The Procedure and Kinds of Amendment – Constitution of India

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Amendment of Indian constitution under article 368

The Procedure and kinds of amendment- Constitution of India

INTRODUCTION

26th January’ 1950 , was the Red Letter Day in the history of India. This is because , the present constitution was brought into force and announced to the world “The Birth of New Republic”.

A Constitution is a written document , having a special legal sanctity  which sets out the framework and principle functions of the organs ( legislature, Executive and Judiciary) of the government and declares the principles governing those organs.

The Indian constitution is the most lengthiest and the most detailed constitution of the world, which consist of  448 Articles , 25 parts and 12 schedules.

The Indian constitution currently have 104 Amendments, since it was first established in 1950.

UNIQUE BLEND OF RIGIDITY AND FLEXIBILITY

  1. Rigid- A Rigid constitution is one, in which the amending process is complicated and difficult and also special methods are required.
  2. Flexible- A Flexible process is a type where the amending process is easy and can be amended by ordinary legislative process.

The constitution of India is a unique blend of Rigidity and flexibility , this is because some of the provisions can be amended with ordinary legislative process and some need special majority .

Currently there a 104 Amendments , that have been made in Indian Constitution , since its establishment in 1950.

PROCEDURE FOR AMENDMENT-

  1. The Bill for the amendment is introduced in either house of the parliament .
  2. The Bill must be passed by Absolute plus special Majority , I.e. more than 50% or 2/3 special majority.
  3. After acquiring the majority, the Bill is then presented to the President who gives this acceptance to the Bill.

In case, if the bill seeks to amend the provisions mentioned in Article 368 , it requires a special majority and ratification by ½ of the State Legislature.

KINDS OF AMENDMENTS

The three different types of amendment of the Indian Constitution has been laid down below:-

  1. By simple Majority of the Parliament-

    There are some provisions  that can be amended , by a simple majority of the two houses, by passing of an ordinary law.  Some are as follows:–

  • Salaries And Allowances of members of Parliament.
  • Election of Parliament and State Legislature.
  • Abolition or Creation of Legislature Councils of State – article 169
  • Union Territories- article 239A

  1. By Special Majority of the Parliament-

    There are some provisions in the constitution , which needs a special majority of the Parliament, i.e.  a majority  ( more than 50%) of the total members of each house. The majority of 2/3 members of each house.

  1. By Special Majority and Ratification by State-

    There are certain provisions which are related to federal structure of the constitution , and these provisions can be amended by special majority of the parliament and ratification by 1/2  of the State Legislature.

  • Election of the President and its manner- Article 54 and 55
  • Extent of Executive Powers of the Union and States – 73 and 162
  • Articles dealing with judiciary – Article 124 to 147, 214 to 231, 241.
  • Distribution of Legislative power between the Central and the State – article 245-255.
  • Any of the list in Seventh Schedule.
  • Representation of states in Parliament in the 4th
  • Article 368 Itself.

IMPORTANT CASES – AMENDMENT OF THE CONSTITUTION.

  1. Shankari Prasad v. Union Of India

In this case the validity of the  1st amendment Act , 1951 which imposed article 31A and 31B of the constitution  was challenged and a  question was  raised , whether the Fundamental Rights (Part III) of the constitution can be amended under Article 368 or not. The Supreme Court held that , the power to amend the constitution , including the Fundamental Rights is contained in article 368.

  1. Sajjan Singh v. State of Rajasthan

In this case the validity of the 17th Amendment was challenged. The supreme Court approved the majority Judgement given in Shankari Prasad’s case. The Supreme Court held that the Parliament has unlimited power to amend any part of the constitution. It also stated that “Amend of the Constitution” means Amendment of all the provisions of the constitution.

  1. Golakhnath v. State of Punjab

In this case the validity of the 17th Amendment Act 1964 was again challenged.

The Supreme Court by a majority of 6 to 5 prospectively overruled the earlier judgement in Shankari Prasad’s case and Sajjan Singh’s case and held that the Parliament does not have unlimited power but have limited power. The Supreme Court also stated that the Parliament cannot amend the Fundamental Rights of the Citizens.

In order to remove the difficulties that were created in the judgement of Supreme Court In Golak Nath’s case the Parliament enacted the 24th Amendment Act , 1971.

The changes that took place due to this amendment was,

  • A new clause(4) was added to Article 13 , which stated that ‘Nothing in this Article shall apply to any amendment of this Constitution made under Article 368.
  • Secondly, it gave a new heading to Article 368 , “Power of the Parliament to amend the Constitution”.
  • It also inserted a new sub section (1) in Article 368 which states that “ notwithstanding anything in this constitution , Parliament may, in exercise of its constituent power amend by way of addition , variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this Article”

The 24th amendment, not only restored the amending powers but also extended the scope of amending powers.

  1. Keshvananda Bharati v. State of Kerela

In this case the validity of the 24th Amendment Act, was challenged. In this case the Supreme Court held that , the Parliament has wide power to amend the constitution , but those powers are not unlimited but limited. Supreme Court also stated that the Parliament can amend any part of the constitution but The Basic Structure of The Constitution can not be Amended.

Conclusion

Article 368 , of the Indian Constitution states The Procedure for Amendment of the Constitution. The Indian Constitution is a unique blend of Rigidity and Flexibility because the constitution can be amended through simple majority as well as Special Majority .

But the Basic Structure of the Constitution Can not be amended.

The Indian Constitution has 104 Amendments , since its establishment in 1950.The 1st Amendment took place in 1951.  The 42nd Amendment is Considered as the Mini Constitution , because it added three new words Socialist , Secular Integrity , was to our Preamble .

Author: Beas Sain,
IFIM Law School , 2nd Year / Student

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