The Hindu Editorial Analysis- 29th April 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

None too soon

Why in News?

The Supreme Court has given a timely reminder to Governors that the Constitution expects that a decision to return a Bill to the State Assembly for reconsideration should be made “as soon as possible”. It has drawn attention to the phrase found in the first proviso to Article 200, seeking to convey a sense of immediacy in the matter of returning a Bill.

A constitutional amendment can only be initiated by the introduction of a Bill in either House of Parliament. Part XX (Article 368) of the Indian Constitution lays forth the procedure to be followed in the case of a constitutional amendment. The constitution of the country is a fundamental law of the land on the basis of which all other laws are made and enforced. Any change in this document, if needed, is required to be introduced with great caution. 

Amending of The Constitution - Key Concepts

• The Indian Constitution, like any other written constitution, allows for revision in order to adapt to changing situations and demands.
• However, the method for amending it is neither as simple as in the United Kingdom nor as onerous as in the United States.
• In other words, the Indian Constitution is a mixture of both flexibility and rigidity.
• The Idea of amending the constitution has been borrowed from the Constitution of South Africa.
• The procedure for amendment is detailed under Article 368 in Part XX of the Constitution.
• It provides that the Parliament, in exercising its constituent authority, may alter any provision of the Constitution by adding, modifying, or repealing it in line with the method established for that purpose.
• However, the sections that comprise the Constitution's ‘basic structure’ cannot be amended by Parliament. The Supreme Court decided on this in the Kesavananda Bharati case (1973)
• Article 368 in itself has been amended by the Parliament through 24th Amendment Act, 1971 and 42nd Amendment Act, 1976.

Procedure for Amending Indian Constitution

The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:

• A constitutional amendment can only be initiated by the introduction of a bill in either House of Parliament, not in state legislatures.
• The bill can be filed by either a minister or a private member, and no previous authorization from the president is required.
• The law must be carried by a special majority in each House, which is a majority of the entire membership of the House plus a majority of two-thirds of the members present and voting.
• The law must be passed separately by each House. There is no provision for calling a joint sitting of the two Houses for the purpose of consideration and passing of the bill if the two Houses disagree.
• If the law aims to change federal provisions of the Constitution, it must also be adopted by the legislatures of half of the states by a simple majority, that is, a majority of House members present and voting.
• The bill is brought to the president for assent after being officially enacted by both Houses of Parliament and confirmed by state legislatures, if required.
• The bill must be signed by the president. He cannot withdraw his assent to the law or return it to Parliament for reconsideration.
• Following the president's signature, the bill becomes an Act (i.e., a constitutional amendment act), and the Constitution is altered in line with the Act's terms.

Ways To Amend The Constitution

There are three ways of amending the constitution:

• Amendment by simple majority.
• Amendment by special majority.
• Special majority with ratification by the state legislature.

Amendment by simple majority

• There are a good number of articles in the constitution that are of transitory nature. Though they can be changed by the Parliament by a simple majority. By simple majority is meant, a simple majority of the members present and voting i.e., more than 50%. The following provision of the constitution also fall under the same category:
• Formation of new states, changes in the names and boundaries of the states.
• Quorum for the transaction of business in Parliament.
• Admission or establishment of new States.
• Delimitation of constituencies.
• Creation or abolition of the legislative council in the States by the Parliament.
• Salaries and allowances of President, Vice-President, Judges of Supreme Court and High Courts.
• Power, privileges, and immunities of members of Parliament.
• Acquisition and termination of citizenship.

Amendment By Special Majority

• An amendment of the constitution may be initiated only by the introduction of the bill for the purpose of either House of Parliament.
• When a bill is passed in each House by a majority of not less than 2/3rd of the members of that house present and voting.
• The following provision of the constitution also fall under the same category:
  • Fundamental Rights
  • Directive Principles of State Policy
  • All parts of the Constitution, with the exception of the specific provisions mentioned in Article 368 can be amended by this method.

Special Majority With Ratification By The State Legislature

• Majority constituting more than 50% of the States is considered. For such provision of the constitution, an Amendment bill has to be passed by each house of the Parliament by a majority of the total membership of that House and by a majority not less than 2/3rd of the members present and voting; then the amendment must be ratified by the state legislature of not less than one-half of the States by simple majority.
• In this regard Article 368 of the Constitution provides for a list of Article which may be amended only by a rigid method. These are:
  • Pertaining to election to the office of President (Article 54 & 55).
  • Extent of executive power of the Union and the State (Article 73 and 162).
  • The seventh schedule.
  • Provision pertaining to the Supreme Court of India (Part V- Chapter 4).
  • Provision pertaining to the High Court of India (Part VI- Chapter 5).
  • High Court for Union Territories (Article 241).
  • Representation of State in the Parliament (Article 80 & 81)
  • Provision dealing with the amendment of the Constitution (Article 368) itself.

Salient Features Of Amendment Procedure

• Our constitution vests constituent power upon the ordinary legislature of the Union, i.e. Parliament and there is no separate body for amending the constitution as exists in some other countries.
• Introduction of Bill for the amendment of the Constitution can be introduced only in Parliament not in State Legislature.
• To introduce a constitution amendment bill in the parliament, no prior permission of the President is required.
• Both houses of Parliament must pass it separately.
• In the final state, constitution amendment bill is presented to the President for his assent which the president cannot refuse.
  • This has been established by the 24th Amendment Act, 1971 which by substituting the words "shall give his assent' in Clause (2) of the Article 368, has taken away the President's power to veto a bill for amendment of the constitution.
  • But there is no time limit within which the President must give his assent as soon as possible
• The Supreme Court ruled in the Keshavnanda Bharati case that parliament cannot change the constitution's "Basic structure."

The Indian Constitution's Amendability

• The concept of the Basic Structure of the Constitution is nowhere explicitly mentioned in the Constitution. It is a judicial innovation and was given its shape by the Supreme Court in Kesavananda Bharati vs. State of Kerala case (1973).

Procedure for Amending Constitution - Criticism

• There is no provision for a special body to change the Constitution, such as a Constitutional Convention (as in the United States) or a Constitutional Assembly.
• The constituent authority is held by Parliament and, in a few situations, state legislatures.
• Parliament has the authority to make constitutional amendments. As a result, unlike in the USA, state legislatures cannot initiate any bill or proposal to modify the Constitution, except in one case: adopting a resolution urging the Parliament to create or abolish legislative councils in the states. In this case, too, the Parliament can either adopt or reject the resolution, or it can do nothing.
• The Parliament alone can amend the majority of the Constitution, either by a special majority or by a simple majority. Only in a few situations is the assent of state legislatures necessary, and even then, only half of them, whereas in the United States, it is three-fourths of the states.
• The Constitution does not specify when state legislatures must accept or reject an amendment that has been offered to them. It is also silent on whether or not states can revoke their permission after giving it.
• If there is a deadlock over the passage of a constitutional amendment bill, there is no provision for a joint sitting of both Houses of Parliament. In the event of an ordinary measure, however, a provision is created for a joint sitting.
• The amendment procedure is comparable to the legislative process. With the exception of the special majority, constitutional amendment measures must be carried by Parliament in the same manner as regular laws.

Conclusion

Despite these shortcomings, the method for Amending the Constitution has shown to be straightforward and easy to implement, and it has met the changing demands and situations. The method is not so adaptable that the ruling parties may modify it at their leisure. It is also not so inflexible as to be incapable of adapting to changing demands. It, as K.C. Wheare correctly stated, "strikes a reasonable balance between flexibility and stiffness."