Procedure for Amending the Constitution

Procedure for Amending the Constitution

Alteration of Provisions Not Considered an Amendment

The alteration of certain provisions of the Constitution is not considered an amendment of the Constitution. Such provisions can be altered by the Parliament by a simple majority.

Other provisions of the Constitution can be changed only by the process of 'amendment' prescribed in Article 368.

Provisions Affecting the Federal Structure

In the case of provisions which affect the federal structure, a ratification by the Legislatures of at least half of the states is required before the Bill is presented to the President for his assent.

Such provisions are:

1. The manner of election of the President [Ref: Arts. 54,55]

2. Extent of the executive power of the Union and the States [Ref. Arts. 73,162]

3. The Supreme Court and the High Courts [Art. 241. Chap. IV of Part V, Chap. V of Part VI]

4. Distribution of legislative power between the Union and the States [Chap. I of Part XI]

5. Any of the Lists in the 7th Schedule

6. Representation of the States in Parliament [Arts. 80-81, 4th Schedule]

7. Provisions of Art. 368 itself

Procedure for Constitutional Amendment

Absence of a Separate Constituent Body

• There is no separate Constituent body provided for by our Constitution for the amending process.

Initiation 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.

Passing the Amendment Bill

• The Amendment Bill should be passed by each House by a special majority, i.e., more than 50% 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.

Assent of the President

• The Constitution stands amended in accordance with the terms of the Amendment Bill after the President's assent is accorded to it.

Blend of Rigidity and Flexibility

Rigidity

The procedure for amendment is 'rigid' insofar as it requires a special majority and a special procedure.

• There is no separate body for amending the Constitution, as exists in some other countries (e.g., a Constitutional convention).

• The State Legislatures cannot initiate any Bill or proposal for amendment of the Constitution.

Flexibility

• Subject to the provisions of Article 368, Constitution Amendment Bills are to be passed by the Parliament in the same way as Ordinary Bills.

• The procedure for a joint session does not apply to Bills for the amendment of the Constitution.

• The previous sanction of the President is not required for introducing any Bill for the amendment of the Constitution.

• The requirement relating to ratification by the State Legislatures is more liberal than the corresponding provisions in the American Constitution, which requires ratification by three-fourths of the states.

Amendment of Article 368 (24th Amendment, 1971)

• The amendment of Article 368 in 1971 made it obligatory for the President to give his assent to a Bill for amendment of the Constitution when it is presented to him after its passage by the Legislature. [Ref: 24th Amendment 1971]

Amendability of Fundamental Rights

Golak Nath Case (1967)

• Until the case of Golak Nath, the Supreme Court held that no part of our Constitution was unamendable.

• In Golak Nath's case (1967), a majority of six judges, in a special bench of eleven, overruled the previous decisions and held that if any of such rights is to be amended, a new Constituent Assembly must be convened for making a new Constitution or radically changing it.

24th Amendment (1971)

• Constitution (24th Amendment) Act, 1971, held that an amendment of the Constitution passed in accordance with Art. 368 will not be law within the meaning of Art. 13, and the validity of a Constitution Amendment Act shall not be questioned on the ground that it takes away or affects a fundamental right. [Ref: Art. 368(3)]

• The validity of the 24th Constitution Amendment Act itself was challenged in the case of Keshavananda Bharati.

Keshavananda Bharati Case

• In the case of Keshavananda Bharati, the Supreme Court overruled its own decision given in the case of Golak Nath and held that the Parliament could amend any provision of the Constitution, including fundamental rights, in accordance with Article 368.

Final Thoughts

The Indian Constitution strikes a unique balance between rigidity and flexibility, allowing it to adapt to changing times while safeguarding the federal structure. Amendments are essential for addressing new challenges, but the process ensures that major changes receive broad consensus through a special majority in Parliament and, in some cases, ratification by state legislatures.

The Constitution empowers the Parliament to amend even fundamental rights, but judicial interpretations, like in the Keshavananda Bharati case, have emphasized the basic structure as inviolable. By combining clarity, adaptability, and checks, the amendment process strengthens the stability and resilience of the Constitution.

This careful design ensures that India can evolve legally and socially without compromising its core principles.