Chapter 12: AMENDMENT TO THE CONSTITUTION
THE nature of the amending process envisaged by the makers of our Constitution can be best explained by referring to the
observation of Pandit Nehru (quoted under
'Reconciliation of a written Constitution with Parliamentary Sovereignty'), that the Constitution should not be so rigid that
it cannot be adapted to the changing needs of national development and
There was also a political significance in adopting a 'facile procedure'
for amendment, namely, that any popular demand for changing the political
system should be capable of realisation, if it assumed a considerable volume.
Elements of flexibility were therefore imported into a Federal Constitution
which is inherently rigid in its nature. According to the traditional
theory of federalism, either the process of amendment of the - Constitution is
entrusted to a body other than the ordinary Legislature or a special
procedure is prescribed for such amendment in order to ensure that the
federal compact may not be disturbed at the will of one of the parties of the
federation. viz., the federal legislature.
But, as has been explained at the outset, the framers of our Constitution
were also inspired by the need for the sovereignty of the Parliament elected
by universal suffrage to enable it to achieve a dynamic national progress.
They therefore, prescribed an easier mode for changing those provisions of
the Constitution which did not primarily affect the-federal system
By providing that the alteration of certain provisions of the
Constitution were 'not to be deemed to be amendment of the Constitution'. The
result is that such provisions can be altered by the Union Parliament in the
ordinary process of legislation, that is, by a simple majority.
Other provisions of the Constitution can be
changed only by the process of 'amendment' which is prescribed in Art. 368. But a differentiation has been again made in the procedure for amendment, according to the nature of the
provisions sought to be amended.
While in all cases of amendment of the Constitution, a Bill has to be
passed by the Union Parliament by a special majority, in the case of certain
provisions which affect the federal structure, a further step is required, viz., a
ratification by the Legislature of at least half of the States, before the Bill Is
presented to the President for his assent.
But even in these latter
group of cases, the law which eventually effects the amendment is a law
made by Parliament, which is the ordinary legislative organ of the Union.
There is thus no separate constituent body provided for by our Constitution
for the amending process.
An amendment of the Constitution may be initiated only by the
introduction of a Bill for the purpose in either House of Parliament, and
when the Bill is passed in each House by a 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, it shall be presented
to the President for his assent and upon such assent being given to the Bill,
the Constitution shall stand amended in accordance with the terms of the
If, however, such amendment seeks to make any change in the
following provisions, namely.-
The manner of election of the President [Arts. 54. 55]; (b) Extent of
the executive power of the Union and the States [Arts. 73, 162]; (c) The
Supreme Court and the High Courts [Art. 241] (d) Distribution of legislative power between the Union and the
Slates [Chap. I of Part XI]; (e) Any of the Lists in the 7th Schedule;
Representation of the States in Parliament ; (g) Provisions of Art 368 itself
The amendment shall also require to be ratified by the Legislatures of
not less than one-half of the States by resolutions to that effect passed by
those Legislatures before the Bill making provision for such amendment is
presented to the President for assent.
It is clear from the above that the amending process prescribed by our Constitution has certain distinotive features as compared to
Constitutions of the world. The procedure for amendment
must be classed as 'rigid' insofar as it requires a
special majority and In some cases, a special procedure for amendment as
compared with the procedure prescribed for ordinary legislation.
procedure is not as complicated or difficult as in the U.S.A. or in any other
Subject to the special procedure laid down in Art. 368, our Constitution
vests constituent power upon the ordinary legislature of the Union,
i.e., the Parliament (of course, acting by a special majority), and there is no
separate body far amending the Constitution, as exists in some other Constitutions
(e.g., a Constitutional Convention).
The State Legislatures cannot Initiate any Bill or proposal for
amendment of the Constitution. The only mode of Initiating a proposal for
amendment is to introduce a Bill in either House of the Union Parliament.
Subject to the provisions of Art. 368, Constitution Amendment Bills
are to be passed by the Parliament in the same way as ordinary Bills. In
other words, they may be initiated in either House, and may be amended
like other Bills, subject to the majority required by Art. 368. But for the
special majority prescribed, they must be passed by both the Houses, like
any other Bill.
There is another important point on which the passage of a Constitution Amendment Bill differs from the procedure relating to the
passage of a Bill for ordinary legislanon. Art. 108
provides that if there is a disagreement between the
two Houses of Parliament regarding the passage of a Bill, the deadlock may
be solved by a joint session of the two Houses.
But its clear from Art. 108,
that the procedure for joint session is applicable only to Bills for ordinary
legislation which come under Chap. 2 of Part V of the Constitution, and not
to Bills for amendment of the Constitution, which are governed by the self-
contained procedure contained in Art. 368(2).
The requirement of a special
majority in both Houses, in Art. 368(2) would have been nugatory had the
provision as to joint session been available in this sphere.
