This article is written by Khyati Basant, from Symbiosis Law School, Noida. This article gives a brief analysis of the amendment procedure.
Like the other Constitutions, the Indian Constitution is in the form of a written document. We all know that the moment a State’s constitution is reduced to paper, the amending clause has taken considerable changes as it is so much the purpose of the Constitution. In a nation like India which is democratic, the Constitution is defined as superior or supreme law with greater efficiency, authority and higher sanctity than ordinary legislation and greater permanence. The meaning of a written constitution is in the way it amends.
The Constitution can be split into two – regulated and unregulated procedural. Where the Constitution is sovereign and the government is a legislative entity with limitations on its authority, the statutes are liable to be stuck as ultra vires if they break legislative law, it can be considered a ‘regulated State’. The authority of the legislature to filter the Constitution of such a state is either limited or inexistent. On the other hand, in an ‘unregulated constitution’ such as that of the United Kingdom, where the parliament is sovereign and has absolute authority, the constitutional rule can be changed simply by enacting legislation following it. The Indian Constitution is managed, the power to amend it requires a great deal of wisdom and minimal effort as the cases where the same is concerned require a great deal of effort.
India’s constitution lays out the basis on which Indian polity is ruled. The Constitution declares India to be an independent, democratic socialist republic, promising order, dignity and freedom for its people. This was approved on 26 November 1949 by India’s Constituent Assembly and came into force on 26 January 1950. India celebrates Republic Day on 26 January each year. It is the longest written constitution in the history of any sovereign country, with 395 articles and 12 schedules, as well as various revisions, for a total of 117,369 words in the English language version.
The Indian Constitution
The Constitution is a dynamic document. Although this Constitution is as strong and enduring as we want it to be, there is no longevity. What we can do today might not be entirely applicable tomorrow. Government pattern must change and the constitution must adapt itself to the economic and social development of the nation. The proposed constitution abolished complex and daunting processes such as a convention or referendum decision. Amendment powers are left to the central and provincial legislature. It is the approval of the state legislatures that are needed for modifications to particular matters and there are very few. The other clauses of the Constitution are left to the Parliament to amend. The main restriction is that it is made by a vote of not less than two-thirds of the members present and voting in each House and by a vote of the overall membership of each house. The world is not static; it goes on changing. The social, economic and political circumstances of the people go on changing and the constitutional law of the nation must, therefore, adapt in order to the changing needs, changing the lives of the people. If no arrangements were made for modification of the constitution, the people would have recourse to extra-constitutional processes including insurrection to reform the constitution. The Indian constitution’s framers were keen to create a text that could evolve with a rising population, adapting itself to a rising people’s shifting circumstances. The Constitution needs to be updated in every period. No-one may say this is the finish.
Constitutional amendment in India
The Constitution, considered to be the people’s ‘common will,’ is a foundational text that determines the state’s status and control of its different institutions. It is not only the foundational law of the land but the living organic stuff from which the other laws are to be produced according to the nation’s necessity. Instead of leaving this important task entirely to the judiciary, the framers of the Indian Constitution inserted Article 368 as a formal method to provide for a constitutional amendment. Articles 368 (Power to amend the Constitution and Procedure thereof) – Notwithstanding anything contained in this Constitution, Parliament may, in the exercise of its constituent power, amend any provision of this Constitution following the procedure laid down in this Article by way of addition, variation or repeal. The Indian legislature is responsible for formulating new legislation, amending the existing laws and squashing obsolete ones in certain situations. The Constitution will also be revised, being simply a statute. The constitution’s amenability explicitly poses the issue of the likelihood of abuse of the powers granted to the government to undermine the nation’s democratic principles. The rights of the government to change the constitution have always been a matter of controversy and over the years there has been much disagreement. The Constitution lays out the fundamental government system by which the people want to be regulated themselves. It establishes the government’s main organs-executive, legislature and judiciary. Not only does the Constitution describe the powers of each entity but it also points out its obligations. This governs the relationship between the different bodies, and the government and the people.
Procedure for a constitutional amendment
An amendment to the Constitution may only be initiated by introducing a Bill for that purpose in either House of the Parliament and, when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and vote, it shall be presented to the President, who shall give his assent to the Bill. Only the House of the People (Lok Sabha) or the Council of State (Rajya Sabha) has been given the right to initiate the amendment procedure. The process laid down in Article 368 shall be complemented by the rules defined by every House for governing its practice and the conduct of its business. Like the Constitutions of the United States, Switzerland and Australia, no opportunity has been granted to the citizens of India either at the incorporation point or at the ratification point to express themselves regarding the constitutional change. They must entrust the future of their Constitution to the members of Parliament and, in some cases, to those of their respective state legislatures.
The Constitution provides for the following four procedures for amendment:
- Amendments may be made by a simple majority of Parliament to certain provisions of the Constitution, in the same manner as the ordinary statute is adopted by Parliament. These changes can be transferred in the case of a government of a member, or the case of a government of the European Union.
- Modification of specific provisions of the Constitution may take place by a simple majority of the Legislature of the State in the same manner as the ordinary act.
