What do you understand by the Amendment or Amendment Procedure of the Indian Constitution? Who has the power to amend the constitution? Read on to learn more.
The drafters of the Constitution believed that it needed to reflect societal changes as well as the aspirations of the population.
They did not consider the constitution as a sacred, unchanging law. They, therefore, included provisions for occasionally incorporating modifications. These changes are called constitutional amendments.
However, the procedure of amendment laid in the Indian constitution is neither as easy as in Britain nor as difficult as in the USA.
Who has the Power to Amend the Constitution?
Article 368 in Part XX of the Indian Constitution deals with the power of the Parliament to amend the constitution and its procedure if requires.
So, the Parliament is empowered to amend or repeal any provision of the constitution in accordance with the procedure laid down for this purpose.
However, it was ruled by the Supreme Court in Kesavananda Bharati Case 1973 that the parliament cannot amend those provisions which form the “basic structure” of the Constitution.
Types of Amendment
Article 368 of the Indian Constitution has provided for two types of amendments, that is by a special majority of Parliament and the special majority of parliament along with the ratification of half of the state’s legislatures by a simple majority.
Certain provisions of the Constitution require amendment by a simple majority of each house, that is, a majority of members of each house present and voting (similar to ordinary legislation). These amendments are not considered to be amendments under Article 368.
It clearly means that the amendment of Indian Constitution is possible in three ways:
- Amendment by a simple majority of the Parliament,
- Amendment by a special majority of the Parliament, and
- Amendment by a special majority of the Parliament, and the ratification of half of the state legislatures.
Procedure for Amendment as per Article 368
The procedure for amendment of the Indian Constitution as per Article 368 is as follows:
- An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament and not in the state legislature.
- The bill does not require the prior permission of the President for introduction in the Parliament.
- The bill shall be presented by a minister or a private member.
- The bill must be passed in each house by a special majority i.e., the majority of the total membership of the house and the majority of two third of members of the house present and voting.
- Each house must have to pass the bill separately and there is no provision for joint sitting if any case of disagreement arises between the two houses.
- If the bill seeks to amend the federal feature of the constitution, it must also be ratified by half of the state legislature with a simple majority.
- After duly passed by both houses and ratified by the states (if requires), the bill is presented to the president for his assent.
- The President can neither withhold nor return the bill for the reconsideration purpose of the parliament. Hence, President must have to give his assent to the bill.
- After the assent of the President, the bill will become an Act.
What is Simple Majority?
This refers to the majority of more than 50% of the members present and voting and it is outside the ambit of Article 368. This is also known as the functional majority or working majority. The simple majority is the most frequently used form of majority in Parliamentary business. When the constitution or the laws do not specify the type of majority needed, the simple majority is considered for voting.
To understand the 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 100 abstained from voting on an issue. So only 400 members were present and voting. Then the simple majority is 50% of 400 plus 1, ie. 201.
Cases where the simple majority is used:
- To pass Ordinary/Money/Financial bills.
- To pass Non-Confidence Motion/Adjournment Motion/Censure Motion/Confidence Motion.
- For the removal of the Vice President majority required in Lok Sabha is the simple majority – A67(b).
- To declare a financial emergency.
- To declare a state emergency (President’s rule).
- Formation of new states and alteration of areas, boundaries or names of existing states,
- Abolition or creation of legislative councils in states,
- Use of official language,
- Citizenship – acquisition, and termination,
- Election of Speaker/Deputy Speaker of Lok Sabha and State legislatures.
- Fifth Schedule – administration of scheduled areas and scheduled tribes,
- Sixth Schedule – administration of tribal areas.
What is Special Majority?
All types of majorities other than the absolute, effective or simple majority are known as the special majority. A special majority are of 4 types, with different clauses.
The two most significant provisions that can be changed by a special majority are the Fundamental Rights and Directive Principles of State Policy (DPSP), however, any changes must stay within the constraints of the Basic Structure of the Constitution.
- Type 1 – Special Majority as Per Article 249.
- Type 2 – Special Majority as per Article 368.
- Type 3 – Special Majority as per Article 368 + 50 per cent state ratification by a simple majority.
- Type 4 – Special Majority as per Article 61.
Special Majority as Per Article 249
Special majority as per article 249 requires a majority of 2/3rd members present and voting. For example, if out of the 245 members in Rajya Sabha, only 150 are present and voting, then the special majority required as per article 249 would be 101.
Cases where special majority as per article 249 is used:
To pass the Rajya Sabha resolution to empower the parliament to make laws in the state list. (valid up to 1 year, but can be extended any number of times).
Special Majority as Per Article 368
Special majority as per article 368 requires a majority of 2/3rd members present and voting supported by more than 50% of the total strength of the house. 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 present and voting.
Cases where special majority as per article 368 is used:
- To pass a constitutional amendment bill which does not affect federalism.
- Removal of judges of SC/HC.
- Removal of CEC/CAG.
- Approval of a national emergency requires a special majority as per Article 368 in both houses.
