Unit-V

AMENDMENT PROCEDURE
Amendment of the Constitution is the process of making changes to the nation's
fundamental law or supreme law. Article 368 in Part XX of the constitution deals with the
powers of Parliament to amend the Constitution and its procedure. It states that the Parliament
may, in exercise of its constituent power, amend by way of addition, variation or repeal any
provision of the Constitution in accordance with the procedure laid down for the purpose.
Indian Constitution is a balanced Constitution. As far as the amendment of the
Constitution is concerned, a balance is struck in making the Constitution partly rigid and partly
flexible. The Parliament can amend any part of the Constitution but it cannot alter or change
those provisions which forms the 'basic structure' of the constitution.
⚫Procedure/Method of amending the Indian Constitution.
An amendment of the Constitution can be initiated only by the introduction of a bill in
either House of Parliament and not in the state legislatures. It can be introduced either by a
minister or by a private member (MP who is not a Minister). The bill must be passed in each
House by a special majority, that is, a majority 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 session. If the bill seeks to amend the federal provisions of the constitution, it
must also be ratified by the legislature of half of the states.
Generally there are three ways or methods in which the Constitution can be amended:
[Link] by simple majority of the 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: Admission or establishment of new states, formation of new states
and alteration of areas, boundaries, or names of existing states, abolition or creation of
legislative councils in states, quorum in parliament, administration of schedule areas and
schedule tribes, elections to Parliament and State Legislatures, delimitation of constituencies,
qualification of Indian citizenship and appointment of judges in Supreme Court.
[Link] by special majority of the Parliament (by 2/3rd majority):
Some provisions of the constitution can be amended by a special majority of the
Parliament, that is, a majority of the total membership of each house and a majority of two-
thirds of the members of each house present and voting.
 The provisions which can be amended by this way includes: Fundamental Rights, Directive
Principles of State Policy and all other provisions which are not covered by the first and third
categories.

[Link] by special majority of the 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.
The following provisions can be amended in this way: election of the president, extent of
the executive powers of the Union and states, representation of states in Parliament,
distribution of legislative powers between Union and the states, Supreme court and high
courts, power of parliament to amend the constitution and its procedure etc.
Presidential Assent:
After amendment has gone through relevant procedure it is submitted to the President for
his assent. The President's assent is merely a formality and he cannot refuse it. But there is no
time limit within which the President has to accord his assent. The bill becomes an act once the
President gives his assent.

Main Features of the Amendment Method:

1. Part XX of the Constitution deals with Amendment of the Constitution. It

has only one Article i.e. Article 368.

2. The power to amend the constitution rests mainly with the Union
Parliament. No amendment can be made without Parliament’s action and
consent. Union Parliament alone has the power to initiate bills for amending
the constitution.

3. There are three basic ways in which amendments can be made:

Some provisions of the constitution can be amended by the parliament with
simple majority support; some other provisions of the constitution can be
amended by it by special majority and some provisions of the constitution
can be amended by special majority of the parliament with the consent of
states.
4. Presidential assent is required as the final act which transforms a duly
enacted amendment bill into an Amendment Act. However, the President
has no power to reject a duly passed Amendment Bill.

[Link] amendment bill can be introduced in either House of the Parliament. It

does not require the prior approval of the President.

6. State Legislatures have been denied the power to initiate amendments.

7. All amendments are subject to the Judicial Review power of the courts.
(The Supreme courts and State High Courts only) Any part of any
amendment or any amendment as a whole can be declared invalid by a
court in case it is found to be unconstitutional.

8. The Parliament has the power to amend every part of the Constitution.
However, the Supreme Court has ruled that the Parliament has no power to
change the ‘Basic Structure of the Constitution’.

Important Constitutional Amendment Acts.

[Link] Amendment Act, 1951.
The act empowered the states to make special provisions for the advancement of socially and
economically backward classes. It added the ninth schedule in the constitution to protect the
land reforms and other legislation from judicial review.
2. 7th Amendment Act, 1956.
The act abolished the existing classification of states into four categories from part A to D and
reorganised them into 14 states and 6 union territories.
It also provided for the establishment of a common high courts for two or more states.
3.13th Amendment Act, 1962.
The act gave the status of a state to Nagaland and made special provision for it under Article
371 A.
4.36th Amendment Act, 1975.
This act made Sikkim a full-fledged State of the Indian Union and omitted the Tenth Schedule.
5.42nd Amendment Act, 1976.
The 42nd amendment was one of the major amendment brought in the constitution and has
been described as a "mini constitution".
It added socialist, secular, and integrity in the preamble.
It added new part IV-A in the constitution entitled as ‘Fundamental duties’ for the citizens.
It made the President of India bound by the advice of the cabinet.
It shifted five subjects from the state list to the concurrent list ([Link], forests, protection
of wild animals and birds, weights and measures, and administration of justice.
6.44th Amendment Act, 1978.
It replaced the term ‘internal disturbance’ with ‘armed rebellion’ in respect of national
emergency.
The act made the President to declare a national emergency only on the written
recommendation of the cabinet.
It removed the ‘right to property’ as a fundamental right and made it a legal right.
7.52nd Amendment Act,1985.
The act was carried out in 1985 to curb political defections. It provided for disqualification of
members of Parliament and State legislature on the grounds of defection and added Tenth
Schedule to the constitution.
8.61st Amendment Act, 1989.
The act reduced the voting age from 21 years to 18 years for the Lok Sabha and State
Legislative Assembly elections.
9.73rd Amendment Act, 1992.
The act granted constitutional status and protection to the Panchayati Raj Institutions by
adding new part-lX in the constitution and also added a new Eleventh Schedule containing 29
functional items of the panchayats.
10.86th Amendment Act, 2002.
This act made elementary education a fundamental right. It inserted a new article 21A ,
which made elementary education free and compulsory for all children aged between 6 to 14
years.
Criticism of the Amendment Procedure.
The critics have criticized the amendment procedure of the Constitution on the following
grounds:
1. There is no provision for a special body like Constitutional Convention (as in the USA) or
Constitutional Assembly for amending the Constitution. The constituent power is vested in the
Parliament and only in few cases, in the state legislatures.

2. The power to initiate an amendment to the Constitution lies with the Parliament. Hence,
unlike in the USA, the state legislatures cannot initiate any bill or proposal for amending the
Constitution except in one case, that is, passing a resolution requesting the Parliament for the
creation or abolition of legislative councils in the states. Here also, the Parliament can either
approve or disapprove such a resolution or may not take any action on it.

3. A major part of the Constitution can be amended by the Parliament alone either by a special
majority or by a simple majority. Only in a few cases, the consent of the state legislatures is
required and that too, only half of them, while in the USA, it is three-fourths of the states.

4. The Constitution does not prescribe the time frame within which the state legislatures should
ratify or reject an amendment submitted to them. Also, it is silent on the issue of whether the
states can withdraw their approval after according the same.

5. There is no provision for holding a joint sitting of both the Houses of Parliament if there is a
deadlock over the passage of a constitutional amendment bill. On the other hand, a provision
for a joint sitting is made in the case of an ordinary bill.

6. The process of amendment is similar to that of a legislative process. Except for the special
majority, the constitutional amendment bills are to be passed by the Parliament in the same
way as ordinary bills.

[Link] provisions relating to the amendment procedure are too sketchy. Hence, they leave a
wide scope for taking the matters to the judiciary.
Despite these defects, it cannot be denied that the process has proved to be simple and easy
and has succeeded in meeting the changing needs and conditions. The procedure is not so
flexible as to allow the ruling parties to change it according to their whims. Nor is it so rigid as
to be incapable of adapting itself to the changing needs.