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Understanding India's Constitutional Amendments

The document discusses the amendment process of the Constitution of India, highlighting its necessity for relevance, updating outdated provisions, and expanding rights. It explains the types of amendments, including simple majority, special majority, and those requiring state ratification, as well as the procedure outlined in Article 368. Additionally, it addresses the concept of Basic Structure, established by the Supreme Court, which limits Parliament's power to alter essential features of the Constitution.

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17 views6 pages

Understanding India's Constitutional Amendments

The document discusses the amendment process of the Constitution of India, highlighting its necessity for relevance, updating outdated provisions, and expanding rights. It explains the types of amendments, including simple majority, special majority, and those requiring state ratification, as well as the procedure outlined in Article 368. Additionally, it addresses the concept of Basic Structure, established by the Supreme Court, which limits Parliament's power to alter essential features of the Constitution.

Uploaded by

moanaprabhu2017
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

Amendment of the Constitution of India

●​ Amendment: Means to change or modify something. An amendment to the


Constitution is a change to the text or provisions of the Constitution of India.

Why is the Constitution amended?


●​ To keep it relevant and effective as society changes. Example: 86th Amendment
(2002) → Right to Education (Article 21-A) made a Fundamental Right.
●​ To update outdated provisions or correct errors. Example: 7th Amendment (1956) →
reorganized states on linguistic basis, replacing old “Part A, B, C states”
classification.
●​ To expand rights or protect existing ones. Example: 97th Amendment (2011) → gave

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constitutional status to cooperatives.

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●​ To respond to court judgments. Example: 24th Amendment (1971) → restored
Parliament’s power to amend Fundamental Rights (after Kesavananda Bharati case).

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Example: 42nd Amendment (1976) → limited judicial review to strengthen
Parliament.

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●​ To reflect public will and changing expectations. Example: 73rd & 74th Amendments
(1992) → constitutional status to Panchayats and Municipalities.
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The Constitution is a living document, and must grow with time to serve the people better.
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Flexible vs Rigid Constitution:
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●​ Flexible Constitution: Easy to amend; like ordinary law; no special procedure


required. Example: British Constitution → Parliament can amend by simple majority.
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●​ Rigid Constitution: Difficult to amend; requires special procedure. Example: U.S.


Constitution → 2/3rd majority in Congress + approval by 3/4th of states.
●​ Indian Constitution: Synthesis of both flexibility and rigidity; some provisions are
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easy to amend, others require difficulty.


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Article 368: Procedure to amend Indian Constitution


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●​ Located in Part XX of the Constitution.


●​ Gives Parliament constituent power → to add, repeal, or modify provisions.
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●​ Limitation: Parliament cannot amend the basic structure (Kesavananda Bharati case,
1973).
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Types of Amendment:
Simple Majority:
●​ Majority of members present and voting (ordinary legislative process).
●​ Not considered amendment under Article 368.
●​ Applicable for procedural/administrative provisions:
○​ Admission/establishment of new states (Article 2)
○​ Formation/alteration of states (Article 3)
○​ Citizenship-related changes (Article 11)
○​ Creation/abolition of legislative councils in states
○​ Second Schedule → emoluments, allowances, privileges of President,
Governors, Judges
○​ Fifth Schedule → administration of scheduled areas & tribes
○​ Sixth Schedule → administration of tribal areas
○​ Salaries & allowances of MPs
○​ Union Territories
○​ Elections to Parliament & state legislatures (procedures, electoral rolls,
conduct, RPA 1951 rules)
○​ Delimitation of constituencies
○​ Quorum & rules of procedure in Parliament
○​ Privileges of Parliament, members, committees

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○​ Use of English or official language

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○​ Increase in jurisdiction of Supreme Court

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Special Majority:
●​ Majority of total membership + 2/3rd of members present & voting.

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●​ Applicable to:
○​ Fundamental Rights
○​ Directive Principles of State Policy
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○​ All other provisions not covered under simple majority or special majority +
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state ratification.
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Special Majority + State Ratification:


●​ Needed for provisions related to federal structure.
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●​ Requirements:
○​ Special majority in Parliament
○​ Ratification by half of state legislatures (simple majority) (Remaining states’
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consent not needed; no time limit for action)


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●​ Applicable provisions:
○​ Election of President & procedure
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○​ Extent of Union & State executive powers


○​ Supreme Court & High Courts
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○​ Distribution of legislative powers between Union & States


○​ Goods and Services Tax Council
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○​ Any list in Seventh Schedule


○​ Representation of states in Parliament
○​ Power of Parliament to amend Constitution & procedure (Article 368)

Procedure for amendment (Article 368):


●​ Amendments can only be initiated in Parliament, not in state legislatures.
●​ A bill can be introduced by a minister or private member; no prior presidential
permission is required.
●​ Bill must be passed in each House by special majority:
●​ Majority of total membership: 2/3rd of members present and voting; If federal
provisions are amended → also need ratification by half of state legislatures (simple
majority).
●​ Each House passes the bill separately; no joint sitting if disagreement arises.
●​ After passing both Houses and state ratification (if needed), the bill is presented to the
President.
●​ The President must give assent (cannot withhold or return); made obligatory by 24th
Amendment (1971).
●​ Once the President's assent is given → bill becomes a Constitutional Amendment Act.

