The procedure of amendment makes the Constitution of India neither totally rigid nor totally flexible, rather a curious mixture of both. Some provisions can be easily changed and for some others, special procedures are to be followed. Despite the fact that India is a federal state, the proposal for amending the constitution can be initiated only in the House of the Union Legislature and the State Legislatures have no such power.
In case of ordinary legislation, if both houses of the Parliament disagree, a joint session is convened. But in case of amendment of bills, unless both the houses agree, it cannot materialize, as in such cases there is no provision for convening the joint session of both the Houses of the Parliament.
In fact, there are three methods of amending the Constitution. But Article 368 of the constitution which lays down the procedure for amendment mentions two methods.
- An amendment of the constitution may be initiated only by the introduction of a Bill for the purpose in either house of Parliament and when a bill is passed in each house.
- By a majority of total membership of that house.
- By a majority of not less than two-thirds of the members of that house present and voting, it shall be presented to the President who shall give his assent to the Bill and there upon the Constitution shall stand amended in accordance with the term of the Bill.
- Most of the provisions of the constitution can be amended by this procedure.
- For amending certain provisions a special procedure to be followed,
- A Bill for the purpose must be passed in each house of Parliament by a majority of total membership of the house,
- By a majority of not less than two-thirds of the members of that house present and voting and
- It should be notified by the legislatures of not less than one-half of the states before the Bill is presented to the President for assent.
- The provisions requiring this special procedure to be followed include-
- Manner of the election of the President,
- Matters relating to the executive power of the union and of the state, representation of the states in Parliament
- Matters relating to the Union Judiciary and High Courts in the states
- Distribution of legislative powers between the union and the states
- any of the list in the seventh schedule
- Provisions of Article 368 relating to the procedure for amendment of the constitution etc.
- There are certain provisions which require simple majority for amendments. They can be amended by the ordinary law making process. They include:
- Formation of new states and alteration of areas, boundaries or names of existing ones.
- Creation or abolition of Legislative Councils in the states.
- Administration and control of scheduled areas and scheduled Tribes.
- The salaries and allowances of the Supreme Court and High Court Judges.
- Laws regarding citizenship.
- It is significant that the laws passed by Parliament to change the above provisions would not be deemed to be amendments of the Constitution for the purpose of Article 368.
Types of Amendments
There are three types of bills that seek to amend the Constitution:
- Bills that are passed by Parliament by Simple Majority.
- Bills that have to be passed by Parliament by Special Majority.
- Bills that have to be passed by Special Majority and also to be ratified by not less than one-half of the State Legislatures.
Bills that are passed by Parliament by Simple Majority
- Such Bills are not deemed as ‘Constitution Amendment Bills’ within the meaning of Article 368. These bills are passed by both Houses of Parliament by a simple majority of members present and voting. It consists of:
- Admission or establishment of new States, formation of new States, and alteration of areas, boundaries or names of existing States. Bills relating to such matters require the recommendation of the President for introduction.
- Creation or abolition of Legislative Councils in the States. Bills relating to such matters require the prior adoption of necessary resolution by the State Legislative Assembly concerned.
- Administration and control of Scheduled Areas and Scheduled Tribes.
- Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram.
- Bills that have to be passed by Parliament by Special Majority
- The procedure for such bills is prescribed under Article 368 (2) of the Constitution. These can be introduced in either House of Parliament. Also, such bills can never be treated as Money Bills or Financial Bills. Thus, no recommendation of President is needed for introducing these bills.
- These bills have to be passed by a majority of the ‘total membership’ of that House and by a majority of not less than two-thirds of the members of that House ‘present and voting’.
- Bills that have to be passed by Special Majority and also to be ratified by not less than one-half of the State Legislatures
- This comprises of Constitutional Amendment Bills which seek to make any change in articles relating to:
- The Election of the President.
- The extent of the Executive Power of the Union and the States.
- The Supreme Court and the High Courts.
- Any of the Lists in the Seventh Schedule.
- The representation of States in Parliament.
- The provisions of Article 368 itself.
- The ratification by the State Legislatures has to be made by resolutions to that effect. And such resolutions must be passed before the Constitution Amendment Bill is presented to the President for Assent.
Criticism of the Constitutional Amendment Procedure
- The Constitution can be amended five to seven times by the Parliament; and only in the manner provided.
- Although Parliament must preserve the basic framework of the Constitution, there is no other limitation placed upon the amending power, meaning that there is no provision of the Constitution that cannot be amended.
- In Abdul Rahiman Jamaluddin v. Vithal Arjun (AIR 1958 Bombay, 94, (1957), the Bombay High Court held that any attempt to amend the Constitution by a Legislature other than Parliament, and in a manner different from that provided for, will be void and inoperative.)
- The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of C. Golak Nath and Ors. vs. State of Punjab and Anr. An amendment was struck down on the basis that it violated Article 13: “The State shall not make any law which takes away or abridges the rights conferred by [the charter of Fundamental Rights]”. The term “law” in this article was interpreted as including a constitutional amendment. Parliament responded by enacting the twenty-fourth Amendment of the Constitution of India which declared that “nothing in Article 13 shall apply to any amendment of this Constitution”.
- The current limitation on amendments comes from Kesavananda Bharati v. The State of Kerala, where the Supreme Court ruled that amendments of the constitution must respect the “basic structure” of the constitution, and certain fundamental features of the constitution cannot be altered by amendment. The Parliament attempted to remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that “there shall be no limitation whatever on the constituent power of Parliament to amend …this Constitution”. However, this change was itself later declared invalid by the Supreme Court in Minerva Mills v. Union of India.
- The issue of whether an entire constitutional amendment is void for want of ratification or only an amended provision required to be ratified under proviso to clause (2) of article 368 was debated before the Supreme Court in Kihota Hollohon v. Zachilhu (AIR 1993 SC 412), in which the constitutional validity of the Tenth Schedule of the Constitution inserted by the 52nd Amendment in 1985 was challenged.