EDEN IAS

PROCEDURE FOR AMENDMENT

PROCEDURE FOR AMENDMENT

PROCEDURE FOR AMENDMENT

To evolve and change with all changes in the society and environment is a necessity for every constitution. The makers of the Constitution of India were fully aware of this need through procedure for amendment. As such, while writing the constitution, they also provided for a method of its amendment. Further they decided, to make the constitution both rigid as well as flexible. They laid down a flexible amendment method in respect of its some parts and for several others they provided for a rigid method.

Part XX of the Constitution of India contains only one Article 368. It incorporates the procedure for amending the constitution. It deals with the power of the Parliament to amend the constitution. It lays down two special methods for the amendment of various parts of the constitution. Along with it the Union Parliament has the power to change some specified features/parts of the Constitution by passing an ordi- nary law. However such changes shall not be deemed as amendments to the constitution. The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:

  • A procedure of amendment of the Constitution can be initiated only by the introduction of a bill for the pur- pose in either House of Parliament.
  • The bill can be introduced either by a minister or by a private member and does not require prior permission of the
  • The bill must be passed in each House by a special majority, that is, 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
  • Each House must pass the bill In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
  • If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and
  • After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.

When a constitution amendment bill is presented before the President, the Presi- dent shall give his assent to the bill. He can neither withhold his assent nor return the bill for the reconsideration of the Parliament.

Once the Presidential assent is obtained, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.

TYPES OF PROCEDURE FOR AMENDMENTS UNDER ARTICLE 368

Two Special Methods of Amendment under Art 368 are

I.  Procedure for Amendment by Special Majority of Parliament:

Most parts of the Constitution (with exception of some specific provisions) can be amended by this meth- od. Under this method, the Constitution can be amended by the Union Parliament alone. For this purpose a constitutional amendment bill should be passed by each of the two houses of Union Parliament by a special majority i.e. a majority (that is, more than 50 per cent) 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 mem- bership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees at the time of voting. It is a rigid method in so far as it prescribes a special majority for amending the constitution but it is also a flexible method to an extent because under it no ratification by the states is required through procedure for amendment.

II.  Amendment by Special Majority of the Parliament and by consent of the States:

For amending those provisions of the Constitution which are related to the federal structure not only the constitutional amendment bill should be passed by both houses of the parliament by a Special Majority (i.e. absolute majority + majority of not less than 2/3rd of the members present and voting) but also not less than half of the state legislatures shall ratify it by a simple majority. If one or some or all the remain- ing states take no action on the bill, it does not matter; the moment half of the states give their consent, the formality is 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:

  • Election of the
  • Extent and Scope of the executive power of the Union and the
  • Provisions regarding the Supreme Court and High
  • Distribution of legislative powers between the Union and the
  • Any of the lists in the Seventh
  • Representation of states in the
  • The provisions of Article

MODIFICATIONS OUTSIDE ARTICLE 368 

In respect of some provisions of the Constitution the Parliament has been given the power to make necessary changes through ordinary legislation and by simple majority of members of both of its Houses. It is, indeed, an easy method and lies outside the scope of Article 368. However one must not forget that these modifications shall not be deemed as amendments to the constitution even though they may bring inci- dental, subsequential or consequential changes to the text of the constitution. These provisions include:

  • Admission or establishment of new
  • Formation of new states and alteration of areas, boundaries or names of existing
  • Abolition or creation of legislative councils in
  • Provisions related to Second Schedule—emoluments, allowances, privileges and so on of the presi- dent, the governors, the Speakers, judges,
  • Quorum in
  • Salaries and allowances of the members of
  • Rules of procedure in
  • Privileges of the Parliament, its members and its
  • Use of English language in
  • Number of puisne judges in the Supreme
  • Conferment of more jurisdiction on the Supreme
  • Use of official
  • Citizenship—acquisition and
  • Elections to Parliament and state
  • Delimitation of constituencies.
  • Creation and abolition of legislature in Union
  • Provisions related to Fifth Schedule—administration of scheduled areas and scheduled
  • Provisions related to Sixth Schedule—administration of tribal

These methods of amendment reflect a mixture of rigidity and flexibility in the Indian Constitution.

CRITICAL ANALYSIS OF THE AMENDING POWER OF THE PARLIAMENT

Many political scientists have criticized the amending procedure prescribed under the constitution on the following grounds

  • The critics hold that since the process of amendment does not provide for a system of getting consent or approval of the people of India, it is an undemocratic This charge is unfounded because the parliament is directly or indirectly elected by the people of India and to have instru- ments of direct democracy in a vast country like India seems an illogical argument.
  • The Parliament alone can amend most of the constitutional provisions and this goes against the federal The federal features include a say of the states hence this charge seems unfounded too.
  • Some scholars believe that the procedure is very rigid especially with respect to the ratification However when compared to other federal polities like USA the procedure prescribed under 368 appears relatively easy.
  • Some critics also object to the system of judicial review which permits the Supreme Court and every High Court to judge the constitutional validity of the amendments passed by the Regarding this charge one must remember that the Supreme Court can nullify any constitutional amendment only on the grounds of violation of basic structure.

The ease with which subsequent amendments have been made to the constitution only testifies the suc- cess of the procedure prescribed under Article 368. In fact the procedure is not so flexible as to allow the ruling parties to change it according to their whims. Nor is it so rigid as to be incapable of adopting itself to the changing needs.