Title- Amending the Constitution of India: Process and Limitations        

Abstract

Provisions for amendment of the Indian constitution is made with a view to overcome the difficulties, which may encounter in future in the working of the Constitution. No generation has monopoly of government according to their requirements. If no provisions to extra constitutional method like revolution to change the Constitution.  It has been the nature of the amending process itself in federation which has led political scientist to classify federal Constitution as rigid. The framer of the Indian Constitution were keen to avoid excessive rigidity. They were anxious to have a document which could grow with a growing nation, adapt itself to the changing need and circumstances of a growing people. The process for amending the Indian Constitution is a combination of both rigorous and flexible constitutional amendment processes, similar to that of the United States and Britain. The constituent legislative assembly’s intention to enact a dynamic document is reflected in this constitutional amendment method. The Indian Constitution and its procedures are subject to amendment by the Parliament, as stipulated in Article 368. Furthermore, as the Supreme Court decided in the Kesavananda Bharati case (1973), Parliament is not allowed to change the sections that make up the Constitution’s Basic Structure. The purpose of this research study is to understand the relevance, types, limitations, procedure, and meaning of the constitutional amendment.

Keywords– Amending the constitution, types of amendments, Article 368, Procedure, Limitations, Doctrine of Bsic structure, Cases

Introduction

The Indian Constitution is codified, written in a single document, and enacted by a single body. The Indian Constitution was adopted on November 26, 1949, and the members of Parliament signed it on January 24, 1950. The Indian Constitution, which combines rigidity and flexibility, is supreme. The constitution was drafted, discussed, and finally agreed upon by the Constituent Assembly between December 1946 and January 1950. The Indian Constitution was drafted with great consensus. This extensive document, which included 8 schedules and 395 articles, outlined the new state’s structure. The Indian Constitution, like any other written constitution, allows for amendments to be made in order to adapt to new circumstances and demands. But the process outlined for changing it isn’t as simple as it is in the United Kingdom or as complex as it is in the United States. Put another way, the Indian Constitution is a blend of flexibility and rigidity. The Amendment of the Constitution refers to the process of making changes such as the addition, variation, or repeal of any provision of the Constitution in accordance with the procedure laid down for the purpose. The goal of constitutional amendments is to maintain the Constitution’s status as a living document that can retain its core principles and ideas while adjusting to changing circumstances. Being the ultimate law of the land, the Indian Constitution ought to adapt to the needs and circumstances of the times. This prerequisite is met by the Article 368 amending clause of the Indian Constitution. This article aims to explain the meaning of the amendment of the Constitution, its procedure, types, significance, limitations, and more.

Research Methodology

This is a descriptive paper, and the research was conducted using secondary sources for a thorough examination of the workings and roles of educational institutions as well as students’ fundamental rights. For the research, secondary sources of information such as newspapers, websites, and government guidelines are consulted.

Review of Literature

“Indian Polity” by M. Laxmikanth, 6th Edition (2019)

“Indian Polity” by M. Laxmikanth offers a thorough and comprehensible examination of the Indian Constitution, highlighting its main features, composition, and historical development. The book provides thorough explanations and interpretations of each of the Constitution’s many sections, which include the Preamble, Fundamental Rights, Directive Principles of State Policy, and Fundamental Duties. It discusses the powers and responsibilities of the federal government, state governments, the judiciary, and the process of amending the Constitution. Notable Supreme Court rulings and important amendments that have influenced the way the Constitution is applied are highlighted. 

“The Amendment procedure of the Indian Constitution with special reference to Basic Structure Theory”, by Dr. Vimal R. Parmar (2015)

In his research paper, Dr. Parmar provides a thorough analysis of the Indian Constitution’s amending process, focusing particularly on the Basic Structure Theory. This argument, which was developed through judicial interpretation, contends that the essential framework of the Constitution is protected because certain of its core concepts are unchangeable by the Parliament. Parmar probably explores the constitutional clauses that regulate the process of altering the Constitution, looking at Article 368 and its procedural criteria for doing so. Talks about the necessary majority in each house of parliament and, in some situations, the role of state legislatures may fall under this category.

