Amending the Constitution

Constitutional Provisions of amending the Constitution

Article 368

• The Procedure for Amendment of the Constitution is primarily provided under Article 368.
• It lays down the procedure through which specified provisions of the Constitution may be Amended by Parliament.

Types of Constitutional Amendments

Amendment by Simple Majority

Certain provisions of the Constitution are Not Regarded as Constitutional Amendments under Article 368 and may be altered by Simple Majority in Parliament.

Amendment under Article 368

• Most constitutional provisions can be amended only by following the Special Procedure prescribed under Article 368.

Amendment Requiring State Ratification

Certain provisions affecting the Federal Structure require, in addition to a Special Majority in Parliament, Ratification by the Legislatures of Not Less Than One-Half of the States before being presented to the President for assent.

Provisions Requiring State Ratification

The following constitutional provisions require Ratification by at Least Half of the State Legislatures:

Election of the President

• Articles 54 & 55 relating to the Election of the President of India.

Executive Powers

• Articles 73 & 162 dealing with the Extent of Executive Powers of the Union and the States.

Union Judiciary

• Provisions relating to the Supreme Court of India (Chapter IV of Part V).

State Judiciary

• Provisions relating to the High Courts (Chapter V of Part VI).

Distribution of Legislative Powers

• Provisions relating to the Distribution of Legislative Powers between the Union and the States (Chapter I of Part XI).

Seventh Schedule

• Any change in the Union List, State List, or Concurrent List contained in the Seventh Schedule.

Representation of States

• Provisions relating to the Representation of States in Parliament, including the Fourth Schedule and Articles 80–81.

Article 368

• Any amendment seeking to modify the Procedure for Constitutional Amendment itself under Article 368.

Procedure for Constitutional Amendment

Introduction of the Bill

• A Constitution Amendment Bill may be introduced Only in Either House of Parliament.
• The Bill Cannot be Introduced in a State Legislature.

Majority Required

The Bill must be passed in Each House of Parliament by:

• • A Majority of the Total Membership of that House; and
  • A Majority of Not Less Than Two-Thirds of the Members Present and Voting.

This is known as the Special Majority.

Presidential Assent

• After being passed by Parliament (and, where necessary, ratified by the States), the Bill is presented to the President.
• Upon receiving the President’s Assent, it becomes a Constitutional Amendment Act.

Blend of Rigidity and Flexibility

Unique Amendment Procedure

• The Constitution combines Rigidity and Flexibility by prescribing different procedures for different categories of amendments.

No Separate Constituent Body

• India does Not Have a Separate Constituent Assembly or Constitutional Convention exclusively for constitutional amendments.
• Parliament itself exercises the power to amend the Constitution.

State Legislatures Cannot Initiate Amendments

• State Legislatures have No Power to introduce or initiate a Constitution Amendment Bill.

Procedure Similar to Ordinary Bills

• Subject to the Special Majority Requirements under Article 368, Constitution Amendment Bills are processed in Parliament in a manner broadly similar to Ordinary Bills.

No Joint Sitting

• In case of disagreement between the two Houses, No Joint Sitting is permitted for the passage of a Constitution Amendment Bill.

President’s Prior Recommendation

Before Introduction

• The Previous Recommendation (Sanction) of the President is Not Required for introducing a Constitution Amendment Bill.

After Passage

• Once duly passed by Parliament (and ratified by the States wherever required), the President is Constitutionally Bound to Give Assent.

Ratification by States

Extent of Ratification

• India follows a comparatively Flexible Federal Procedure, requiring ratification by At Least One-Half of the State Legislatures.
• This is less stringent than some other federations, where a higher proportion of States is required.

24th Constitutional Amendment Act, 1971

Mandatory Presidential Assent

• The 24th Constitutional Amendment Act, 1971 amended Article 368 to make it Obligatory for the President to Give Assent to a duly passed Constitution Amendment Bill.
• Consequently, the President Cannot Withhold or Return a Constitution Amendment Bill presented under Article 368.

Whether Fundamental Rights are Amendable

Early Judicial View

Initial Position of the Supreme Court

• Before the Golak Nath Case, the Supreme Court consistently held that Any Provision of the Constitution, including Fundamental Rights, could be amended by Parliament under Article 368.

Golak Nath Case (1967)

Landmark Judgment

• In I.C. Golak Nath v. State of Punjab (1967), a Special Bench of Eleven Judges delivered a landmark decision by a 6:5 Majority.

Decision of the Court

The Supreme Court held that:

• • Fundamental Rights are Beyond the Amending Power of Parliament.
  • Parliament Cannot Amend or Curtail Fundamental Rights through Article 368.
  • If Fundamental Rights were to be altered substantially, a Constituent Assembly would be required.

