state legislatures.
- This ratification requires only a simple majority in each of those state legislatures.
Assent by the President
- After passage in both Houses (and ratification by states, if necessary), the bill is presented to the President.
- The President is bound to give assent; he cannot withhold or return the bill.
Final Step: Becomes Law
- Once the President gives assent, the bill becomes a Constitutional Amendment Act, and the Constitution stands amended accordingly.

Types of Amendments to the Indian Constitution

Amendments under Article 368
Article 368 provides the formal procedure for amending the Constitution.
- Two types of amendments are specified under this Article:
  - By Special Majority of Parliament: Requires a majority of the total membership of each House and a two-thirds majority of members present and voting.
  - By Special Majority and State Ratification: In addition to the special majority in Parliament, requires ratification by at least half of the state legislatures.
Amendments by Simple Majority (Outside Article 368)
Certain provisions of the Constitution can be amended by a simple majority of the members present and voting in both Houses of Parliament.
These amendments follow the ordinary legislative process.
Such changes are not treated as constitutional amendments under Article 368.
Examples include:
- Changes in the names, boundaries, or areas of states (Article 3).
- Provisions relating to the salaries and allowances of the President, Governors, and judges.
- Matters specified in the Fifth and Sixth Schedules.

Hence, the Constitution can be amended in three ways:

Amendment by simple majority of the Parliament,
Amendment by special majority of the Parliament, and
Amendment by special majority of the Parliament and the ratification of half of the state legislature

Amendment by Simple Majority of Parliament

These amendments are outside the scope of Article 368 and follow the ordinary legislative process.
Applicable to the following provisions:
- Admission or establishment of new states
- Formation or reorganisation of states (areas, boundaries, names)
- Abolition or creation of legislative councils in states
- Second Schedule (emoluments, privileges etc of President, Governors, Speakers, Judges, etc.)
- Quorum in Parliament
- Salaries and allowances of Members of Parliament
- Rules of procedure in Parliament
- Parliamentary privileges
- Use of English in Parliament
- Number of puisne judges in the Supreme Court
- Conferment of additional jurisdiction on the Supreme Court
- Official language provisions
- Citizenship (acquisition and termination)
- Elections to Parliament and state legislatures
- Delimitation of constituencies
- Provisions related to Union Territories
- Fifth Schedule (administration of Scheduled Areas and Tribes)
- Sixth Schedule (administration of tribal areas)

Amendment by Special Majority of Parliament

The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament.
These amendments are within the scope of Article 368 and require:
- Majority of the total membership of each House, and
- Two-thirds majority of the members present and voting.
Applicable to:
- Fundamental Rights (Part III)
- Directive Principles of State Policy (Part IV)
- All other provisions not covered under simple majority or requiring state ratification
Note: This special majority is required at all stages of the bill — as per parliamentary rules.

Amendment by Special Majority of Parliament + Consent of Half the States

This category applies to provisions that affect the federal structure.
After passing by special majority in Parliament, such amendments require ratification by a simple majority in at least half of the state legislatures.
Applicable to the following provisions:
- Election and manner of election of the President
- Extent of the executive powers of the Union and states
- Supreme Court and High Courts
- Distribution of legislative powers between the Union and the States
- Any of the lists in the Seventh Schedule.
- Goods and Services Tax Council
- Representation of states in Parliament
- Power of Parliament to amend the Constitution and its procedure Article 368 itself (amendment procedure)

The ability to amend the Constitution is a critical feature that ensures its relevance in a changing society. The Indian Constitution provides a well-balanced amendment process—neither too rigid nor too flexible—that enables adaptability without compromising its foundational principles. Through Article 368, the Constitution empowers Parliament to enact necessary changes, while judicial safeguards like the basic structure doctrine protect the core ideals of justice, liberty, equality, and fraternity. This careful design upholds democratic values while allowing legal evolution in response to India’s dynamic socio-political landscape.

FAQs

Q1. What is Article 368 of the Indian Constitution?

Article 368 outlines the procedure for amending the Constitution. It empowers Parliament to make changes through addition, variation, or repeal of provisions.

Q2. What are the different types of amendments in the Indian Constitution?

The Constitution can be amended by:

A simple majority of Parliament (outside Article 368)
A special majority of Parliament
A special majority plus ratification by half of the state legislatures

Q3. What is the basic structure doctrine?

In the Kesavananda Bharati case (1973), the Supreme Court ruled that while Parliament has the power to amend the Constitution, it cannot alter its basic structure or essential features.

Q4. Which amendments require ratification by the states?

Amendments that affect the federal structure—such as changes to the distribution of powers, representation of states, or election of the President—must be ratified by at least half of the state legislatures.

Q5. Can the Preamble be amended?

Yes, the Preamble can be amended, as done by the 42nd Amendment (1976). However, such amendments must not violate the basic structure of the Constitution.

Q6. Can the Constitution be amended through a joint session of Parliament?

No. There is no provision for a joint sitting of both Houses in case of disagreement on a constitutional amendment bill.

Q7. Does the President have the power to withhold assent to a constitutional amendment?

No. Under Article 368, the President is bound to give assent to a constitutional amendment bill once it has been duly passed.

Q8. What is the difference between an ordinary bill and a constitutional amendment bill?

An ordinary bill requires only a simple majority and can be introduced in either House or by the government. A constitutional amendment bill requires a special majority and cannot be introduced in state legislatures or passed via joint sitting.

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