CONSTITUTION OF INDIA
PROCEDURE FOR AMENDMENT OF
THE CONSTITUTION OF INDIA
Prof. (Dr.) Richa
Professor
School of Law, MAU
Baddi (HP)
CONCEPT OF AMENDMENT OF THE
CONSTITUTION
To evolve and change with all changes in the
society and environment is a necessity for
every constitution. The makers of the
Constitution of India were fully aware of this
need. As such, while writing the constitution,
they also provided for a method of its
amendment. Further they of decided, to
make the constitution both rigid as well as
flexible. They laid down a flexible
amendment method in respect of its some
parts and for several others they provided for
a rigid method.
CONCEPT OF AMENDMENT OF THE
CONSTITUTION
Amending the Constitution of India is
the process of making changes to the
nation's fundamental law or supreme law.
The procedure of amendment in the
constitution is laid down in Part XX
(Article 368) of the Constitution of India.
This procedure ensures the sanctity of the
Constitution of India and keeps a check on
arbitrary power of the Parliament of
India.
TEXT OF ARTICLE 368
Power of Parliament to amend the Constitution
and procedure therefor
(1) 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.
Substituted and Inserted by the Constitution
(Twenty-fourth Amendment) Act, 1971, s. 3, for
“Procedure for amendment of the Constitution.”
(w.e.f. 5-11-1971)
TEXT OF ARTICLE 368
(2) An amendment of this Constitution may be
initiated only by the introduction of a Bill for the
purpose in either House of 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 voting, it shall be presented to the
President who shall give his assent to the Bill and
thereupon the Constitution shall stand amended in
accordance with the terms of the Bill:
Article 368 renumbered as cl. (2) thereof by the
Constitution (Twenty-fourth Amendment) Act, 1971.
Substituted by the Constitution (Twenty-fourth
Amendment) Act, 1971, for “ it shall be presented to
the President for his assent and upon such assent
being given to the Bill,”.
TEXT OF ARTICLE 368
Provided that if such amendment seeks to
make any change in—
(a) article 54, article 55, article 73, [article
162, article241 or article 279A] or
(b) Chapter IV of Part V, Chapter V of Part VI,
or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule,
or
(d) the representation of States in
Parliament, or (e) the provisions of this
article,
TEXT OF ARTICLE 368
The amendment shall also require to be
ratified by the Legislatures of not less than
one-half of the States by resolutions to that
effect passed by those Legislatures before
the Bill making provision for such
amendment is presented to the President for
assent.
[Article 279A Goods and Services Tax
Council]. Inserted by the Constitution (One
Hundred and First Amendment) Act, 2016, s.
15, (w.e.f. 16-9-2016). GST Amendment.
TEXT OF ARTICLE 368
(3) Nothing in article 13 shall apply to any
amendment made under this article.
Inserted by the Constitution (Twenty-fourth
Amendment) Act, 1971, s. 3 (w.e.f. 5-11-1971).
(4) No amendment of this Constitution (including
the provisions of Part III) made or purporting to
have been made under this article whether
before or after the commencement of section 55
of the Constitution (Forty-second Amendment)
Act, 1976] shall be called in question in any
court on any ground.
TEXT OF ARTICLE 368
(5) For the removal of doubts, it is hereby
declared that there shall be no limitation
whatever on the constituent power of Parliament
to amend by way of addition, variation or repeal
the provisions of this Constitution under this
article.
Clauses (4) and (5) ins. by the Constitution
(Forty-second Amendment) Act, 1976, s. 55
(w.e.f. 3-1-1977). This section has been declared
invalid by the Supreme Court in Minerva Mills
Ltd. and Others Vs. Union of India and Others
AIR 1980 SC 1789.
TYPES OF AMENDMENTS IN INDIAN
CONSTITUTION
The list of types of amendments can be
found below. There are three ways in which
the Constitution can be amended:
1. Amendment by simple majority of the
Parliament
2. Amendment by special majority of the
Parliament
3. Amendment by special majority of the
Parliament and the ratification of at
least half of the state legislatures.
