Constitution Amendment Process
Constitution reflects the aspirations and needs of the people of the country. It has to be a dynamic document giving shape to the popular aspirations as they evolve from time to time. It has to facilitate socio-economic change and national security. Law can not lag behind the fast moving society and its needs. Therefore, all constitutions provide for built-in procedures for amendment. Such procedures can be rigid or flexible. Rigid procedure is elaborate, difficult and special. It is a characteristic of federal Constitutions where the Constitution involves distribution of powers to the two levels of government and so can be amended only when both the tiers of government accept the same. Rigidity, thus, usually involves ratification by state legislatures However, only federal provisions are covered by the rigid procedure and not the non-federal parts of the Constitution.
Flexibility means passing an amendment Bill in the same manner as an ordinary Bill. Indian Constitution has a combination of both.
Constitutions undergo amendments informally(imperceptibly) and formally(perceptably). In the former method, there are two ways
Judicial rulings and Constitutional amendments
In India, the Supreme court contributed to evolution of the Constitution in a significant way by its verdicts. Some important rulings are
Conventions and Constitutional change
Conventions are a set of unwritten rules that have come to be accepted as having the force of law. Some conventions in India in the field of Constitution and governance are
British Constitutional expert Dicey is of the opinion that conventions can not be enforced by courts as they are unwritten. But there is also an opinion that they are enforceable and that there is no distinction between Constitutional law and an established Constitutional convention and the latter is enforceable if it is long established(Justice Kuldip Singh, former judge of Supreme Court of India ). The former view is correct in sortie cases like the prime Minister belonging to the Lok Sabha. It is certainly not enforceable Dr.Manmohan Singh’s a member of Rajya Sabha. Similarly, the recommendations of the Finance Commission have been conventionally accepted. But that can not be enforced as some recommendations may not be acceptable. For example, the 10th FC( 1995-2000) recommended that its recommendations be in force for 15 years which was clearly out-of- mandate.
Formal and Perceptible method
It refers to an amendment according to the procedure laid down in the Constitution.
Bills seeking to amend the Constitution are of three types:
The first category in the above list is not 'deemed ' to be amendment. The latter 2 types are. (Read ahead)
The Constitution amendment process is given in Art.368 in ,which two methods of amendment are mentioned .
One category of amendments are those which can be made by Parliament by the prescribed 'special majority’. The second category of amendments require ratification by at least one half of the State Legislatures after being passed by a special majority by each House of the Parliamenf.
Amendment by special majority
A Bill seeking to amend any other provision of the Constitution has to be passed in each House of Parliament by a special majority which means
Taking a strict interpretation of the Constitutional provision, the special majority prescribed may be required only for voting at the third reading stage, but by way of caution, the requirement of special majority has been provided for in the Rules of Procedure and Conduct of Business in Lok Sabha in respect of all the effective stages of the Bill i.e. motion that the' Bill be taken into consideration, motion that the Bill, as reported by the Select or Joint Committee, be taken into consideration, motion that the Bib, as passed by Rajya Sabha/LS , be taken into consideration, motion for adoption of clauses and schedules to the Bill and finally for the adoption of the motion that the Bill be passed. Motions that the Bill be circulated for eliciting opinion thereon or that the Bill be referred to a Select or Joint Committee are passed by simple majority.
All provisions of the Constitution can be amended by a special majority in the parliament except the ’federal provisions’ as mentioned in the Art.368. They require amendment by special majority and ratification by at least half State Legislatures. The following features fall in that category:
In the above cases, the amendment, after it is passed by the special majority has also to be ratified by Legislatures of not less than one-half of the States by resolutions by a simple majority before the Bill is presented to the President for assent. The Constitution does not contemplate any time-limit within which the State Legislatures should ratify the amendments referred to them.
