Constitutional Amendment Procedure: UPSC SSC Explained

Power and Procedure

The power to amend the Constitution of India is vested in the Parliament. Article 368 in Part XX of the Constitution deals with the power of Parliament to amend the Constitution and its procedure. This article ensures that the Constitution can be changed to meet new challenges, but not so easily as to undermine its basic structure. The procedure for amendment is not as rigid as in the USA, nor as flexible as in the UK. It is a blend of both, reflecting India's unique federal structure with a unitary bias.

A bill for the amendment of the Constitution can be introduced in either House of Parliament. It cannot be introduced in state legislatures. A minister or a private member can introduce the bill. However, no prior recommendation of the President is required for introducing such a bill. This is a key difference from ordinary bills, where presidential recommendation might be needed for certain types of bills, such as money bills.

Types of Amendments

The Constitution provides for three ways to amend its provisions. The first type involves amendment by a simple majority of Parliament. These provisions are outside the scope of Article 368. Examples include the admission or establishment of new states, formation of new states and alteration of areas, boundaries or names of existing states, and abolition or creation of legislative councils in states. These changes are considered minor and do not fundamentally alter the constitutional framework.

The second type of amendment requires a special majority of Parliament. This means a majority of the total membership of each House and a majority of not less than two-thirds of the members of that House present and voting. Most provisions of the Constitution are amended by this method. This includes fundamental rights and directive principles of state policy. The third type of amendment requires a special majority of Parliament and the ratification by half of the state legislatures by a simple majority. This method is used for provisions related to the federal structure of the Constitution.

Special Majority Provisions

For amendments requiring a special majority, each House must pass the bill separately. There is no provision for a joint sitting of both Houses of Parliament to resolve a deadlock over an amendment bill. This emphasizes the importance of consensus between the Lok Sabha and Rajya Sabha on constitutional changes. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of not less than one-half of the states by a simple majority. This ensures that states have a say in changes affecting their powers and the federal balance.

After the bill is passed by both Houses of Parliament and, where necessary, ratified by the state legislatures, it is presented to the President for assent. The President must give his assent to the bill. He can neither withhold his assent nor return the bill for reconsideration of the Parliament. This provision was added by the 24th Constitutional Amendment Act of 1971. This makes the President's role in constitutional amendments largely ceremonial, ensuring that the will of Parliament (and states, where applicable) prevails.

Basic Structure Doctrine

A significant development in the interpretation of the amendment procedure is the 'Basic Structure Doctrine'. This doctrine was propounded by the Supreme Court in the landmark Kesavananda Bharati case in 1973. The Court ruled that the Parliament's power to amend the Constitution under Article 368 is not absolute. Parliament cannot amend those provisions which form the 'basic structure' of the Constitution. While the Supreme Court has not explicitly defined what constitutes the 'basic structure', it has identified several elements over time.

These elements include the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, separation of powers, the federal character of the Constitution, judicial review, and the freedom and dignity of the individual. This doctrine acts as a check on the amending power of Parliament, preventing it from altering the fundamental identity of the Constitution. It ensures that the core values and principles upon which the Indian Constitution is built remain intact, even as other provisions are amended.

Important Keywords Explained

Article 368concept

This article in Part XX of the Indian Constitution grants Parliament the power to amend the Constitution and outlines the procedure for doing so. It specifies the special majorities required for different types of amendments, ensuring a balance between flexibility and rigidity.

Basic Structure Doctrineconcept

A judicial innovation by the Supreme Court of India, first articulated in the Kesavananda Bharati case (1973). It holds that Parliament cannot amend the fundamental features or 'basic structure' of the Constitution, even under Article 368, thereby limiting its amending power.

Kesavananda Bharati Casecase

A landmark Supreme Court judgment of 1973 that established the Basic Structure Doctrine. This case involved a challenge to the 24th, 25th, and 29th Constitutional Amendments, and its ruling fundamentally reshaped the understanding of parliamentary sovereignty in India.

Special Majorityconcept

In the context of constitutional amendments, it refers to a majority of the total membership of each House of Parliament and a majority of not less than two-thirds of the members of that House present and voting. This is required for most constitutional amendments.

Additional Facts & Context

• The 42nd Amendment Act, 1976, also known as the 'Mini Constitution', made extensive changes.
• The 24th Amendment Act, 1971, made it obligatory for the President to give assent to a constitutional amendment bill.
• The 101st Amendment Act, 2016, introduced the Goods and Services Tax (GST).
• The 103rd Amendment Act, 2019, provided 10% reservation for Economically Weaker Sections (EWS).
• The 104th Amendment Act, 2019, extended the reservation of seats for SCs and STs in the Lok Sabha and state assemblies for another 10 years.