- Amendments to certain provisions, sometimes referred to as enshrined provisions, may only be made by a special majority of Parliament. By a majority of the total membership of each House, and by a majority of not less than two-thirds of the members present and voting in each House. For the intent of amending the Constitution, no joint sitting of both houses may be held.
- Amendments to such laws require not less than half of the States, in addition to a special majority of legislative confirmation.
Constitution’s provisions may be amended by a simple vote, as this is necessary for the passing of common law. The Parliament of the state legislatures may amend these provisions by a simple majority since they do not affect or disturb the federal balance of power between the Union and the states. Since the entry and formation of new states would change the constitution’s federal character. Some of the provisions that can be amended are :
- Admission of a new state as provided under- Article 2
- Provisions concerning Indian Citizenship- Article 11
- Provisions governing the exercise of the executive authority or its agents on issues relating to which the Parliament authorized to legislate- Article 73(2)
- Provisions concerning the membership of Legislative Councils- Article 172
- The provision relating to the High Court judge’s wages and allowances (power applies to the raise and not to the decrease in wages, etc.)- Article 221(2) and subsequent changes to Schedule II;
- English-language provisions- Article 343(3)
The Constitution’s provisions other than those discussed above may be amended by the procedure set out in Article 368. The method will be as follows:
- An amendment to the Constitution may only be initiated, to introduce a Bill, in either House of the Union Parliament.
- After the Bill is passed by a majority of that House’s total membership in each House of Parliament, and by a majority of not less than two-thirds of the House’s membership present and voting it shall be presented to the President for his assent. It must be remembered that the President is obligated to give his consent to an Alteration Bill, having been approved by either House of Parliament.
- The Constitution after having received the President’s assent stands amended following the rules of the Legislation.
Ratification by State
The special majority is not sufficient for some articles of the Constitution. When an amendment attempts to amend an article relating to the allocation of powers between states and the Central Government, or articles relating to the representation, it is appropriate to consult the states and to give their consent. The Constitution has maintained that by ensuring that half-state legislators must pass the amending bill before the provision enters into effect. At the same time, care is taken to keep this procedure somewhat flexible even in its more rigid format: it requires consent from only half the states and suffixes for a simple majority of the state legislature. Thus, even after taking into account this more stringent condition, the amending process is not impracticable. We can summarize that India’s Constitution can be amended by broad consensus and limited state involvement.
Basic structure of the Constitution
One aspect that has long lastingly shaped the development of the Indian Constitution is the idea of the constitution’s basic structure. In the famous Kesavananda Bharati case, the decision led in the following ways to the development of the Constitution: it placed strict limitations on the authority of Parliament to change the Constitution. It says that no amendment can violate the Constitution’s basic structure; it allows Parliament to amend any parts of the Constitution (within this limitation), and it places the judiciary as the ultimate authority in deciding whether an amendment violates the basic structure and what constitutes the fundamental structure. In M. Nagaraj v. Union of India, the Supreme Court’s 5 judge bench again explained in detail the basic feature theory as follows. Basic structures are systematic principles underlying and binding constitutional provisions. They owe Constitution continuity and longevity. Although not expressly stated, these principles are part of Constitutional law. From the webier Constitution, this doctrine has developed crucially.
On 24 April 1973, a Special Bench comprising 13 judges of the Supreme Court of India ruled by a majority of 7-6, that Article 368 of the Constitution “does not allow Parliament to alter the basic structure or the constitutional framework.” However, overruled on 27 February 1967 a ruling of a Special Bench of 11 Judges, by a vote of 6-5, said that “Parliament has no authority to amend Part III of the Constitution to abolish or abridge the fundamental freedoms.” based on the judgement of Kesavananda Bharati case, C.J. Sikri opined that the basic structure of the Constitution shall consist of the following characteristics:
- the supremacy of the Constitution,
- the Republic and Democratic forms where the Governments,
- the secular nature of the Constitution,
- the separation of powers between the legislature, the executive and the judiciary, and
- the federal character of the Constitution.
It is true that, according to Article 368 of the Indian Constitution, Parliament has the power to amend the Constitution, but it can not change the Constitution’s basic structure because India’s Constitution is a fundamental law of the land.
One point that stands out before us in the process set down in Article 368 is that the Parliament seems to have the exclusive right in any direction to change the Constitution. But it is incorrect to say that the Parliament is independent, so as long as there is a mechanism under Article 368. Parliament can not be the deciding authority of the constitutional scheme since the procedure itself restricts the use of the power to amend the Constitution on the Parliament. The Indian Constitution has been made as a dynamic statute that retains validity over years without being obsolete and also takes care of the needs of the various classes within the Indian society. It can be seen to have been drafted taking into account the best features of the Constitutions around the world. The doctrine of the Basic Structure proposed by the honourable Supreme Court is the guiding principle for safeguarding those values and keeping intact the essence of the Constitution. The contrast with other countries further demonstrates the strong difference in the amount of complexity and bureaucratic effort needed to change the Constitution in India, rendering it one of the strongest.
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