Constitution (Fifty-second Amendment) Act, 1985, popularly known as the Anti-Defection Law was not ratified by the State Legislatures. But it seeks to keep out the courts and bar judicial review. In the Kihoto Hollohan case, the Supreme Court upheld the validity of the Tenth
Schedule but declared its paragraph 7 invalid for want of ratification by State Legislatures as it excludes judicial review and dilutes powers of higher judiciary. While doing'the apex court treated paragraph 7 as severable part from the rest of the Schedule. ( Doctrine of Severability)
The following are the instances when Constitution Amendment Bills passed by one House could not secure the requisite majority in the other House
Both the above Bills were rejected by the Rajya Sabha and so did not bring down the governments that introduced the Bills.
Private Member and Constitution Amendment Bills
Constitution Amendment Bills can be introduced in eithef House of Parliament. If sponsored by a Private Member, the Bill has to be examined in the first instance and recommended for introduction by the Committee on Private Members’ Bills and Resolutions before it is included for introduction in the List of Business.
Parliament's power to amend the Constitution
Article 368 of the Constitution confers power on Parliament to amend the Constitution and prescribes procedure for the same .In the Shankari Prasad Singh( 1951) and Sajjan Singh( 1965) cases- to review the legality of Ist and l7,h amendment Acts -Parliament ruled that the word 'law’ in Art. 13 excludes Constitution amendment and so Art. 13 does not apply to Art.368.However, in the verdict in the GolakNath case(l967), the Supreme Court had held that
The ruling led Parliament to enact the Constitution (Twenty-fourth Amendment)Act in 1971 , which declared expressly that
When the 24th Amendment Act along with other Amendment Acts - 25th and 29th Acts- was challenged in the Supreme Court, Supreme Court delivered the Keshavananda Bharati case verdict in 1973. In the Kesavananda Bharati case(24/4/1973) the Supreme Court reversed the decision given in the Golak Nath case and held that Parliament could amend any part of the Constitution but not the 'basic features’- a concept that it introduced in the judgement. Also, Art. 13 does not apply to Art.368. The apex court had the sole authority to declare any feature of the Constitution as basic and could do so from time to time.
The 42nd Amendment Act(1976) gave Parliament full power to amend the Constitution . It was challenged and the Supreme Court delivered the Minerva Mills case verdict (1980) to reiterate the pre-42,ld Amendment Act position. '
The theory of basic structure of the Constitution was reaffirmed and applied by the Supreme Court in the Minerva Mills case (1980) when the Supreme Court held that the Constitution had conferred a limited amending power on the Parliament and this limited amending power was one of the basic features of the Constitution. Parliament, therefore, could not , under Article 368 expand its amending power so as to acquire for itself the right to repleal or abrogate the Constitution and its basic and essential features. The Court developed the concept of basic structure in subsequent cases also like the Bommai case in 1994 when secularism was pronounced a basic feature.
. Salient features of amendment process in India
Constitution of India can be amended with the following limitations
'Amendments’ not 'deemed’ to be so
There are some provisions in the Indian Constitution that may be amended by the parliament but such 'amendments’ are not considered- ' deemed’ - Constitution amendments . The reason is that the procedure for such changes is not found in Art.368; the process requires only a simple majority in the Parliament; some of them are of consequenctial nature(Art.4 and 169, for example). The following are such provisions in the Constitution :
Legislative Councils and Amendment Act
Article 168 of the Constitution contains provision for constitution of two Houses of the Legislatures in the States mentioned therein i.e., Legislative Council and the Legislative Assembly. Art. 169 talks of abolition and creation of legislative council. Legislative Council Act to be passed by the Parliament after the Resolution is passed by the State Assembly confers power upon the President for issuing an order to include the name of the State in clause (1) of article 168 of the Constitution. In the case of abolition of the Council, the name is to be deleted identically. Since the amendment thus brought about in the Constitution is by a process outside Art.368 and is consequential in nature, it is not deemed to be an amendment. In Tamil Nadu, an Act was made in 2010 to create a Council and a similar Bill was introduced in Lok Sabha in 2012 for repealing the earlier Act, on the basis ofa TN Assembly resolution passed in 2011.
