Amendments: Procedure and Issues

Constitutional Provisions:

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. However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution.
Procedure:
  1. Bill to amend constitution is initiated in either house of parliament
  2. Bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
  3. Bill must be passed in each House by a special majority (i.e. 50% of total membership of the House and a majority of two-thirds of the members of the House present and voting)
  4. Each House must pass the bill separately. In case of disagreement between houses there is no provision for joint sitting.
  5. Bill seeking to amend the federal provisions of the Constitution must also be ratified by the legislatures of half of the states by a simple majority
  6. 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
The Constitution can be amended in three ways:
  1. Amendment by simple majority of the Parliament (these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368),
  2. Amendment by special majority of the Parliament, and
  3. Amendment by special majority of the Parliament and the ratification of half of the state legislatures.
In order to address changing requirement and address emerging issues constitution has to be dynamic and a living document, thereby amending it periodically becomes inevitable. This is the reason why in last 6 decades more than 100 amendments have been passed. However this does not mean that Indian constitution is too flexible to be easily amended. In fact it is very finely balanced when it comes to amendments. It gives leverage to centre for making cosmetic amendments by simple majority and keeps a tight check when it comes to critical changes by provisions for 2/3 majority. Most importantly it maintains a federal balance with acceptance of amendments by half the states that relate to centre-state relations.
Why amendments are needed?
  • The Constitution is a living document and must reflect the growing aspirations of the people of India from time to time.
  • Hence, it is argued that amendments to the Constitution are not merely reflective of such aspirations but also emphasise and translate the will of the people to carve out their own destiny.
Why frequent amendment can be bad?
  • Amendment may be politically motivated.
  • Such criticism is often made with reference to the controversial 42nd amendment brought in by Indira Gandhi at the height of the Emergency, when her powers were supreme.
  • Indian Constitution has proven relatively easy to change, and has been amended more than once a year on average.
  • Even though the Indian Supreme Court has the power to strike down or set aside constitutional amendments, it has no power to repeal them, which means that many ineffective provisions of the Constitution remain on the books.
  • Some of the amendments have been done in a hurry due to the over enthusiasm of the legislature, offending the basic structure of the constitution
Judicial Pronouncements:
Judicial pronouncements restricted the power of Parliament for making constitutional amendments only in such cases as where the basic structure of the Constitution is not altered.
Mainly 3 judgement are responsible for this:
  • The Golaknath v State of Punjab where it was upheld that constitutional amendments through Article 368 were subject to fundamental rights;
  • The Keshavananda Bharati judgment (1973), where the doctrine was espoused that the Constitution has a basic structure of constitutional principles and values and that the judiciary has the power to review and strike down amendments which conflict with, or seek to alter, this basic structure of the Constitution
  • The Minerva Mills case  that applied and evolved the basic structure doctrine of the Constitution, unanimously ruling that Parliament cannot exercise unlimited power to alter this basic structure or tread upon the fundamental rights of individuals, including the right to liberty and equality.
Why have there been so many amendments to the Indian Constitution? Do you think Indian Constitution is too flexible? Critically analyse the nature of these amendments and causes behind them. (200 Words)