Chapter 12: AMENDMENT TO THE CONSTITUTION

Introduction

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 judicial innovation].

 

Procedure to amend the constitution:

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 constitution amendment can’t be made by ordinance. Also no provision for joint sitting is available in case of disagreement.

 

Types of amendments:

  1. Passed by a simple majority [not considered as amendments to the constitution]
  2. Passed by special majority
  3. 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 category.

     

Parts of the constitution that affect Federal Structure

  ·         ·          Election of the President and its manner.

        ·         Extent of the executive power of the Union and the states.

        ·         Supreme Court and high courts.

        ·         Distribution of legislative powers between the Union and the states.

        ·         Any of the lists in the Seventh Schedule.

        ·         Representation of states in Parliament.

        ·         Power 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.

 

Criticism 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 the process due to the amendment procedure being sketchy.

Only half the states need to be consulted for amending parts related to federal structure.

Important Amendments to the Constitution

  1. 19th - Abolish election tribunals
  2. 86th - Right to education.
  3. 65th - National commission of SC and ST formed.
  4. 91st - Restrict council of ministers to 15% of legislative assembly.
  5. 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".
  6. 38th - President and Governor can have ordinance making powers.
  7. 61st - Voting age reduced to 18 years.
  8. 26th - Abolished privy purses of Princes.
  9. 52nd - Controlled defection.
  10. 88th - Introduction of service tax
  11. 80th - 29% central revenue shall be shared with states.
  12. 75th - Rent control tribunals in states.
  13. 69th - Delhi given National Capital Region status and a legislative assembly.

Quiz

Score more than 80% marks and move ahead else stay back and read again!