Normal legislative procedure applies to this category of amendments. However, the Constitution lays down certain conditions before Parliament legislates in respect of some of such amendments. For instance, no Bill for the formation of a new State, etc. can be introduced in either House of Parliament except on the recommendation of the President and unless such Bill is referred by the President to the Legislature of the State concerned for expressing its views thereon within the specified period. Further, Parliament's power to make law for the abolition or creation of a Legislative Council in the States is exercisable only if the Legislative Assembly of the concerned State passes a resolution to that effect by a majority of total membership of the
House and a majority of not less than two-thirds of the members of the Assembly present and voting( special majority).
Constitution gives Parliament power to amend the Constitution(Art.368). This power is not absolute in nature. It is limited by the Constitution.For example, Art. 13 denies State ( effectively parliament) the power to abridge Fundamental Rights. Parliament’s constituent power is also subject to judicial review.
In the Shankari Prasad(1952) and Sajjan Singh (1965) cases, the Supreme Court ruled that Parliament could abridge FRs without any limitation from Art;13 by amending the Constitution and not by ordinary legislation. Golaknath case judgement overturned it in 1967. 24th Amendment Act was made by parliament in 1971 to overcome the Golaknath ruling. In the Keshavananda Bharati case verdict; apex court gave parliament power to amend the Constitution but limited it with the introduction of “ basic structure” concept.
Thirteen judges of the Supreme Court, including then Chief Justice Sikri, heard arguments in Kesavananda Bharati v. The State of Kerala and thus considered the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the decision in the Golak Nath case. This time, the court held, by 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling Golaknath ruling ), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".It said that basic features are 'embedded’ in the Constitution and could not be diluted.
In Kesavananda there was little consensus among the majority for what the "basic structure" of the constitution comprised. Chief Justice Sikri, writing for the majority, indicated that the basic structure consists of the following:
Justices Shelat and Grover added three features to the Chief Justice's list:
Justice Jaganmohan Reddy preferred to look at the Preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:
Since then, the basic features have been growing in number as the apex court added to them through various judgements. For example. Judicial review in Chandra Kumar case(1997).In the Minerva Mills case( 1980), the following basic features are added
In Bommai case verdict (1994), secularism was added to the list of basic features with the further ruling that a State Government that violates it is liable to be dismissed and President’s rule imposed. This is a new dimension to the concept of basic features and has not been seen till then and since then. .
The effect of the doctrine of basic features is the following
Basic features are an evolving and dynamic concept that enable the judiciary to retain the essence of the Constitution.
The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.
Is the amendment process so simple as to make the Constitution a ’toy’ in the hands of the Parliament?
There have been 97 amendments to the Indian Constitution till 2012 necessitated by,the objective of welfare State( land reforms etc); social justice( 1st and 93jd Acts);cleanse the political process of defections( 52nd and 91st Amendment Act); fiscal reforms( 88m Amendment Act to streamline service tax) etc. While the number of amendments , on the face of it does 'suggest that Constitution has been too flexible ,*it is not entirely because of the flexibility of the Constitution. It was the response of the Parliament and states to the need to shape India democratically and socialistical(y. Management of diversities, implementation of policies for a socialist pattern of society, making the political process stable and- clean etc'are the compulsions that rendered the amendments necessary. It must not be forgotten, that the more voluminous the Constitution, the greater the number of amendments.
The Constitutional safeguards that make it very difficult to pass amendments are the following
Important Amendments to the Constitution
7. The Constitution (Seventh Amendment) Act, 1956—This amendment Act purported to give effect to the recommendations of the State Reorganisation Commission .
9. The Constitution (Ninth Amendment) Act, 1960—The purpose of this amendment is to give effect to the transfer of certain territories to Pakistan in pursuance of the agreement entered into between Governments of India and Pakistan. This amendment was necessitated in view of the Judgement of Supreme Court in "In the Berubari Union" case by which it was held that any agreement to cede a territory to another country could not be implemented by a law made under Article 3 but would only be implemented by an amendment of the Constitution.
24. Twenty-Fourth Amendment 1971- The amendment was made necessary by the Supreme Court judgement in the Golaknath case in 1967 when the apex court ruled that Art. 13 is a limitation on Parliamentary power to amend the Constitution. Art.368 gave only the procedure and not the power of amendment to the Parliament.