Criticism of amendment procedure:

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●​ No special body like the U.S. Constitutional Convention or original Constituent

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Assembly for amendments.
●​ Power lies mainly with Parliament; states’ role limited (except half of states’

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ratification for federal provisions).
●​ Unlike the U.S., states cannot initiate amendments (except resolution for

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creation/abolition of legislative councils).
●​ Most of the Constitution can be amended by Parliament alone (special or simple
majority).
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●​ Only half of states’ consent required (U.S. requires 3/4th states).
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●​ No time frame for states to ratify; no provision if states withdraw approval.
●​ No joint sitting for deadlock (ordinary bills have joint sitting); ensures Rajya Sabha
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(Council of States) protection.


●​ The amendment process is similar to the legislative process; special majority is the
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main distinction.
●​ Provisions in Article 368 are sketchy → scope for judicial intervention.
○​ Judicial interpretation: Kesavananda Bharati case (1973): Parliament can
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amend the Constitution but not its Basic Structure.


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○​ Minerva Mills case (1980): Struck down parts of 42nd Amendment giving
unlimited power to Parliament; reinforced Basic Structure doctrine.
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➔​ Despite criticisms, the amendment process is simple and effective, meeting changing
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needs. Balanced: not too flexible (cannot be changed whimsically), not too rigid (can
adapt to changing conditions).
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Observations:
●​ Jawaharlal Nehru: “We want the Constitution to be strong, but no Constitution can be
permanent. It must have flexibility, otherwise the nation cannot grow.”
●​ B.R. Ambedkar: “We did not make the Constitution unchangeable like in Canada or
overly difficult to amend like in the USA or Australia. Instead, we made it relatively
easy to amend.”
●​ K.C. Wheare: “India’s Constitution has a rare and wise variety of amendment
procedures, striking a good balance between rigidity and flexibility.”
●​ Granville Austin: “The amendment process is very well-designed. Though it looks
complicated, it is actually diverse and practical.”

Basic Structure
●​ Not mentioned in the Constitution; judicial innovation by the Supreme Court in
Kesavananda Bharati case (1973).
●​ Ensures Parliament cannot alter the essential features of the Constitution, even via
Article 368.

Emergence of Basic Structure Concept:

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●​ Post-1950, land reform laws in states (Bihar, UP, MP) were challenged by zamindars

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under Article 31 (Right to Property).
●​ The government sought social and economic justice. So, implemented ‘Land

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Reforms’.
●​ But, whenever land reforms were being implemented people went to Supreme Court

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challenging land reforms on the ground Right to Property (Fundamental Rights)
●​ Passed First Amendment (1951):
○​ Article 31A → protected land reform laws from judicial review, can’t declare
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laws void under articles 14 and 19;
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○​ Article 31B → created Ninth Schedule to shield laws
➔​ Raised the question: Can Parliament amend Fundamental Rights?
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Important Case Laws in the emergence of Basic Structure


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Shankari Prasad v. Union of India (1951):


●​ Zamindar Shankari Prasad Deo from Bihar challenged land reform laws in Bihar,
citing Article 31 & 13(2).
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●​ Judgement: Parliament can amend Fundamental Rights; constitutional amendments


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under Article 368 are not “law” under Article 13.


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Sajjan Singh v. State of Rajasthan (1964):


●​ Sajjan Singh from Rajasthan challenged the 17th Amendment (1964) (land reform
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laws added in Ninth Schedule) claiming that "Parliament cannot amend Fundamental
Rights like Right to Property — it violates Article 13(2)."
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●​ Judgement: Parliament has power to amend Fundamental Rights; first hint of “basic
structure” by Justice J.R. Mudholkar.

I.C. Golak Nath v. State of Punjab (1967):


●​ Challenged 17th Amendment protecting land reform laws, stating it violated articles
19, 31
●​ Judgement: Parliament cannot amend Fundamental Rights; amendments are “law”
under Article 13 → void if violating rights.
●​ Reversed earlier decisions (Shankari Prasad, Sajjan Singh).
24th Amendment Act (1971):
●​ Reaction to Golak Nath case.
●​ Article 368 → Parliament can abridge/take away Fundamental Rights.
●​ Article 13 → Constitutional amendments not “law” under Article 13.

Kesavananda Bharati v. State of Kerala (1973):


●​ Kesavananda Bharati, seer of Edneer Mutt Challenged land reform laws and 24th
Amendment on the grounds that it violated Article 26, 14, 19(1)(f)
●​ Judgement:
○​ Reversed stand taken in Golaknath case
○​ 24th amendment is valid, Parliament can amend the Constitution including

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Fundamental Rights but,

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○​ Doctrine of Basic Structure established: Parliament cannot alter the
Constitution’s essential features.