1. BY SIMPLE MAJORITY OF PARLIAMENT
A number of provisions in the Constitution
can be amended by a simple majority of the
two houses of Parliament outside the scope
of Article 368. These provisions include:
(a) Admission or establishment of new states.
(b) Formation of new states and alteration of
areas, boundaries or names of existing
states.
(c) Abolition or creation of legislative
councils in states.
(d) Second Schedule-emoluments,
1. BY SIMPLE MAJORITY OF PARLIAMENT
(e) Allowances, privileges and so on of
the president the governors, the Speakers,
judges, etc.
(f) Quorum in Parliament.
(g) Salaries and allowances of the members
of Parliament.
(h) Rules of procedure in Parliament.
1. BY SIMPLE MAJORITY OF PARLIAMENT
(i) Privileges of the Parliament, its members
and its committees.
(j) Use of the English language in Parliament.
(k) Number of puisne judges in the Supreme
Court.
(l) Conferment of more jurisdiction on the
Supreme Court.
1. BY SIMPLE MAJORITY OF PARLIAMENT
(m) Conferment of more jurisdiction on the
Supreme Court.
(n) Citizenship-acquisition and termination.
(o) Elections to Parliament and state
legislatures.
1. BY SIMPLE MAJORITY OF PARLIAMENT
(p) Delimitation of constituencies.
(q) Union territories.
(r) Fifth Schedule-administration of scheduled
areas and scheduled tribes.
(s) Sixth Schedule-administration of tribal
areas.
2. BY SPECIAL MAJORITY OF PARLIAMENT
The majority of the provisions in the
Constitution need to be amended by a
special majority of the Parliament, that is, a
majority (that is, more than 50 per cent) of
the total membership of each House and a
majority of two-thirds of the members of
each House present and voting. The
expression ‘total membership’ means the
total number of members comprising the
House irrespective of fact whether there are
vacancies or absentees.
2. BY SPECIAL MAJORITY OF PARLIAMENT
‘Strictly speaking, the special majority is
required only for voting at the third reading
stage of the bill but by way of abundant
caution the requirement for special majority
has been provided for in the rules of the
Houses in respect of all the effective stages
of the bill’.
The provisions which can be amended by this
way include:
2. BY SPECIAL MAJORITY OF PARLIAMENT
The provisions which can be amended by this
way include:
(a) Fundamental Rights;
(b) Directive Principles of State Policy and
(c) All other provisions which are not
covered by the first and third categories.
3. BY SPECIAL MAJORITY OF PARLIAMENT
AND CONSENT OF STATES
Those provisions of the Constitution which
are related to the federal structure of the
polity can be amended by a special majority
of the Parliament and also with the consent
of half of the state legislatures by a simple
majority. If one or some or all the remaining
states take no action on the bill, it does not
matter; the moment half of the states give
their consent, the formality is completed.
There is no time limit within which the states
should give their consent to the bill.
3. BY SPECIAL MAJORITY OF PARLIAMENT
AND CONSENT OF STATES
The following provisions can be amended in
this way:
(a) Election of the President and its manner.
(b) Extent of the executive power of the
Union and the states.
(c) Supreme Court and high courts.
3. BY SPECIAL MAJORITY OF PARLIAMENT
AND CONSENT OF STATES
(d) Distribution of legislative powers between
the Union and the states.
(e) Any of the lists in the Seventh Schedule.
(f) Representation of states in Parliament.
(g) Power of Parliament to amend the
Constitution and its procedure (Article 368
itself).
METHOD OF AMENDMENT
An amendment of the Constitution can be
initiated only by the introduction of a bill for
the purpose in either House of Parliament
(Lok Sabha & Rajya Sabha) and not in the
state legislatures.
The bill can be introduced either by a
minister or by a private member and does
not require prior permission of the president.
METHOD OF AMENDMENT
The bill must be passed in each House by a
special majority, that is, a majority (that is,
more than 50 per cent) of the total membership
of the House and a majority of two-thirds of the
members of the House present and voting.
Each House must pass the bill separately.
In case of a disagreement between the two
Houses, there is no provision for holding a joint
sitting of the two Houses for the purpose of
deliberation and passage of the bill.
