Constitutional Amendment Procedure: UPSC SSC Explained

Introduction to Amendments

The Constitution of India is a living document. It needs to change with the times to meet the needs of society. 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 is neither too rigid nor too flexible. It strikes a balance between the need for stability and the need for change. The procedure for amendment is not as easy as ordinary law-making. This makes sure that amendments are not made lightly or without proper consideration. The framers of the Constitution wanted to make sure that the basic structure of the Constitution remains intact.

Dr. B.R. Ambedkar, the chief architect of the Indian Constitution, stated that the Assembly had adopted a flexible procedure for amendment. He believed that the Constitution should be able to evolve. However, he also emphasized that certain fundamental aspects should be protected. The process involves different types of majorities in Parliament, depending on the nature of the amendment. This layered approach ensures that significant changes require broader consensus. The power to amend is vested solely in the Parliament, not in state legislatures, except for ratification in certain cases.

Types of Amendments

The Indian Constitution can be amended in three ways. First, by a simple majority of Parliament. These amendments are not considered amendments under Article 368. They include changes like the creation of new states, changes in the names of existing states, and the abolition or creation of legislative councils in states. These changes can be passed by a simple majority, meaning more than 50% of members present and voting.

Second, by a special majority of Parliament. This is the most common method of amendment under Article 368. A special majority means a majority of the total membership of each House and a majority of not less than two-thirds of the members of each House present and voting. Most provisions of the Constitution fall under this category. This includes changes to Fundamental Rights and Directive Principles of State Policy. Both Lok Sabha and Rajya Sabha must pass the amendment bill with this special majority.

Third, by a special majority of Parliament and ratification by half of the state legislatures. This method is used for provisions that affect the federal structure of the Constitution. Examples include the election of the President, the extent of the executive power of the Union and states, and the distribution of legislative powers between the Union and states. After being passed by a special majority in both Houses of Parliament, the bill must be ratified by resolutions passed by not less than one-half of the state legislatures. This ensures that states have a say in matters affecting their powers and structure. There is no time limit for the states to ratify the bill.

Procedure for Amendment

The procedure for amending the Constitution begins with the introduction of a bill in either House of Parliament. A private member can also introduce an amendment bill, but usually, it is introduced by a minister. The bill does not require prior permission from the President to be introduced. After introduction, the bill must be passed in each House by the required majority. For amendments requiring a special majority, it means a majority of the total membership of that House and a majority of not less than two-thirds of the members present and voting.

There is no provision for a joint sitting of both Houses of Parliament to resolve a deadlock over an amendment bill. This means that if one House rejects the bill, or if there is a disagreement, the bill fails. This is different from ordinary legislation, where a joint sitting can be called. Once passed by both Houses, and ratified by state legislatures if required, the bill is presented to the President for assent. The President must give assent to the bill; they cannot withhold or return the bill for reconsideration. This was established by the 24th Constitutional Amendment Act of 1971. After the President's assent, the bill becomes an Act, and the Constitution stands amended.

Limitations on Amending Power

While Parliament has the power to amend the Constitution, this power is not absolute. The Supreme Court of India has played a crucial role in defining the limits of this power. The landmark Kesavananda Bharati case of 1973 introduced the 'Basic Structure Doctrine.' This doctrine states that Parliament cannot amend those provisions of the Constitution which form its 'basic structure.' The Supreme Court held that the amending power under Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

What constitutes the 'basic structure' has not been exhaustively defined by the Supreme Court. However, over various judgments, certain elements have been identified as part of it. These include the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers between the legislature, executive, and judiciary, the federal character of the Constitution, the independence of the judiciary, and judicial review. This doctrine acts as a check on the Parliament's power, ensuring that the fundamental identity of the Constitution is preserved. The 42nd Amendment Act of 1976 tried to make the basic structure doctrine non-justiciable, but the Supreme Court struck down this provision in the Minerva Mills case (1980), reaffirming the doctrine.

Important Keywords Explained

Article 368concept

This article in Part XX of the Indian Constitution grants Parliament the power to amend the Constitution. It also lays down the procedure for such amendments. It ensures a balance between rigidity and flexibility in the constitutional framework, allowing for necessary changes while safeguarding fundamental principles.

Special Majorityconcept

For constitutional amendments under Article 368, a special majority is required. This means a majority of the total membership of each House of Parliament and a majority of not less than two-thirds of the members of each House present and voting. This higher threshold ensures broad consensus for significant constitutional changes.

Basic Structure Doctrineconcept

Propounded by the Supreme Court in the Kesavananda Bharati case (1973), this doctrine states that Parliament cannot amend the 'basic structure' or fundamental features of the Constitution. It acts as a limitation on Parliament's amending power, preserving the core identity and values of the Indian Constitution.

24th Amendment Act, 1971act

This significant amendment made it obligatory for the President to give assent to a Constitutional Amendment Bill. Before this, there was ambiguity regarding the President's power to withhold or return such bills. It clarified the President's role as a formal head in the amendment process.

Additional Facts & Context

• The First Constitutional Amendment Act was passed in 1951.
• There have been 106 Constitutional Amendment Acts till 2023.
• The 42nd Amendment Act, 1976, is known as the 'Mini Constitution' due to its extensive changes.
• The 73rd and 74th Amendment Acts (1992) introduced Panchayati Raj and Urban Local Bodies respectively.
• The 101st Amendment Act (2016) introduced the Goods and Services Tax (GST).