25. Twenty-Fifth Amendment 1971 - In the Bank Nationalisation Case , the Supreme court had held that the Constitution guaranteed right to compensation, that is, the equivalent in money of the property compulsorily acquired. Thus, the adequacy of compensation has become justiciable inasmuch as the Court could go into the question whether the amount paid to the owner of the property was reasonable. The Act amends the Constitution to surmount the difficulties placed in the way of giving effect to the Directive Principles of State Policy by the aforesaid interpretation.
29. The Constitution (Twenty-ninth Amendment) Act, 1972—The Ninth Schedule to the Constitution was amended to include therein two Kerala Acts on land reforms.
42. Forty-second Amendment 1976
It is called a 'mini-Constitution and has been affected on the recommendations of the Swaran Singh Committee in 1976.
Amendment of the Preamble: the words 'SOCIALIST, SECULAR and integrity’ are inserted.
44. The Constitution (Forty-fourth Amendment) Act, 1978—The right to property which had been the occasion for more than one amendment of Constitution was omitted as a Fundamental
Right and it was made into an ordinary a legal right- Art.300A. Article 352 of the Constitution was amended to provide "armed rebellion" as one of the circumstances for declaration of emergency replacing ~
’ internal disturbance’. Internal disturbance' not amounting to armed rebellion would not be a ground for the issuance of a Proclamation. Emergency and President's rule provisions were strengthened. President is empowered to return the advice given by the Union Council of Ministers once for reconsideration-Art.74 being amended for this.
52. The Constitution (Fifty-second Amendment) Act, 1985—Anti-defection law and the Tenth Schedule.
61. The Constitution (Sixty-first. Amendment) Act, 1989—The'Act provides for reducing voting age from 21 to 18 years by amending Article 326 of the Constitution.
73. The Constitution (Seventy-third Amendment) Act, 1993—Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. In the light of the above, a new Part IX relating to the Panchayats has been inserted in the Constitution to provide for among other things Gram Sabha in a village or group of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any and to the offices of Chairpersons of Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of Chairpersons in Panchayats at each level; reservation of not less than one-third of the seats for women; fixing tenure of five years for Panchayats and holding elections within a period of six months in the event of supersession of any Panchayat.
74. The Constitution (Seventy-fourth Amendment) Act, 1993—In many states local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged supersession and inadequate devolutions of powers and functions. As a result, Urban Local Bodies are not able to perform effectively as vibrant democratic units of self-government.
Having regard to these inadequacies a new part 1X-A relating to the Municipalities has been incorporated in the Constitution to provide for among other things, constitution of three types Municipalities, i.e., Nagar Panchayats for areas in transition from a rural area to urban area, Municipal Councils for smaller urban areas and Municipal Corporations for larger urban areas.
Recent Amendment Acts upto 2013
Important Constitution Amendment Bills at various stages of passage are
The family of Henry and William Golak Nath held over 500 acres of farmland in Jalandar,Punjab. In the face of the 1953 Punjab Security and Land Tenures Act, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared 'surplus’. This was challenged by the Golak Nath family in the courts and the case was referred to the Supreme Court in 1965. The family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it denied them their constitutional rights to acquire and hold property and practice any profession (Articles 19(f) and (g)) and to equality before and equal protection of the law (Article 14). They also sought to have the Seventeenth Amendment - which had placed the Punjab Act in the Ninth Schedule - declared ultra vires.The issues that were to be determined by the apex court were:
Court reversed the earlier verdicts and ruled in favour of FFTs( given ahead). Doctrine of prospective overruling was applied to the effect that in future, the verdict will be respected and the government actions already taken would not be retrospectively undone.
Kesavananda Bharati v. State of Kerala
The case originated in 1970 when Swami HH Kesavananda Bharati Sripu, head of "Edneer Mutt" - a HinduMatha situated in Edneer, a village in Kasaragod District of Kerala, challenged the Kerala government's attempts, under two state land reform acts, to impose restrictions on the management of its property. It was challenged under Article 26 , concerning the right to manage property acquired for managing religion without government interference. The majority judgement - by seven judges of the thirteen-judge bench - overturned the I.C. Golak Nath and Ors. vs. State of Punjab .