METHOD OF AMENDMENT
Ifthe bill seeks to amend the federal
provisions of the Constitution, it must also be
ratified by the legislatures of half of the
states by a simple majority, that is, a
majority of the members of the House
present and voting.
After duly passed by both the Houses of
Parliament and ratified by the state
legislatures, where necessary, the bill is
presented to the president for assent.
METHOD OF AMENDMENT
The president must give his assent to the
bill. He can neither withhold his assent to
the bill nor return the bill for reconsideration
of the Parliament
After
the president’s assent, the bill becomes
an Act (i.e., a constitutional amendment act)
and the Constitution stands amended in
accordance with the terms of the Act.
RESTRICTION ON PARLIAMENT’S AMENDMENT
POWERS AND JUDICIAL REVIEW
If the Amendment was passed by the
parliament and if the judiciary feels to
review it, the judiciary has the power and if
the judiciary thinks that Amendment is
unlawful or against any provision or against
public morality, they have the power to
disqualify that Amendment.
RESTRICTION ON PARLIAMENT’S AMENDMENT
POWERS AND JUDICIAL REVIEW
Shankari Prasad v. Union of India AIR 1951 SC 455
In this case, for the very first time question was
raised on the Amendment of fundamental rights
i.e. whether the FR can be amended under
Article 368 or not. In this case the validity of the
First Amendment through which Article 31A and
31B were added in the Constitution. The five
judges bench stated that Article 368 provides
general and strict power to the parliament to
amend the Constitution by following proper
procedure.
RESTRICTION ON PARLIAMENT’S AMENDMENT
POWERS AND JUDICIAL REVIEW
Sajjan Singh v. the State of Rajasthan AIR 1965
SC 845
In this case, the validity of the Seventeenth
Amendment was challenged. The question raised
was that the seventeenth Amendment puts a
limit on the jurisdiction of the High Court and
therefore rectified. However, the court disposed
of the contention. But choose to deal with the
2nd contention i.e. the reconsideration of
Shankari Prasad case, the court stated that, even
if the Article 368 does not expressly declares the
power of parliament regarding Amendment of
FR, the parliament could by a suitable
Amendment assume those powers.
RESTRICTION ON PARLIAMENT’S AMENDMENT
POWERS AND JUDICIAL REVIEW
Golaknath v. the State of Punjab AIR 1971 SC
1643
In this case, the validity of first, Seventeenth,
and fourth Amendment were challenged. This
time from the eleven judges bench, the majority
of six judges decided that the parliament has no
power to amend part 3 of the Constitution. On
the other hand, the court considered that the
parliament has a duty to correct the errors in
the law, therefore adopted the doctrine of
prospective overruling through which the 3
Amendments discussed were continued to be
valid but in future, the parliament has no power
to amend the part III of the Constitution.
RESTRICTION ON PARLIAMENT’S AMENDMENT
POWERS AND JUDICIAL REVIEW
After the judgment of Supreme Court in
Golaknath case the 24th Amendment was
passed in 1971, and made a change in Article
13 and 368:
A new clause added in Article 13 which says;
nothing in this Article apply to Amendment in
the Constitution under Article 368.
New clauses were added in Article 368:
A new heading was introduced
as; Parliament’s power to amend the
Constitution.
Parliament may change, add, repeal any
provision of this Constitution in accordance
with the procedure provided -368 (1)
AMENDMENT OF BASIC STRUCTURE
Kesavananda Bharati v. State of Kerala AIR
1973 SC 1461
This case was considered as the historical
landmark case, where for the first-time
Supreme Court recognized the basic
structure concept. In this case, the validity
of the 25th Amendment was challenged with
the 24th and 29th Amendment was also
questioned. The court by majority overruled
the judgement of Golaknath case.
AMENDMENT OF BASIC STRUCTURE
It was held that even before the
24th Amendment the parliament has the
limited power to amend the Constitution by
following the proper procedure. The
Supreme Court also declared that Article 368
of the Constitution does not allow the
parliament to change, damage the basic
structure of the Constitution. This landmark
judgement changes the history of the
Constitution.