The previous sanction of the President is not required for
introducing in Parliament any Bill for amendment of the Constitution.
he requirement relating to ratification by the State Legislatures is
more liberal than the corresponding provisions in the American
Constitution. While the latter requires ratification by not less than three-
fourths of the States, under our Constitution ratification by not less than balf
of them suffices.
In the case of an ordinary Bill when the Bill,
after being passed by both Houses of Parliament, is presented to the
President, he may, instead of assenting to it, declare that he 'withholds assent
In the latter case, the Bill carmot become an 'Act', But the
amendment of Art. 368 in 1971 has 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 Legtslature.
Though the formality of the President's assent has been retained in the case of an amendment of the Constitution, in order to signify the date when the amendment
Bill becomes operative as a part of the Consti-
tution, the President's power to veto a Bill for amendment of the Constitution
has been taken away, by substituting the words 'shall give his assent' in Art. 368, as it stands after the Constitution (24th Amendment)
Until the case of Golak Nath case, the Supreme Court had been holding
that no part of our Constitution was unamendable and that Parliament might, by passing a Constitution
Amendment Act, in compliance with the requirements
of Art. 368, amend any provision of the Constitution,
including the Fundamental Rights and Art. 368 itself.
It was held that 'law' in Art. 13 (2) referred to ordinary legislation made by
Parliament as a legislative body and would not include an amendment of the
Constitution which was passed by the Parliament in its constituent capacity.
But, in Golak Nath case," a majority of six Judges in a special
Bench of eleven overruled the previous decisions and took the view that
though there is no express exception from the ambit of Art. 368, the
Fundamental Rights Included in Part III of the Constitution cannot, by their
very nature, be subject to the process of amendment provided for in
Art. 368 and that if any of such Rights is to be amended, a new Constituent
Assembly must be convened for making a new Constitution or radically
The majority, in Golak naths case," rested its conclusion on the view that the power to amend the Constitution was also a
legislative power conferred by Art. 245 by the
Constitution, so that a Constitution Amendment Act was also a 'law' within
the purview of Art. 13(2).
After the Golak Nath decision, Parliament sought to supersede it by
amending Art 368 itself, by the Constitution (24th Amendment) Act, 1971,
as a result of which 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 open to question on the
ground that it takes away or affects a fundamental right
after this specific amendment of the Constitution, the controversy before the
Supreme Court did not cease because the validity of the 24th Constitution
Amendment Act itself was challenged in a case from Kerala (Keshavananda
Bharti v. State of Kerala), which was heard by a Full Bench
of 13 Judges. The majority of the Full Court upheld
the validity of the 24th Amendment and overruled the case of Golak Nath.
The question has thus been settled in favour of the view that a
Constitution Amendment Act, passed by Parliament, is not 'law' within the
meaning of Art. 13. The majority, in Keshavananda's case upheld the
validity of Cl. (4) of Art 13 [and a corresponding provision in Art. 368(3)),
which had been inserted by the Constitution (24th Amendment) Act, 1971
In the result, fundamental rights in India can be amended by an Act passed under Art. 368, and the validity of a
Constitution Amending Act cannot be questioned on
the ground that that Act invades or encroaches upon
any Fundamental Right
Though the majority in Keshavananda's cases has
overturned the majority view in Golak Nath that Fundamental Rights
cannot be amended under Art 368, it has affirmed another proposition
asserted by the majority in Golak Nash's case," namely, that
There are certain basic features of the Constitution of India, which cannot be altered in exercise of the power to amend the constitution.
Therefore if an amendment seeks to alter the basic structure or
framework of the Constitution, the Court would be
entitled to annul it on the ground of ultra vires, because the word 'amend',
in Art. 368, means only changes other than altering the very structure of the
Constitution, which would be tantamount to making a new Constitution.
Applying this doctrine that judicial review is a basic feature of the
Constitution of India, the majority In Keshvananda case held the second part of Constitution (25th Amendment) Act, 1971, relating to Art. 31C, as
invalid. The portion so Invalidated read-
"and no law containing a declaration that It is for giving effect to such policy shall
be called In question in any Court on the ground rhat it does not give effect to such
In other words, by adding a declaration to an
Act, the Legislature was empowered by the 25th Constitution Amendment
Act, to deprive the Courts of their power to determine the validity of the Act
on the ground that it contravened some provision of the Constitution. The
majority held that Art. 368 did not confer any such power to take away
judicial review, in the name of 'amending' the Constitution.
Article 31C, which was introduced by the 25th Amendment Act,
provided-(a) that if any law seeks to implement the Directive Principle
contained in Art. 39(b)-(c) i.e., regarding socialistic control and distribution
of the material resources of the country, such law shall not be void on the
ground of contravention of Art. 14 or 19
It further provided that if
anybody challenges the constitutionality of any such law, the Court would
be precluded from entering even into the preliminary question, namely,
whether such law is, in fact, a law, 'giving effect to' Art. 39(b) or (c), if on the
face of the Act, there was a declaration of the Legislature that it is for giving
effect to such Directive policy.
