Amendment: Like any other written Constitution in the world, the Constitution of India also provides for its amendment in order to adjust itself according to the changing conditions and needs.
Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure. It states that the Parliament may amend the Constitution by way of addition, variation, or repeal of any provision in accordance with the procedure laid down for the purpose.
Amendment procedure laid down for its amendment is neither as easy as in Britain (No written constitution – Convention based) nor as difficult as in the USA.
Indian Constitution is neither flexible nor rigid but a synthesis of both.
368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.
The procedure for amendment of the constitution is borrowed from the constitution of South Africa.
Only PARLIAMENT is endowed with the power to amend constitution.
Parliament cannot amend those provisions which form the BASIC STRUCTURE OF the CONSTITUTION as ruled by the SC in the Kesavananda Bharati case (1973).
No provision for joint sitting (Art. 108) in case of disagreement over a constitutional amendment bill between two houses.
No prior permission from the president is required for the introduction of a constitutional amendment bill.
However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case (1973).
An amendment to the Constitution can be initiated only by the introduction of a bill for the purpose in either the House of Parliament and not in the state legislatures.
The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
Procedure for Amendment of Constitution
Article 368 provides for two types of amendments, that is,
- by a special majority of Parliament and the
- The special majority of parliament along with the ratification of half of the state legislatures by a simple majority.
Amendment of certain provisions of the constitution requires amendment by a simple majority of each house present and voting. These amendments are not deemed to be amendments under Article 368.
A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament outside the scope of Article 368.
These provisions include
- formation of new states and alteration of areas, boundaries or names of existing states,
- abolition or creation of legislative councils in states,
- use of official language,
- citizenship – acquisition, and termination,
- elections to Parliament and state legislatures,
- fifth Schedule – administration of scheduled areas and scheduled tribes,
- sixth Schedule – administration of tribal areas.
Under Article 368(2), Parliament can amend the Constitution by passing a Bill with a special majority.
Fundamental Rights and Directive Principles are the two most important provisions that can be amended by the special majority.
All provisions that do not require ratification by states, and those that come directly under the purview of Article 368, can be amended by the special majority.
a majority of 2/3rd members present and voting supported by more than 50% of the total strength of the house.
Special Majority with the consent of half of the States
Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority.
Provisions related to the federal structure enshrined in the Constitution can be amended only by a special majority and with the consent of the states.
Other important provisions that require ratification by the states include the election of the President; the Supreme Court and High Courts; the representation of states in Parliament; distribution of legislative powers between the Union and the states; and the extent of executive power of the Union and the states.
Most importantly, an amendment to Article 368 itself, requires ratification by the states.
It refers to a majority of more than 50% of the total membership of the house. For example, as the total membership of Lok Sabha is 545, an absolute majority in Lok Sabha means – 50% of 545 plus 1, i.e., 273.
The effective Majority of the house means more than 50% of the effective strength of the house. This implies that out of the total strength, we deduct the vacant seats. When the Indian Constitution mentions “all the then members”, that refers to the effective majority.
For example, in Rajya Sabha, out of the total strength of 245 members if there are 45 vacancies, then the effective strength of the house is 200. Then the effective majority is 50% of 200 plus 1, ie 101.
Cases where the effective majority is used:
- Removal of Vice-president in RS – Article 67(b).
- Removal of Speaker and Deputy Speaker of Lok Sabha and State Legislative Assembly.
This refers to the majority of more than 50% of the members present and voting. This is also known as the functional majority or working majority.
The simple majority is the most frequently used form of majority in Parliamentary business. When the constitution or the laws do not specify the type of majority needed, the simple majority is considered for voting.
To understand the simple majority, let us consider a situation in Lok Sabha. On a particular day, out of the total strength of 545, 45 were absent and 100 abstained from voting on an issue. So only 400 members were present and voting. Then the simple majority is 50% of 400 plus 1, ie. 201.
Ordinary bills need to be passed with a simple majority in both Houses of Parliament before it is sent to Indian President for his assent.
Criticism of the Amendment Procedure
Critics have criticized the amendment procedure of the Constitution on the following grounds:
There is no provision for a special body like Constitutional Convention (as in the USA) or Constitutional Assembly for amending the Constitution.
The power to initiate an amendment to the Constitution lies with the Parliament. The state legislatures cannot initiate any bill or proposal for amending the Constitution except in one case, that is, passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states.
The major part of the Constitution can be amended by the Parliament alone either by a special majority or by a simple majority. Only in a few cases, the consent of the state legislatures is required, and that too, only half of them.
The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them. It is also silent on the issue, of whether the states can withdraw their approval after according to the same.
There is no provision for holding a joint sitting of both Houses of Parliament if there is a deadlock over the passage of a constitutional amendment bill.
The process of amendment is similar to that of a legislative process. Except for the special majority, the constitutional amendment bills are to be passed by the Parliament in the same way as ordinary bills.
Is the Theory of Basic Structure a Limitation on Amending Power?
What is the Basic Structure of the Constitution?
The concept of ‘basic structure’ came into existence in the landmark judgment in the Kesavananda Bharati vs State of Kerala case (1973) 47 years ago.
Since the adoption of the Indian Constitution, debates have started regarding the power of the Parliament to amend key provisions of the Constitution.
In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in the Shankari Prasad case (1951) and Sajjan Singh case (1965).
The Constitutional Bench in the Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.
However, the court did not define the term ‘basic structure’, and only lasted a few principles — federalism, secularism, democracy — as being its part.
The ‘basic structure doctrine has since been interpreted to include
- the supremacy of the Constitution,
- the rule of law,
- Independence of the judiciary,
- The doctrine of separation of powers,
- a sovereign democratic republic,
- the parliamentary system of government,
- the principle of free and fair elections,
- the welfare state, etc.
An example of the application of basic structure is the SR Bommai case (1994).
In this case, the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.
Arguments related to Basic structure
Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
Origin: The basic structure theory was first introduced by Justice Mudholkar in the Sajjan Singh case (1965) by referring to a 1963 decision of the Supreme Court of Pakistan.
Chief Justice Cornelius of Pakistan had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.
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