AMENDMENT OF BASIC STRUCTURE
Indira Nehru Gandhi v. Raj Narayan AIR 1975 SC
2299
Under this case, once again the basic structure
concept was reaffirmed. The Supreme Court
applied the same theory and struck down the
4th clause of Article 329 A on the ground that the
Amendment is beyond the power of the
parliament and it destroyed the basic structure
of the Constitution. The Amendment was made
regarding the jurisdiction of all courts including
the Supreme Court, regarding the dispute of an
election of the Prime Minister of India.
THE CONSTITUTION OF INDIA 42ND AMENDMENT
Immediately after the decision of the
Supreme court in Kesavanada Bharti and
Indira Gandhi case, the parliament
introduced the 42nd Amendment and added
the word secular and socialist in the
preamble and add clause 4 and 5 to the
Article 368 of the Constitution. It indirectly
declares that there is no limitation on the
power of the parliament regarding the
Amendment.
THE CONSTITUTION OF INDIA 42ND AMENDMENT
Even after the judgement of the supreme
court, the parliament has the unrestricted
power to change or repeal any part of the
Constitution. Thus this Amendment
creates a question regarding the
supremacy i.e. who is supreme Parliament
or Supreme Court? Through this
Amendment, the parliament declared the
concept of basic structure invented by
the supreme court is vague and unlawful.
AMENDMENT OF BASIC STRUCTURE
Minerva Mills v. Union of India AIR 1980 SC
1789
In this case, the validity of the
42nd Amendment was challenged, as it
destroyed the basic structure of the
Constitution and regarding clause 4 and 5 of
Article 368. The Supreme Court by majority
struck down the Clauses added by the
42nd Amen
AMENDMENT OF BASIC STRUCTURE
L. Chandra Kumar v. Union of India (1997) 3 SCC
261
Under this case, the validity of the Article 323A
and 323B was challenged, both deals with the
exclusion of the High Court under Article 226 and
227 and the Supreme Court under Article 32 was
inserted by the 42nd Amendment. The SC, in this
case, declared both the provisions
unconstitutional and held that the power of
judicial review under Article 226, 227, and 32
were given by the basic structure and the
parliament has no power to amend that.
AMENDMENT OF BASIC STRUCTURE
Wamon Rao v. Union of India, AIR 1981 SC
271
“Whether an Act or regulation which, or a
part of which, is or has been found by the
courts to be violative of one or more of
the fundamental rights conferred by
articles 14, 19 or 31 can be included in
the ninth schedule or whether it is only a
constitutional amendment amending the
ninth schedule which damages or destroys
the basic structure of the Constitution
that can be struck down”.
AMENDMENT OF BASIC STRUCTURE
R. Coelho v. State of Tamil Nadu, AIR 2007 SC
891
Justification for conferring protection,
not blanket protection, on the laws
included in the Ninth Schedule by
Constitutional Amendments shall be a
matter of Constitutional adjudication by
examining the nature and extent of
infraction of a Fundamental Right.
AMENDMENT OF BASIC STRUCTURE
R. Coelho v. State of Tamil Nadu, AIR 2007 SC
891
A statute, sought to be Constitutionally
protected, and on the touchstone of the
basic structure doctrine as reflected
in Article 21 read with Article 14 and Article
19 by application of the "rights test" and the
"essence of the right" test taking the synoptic
view of the Articles in Part III as held in
Indira Gandhi's case. Applying the above tests
to the Ninth Schedule laws, if the infraction
affects the basic structure then such a law(s)
will not get the protection of the Ninth
Schedule.
EVALUATION OF THE VARIOUS JUDGEMENTS
OF SUPREME COURT
The Supreme Court through Golaknath,
Kesavanada Bharti, Indira Gandhi and various
other cases tried to put an implied
limitation on the amending powers of the
parliament, if we summarize the judgements
of all the cases discussed in this Article, the
court always tries to pressurize on few things
that are:
EVALUATION OF THE VARIOUS JUDGEMENTS
OF SUPREME COURT
Parliament has limited power to amend
the Constitution.
The parliament cannot damage the basic
structure of the Constitution
Article 368 does not provide the power to
the parliament regarding the Amendment
in Part III of the Constitution.
The Parliament by amending Article 368
cannot increase its Amendment powers.