AMENDMENT OF CONSTITUTION

ABSTRACT

This article has been written about the amendment of the Indian Constitution. It includes some comparison with the amendment procedure of the other countries. The aim of this paper is to clarify each and every aspect of the amendment process in India and the powers of the parliament and the courts if any. This article has been written by referring to CBSE books, the Indian Constitution, and other books relating to the Constitution of India. This article gives us a detailed information on the procedure passing a Constitutional bill in the parliament and the nominal power that the President has regarding this Constitutional amendment bill. The article also mentions about the recent as well important Constitutional amendments in India. Some very essential land mark cases have also been discussed in the paper. There are a series of judgements that have been discussed as the previous ones had been overruled and a new case law came regarding the amendment of the Constitution.

KEYWORDS

Amendment of Constitution, Constitutional Amendment Bill, Power of Parliament, Power of the President.

INTRODUCTION

The amendment in the Indian Constitution is a very crucial topic as the lives of all the citizens and non-citizens in India depends on this very document called the Constitution of India. The Indian Constitution is a collection of several rules and regulations, rights and duties, responsibilities, powers, etc. The head of the drafting committee for drafting the Indian Constitution was Dr. BR Ambedkar Rao. The Constitution is a handwritten one which was specially calligraphed and given designed borders, calligraphed by Prem Behari Narain Raizada and decorated by Beohar Rammanohar and Nandalal Bose. The Constitution requires changes according to the changes in the society as generation to generation the people and their thinking changes. The article 368 of the Indian Constitution is drafted in a way that the Constitution of India is neither too rigid nor too flexible. This is one of the salient features of the Indian Constitution that it is neither too rigid to amend nor too flexible to amend. A Constitutional Amendment Bill can be introduced in either of the houses for making any amendments in the Constitution. The process of amending the Constitution can be done in two ways, that is either by special majority or by special majority with ratification of the states. These two ways will be discussed in the article along with when which article is used. This process of amendment in India is simpler for the articles which are not the most important ones but the ones regarding security and such other types have a proper and cautiously designed procedure.

OBJECTIVES

The main objectives of writing this article on the topic, “amendment of Constitution” are:

To know the extent of the parliament in amending the Constitution
To understand the nominal status of the president in assenting a Constitutional bill
To explain in detail the process of amending the Constitution
To learn what are the two methods of amending the Constitution and when they are used
To understand the power of the parliament as well as the President in this case

BACKGROUND

The Indian Constitution was completely written in 2 years 11 months and 18 days on 26^th November 1949. It was fully in force on 26^th January 1950. This date was chosen to fully enforce the Constitution as on the same day in 1930, India kept forward the idea of Poorna Swaraj for the first time through Mahatma Gandhi. The constitution contains 395 sections, 12 schedules, and 1,17,369 words. The Indian Constitution has also been drafted in the Hindi language. The Indian Constitution is the longest Constitution and can be considered one of the most well drafted and well researched Constitution. The Article 368 in part XX of the Indian Constitution states – power of parliament to amend the Constitution and the procedure therefor. There are 5 sub sections of this article, which briefly talk about the ways of amending the Constitution, the two methods of amending, the power of the parliament in deciding what must be amended

WHO CAN AMEND –

The article 368 of the Indian Constitution clearly states that the parliament can amend the Constitution, which can be done in any of the following ways –

Addition or;
Variation or;
Repeal of any of the provisions laid down by the Constitution

The parliament consisting of the Lok Sabha (lower house), the Rajya Sabha (Upper House) and the President work together towards the amendment of the Constitution. The procedure of this amendment will be further discussed in detail.

WHAT IS AMENDING OF CONSTITUTION

Amending the Constitution means to make changes in the Constitution for the purpose of making the current laws better. The modifications, addition, changes, repealing of any of the provisions of the Constitution is said to be amending the Constitution. As clearly mentioned previously and in the article 368, the parliament can, for the purpose of amending any article in the Constitution perform any of the following –

Addition or;
Variation or;
Repeal of any of the provisions of the Constitution.

CONSTITUTIONAL AMENDMENT BILL

The Constitutional amendment bill is a bill described under the article 368 which can be introduced in the parliament for the specific purpose of making amendments in the Constitution.

The parliament consisting of –

The president
The Rajya Sabha (Upper House)
The Lok Sabha (Lower house)

work together towards the amendment of the Constitution. The procedure of passing a bill is in the responsible hands of the parliament. The introduction of the bill may be in either of the courts.