- Resolution by the state legislature for the creation/abolition of the Legislative Council (Article 169).
Special Majority as Per Article 368 Plus State Ratification
This type of special majority is required when a constitutional amendment bill tries to change the federal structure. Special majority as per article 368 plus state ratification requires a majority of 2/3rd members present and voting supported by more than 50% of the state legislatures by a simple majority.
Cases where special majority as per article 368 plus state ratification is used:
To pass a constitutional amendment bill which affects federalism like the position of High Court Judges.
Special Majority as Per Article 61
Special majority as per article 61 requires a majority of 2/3rd members of the total strength of the house. In Lok Sabha, the special majority as per article 61 is 364 while in Rajya Sabha, the special majority as per article 61 is 164.
Cases where special majority as per article 61 is used:
For the impeachment of the Indian President.
Amendability of Fundamental Rights and Evolution of Basic Structure
The question of whether Fundamental Rights can be amended by the Parliament under 368 or not was the reason for the evolution of the basic structure. Important incidents related to this are:
Shankari Prashad Case, 1951
Supreme Court ruled that the power of Parliament to amend the Constitution under Article 368 also includes the power to amend the Fundamental Rights.
Golakhnath Case, 1967
Supreme Court reversed its earlier judgement. Here, the Supreme Court ruled that Fundamental Rights are given a “transcendental and immutable” position. So, the Parliament cannot abridge or take away any of the Fundamental Rights.
24th Amendment Act, 1971
The Parliament reacted to the Court’s judgement in the Golakhnath Case 1967. The act amended Articles 13 and 368 and declared that Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.
Kesavananda Bharati Case, 1973
Supreme Court overruled its judgement made in Golakhnath Case and stated that the Parliament is empowered to take away any of the Fundamental Rights but at the same time it introduced a new doctrine of the “Basic Structure”. It ruled that the Power of Parliament under Article 368 does not enable it to alter the “Basic Structure/Feature” of the Constitution and declared Fundamental Rights, a basic structure of the Constitution.
42nd Amendment Act, 1976
The act amended article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court.
Minerva Mills Case, 1980
In this case, Supreme Court invalidated the provision as it excludes judicial review which is a “basic feature” of the constitution.
Waman Rao Case, 1981
Supreme Court further clarified that the doctrine of Basic Structure would apply to the constitutional amendment enacted after 24 April 1973 (i.e., after the date of the judgement of the Keshwanand Bharti case).
Important Amendments of the Indian Constitution
Here is a list of some major amendments to the Indian Constitution:
First Amendment (1951): This amendment protected the rights of property owners and made it more difficult for the government to enact land reform measures. It also added the Ninth Schedule, which protected certain laws from being challenged in the courts.
Fourth Amendment (1955): This amendment authorized the government to take over the management of “absentee landlord” estates, which were estates owned by landlords who did not live on or manage the land.
Seventh Amendment (1956): This amendment extended the powers of the government to acquire property for public purposes and to provide compensation to the owners.
Eleventh Amendment (1961): This amendment authorized the government to take over the management of “inam” lands, which were lands granted to individuals or institutions by the government.
Sixteenth Amendment (1966): This amendment authorized the government to levy taxes on agricultural income.
Eighteenth Amendment (1971): This amendment made significant changes to the Indian Constitution, including the creation of a new state (Meghalaya), the inclusion of a new language (Santali) in the Eighth Schedule, and the abolition of the privy purses of the former rulers of the princely states.
Twenty-fifth Amendment (1971): This amendment recognized the right to property as a legal right rather than a fundamental right.
Thirty-ninth Amendment (1975): This amendment protected the constitutional position of the state of Sikkim after it was merged with India.
Forty-second Amendment (1976): This amendment made a number of changes to the Indian Constitution, including the addition of the words “secular” and “socialist” to the Preamble and the insertion of the Fundamental Duties of citizens.
Forty-fourth Amendment (1978): This amendment reversed many of the changes made by the Forty-second Amendment and restored the rights and freedoms of citizens.
Fifty-second Amendment (1985): This amendment recognized the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as a fundamental right.
Sixty-first Amendment (1989): This amendment lowered the voting age from 21 to 18.
Sixty-ninth Amendment (1991): This amendment recognized the capital city of Delhi as a Union Territory with a legislature.
Seventy-third Amendment (1992): This amendment recognized the right to panchayats (local self-governments) as a fundamental right and provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in panchayats.
Seventy-fourth Amendment (1992): This amendment recognized the right to municipalities (local self-governments) as a fundamental right and provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in municipalities.
Seventy-seventh Amendment (1995): This amendment provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in posts in cooperative societies.
Ninety-third Amendment (2006): This amendment provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in higher education institutions.
Ninety-fifth Amendment (2009): This amendment provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in the promotion to government jobs.
One hundred and third Amendment (2019): This amendment provided for the reservation of seats for economically weaker sections of society in higher education institutions.
Article Written By: Priti Raj