Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.
‘This variety in the amending process is wise but rarely found’- KC Wheare
‘The amending process has proved itself one of the most ably conceived aspects of the constitution. Although it appears complicated, it is merely diverse’- Granville Austin
- It was borrowed from the South African constitution
- Article 368 in Part XX of the constitution: Powers of Parliament to amend the constitution.
- Keshavananda Bharati judgment: Parliament cannot amend those parts which are part of the ‘Basic Structure’ of the constitution.
Article 368: “Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution”. Article 368 of Part XX of Constitution of India provides for two types of amendments.
- By a special majority of Parliament
- By a special majority of the Parliament with the ratification by half of the total states.
Types of Amendments:
|Simple Majority||This refers to the majority of more than 50% of the members present and voting.|
|Special Majority||A bill is said to be passed, if it is supported by a majority of 2/3rd members present and voting supported by over 50% of the total strength of the House.|
|Special Majority of Parliament and Consent of States||
In Indian constitution, the provisions related to special majority can be categorized into the following:
- Article 249: 2/3rdmembers present and voting. This is required in the case of empowering Parliament to make laws on those issues included in state list
- Article 368: It refers to a majority of 2/3rd members present and voting supported by over 50% of the total strength of the House.
- Article 368+ fifty percent: As above plus that bill should be passed by a simple majority by half of the state legislatures in India
- Article 361: 2/3rdof the total membership of the house
Absolute majority: A bill is said to be passed, if more than 50% of the total strength of the house pass it
Effective Majority: This refers to a majority of more than 50% of the effective strength of the House.
Procedure for amendment of constitution:
- Amendment can be initiated only by the introduction of a bill for the purpose in either house of the Parliament
- The bill can be introduced either by a minister or by a private member and does not require the permission of the President
- The bill must be passed in each house by a special majority, that is, a majority of the total membership of the house and a majority of two-thirds of the members of the house present and voting
- Each house must pass the bill separately. If there is any disagreement, there is no provision for joint sitting of the houses
- If the bill seeks to amend the provisions of the constitution, it must be ratified by the legislatures of half of the states by a simple majority
- After passage of the bill by both the houses, it is presented to the President for his assent
- The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament
- After the President’s assent, the bill becomes an act
Criticism of the amending procedure
- An amendment can be invoked in the Parliament only
- The procedure is very rigid if a private member of the parliament wants to move a constitutional amendment bill
- Vesting of even the constituent power in the Parliament gives the ruling party a greater probability to pass amendments if they have requisite numbers in both the Parliament. This might result in bills being passed in a hasty manner
- The consent of the states is limited to just a few provisions
- No time frame has been prescribed in the constitution for states to ratify or reject the amendment bill.
Various Provisions and Types of Majority Required
|By simple majority of the Parliament
|By special majority of Parliament
By special majority of Parliament and consent of states
Recent Important Constitutional Amendments:
|The Constitution (100th Amendment) Act, 2015||Land Boundary Agreement (LBA) between India and Bangladesh.|
|The Constitution (101th Amendment) Act,2017||Introduced the Goods and Services Tax|
|The Constitution (102th Amendment) Act,2018||Constitutional status to National Commission for Backward Classes|
|The Constitution (103th Amendment) Act,2019||10% Reservation for Economically Weaker Sections (EWSs)|
|The Constitution (104th Amendment) Act,2020||It extended the reservation of seats for SCs and STs in the Lok Sabha and states assemblies.|
What we must realize is that the constitution is the backbone of this democracy. While it was revolutionary of the fathers of our constitution to provide provisions to amend the constitution, it is essential that such provisions are not misused. Misuse could result in excessive power of the legislative or the executive which could tear the fabric of our democracy.
Examine the limitations in amending any part of the Indian constitution. (250 words)