PROCEDURE NAME	IN CONSTITUTIONAL AMENDMENT BILL
Introduction of the bill	In either of the houses
Prior Approval of President	No Recommendation of the President is needed
Power of the Rajya Sabha	It has full power equal to the Lok Sabha
Deadlock	It may arise
Joint session	No provision for Joint Session even when deadlocks may arise
President’s options when the bill comes to him for assent Give assent Withhold Return the bill for reconsideration	In the case of a Constitutional Amendment bill, the President is under an obligation by the 24^th Constitutional Amendment that he must provide his assent to the Constitutional Amendment Bills

THE PROCEDURE OF AMENDMENT

The procedure of amending the Constitution as is done by the parliament is done through the introduction of the Constitutional amendment bill which is a type of bill. There is no restriction on the introduction of this bill. This bill can be introduced by any member of the parliament, that is it can be either a minister or a private member of the parliament.

There is discussion on this bill through its effective stages

1^st reading – overview regarding the bill and discuss its purpose
2^nd reading – clause by clause reading of the bill
Committee stage – taking expert advice as required
3^rd reading – final reading of the bill, discussion and clause by clause voting
Pass/Reject the bill

This process is followed in the house where the bill has been introduced, then if the bill passes from this house, it is later sent to the other house where the same process is followed and if both the houses have approved and passed the bill is then sent for the President’s assent.

The President even though has the options to assent, withhold or return the bill for reconsideration, can only give assent to the Constitutional Amendment bill as per the amendment made in the 24^th Constitutional Amendment Act. Once the President has given his assent to this bill, it becomes and act and the changes suggested in the bill are made.

METHODS OF AMENDMENT

There are 3 ways of voting for a bill. The legislative procedure prescribes 3 methods of voting that takes place at each effective stage of the procedure of passing a bill. These 3 methods are-

Simple majority
Special majority
Special majority by Ratification of the states

The members of the parliament vote at every effective stage by either of these 3 methods depending on what the bill is about.

Simple Majority –

Voting by simple majority is when a bill is passed by a majority of at least 50% of the members of the house present and voting.

Special majority –

Special majority is when a bill is passed with a majority of the total membership of the parliament and with at least 2/3^rd votes of the member present and voting. This means that –

There are 2 conditions required for passing a Constitutional bill by special majority, that is-

At least 50% votes of the total membership
At least 2/3^rd votes of the members present and voting

Only when both these conditions will be fulfilled the bill will pass.

As there are 545 members in the Lok Sabha and 245 members in the Rajya Sabha, for passing a bill by special majority requires the following condition to fulfill the votes of at least 275 members from the Lok Sabha and of at least 125 members from the Rajya Sabha is required.

Now, say, on a particular day when the bills were in the Lok Sabha and the Rajya Sabha respectively,

350 members of the Lok Sabha members were present and 150 members of the Rajya Sabha were present of which 300 and 150 are voting. Therefore, there are 300 members who are present and voting on that particular day. Now for a bill to pass by special majority 2/3^rd members of 300 and 2/3^rd members of 150 are must vote in the favour of the bill. This implies that, 200 members of the Lok Sabha must be in favour of the bill and 100 members of the Rajya Sabha must vote in the favour of the bill.

However, the bill would still not pass as it requires 2 conditions to be fulfilled for passing a bill of which only one condition has been fulfilled. Hence, both conditions must fulfill.

Special majority with ratification of the states –

This means when a bill is passed by the majority of the total membership of the parliament and with at least 2/3^rd votes of the members present and voting along with the ratification of at least 50% of the states in India. Ratification refers to the consent of the states. When at least 50% of the states have consented for the bill, it does not matter that what the other states are saying, if the Parliament can go on with declaring the bill as passed by both the houses.

POWER OF THE PRESIDENT

The Constitutional amendment bill, as in other bills viz, ordinary bill, financial bill, and money bill, goes to the president for his assent after both the houses have approved and passed the bill.

The president has the following powers in respect of a bill after the bill passes from both the houses and is given to him for his assent. These powers are-

to give his assent to the bill
to withhold the bill
to return the bill for reconsideration with some of his suggestions

Here, in the case of a Constitutional amendment bill, the difference is that when the Constitutional amendment bill passes from both the houses, the President is under the obligation to give his assent to the bill in the first time itself, unlike other bills. “This provision is followed in the following amendments-

article 54, article 55, article 73, article 162 or article 241, or
Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
Any of the lists in the 7^th Schedule, or
The representation of States in the Parliament, or
The provisions of this article.”

The president cannot refrain from this obligation. He can neither withhold his assent nor can he return the bill for reconsideration. This compulsion of the president in itself has been made by a Constitutional amendment. The 24^th Constitutional amendment, 1971 made this obligation on the president that he must give his assent to the Constitutional amendment bills given to him for his assent.

IMPORTANT AMENDMENTS

There are many amendments in the Constitution that have been made by the parliament till date. The first among these is the First Constitutional Amendment Act, 1951, which the very next year after the Constitution was fully enforced. There are total 108 Constitutional amendment Acts till now. The last one was assented by the current President, Droupadi Murmu.

