Procedure for Amendment of Constitution | Law Optional Notes for UPSC PDF Download

Introduction

• The Constitution serves as the foundational document guiding a nation's identity and functioning.
• Adjustments to the Constitution are necessary to address contemporary needs and challenges.

Power to Amend the Constitution

• Article 368(1) grants the Parliament the authority to amend the Constitution in India.
• Parliament can modify any aspect of the Constitution, including fundamental rights, with certain limitations.
• Constraints exist to safeguard the fundamental principles and basic structure of the Constitution.
• The doctrine of the basic structure protects essential features like the supremacy of the Constitution, India's sovereignty, democratic government, federal character, and fundamental rights.
• Specific amendments require ratification by state legislatures and a special majority in both houses of Parliament.
• These amendments relate to changes in the federal nature of the Constitution, affecting the distribution of powers between the Centre and states.
• Parliament's authority to amend the Constitution is limited to preserve its core principles and values.

Procedure for Amending the Constitution of India

• The process for amending the Constitution of India is detailed in Article 368, which is part of Part XX of the Constitution. This article grants the Parliament the authority to modify the Constitution by adding, altering, or repealing any provision following a specific procedure.
• However, certain elements that constitute the 'basic structure' of the Constitution are deemed unamendable, as ruled by the Supreme Court in the Kesavananda Bharati case (1973).

Types of Amendments

• Special Majority of Parliament: Amendments can be enacted with a special majority of Parliament.
• Special Majority of Parliament and Ratification by States: Amendments require a special majority of Parliament along with ratification by at least half of the state legislatures through a simple majority.

Initiating the Amendment Process

• To kickstart the amendment process, a bill must be introduced in either House of Parliament (Lok Sabha or Rajya Sabha). This bill does not need prior approval from the President and can be proposed by any member or minister.
• The bill must then be approved by each House with a simple majority (more than 50% of those present and voting) or a special majority (majority of the total members in the House and two-thirds majority of those present and voting). In case the bill fails to pass in either House, there is no provision for a joint sitting.

Final Steps

• Following the approval of both Houses, the bill is submitted to the President for assent. Upon the President's approval, the bill transforms into a Constitutional Amendment Act.
• Note: It's crucial to understand that certain provisions of the Constitution can be amended by a simple majority of each house present and voting, and these amendments are not covered under Article 368.

What is Simple Majority?

• A simple majority occurs when more than half of the total votes or members support a particular decision.
• In simpler terms, it means that the option with over 50% support wins.

Understanding Special Majority

• Special majority, mandated by Article 368(2) of the Indian Constitution, requires specific support levels for passing Constitutional amendments.
• It involves two conditions:
  • Majority of the Total Members: The amendment needs support from a majority of members in each House of Parliament.
  • Two-Thirds Majority of Those Present and Voting: Besides total member support, it requires a two-thirds majority of members present during the proceedings.
• Under Article 368(2), Parliament utilizes this special majority to amend various Constitution provisions.

Special Majority with Half of States' Consent

• This process demands a special majority in Parliament and consent from at least half of the state legislatures through a simple majority.
• Key points include:
  • Federal Structure Amendments: Changes to federal structure related provisions need special majority in Parliament and approval from half of state legislatures.
  • Provisions Requiring State Ratification: Certain provisions like those affecting the President's election, functioning of courts, etc., need state ratification.
  • Amendment to Article 368: Even changes to Article 368 itself require state ratification.
• This dual requirement ensures comprehensive support and agreement at both national and state levels before significant Constitutional changes.

Procedure for Amendment of Constitution's Fundamental Rights

• Shankari Prasad v. Union of India: In this case, the Supreme Court upheld the power of Parliament to amend the Constitution through Article 368, even regarding Fundamental Rights.
• Sajjan Singh v. State of Rajasthan: The court acknowledged Parliament's authority to assume powers to amend Fundamental Rights, even if not explicitly granted by Article 368.
• Golaknath v. State of Punjab: Here, the court introduced the doctrine of prospective overruling and limited Parliament's power to amend Fundamental Rights under Part III of the Constitution.
• 24th Amendment: Post the Golaknath case, the 24th Amendment clarified Parliament's authority to amend the Constitution without being restricted by Article 13.
• Kesavananda Bharati v. State of Kerala: In this landmark ruling, the Supreme Court established the concept of basic structure, curtailing Parliament's power to change the core of the Constitution.
• Indira Nehru Gandhi v. Raj Narayan: The court reaffirmed the basic structure doctrine, emphasizing limits on Parliament's amendment powers to preserve the Constitution's core.
• 42nd Amendment: This amendment, following earlier decisions, attempted to expand Parliament's authority but was later challenged and limited by the Supreme Court.
• Minerva Mills v. Union of India: In this case, the Supreme Court struck down clauses from the 42nd Amendment, asserting the supremacy of the basic structure over Parliament's amendment powers.
• L. Chandra Kumar v. Union of India: The Supreme Court deemed certain provisions of the 42nd Amendment unconstitutional, maintaining that Parliament cannot alter the power of judicial review, a crucial part of the Constitution's basic structure.

Evaluation of Supreme Court Judgments on Procedure for Amendment of Constitution

• Limited Power of Parliament: Parliament's authority to modify the Constitution is constrained.
• Protection of Basic Structure: Parliament is prohibited from altering the fundamental framework of the Constitution.
• Article 368 Limitations: Article 368 does not empower Parliament to amend Part III of the Constitution.
• No Increase in Amendment Powers: Amending Article 368 does not allow Parliament to expand its amendment authority.