What is the procedure for amending the constitution? (2018)
Category : Constitutional Law – II
Amendment is nothing but modification of the Constitution.
Amendment means Addition, Deletion, Modification of that already existing in the Constitution.
- The amendment of the Indian constitution is mentioned in PART XX of the constitution.
- The procedure is mentioned under article 368 of the Indian Constitution.
- The parliament is empowered to amend the constitution.
- Indian Constitution is both rigid and flexible.
- The constitution is rigid means it is amended with a special majority .
- The Constitution is flexible means it is amended with a simple majority .
NOTE: The Parliament cannot amend the basic features of the Constitution.
- This was ruled by the Supreme Court in the keshavananda Bharati case of 1973.
- Various judgments of the Supreme Court have given many points that constitute the basic structure of the Constitution.
- From various judgments of the Supreme Court the basic structure of the Constitution can be
- The supremacy of the Constitution.
- Sovereign, Democratic and Republic nature of the Indian Polity
- Separation of powers between legislature, executive and Judiciary
- Federal character
- Judicial review
- Freedom and dignity of the individual
- Rule of law
- Unity and Integrity of the nation
- Balance between Fundamental Rights and Directive Principles of State Policy
- The Principle of equality
- Free and fair elections
- Independence of Judiciary
- Limited powers of the Parliament to amend the Constitution
HOW MANY METHODS ARE MENTIONED TO AMEND THE CONSTITUTION?
The article 368 provides for two types of amendments.
- By a Special majority of the Parliament.
- By a special majority of the Parliament and consent by at least half the states by simple majority.
NOTE: Some other articles in the Constitution also provides for the amendment of the Constitution.
Hence, the Constitution of India can be amended in three ways.
Note: Please remember Article 368 provided 2 methods only. Amendment with simple majority is mentioned outside the purview Article 368 where ever it is required.
- Amendment by simple majority of the Parliament.
- Amendment by a special majority of the Parliament.
- Amendment by a special majority of the Parliament and ratification (consent) by at least half the states legislatures.
WHAT IS THE PROCEDURE FOR AMENDMENT OF THE CONSTITUTION?
The procedure for the amendment is initiated in the Parliament (Lok Sabha or Rajya Sabha) only.
- The amendment is initiated only by introducing a bill in the Parliament.
- The procedure cannot be initiated in the state legislatures.
- The bill can be introduced either by a public member (Minister) or by a Private member (who is not a Minister, but a member of the house).
- The amendment bill does not require the prior permission of the President.
- The amendment bill must be passed in each house by a special majority.
Special majority: A majority of more than 50 percent of the total membership of the house and a majority of 2/3rd of members of the house present and voting.
- The bill must be passed in each house separately.
- If there is a disagreement between the Lok sabha and Rajya Sabha the bill is considered to be rejected.
- There is no provision of the Joint Session in the Constitution for the purpose of passing a constitution amendment bill.
Note: Joint session is summoned by the President only when there is a disagreement between two houses of the parliament with reference to ordinary bills only.
- If the amendment bill seeks to amend the federal provisions of the constitution, the bill must be ratified by the legislatures of half of the states by a simple majority.
- The bill is presented to the President after it is passed by the Parliament and the state legislatures (in case of federal provisions).
- The President must give assent to the constitution amendment bill.
- The President canno t withhold the assent to the bill.
- The President cannot return the bill for the reconsideration of the Parliament.
- Note: The 24th constitutional amendment of 1971 made obligatory on the part of the President to give the assent for the constitutional amendment bill.
- After the assent of the President the amendment bill becomes an act.
AMENDMENT BY SIMPLE MAJORITY OF PARLIAMENT:
NOTE : Amendment of the Constitution with a simple majority is outside the scope of Article 368.
There are many provisions in the Constitution that can be amended by a simple majority of the Parliament.
- Admission of new states – Article 2
- Creation of new states – Article 3
- Creation or abolition of state legislative council – Article 169
- Quorum in the Parliament – Article 100
- Rules of procedures of Parliament
- Salaries and allowances of the members of the Parliament
- Use of English language in the Parliament
- Use of official language
AMENDMENT BY SPECIAL MAJORITY OF PARLIAMENT:
The majority of the provisions in the constitution need to be amended by special majority.
What is special majority?
- This is the majority of the total membership of each house
- a majority of 2/3rd of the members of each house present and voting.
The important provision that can be amended through special majority are
- Fundamental Rights
- Fundamental Duties
- Directive Principles of State Policy
AMENDMENT BY SPECIAL MAJORITY OF PARLIAMENT AND CONSENT BY ATLEAST HALF THE STATES:
ü The provisions that are related to the federal structure can be amended through this procedure.
ü After the bill is passed in the Parliament with the special majority then the bill is forwarded to the state legislatures.
ü If the bill is passed by a at least half the states with a simple majority then the bill is forwarded to the President.
ü Election of the President and its manner
ü Extent of the executive powers of the union and the states
ü Distribution of legislative powers between the union and the states
ü Extension of reservation for Scheduled caste, Scheduled Tribes and Anglo-Indians in the Parliament and the state legislatures.
ü Representation of states in the Parliament.
ü Power of the Parliament to amend the Constitution and its procedure.