 “An Analysis of The Amendment Process In The Constitution”, by Mahantesh G S & Mamatha R (2022)

The paper provides a methodical examination of the amendment procedure, which advances the academic conversation on Indian constitutional law. By providing a thorough examination of the amendment procedure, it makes a significant contribution to the body of knowledge on Indian constitutional law. The paper deepens our understanding of the Indian Constitution’s developing nature and its relevance in forming the legal and political landscape of the nation by examining the procedural procedures, historical background, and ramifications of constitutional modifications.

Types of Amendments

Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority. However, other articles provide for the simple majority of Parliament, or a majority of the MPs present and voting in each House, to modify specific elements of the Constitution (much like the regular legislative procedure). Interestingly, for the purposes of Article 368, these changes are not considered to be modifications to the Constitution. Therefore, the Constitution can be amended in three ways: 

(a) Amendment by simple majority of the Parliament, 

(b) Amendment by special majority of the Parliament, and 

(c) Amendment by special majority of the Parliament and the ratification of half of the state legislatures.

Amendment by simple majority of the Parliament

Changes to certain parts of the Constitution can be made with just over half of the members of Parliament agreeing. A simple majority of the two Houses of Parliament may change some Constitutional provisions that are not covered by Article 368. These provisions include:

  1. Admission or establishment of new states and alteration of areas, boundaries or names of existing states.
  2. Second Schedule–emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc. 
  3. Salaries and allowances of the members of Parliament. 
  4. Number of puisne judges in the Supreme Court. 
  5. Fifth Schedule–administration of scheduled areas and scheduled tribes.
  6. Sixth Schedule–administration of tribal areas.

Amendment by special majority of the Parliament

To change most parts of the Constitution, we need a special kind of agreement from 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. Fundamental Rights, Directive Principles of State Policy, and Any Other Provisions Not Covered by the First and Third Categories are among the provisions that can be changed by a special majority. 

Amendment by special majority of the Parliament and the ratification of half of the state legislatures.

Provisions related to the federal structure of the country can be amended by a special majority of Parliament and the consent of at least half of the state legislatures by a simple majority. Whether one, many, or all of the other states do nothing about the bill is irrelevant; as soon as half the states agree, the formalities are 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: 

  1. Election of the President and its manner. 
  2. Extent of the executive power of the Union and the states. 
  3. Supreme Court and high courts. 
  4. Distribution of legislative powers between the Union and the states. 
  5. Goods and Services Tax Council. 
  6. Any of the lists in the Seventh Schedule. 
  7. Representation of states in Parliament. 
  8. Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

Article 368 of the Indian Constitution

Article 368 of Part XX of the Indian Constitution deals with the Power of Parliament to amend the Constitution and the procedure for such amendments. It provides for two types of amendments.

  1. By a special majority of Parliament
  2. By a special majority of the Parliament with the ratification by half of the total states

Procedure for Amendment

The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:

  1. A bill intended to change the Constitution must be introduced in one of the Houses of Parliament; state legislatures cannot begin such proceedings.
  2.  The bill does not need the president’s prior approval in order to be introduced by a minister or a private member. 
  3. A special majority, or a majority of both the present and voting members of the House as well as the entire membership of the House, is required for the law to pass in each House.
  4.  The bill must be passed individually by each House. There is no mechanism for the two Houses to meet jointly in order to deliberate and enact a bill in the event of a disagreement between them. 
  5.  A simple majority, or the majority of House members present and voting, is required for the legislatures of half of the states to ratify a bill if it aims to change the federal provisions of the Constitution. 
  6.  The law is forwarded to the president for assent after being formally approved by both Houses of Parliament and, if required, ratified by state legislatures. 
  7. The bill needs the president’s approval. He is unable to refuse to sign the bill or send it back to the Parliament for review. 
  8.  Following the president’s ratification, the bill becomes an Act, or a constitutional amendment act, and the terms of the Act change the Constitution. 

Limitations

The fundamental rights outlined in Part III of the constitution serve as the cornerstone of human rights law in this country. In multiple historic decisions, this nation’s judiciary has repeatedly demonstrated that a private organization’s or individuals fundamental freedom cannot be violated. It might be claimed that these rights constitute a very significant portion of the constitution because they have been prioritized over other portions in many circumstances.
However, as the parliament has the authority to change the constitution, the Supreme Court was asked to decide whether or not the Parliament may change the Fundamental Rights under Article 368 within a year following the Constitution’s ratification.