The Indira Government sought to arrest these implications of Keshavananda case and cut the fetters sought to be imposed on
the sovereignty of Parliament (as a constituent body),
by inserting two Cls. (4)-(5) in Art 368, by the 42nd
Amendment Act, 1976.
Clause (5) declares that "there shall be no
limitation" "on the constituent power of Parliament to amend" the provisions
of this Constitution and that at any rate, the validity of no Constitution
Amendment Act "shall be called in question in any court on any ground".
The foregoing attempt to preclude judicial review of Constitution
Amending Acts has, however, been nullified by the Supreme Court, by
striking down Cls. (4)-(5) as inserted in Art. 368 by the 42nd Amendment
Act, by its decision in the Mineroa Mills case. on the ground that judicial
review is a 'basic feature' of the Indian Constitutional system which cannot
be taken away even by amending the Constitution.
As a result, Art 368, as so interpreted by the
highest Court, would lead to the following propositions:
Any part of the Constitution may be amended after complying with
the procedure laid down in Art. 368.
No referendum or reference to Constituent Assembly would be required to amend any provision of the Constitution.
But no provision of the constitution or anK part thereof can be
amended if it takes away or destroys any of the basic features' of the
Constitution. Thus, apart from the procedural limitation expressly laid down
in Art. 368, substantive limitation founded on the doctrine of 'basic features',
has been introduced into our Constitution, by judicial innovation.
It is evident that, instead of being rigid, as some critics supposed during the early days of the Constitution, the
Amendment procedure for amendment has rather proved to be too
flexible in view of the ease with which as many as 94
amendments have been made during the first 59 years of the working of the
So long as the Party in power at the Centre has a solid majority
in Parliament and in more than half of the State Legislatures, the
apprehension of impartial observers should be not as to the difficulty of
amendment but as to the possibility of its being used too often either to
achieve political purposes or to get rid of judicial decisions which may
appear to be unwholesome to the party in power.
Judges may, of course, err but as has already been demonstrated, even the highest tribunal is likely to
change its views in the light of further expertence.
In the absence of serious
repercussions or emergent circumstances or a special contingency (e.g., to
admit Sikkim-by the 35th and 36th Amendments), therefore, the process of
constitutional amendment should not be resorted to for the purpose of
overriding unwelcome judicial verdicts so often as would generate in the
minds of the lay public an irreverence for the Judiciary,thus shaking the
very foundation of constitutional government
Indian Constitution is neither rigid [needing
special procedure to amend like USA etc.] nor flexible
[can be amended as
ordinary laws]. It is a synthesis of both. Article 368
deals with matters
regarding amendment to the constitution. After the
Keshavnanda bharati case, SC
ruled that parliament can’t amend the “basic structure of
the constitution” [a
Procedure to amend the
A bill to amend the constitution
must be introduced either by private member or
minister. This doesn’t need
assent of the president. It can be done in any house. It
must be passed by a
special majority i.e. a majority (that is, more than 50
per cent) of the total
membership of the House and a majority of two-thirds of
the members of the
House present and voting.
The same procedure is repeated in
other house and then it is sent to the president for
assent. President must
give assent to it compulsorily.
If an amendment is to the federal
features of the constitution, half the state legislatures
should approve it by
simple majority, then it is sent for president’s assent. A
amendment can’t be made by ordinance. Also no
provision for joint sitting is
available in case of disagreement.
- Passed by a simple majority [not
considered as amendments to the constitution]
- Passed by special majority
- Passed by special majority and
needs ratification by half the state legislatures as
they affect the federal structure of the constitution.
[No time limit for the
states to give decision]. The below parts of the
constitution belong to this
Parts of the constitution that affect Federal
of the President and its manner.
of the executive power of the Union and the states.
Court and high courts.
of legislative powers between the Union and the states.
of the lists in the Seventh Schedule.
of states in Parliament.
of Parliament to amend the Constitution and its procedure
(Article 368 itself).
Thus the constitution has been
kept flexible so as to be able to adapt itself to change.
of the process:
No amendment can originate from
states. Some parts can be amended as a normal legislation.
No time limit given
to states for approval.
There is a wide scope for judicial review in
process due to the amendment procedure being sketchy.
Only half the states need
to be consulted for amending parts related to federal
Important Amendments to the Constitution
- 19th - Abolish election tribunals
- 86th - Right to education.
- 65th - National commission of SC and ST formed.
- 91st - Restrict council of ministers to 15% of legislative assembly.
- 42nd - Added Secular to the preamble. Introduced Fundamental duties. Restricted powers of Supreme court. Made it obligatory for President to follow recommendations of the Cabinet. Thus this was called "Mini Constitution".
- 38th - President and Governor can have ordinance making powers.
- 61st - Voting age reduced to 18 years.
- 26th - Abolished privy purses of Princes.
- 52nd - Controlled defection.
- 88th - Introduction of service tax
- 80th - 29% central revenue shall be shared with states.
- 75th - Rent control tribunals in states.
- 69th - Delhi given National Capital Region status and a legislative assembly.
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