Amendment of the Constitution

 

Introduction Constitution of India provides for its amendment in order to adjust itself to the changing conditions and needs. However, the procedure laid down for its amendment is neither as easy as Britain nor as difficult as in USA. In other words, the Indian Constitution is neither flexible nor rigid but a synthesis of both. Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure. The Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case (1973). Types of Amendments in Indian Constitution 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.   Amendment 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: Ø  Admission or establishment of new states. Ø  Formation of new states and alteration of areas, boundaries or names of existing states. Ø  Abolition or creation of legislative councils in states. Ø  Second Schedule–emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc Ø  Quorum in Parliament Ø  Salaries and allowances of the members of Parliament. Ø  Rules of procedure in Parliament. Ø  Privileges of the Parliament, its members and its committees. Ø  Use of English language in Parliament. Ø  Number of puisne judges in the Supreme Court. Ø  Conferment of more jurisdiction on the Supreme Court. Ø  Use of official language. Ø  Citizenship–acquisition and termination. Ø  Elections to Parliament and state legislatures. Ø  Delimitation of constituencies. Ø  Union territories. Ø  Fifth Schedule–administration of scheduled areas and scheduled tribes. Ø  Sixth Schedule–administration of tribal areas. Amendment by special majority of the Parliament The majority of the provisions in the Constitution need to 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 expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees. 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 includes: Ø  Fundamental Rights Ø  Directive Principles of State Policy Ø  All other provisions which are not covered by the first and third categories. By Special Majority of Parliament and Consent of States legislatures. 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.  The following provisions can be amended in this way: Ø  Election of the President and its manner. Ø  Extent of the executive power of the Union and the states. Ø  Supreme Court and high courts. Ø  Distribution of legislative powers between the Union and the states. Ø  Goods and Services Tax Council. Ø  Any of the lists in the Seventh Schedule. Ø  Representation of states in Parliament. Ø  Power of Parliament to amend the Constitution and its procedure (Article 368 itself). Procedure for Amendment The procedure for the amendment of the Constitution as laid down in Article 368 is as follows: Ø  An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures. Ø  The bill can be introduced either by a minister or by a private member and does not require prior permission of the president. Ø  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. Ø  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. Ø  If the 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. Ø  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. Ø  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. Ø  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. Significance of the amendment provisions of the constitution: The Constitution has to be amended at every interval of time. A Constitution which is a static document becomes a big hurdle in the path of the progress of the nation. As the time is not static; it goes on changing in the same way the political, economic and social conditions of the people also goes on changing so for that reason, provision of amendment of the Constitution is made with a view to overcome the difficulties which may encounter in future in the working of the Constitution. Technological changes create new fields of knowledge whose regulation becomes critical in the absence of amendment. E.g., need of constitutional status to upcoming institutions like Data protection authority of India. It maintains flexibility of constitution to accommodate new institutions, reform existing ones and accept international commitments within our own laws. Amendment provisions help to strengthen foundational principles of Indian constitution like cooperative federalism through GST council, constitutional status to National Commission for Backward Class to ensure equality. If there were no provision made for the amendment of the Constitution, people would have recourse to extra-Constitutional methods like revolution to change the same. Criticisms of Amendment Procedures of the Constitution 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. 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. 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. 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. 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. 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. They leave a wide scope for taking matters to the judiciary.