24th Constitutional Amendment Act, 1971

Restoration of Parliament’s Amending Power

• The 24th Constitutional Amendment Act, 1971 restored the power of Parliament to amend Any Provision of the Constitution, including Fundamental Rights.

Constitutional Changes

The Amendment provided that:

• A Constitutional Amendment made under Article 368 shall Not Be Treated as “Law” within the meaning of Article 13.
• Therefore, a Constitutional Amendment cannot be declared void merely because it affects or abridges Fundamental Rights.

Challenge to the 24th Amendment

Judicial Review

• The constitutional validity of the 24th Constitutional Amendment Act was challenged before the Supreme Court in the Kesavananda Bharati Case.

Kesavananda Bharati Case (1973)

Overruling Golak Nath

Parliamentary Power Restored

• • In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court overruled the decision in Golak Nath.

Scope of Amendment

• • The Court held that Parliament possesses the power to amend Any Provision of the Constitution, including Fundamental Rights, by following the procedure prescribed under Article 368.

Doctrine of Basic Structure

Origin of the Doctrine

Landmark Principle

• The Kesavananda Bharati Judgment introduced the Doctrine of Basic Structure, which became one of the most significant constitutional doctrines in India.

Core Principle

• Parliament may amend Any Part of the Constitution, but it Cannot Alter, Damage, or Destroy the Basic Structure of the Constitution.

Article 31C and the 25th Constitutional Amendment

Protection to Certain Laws

25th Constitutional Amendment Act, 1971

• Article 31C was inserted by the 25th Constitutional Amendment Act.
• It protected laws enacted to implement the Directive Principles contained in Article 39(b) and Article 39(c) from being challenged on the ground of violating Articles 14 and 19.

Supreme Court’s Interpretation

Limitation on Parliament

• The Supreme Court clarified that Article 368 does Not Authorise Parliament to abolish Judicial Review while exercising its power of constitutional amendment.

42nd Constitutional Amendment and Minerva Mills Case

Expansion of Article 368

• The 42nd Constitutional Amendment Act inserted clauses in Article 368 declaring that:
  
  • No constitutional amendment could be questioned in any court.
  • Parliament’s amending power was unlimited.

Minerva Mills Case (1980)

Supreme Court’s Decision

• In Minerva Mills v. Union of India (1980), the Supreme Court struck down these clauses.
• The Court reaffirmed that Limited Amending Power is itself a part of the Basic Structure of the Constitution.

Implications of the Kesavananda Bharati Judgment

Parliament’s Amending Power

• Any Provision of the Constitution may be amended by Parliament in accordance with Article 368.

No Constituent Assembly Required

• There is No Requirement of convening a Constituent Assembly or conducting a Referendum for constitutional amendments.

Limitation

• The Basic Structure of the Constitution Cannot Be Amended, altered, or destroyed.

Nature of the Basic Structure Doctrine

No Exhaustive List

• The Supreme Court has clarified that there is No Fixed or Exhaustive List of the Basic Features of the Constitution.
• Different judgments have recognised different constitutional principles as part of the Basic Structure.

Important Basic Features

Constitutional Supremacy

• Supremacy of the Constitution

Rule of Law

• Rule of Law

Separation of Powers

• Separation of Powers among the Legislature, Executive, and Judiciary

Constitutional Objectives

• Objectives and Ideals embodied in the Preamble

Judicial Review

• Judicial Review

Federalism

• Federal Character of the Constitution

Secularism

• Secular State

Democratic Republic

• Sovereign, Democratic, and Republican Form of Government

Individual Rights

• Freedom, Liberty, and Dignity of the Individual

National Unity

• Unity and Integrity of the Nation

Equality

• The Essential Principle of Equality, rather than every individual provision relating to equality

Fundamental Rights

• The Essence of Fundamental Rights contained in Part III

Welfare State

• The goal of Social and Economic Justice leading to a Welfare State

Harmony Between Parts III and IV

• Balance Between Fundamental Rights and Directive Principles of State Policy

Parliamentary Democracy

• Parliamentary System of Government

Free and Fair Elections

• Free and Fair Electoral Process

Limited Amending Power

• Limitations on Parliament’s Power to Amend the Constitution under Article 368

Independence of Judiciary

• Independence of the Judiciary

Access to Justice

• Effective Access to Justice

Powers of the Supreme Court

• Constitutional powers of the Supreme Court under:
  
  • Article 32
  • Article 136
  • Article 141
  • Article 142