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Amendment in Indian Constitution: Procedure, Modes, and Types

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  • Last Updated : 13 Apr, 2022

Over the period of time, problems of a nation (based on Social, Economic, and Political conditions) take various forms and dimensions. The conditions which existed at the time of the drafting of the Constitution may not be the same over the period of time. Therefore, it becomes imperative to have some procedure wherein the Constitution may be adapted from time to time in accordance with the needs of the nation. This procedure is called the amendment of the Constitution

The Constitutional amendments ensure that the provisions and interpretation of the Constitution remain relevant in the changing times well. It was a very conflicting topic in back years until the judgement of the Kesavananda Bharati case.

From the first case of Shankari prasad till the last judgement of Kesavananda over the issue of amendment in the constitution created much chaos to the political thinker and Indian citizens over the infringement of their fundamental rights. 

This method/mode of reconciling the constitution with the changing needs can be classified into two broad categories:

  1. Informal method
  2. Formal method: (a) Flexible (b) Rigid

Informal method:

This method cannot be called ‘amendment’ in a strict sense of the term because the constitutional text does not change. In this method, the judicial interpretation of the constitution changes. It is a process of judicial interpretation that assigns new meaning to the existing text. It is a slow process and develops on a case-to-case basis.

Formal method:

This method consists of a formal process of amendment of the constitution by changing the text of the constitution. Depending upon the procedure of amendment it can be classified- Flexible or Rigid.

  • The flexible process of amendment is quite easy. The constitution can be changed by the ordinary legislative process. It is just like enacting an ordinary law. There is no distinction between the ordinary legislative process and the constituent process in this process. For example, the British Constitution can be amended by the ordinary law of Parliament.
  • The rigid process of amendment is more elaborative and difficult than the flexible process. Thus, the constitution cannot be amended by ordinary law. A different set of procedures is laid down for the amendment of the constitution. In a rigid constitution, there is a difference between the ordinary legislative process and the constituent process.

Amendment of Fundamental Rights:

The basic question which was discussed in various judgements of the Supreme Court was whether the fundamental rights were amenable in such a manner to take away or abridge fundamental rights.

For the first time in Shankari Prasad vs Union of India, this question came out before the supreme court was adjudging the validity of the first Constitutional Amendment which was enacted to remove certain difficulties in the implementation of Directive Principles. The Supreme Court held that law in article 13 includes only ordinary law made under the exercise of ordinary legislative procedure; it does not include the Constitutional Amendment which is made in the exercise of constituent power.

Many controversies and many new amendments and laws were made regarding the amendment of fundamental rights but at last Supreme Court in Kesavananda Bharati vs the State of Kerala finally held that the power to amend the constitution is found in Article 368 itself the court held that the Parliament can amend any part of constitution but it cannot amend basic structure of the constitution the power of amendment cannot be exercised in such a manner which takes away or a bridge basic structure of the constitution Amendment which affects basic structure is ultra-vires Supreme Court gave an illustrative list of certain features which are regarded as the basic structure.

The Procedure of Amendment:

Article 368 prescribes the procedure and power of the Parliament to amend the constitution. The constitution of India is a fine mixture of rigidity and flexibility depending upon the significance of the provisions of the constitution the degrees of residency of the amendment are different.

To amend any bill, it must be placed before any house of the Parliament, and no prior permission of the President is required, to introduce that bill in any house of the parliament. When any Bill is passed by both houses of parliament with the majority of the total number of members of each house (i.e. more than 50 percent) and at least two-thirds majority of the members present and voting, then the Bill is presented before the President who will be bound to give his/her assent for the same. There is no time limit within which the President must give his assent. After the approval of the President on the Bill, the Constitution will be amended.

According to the 24th Amendment Act, 1971 President “shall give his assent” under clause (2) of Article 368, thus this has taken away the President’s power to veto a bill for the amendment of the constitution.

The Constitution provides the following Three types of Amendments:

1. Amendment by Simple Majority:

The simple majority of Parliament is done for the amendment in these provisions. These Articles are excluded from the purview of Article 368. A simple majority means a majority of more than 50% of the members present and voting in the house.

Those articles which are amendable by the simple majority are:

  • Article 4; Provision related to admission or establishment of a new state, formation of a new state, alteration of state, or any such thing related to articles 2 & 3 of the Constitution can be amended by the simple majority.
  • Article 169; Provision related to abolition or creation of legislative councils in the state can be amended by parliament by a simple majority.
  • Article 239 A; Provision related to the creation of local legislature for certain unions.
  • Also, salaries, etc of judges under article 125, a few provisions related to vice president, president, etc, and provisions related to terminating the citizenship all of these can be amended by a simple majority.

2. Amendment by Special Majority of Parliament:

All other provisions of the Constitution which are not included in No. (1) and (3) are placed in this category. For amendment in these provisions, a special majority of Parliament is required. Special Majority means the majority of the total membership of the House as well as a majority of not less than 2/3 of members of that House present and voting.

Few provisions which can only be amended by the special majority in both houses are:

  • Fundamental Rights (Article 12 to article 35);
  • DPSP (Directive Principles of State Policy- Article 36 to 51) and
  • All those provisions except the specific provisions mentioned in Article 368.

3. Special Majority and Ratification by the States:

Provisions that are the basis of the federal structure are included in this category. These are vital matters where States have important powers and any unilateral amendment may adversely affect the interest of States. For incorporating amendments in these provisions, a Special Majority of each House of Parliament, as well as ratification by not less than half of the States, is required.

Following provisions require for such ratification:

  • Election of the President (Article 54 and 55);
  • The extent of Executive powers of the Union and States [Article 73, 162, 241 or 279A];
  • Articles dealing with Supreme Court and High Court (Chapter 4 of Part-V and Chapter 5 of Part-IV);
  • Articles dealing with the High Court of Union Territories (Article 241);
  • Distribution of Legislative Powers between the Union and State (Article 245-255);
  • Goods and Service Tax Council (Article 279A) [Inserted by Constitution (101) Amendment Act, 2016]
  • Representation of state in parliament (Article 80 and 81)
  • Any of the list of the seventh schedule
  • Article 368 itself.
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