Table of Contents
Procedure for Amendment of the Constitution
Introduction
Like any other written constitution, the Constitution of India also provides for its amendment in order to adjust itself to the changing conditions and needs. However, the procedure laid down for its amendment is neither as difficult as in the USA nor as easy as in Britain. In other words, the Constitution of India is neither flexible nor rigid but a synthesis of both.
Article 368 in Part XX of the Constitution, which is the specific provision dealing with the amendment of the Constitution. It gives powers to Parliament to amend the Constitution and its procedure. It provides that Parliament may, in the exercise of its constituent power, amend by way of addition, variation, or repeal any provision of the Constitution in accordance with the procedure laid down for the purpose. However, the Parliament cannot amendment those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case.
Types of Amendments
The alteration of certain provisions of the Constitution was ‘not to be deemed to be an amendment of the Constitution.” Such provisions can be altered by the Union Parliament in the ordinary process of legislation, that is, by a simple majority. However, other provisions of the Constitution can be changed only by the process of amendment, which is prescribed in Article 368. But a differentiation has been made again in the procedure for amendment, according to the nature of the provisions sought to be amended. While in all cases of amendment of the Constitution, a Bill has to be passed by the Union Parliament by a special majority, in the case of certain provisions which affect the federal structure, a further step is required, viz., ratification by the Legislature of at least half of the States, before the Bill is presented to the President for his assent. Thus, there is no separate constituent body provided for by our Constitution for the amending process.
Therefore, the Constitution can be amended in three ways:
- Amendment by simple majority of the Parliament
- Amendment by special majority of the Parliament
- Amendment by special majority of the Parliament and the ratification of half of the state legislatures.
By Simple Majority of Parliament
The simple majority means the majority of more than 50% of the members present and voting. This is also known as functional majority or working majority. The simple majority is the most frequently used form of majority in Parliamentary business.
To understand 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 200 abstained from voting on an issue. So only 300 members were present and voting. Then the simple majority is 50% of 300 and plus 1, i.e., 151.
Ordinary bills need to be passed with a simple majority in both Houses of the Parliament before it is sent to the Indian President for his assent. Several provisions in the Constitution of India that can be amended by a simple majority. These provisions include:
- Admission or establishment of new states
- New states are formed, and existing states’ areas, boundaries, and names are changed.
- Legislative councils are abolished or created in states.
- Second Schedule-emoluments, allowances, and privileges of the president, governors, Speakers, and judges, among others.
- Quorum in Parliament.
- Salaries and allowances of the Members of Parliament.
- The rules of procedure of the Parliament
- Parliamentary privileges, members’ privileges, and committee privileges.
- Use of the English language in Parliament
- A number of puisne judges in the Supreme Court.
- Conferment of more jurisdiction on the Supreme Court.
- Citizenship: acquisition and termination
- Elections to the Parliament and state legislatures.
- Delimitation of Constituencies.
- Union Territories
- Administration of scheduled territories and scheduled tribes is the fifth schedule.
- Administration of tribal territory is covered by the Sixth Schedule.
By Special Majority of Parliament
The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority (that is, more than 50 percent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. The expression ‘total membership’ means the total number of members comprising the House irrespective of the fact whether there are vacancies or absentees. This type of majority is used for most of the Constitutional amendment bills. To pass a constitution amendment bill in Rajya Sabha, in addition to getting the support of 123 members, the bill should be favoured by more than 2/3rd of the members presents and voting.
The provisions which can be amended by this way include (i) Fundamental Rights; (ii) Directive Principles of State Policy; and (iii) All other provisions which are not covered by the first and third categories.
By Special Majority of Parliament and Ratification of States
All the provisions in the Constitution which are related to the federal structure of polity can be amended by a special majority of the Parliament and also ratification of half of the total states. It makes little difference whether one, a few, or all of the remaining states do not act on the bill. The formality is accomplished if half of the states agree. There is no time limit within which the states should give their consent to the bill. The following provisions can be amended in this way:
- Election of the President and its manner.
- Extent of the executive power of the Union and the states.
- Supreme Court and high courts.
- Distribution of legislative powers between the Union and the states.
- Any of the lists in the Seventh Schedule.
- Representation of states in Parliament.
- Power of Parliament to amend the Constitution and its procedure (Article 368 itself).
Procedure for the Amendment
The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:
- An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament (Lok Sabha & Rajya Sabha) 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.
- The bill must be passed in each House by a special majority, that is, a majority (that is, more than 50 per cent) 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.
- In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
- If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
- After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for 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 (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.