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Basic structure reaffirmed in Indira Gandhi case (1975) → e.g., invalidated 39th

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Amendment (Election matters of President, Vice-President, Prime Minister, and Speaker of
the Lok Sabha beyond judicial scrutiny.).
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42nd Amendment Act (1976): Amended Article 368 and declared that there is no limitation
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on the constituent power of Parliament and no amendment can be questioned in any court on
any ground including that of the contravention of any of the Fundamental Rights.
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Minerva Mills (1980): Minerva Mills judgement: Part of 42nd Amendment struck down;
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judicial review is a basic feature, limited power of Parliament cannot be expanded to destroy
basic structure.
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Waman Roo cases (1980): Supreme Court further clarified: doctrine applies to amendments
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after 24 April 1973 (Kesavananda Bharati judgment).


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What constitutes Basic Structure?


Not fixed, derived from various judgements of Supreme Court
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●​ Supremacy of the Constitution


●​ Sovereign, democratic, republican polity
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●​ Secular character
●​ Separation of powers (legislature, executive, judiciary)
●​ Federal character
●​ Unity and integrity of the nation
●​ Welfare state / socio-economic justice
●​ Judicial review
●​ Freedom and dignity of individual
●​ Parliamentary system
●​ Rule of law
●​ Harmony & balance between Fundamental Rights & Directive Principles
●​ Principle of equality
●​ Free and fair elections
●​ Independence of Judiciary
●​ Limited power of Parliament to amend Constitution
●​ Effective access to justice
●​ Essence of Fundamental Rights
●​ Certain powers of Supreme Court (Ex: Article 32 etc)
●​ Certain powers of High Courts (Ex: Article 226 etc)

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Common questions

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A balance of flexible and rigid amendment processes allows the Indian Constitution to adapt to changing societal needs while ensuring stability and protection of its core principles. This balance prevents whimsical changes while enabling the Constitution to evolve with society, ensuring its effectiveness and relevance over time. The approach has been praised for its practicality and adaptability .

The 'basic structure' doctrine was conceived in response to a series of legal challenges regarding land reform laws and amendments affecting fundamental rights, including the Shankari Prasad, Sajjan Singh, and Golak Nath cases. The Kesavananda Bharati ruling in 1973 established that while Parliament can amend the Constitution, it cannot alter its fundamental framework. This doctrine was a response to concerns about parliamentary overreach and the need to protect essential constitutional principles .

The Indian Constitution is a synthesis of flexibility and rigidity, allowing some provisions to be amended easily with a simple majority, while others require special procedures involving a special majority and possibly state ratification. This is in contrast to the British Constitution, which is very flexible, and the U.S. Constitution, which is quite rigid. India's process is designed to be balanced, as noted by Jawaharlal Nehru and B.R. Ambedkar, ensuring adaptability without losing core principles .

The 'basic structure' doctrine, not explicitly mentioned in the Constitution, was a judicial innovation by the Supreme Court in the Kesavananda Bharati case (1973). It emerged from a series of rulings that debated Parliament's ability to amend fundamental rights. This doctrine limits Parliament's power to amend the Constitution's essential features, such as the supremacy of the Constitution, judicial review, and the principle of equality, safeguarding the Constitution's core principles .

In India, state legislatures play a limited role in the amendment process. Federal provisions require ratification by at least half of the state legislatures by a simple majority, but there is no time frame for this action. In contrast, the U.S. system requires approval from three-fourths of the states, providing a stronger role for states in constitutional amendments. This highlights a more centralized approach in India's system .

The Constitution of India is amended to keep it relevant and effective as society evolves, to update outdated provisions or correct errors, to expand or protect rights, to respond to court judgments, and to reflect public will and changing expectations. Examples include the 86th Amendment making the Right to Education a fundamental right, and the 42nd Amendment which limited judicial review to strengthen parliamentary power .

The provisions related to the creation or abolition of legislative councils in Indian states are amended through a process that does not fall under Article 368. Instead, it requires a simple majority of the members present and voting in Parliament, illustrating a more straightforward amendment process for procedural and administrative provisions .

State ratification is crucial for amendments affecting India's federal structure as it ensures that changes reflect not only central but also regional consent. By requiring ratification by at least half of state legislatures for such amendments, the process balances central authority and state autonomy, preventing unilateral decisions by the central government that could undermine the federal framework .

Criticisms of India's amendment process include the lack of a special body like the U.S. Constitutional Convention, limited state roles, the absence of a time frame for state ratification, and no joint sitting for deadlocks. These aspects concentrate too much power with Parliament. Suggestions for reform include establishing clear time frames for state ratification and enhancing state involvement to better reflect federal principles .

The 42nd Amendment sought to centralize power by amending Article 368, declaring no limitation on Parliament's constituent power and restricting judicial review. However, the Minerva Mills case (1980) struck down parts of the amendment, reaffirming that judicial review is part of the Constitution's basic structure, and maintaining limits on Parliament's power. This reinforced the importance of checks and balances within the Indian constitutional framework .

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