It is a landmark decision of the Supreme Court of India that introduced the Basic Structure, doctrine of the Constitution. The Basic Structure doctrine forms the basis of a power of the Indian judiciary to review, and strike down, amendments to the Constitution of India enacted by the Indian parliament which conflict with or seek to alter this basic structure of the Constitution.
The 13-judge Constitutional bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual. In a sharply divided verdict, by a margin of 7-6, the court held that the while the Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
S M Sikri, Chief Justice held that fundamental rights conferred by Part III of theConstitption of India cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. According to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the- preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Shelat and Grover, JJ held that, Parts 111 and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in jrnch a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which prevented the Parliament from abolishing or changing the identity of the Constitution which rests on it's Basic. Structure.
Justice Hegde and Justice Mukherjea held that in the Constitution of India , the basic constituent remained constant and the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abolish or emasculate those basic elements of fundamental features. The building of a welfare State is the ultimate goal of every Government but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. '
Justice .laganmohan Reddy held that the word ’amendment' was used in the sense of permitting a change, in contradistinction to destruction. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment' could not possibly embrace the right to abrogate tlie pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. The learned Judge held that though the power of amendment was wide, it did not cover the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Justice H R Khanna broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to mee't the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern.
The 42nd amendment was made in 1976 to cancel the impact of the verdict and Parliament assumed complete power to amend any part of the Constitution and DPSPs were given unconditional precedence over FRs.lt was however partly repealed by the apex court in the Minerva Mills case and partly dropped by the 43rd amendment ac under the Janata regime. In 1977.
More on Basic structure:
Doctrine of Basic Structure : Background, content and impact
The basic structure doctrine as introduced in the Keshavananda Bharati case verdict in 1973( see above) is an Indian judicial doctrine that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.
The "basic features" principle was first expounded by Justice J.R. Mudholkarin his dissenting note in the case ofSajjan Singh v. State of Rajasthan ( 1965 ):"lt is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Art. 368 ?"
Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. The basic structure doctrine applies only to constitutional amendments. It does not apply to ordinary acts of parliament, which must conform to the entirety of the constitution; not just to its "basic structure".
In 1967, in Colak Nath vs. The State of Punjab, a bench of eleven judges (such a large bench constituted for the first time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. This question had previously been considered in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan. In both cases, the power to amend the rights had been upheld on the basis of Article 368. Chief Justice Subba Rao writing for the majority (six judges in special bench of eleven, overruled the previous decisions) held that:
Parliament responded by making the 24th CAA in which Art. 13 and 368 were amended to make the CAA outside the scope of Art. 13 and Art.368 was amended to* give Parliament all the power to amend the Constitution. 25th Amendment was made restricting FRs legitimate while implementing DPSPs(Art.39 b and c). 29tl’ CAA was made to insert the land reform laws of Kerala in the Ninth Schedule.
The above CAAs were challenged in Supreme Court resulting in the Keshavananda Bharati case verdict in 1973. , .
Thirteen judges of the Supreme Court, including then Chief Justice Sikri, heard arguments in Kesavananda Bharati v. The State of Kerala and thus considered the validity of the 2,4th, 25th and 29th amendments and also the the correctness of the decision in the Golak Nath case. This "time, the court held, by a thin of margins of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic .structure of the Constitution could not be abrogated even by a constitutional amendment".
The interpretation of the basic structure has since evolved in numerous other court rulings since the Kesavananda judgment.In the Minerva Mills case(1980), the fine balance between the FRS and DPSPs was added. In the Bommai case (1994), secularism was added. In the Chandra Kumar case in 1997, judicial review was added.
In 1976, The Constitution (Forty-Second Amendment) Act had been enacted in response to the Kesavanandajudgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. (Read above). 43rd CAA nullified most of the provisions brought in by the 42nd CAA. Minerva Mills case verdict too contributed.
The impact of the basic structure doctrine is that the immutable part of the Constitution is protected; parliamentary power to amend is balanced with the judicial power to protect the permanent part of the Constitution; judiciary asserted its role as the guardian of the Constitution.