42^nd Constitutional Amendment Act

This Amendment act is also known as the Mini Constitution of India as this Act brought about many essential changes in the Constitution that we see currently.

73^rd – 74^thConstitutional Amendment Act

For the addition of Municipalities and Panchayats as

86^thConstitutional Amendment Act

This amendment made education a right for children between the age of 6 and 14. It also provided right to early childhood care for children below the age of 6

103^rd Constitutional Amendment Act

To add Economically Weaker Sections in the Reservation

CASE LAWS

Idea of Basic Structure Doctrine

The concept of basic structure doctrine was first given by Justice Mudholkar in the case Sajjan Singh vs State of Rajasthan 1964[1] (Judgement date – 30/10/1964).

The idea of the basic structure doctrine was finally considered in the case of Kesavananda Bharti[2], 1973 (Judgement Date – 24/04/1973)

The application of the basic structure doctrine was given in the case of S.R. Bommai v. Union of India, 1994[3] (Judgement date – 11/03/1994)

Can Fundamental Rights be amended?

In the case of Sankari prasad vs Union of India[4] (Judgement Date – 05/10/1951)

In this case the first constitutional amendment was challenged as it made amendments in the part III of the constitution. The supreme court held that the parliament can make amendments in the constitution of India and therefore they can make changes in the fundamental rights as well

In the case of I.C. Golaknath[5] (Judgement date – 27/02/1967), the court held that the Fundamental Rights in the Part III of the Constitution cannot be amendment by the Parliament.

In the case of Kesavananda Bharti, 1973[6] the Fundamental Rights were made amendable by the Parliament on the condition that the basic structure of the Constitution must remain intact.

CONCLUSION

To conclude, the amendments in the Constitution can be done in three ways depending on the articles that are needed to be amended. This amendment is done by the Parliament. The Houses have the majority power while amending the constitution. The President only plays a nominal role here. Understanding the amendment procedure is necessary to know the functioning of the Parliament. There has been a long going debate on the amendment of fundamental rights for 23 years and on the basic structure of doctrine for 30 years. So, the cases law described here in brief are the landmark judgements that have shaped our constitution the way it is now.

REFERENCES

Legal Studies Class XI (CBSE, 2022)
Sajjan Singh vs State of Rajasthan, 1965 AIR 845 1965 SCR (1) 933, https://indiankanoon.org/doc/1308308/
SR Bommai vs Union of India, 1994 AIR 1918 1994 SCC (3) 1 https://indiankanoon.org/doc/60799/
I.C. Golaknath and Ors vs State of Punjab and Anr, 1967 AIR 1643 1967 SCR (2) 762 https://indiankanoon.org/doc/120358/
Sri Sankari Singh Deo vs Union of India and State of Bihar, 1951 AIR 458 1952 SCR 89 https://indiankanoon.org/doc/1706770/
Kesavananda Bharti Sripadagalvaru and Ors vs State of Kerala and Anr, WP (Civil) 135 of 1970 https://indiankanoon.org/doc/257876/
Indian Constitution
IndianKanoon, https://indiankanoon.org/doc/594125/, (6/02/24, 5:12pm)
Legal Services India, https://www.legalserviceindia.com/article/l70-Article368.html, (6/02/24, 1:54pm)
Byju’s Exam Prep, https://byjus.com/free-ias-prep/types-of-amendment/, (6/02/24, 1:54pm)
Clear IAS, https://www.clearias.com/basic-structure-doctrine/, (6/02/24, 4:10pm)
Drishti IAS, https://www.drishtiias.com/daily-news-analysis/basic-structure-of-constitution, (6/02/24, 4:10pm)
Jagran Josh https://www.jagranjosh.com/general-knowledge/basic-structure-doctrine-of-the-constitution-1437127016-1, (6/02/24, 5:14pm)
INSIGHT IAS, https://www.insightsonindia.com/polity/indian-constitution/salient-features-of-indian-constitution/ , (6/02/24, 2:20pm)

[1] Sajjan Singh vs State of Rajasthan, 1965 AIR 845 1965 SCR (1) 933

[2] Kesavananda Bharti Sripadagalvaru and Ors vs State of Kerala and Anr, WP (Civil) 135 of 1970

[3] SR Bommai vs Union of India, 1994 AIR 1918 1994 SCC (3) 1

[4] Sri Sankari Singh Deo vs Union of India and State of Bihar, 1951 AIR 458 1952 SCR 89

[5] IC Golaknath and Ors vs State of Punjab and Anrs., 1967 AIR 1643 1967 SCR (2) 762

[6] Kesavananda Bharti Sripadagalvaru and Ors vs State of Kerala and Anr, WP (Civil) 135 of 1970

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