In the Shankari Prasad v. union of india(1951), the constitutional validity of the First Amendment Act (1951), which inserted Articles 31A and 31B to protect laws related to land reform and the abolition of the zamindari system from being challenged in court. The Ninth Schedule was created to include such laws, shielding them from judicial review, was challenged. The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws). Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under 

Article 13.

This principle was revisited in Sajan Singh v. Union of India (1965), where the validity of the 17th Amendment Act, which added certain land reform laws to the Ninth Schedule of the Constitution. Which provides protection to laws placed within it from judicial review on the grounds of violating fundamental rights, was challenged.  The Supreme Court, in its judgment, upheld the validity of the 17th Amendment Act reiterating the view established in Shankari Prasad that constitutional amendments are not subject to the constraints of Article 13.

However, the Supreme Court changed its stance in the I.C Golak Nath V. State of Punjab (1967). That case was a challenge to the constitutionality of the Seventeenth Amendment Act (1964), which added several state actions to the Ninth Schedule. The Fundamental Rights have a “transcendental and immutable” status, according to the Supreme Court, which means that no rights may be restricted or eliminated by the Parliament. Since a constitutional amendment act is a law in the meaning of Article 13, it cannot violate any of the fundamental rights. Therefore it declare 17th amendment to be prospectively unconstitutional.

The 24th Amendment Act (1971) was passed by the Parliament in response to the ruling in the Golak Nath case (1967) by the Supreme Court. Articles 13 and 368 were modified by this Act. It clarified that any of the Fundamental Rights under Article 368 may be restricted or removed by the Parliament, and that any action taken in this regard shall not be considered a law under Article 13.

However, in the Kesavananda Bharati v. State of Kerala (1973), the Supreme Court overruled its judgement in the Golak Nath case (1967). It affirmed that Parliament has the authority to restrict or eliminate any of the Fundamental Rights and confirmed the legality of the 24th Amendment Act of 1971. At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution. It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.

The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi vs Raj Narain (1975). In this case, the Supreme Court invalidated a provision of the 39th Amendment Act (1975), introduced Article 329A, Clause (4) into the Constitution which kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the jurisdiction of all courts. The Supreme Court held that this provision was not valid as it violated the fundamental structure of the Constitution, particularly the principles of free and fair elections and judicial review.

Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This Act amended Article 368 to provide that the constituent power of Parliament is unrestricted and that no alteration may be challenged in court on any basis, including a violation of a fundamental right. But in the Minerva Mills case (1980), the Supreme Court struck down this clause because it disregarded judicial review, which is a “basic feature” of the Constitution. Using the “basic structure” doctrine in relation to Article 368, the court determined that-

“Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed. In other words, Article 368 prevents Parliament from extending its amending power in order to gain power to repeal or annul the Constitution or to alter its basic feature. It is impossible for the donee of a finite power to become a limitless power by using that power”.

Conclusion

 Constitutional changes in India, particularly those mentioned in Kesavnanda Bharti, highlighted the fragile nature of these revisions. It demonstrated that there was an unfettered authority to change the constitution and individual rights. Furthermore, because fundamental rights have not been incorporated in judicial evolution as part of the basic structure concept, constitutional modifications that deny the rights of a specific population or gender may be possible. The Parliament appears to have the sole authority to modify the Constitution in any fashion, which is one notable feature of the Article 368 approach. That being said, it is incorrect to claim that the Parliament has self-government while Article 368 is in effect. Parliament’s ability to amend the Constitution is restricted by the procedure itself. It cannot, therefore, be the constitutional framework’s deciding authority. The Indian Constitution was crafted to be a living, breathing document that would meet the needs of India’s many socioeconomic classes without ever going out of style. It seems that the best features of the constitutions of other nations were taken into consideration during its creation. The Supreme Court’s suggested theory of the Basic Structure serves as a guiding principle for protecting such principles and maintaining the Constitution’s core. The comparison with other nations highlights the significant difference in the complexity and bureaucratic work required to modify India’s Constitution, making it one of the most powerful. These principles are safeguarded and the fundamental elements of the Constitution are upheld by adhering to the Supreme Court’s proposed framework of the Basic Structure. When compared to other countries, it becomes evident how much less complicated and administrative effort it takes to change India’s Constitution which is among the strongest than in other countries.

AUTHOR:

Astha Bhalavi

2nd Year, B.A.LLB

National Law Institute University, Bhopal

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