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  • Anshu Sharma

Amendment Process of the Constitution of India

Anshu Sharma

Delhi Metropolitan Education affiliated to Guru Gobind Singh Indraprastha University

Amendment Process of the Constitution of India

Introduction to the Constitution of India

India got its Constitution on January 26, 1950, and it remains the highest law of the country after years of debates by the Constitution-drafting body known as the Constituent Assembly constituted in 1946. Constitution making that was headed by Dr. B. R. Ambedkar and other prominent personalities, intended to pull together the diverse and newly formed nation. The constitution has extreme importance as it provides the framework for the world’s largest democratic nation and provides justice, liberty, equality, and fraternity to its citizens. It consists of a preamble, 25 parts, 12 schedules, and more than 450 articles, and this makes it one of the most elaborated constitutions in the world.

Need for Amendments

Changes in the Constitution of India Act are as important as the society’s needs and issues that come up over time. The founding fathers knew that as the country grew, social, economical, and political situations and the people's expectations would also change requiring the amendment of the constitution. Correcting and adjusting the existing legal information is important, eliminating possible juridical loopholes and incorporating modern norms and values, including human rights concepts into legal systems. By having a current working constitution people’s expectations are met, and the country is prepared for novelty and contingencies as the Constitution proves necessary for the nation’s governance. This flexibility is critical to preserve the authority and relevance of the constitutional system and guarantee that it will remain functional in preserving democratic values, justice, and citizen’s well-being.

Constitutional Provisions for Amendments

It can be said that the Indian Constitution is in part an imperfect document because it allows amendments that make it possible for the Constitution to be relevant to the existent society. The provisions as to the manner of amendment of the Constitution are laid out in Article 368 of Part XX of the Constitution. The provisions of the Constitution state, how, when, and in what manner the amendments to the constitution may be made. The mechanism to amend the Constitution is provided for in Article 368 and it is rather complex and entails several stages. The stages are mentioned below: -

●       A bill for the amendment can be moved only in either house of Parliament and not in the State Legislatures.

●       The proposal can be initiated by a minister or a private member and it does not need the clearance from the President.

●       The bill needs the approval of a special majority in each house of Parliament to pass into law. Instead, it is required to have a majority of the total membership of the House and half the members present and voting must be in favor.

●       For the bill to become a law each House must approve and there is no instance where the two Houses sit together if one rejects it.

●       If the amendment bill is to affect provisions at the federal level, it requires approval by at least half of the state legislative assemblies by a majority vote of the members present and voting.

●       When the bill has been approved by both Houses of Parliament as the case may be, or where making of a law is by a number of state legislatures in cases where it is necessary, then it is forwarded to the President for his or her signature.

●       It is mandatory for the President to sign into law this bill; he cannot refuse or send it back to the parliament. The bill is not complete until the President has signed it; once he has signed it, the bill becomes a Constitutional Amendment Act and the Constitution is altered in accordance with the changes set out in the Act.

Types of Amendments

The Indian constitution specifies several forms of amendments based on their content and the approval and processes that need to be undergone to achieve them to let the constitution evolve as needed without altering principles at its core. These types of amendments are mentioned below: -

1. By Simple Majority of Parliament

Certain provisions in the Constitution can be amended by a simple majority in both houses of Parliament, which falls outside the scope of Article 368. These amendments are relatively straightforward and include changes related to:

●       Admission or establishment of new states.

●       Formation of new states and alteration of areas, boundaries, or names of existing states.

●       Abolition or creation of legislative councils in states.

●       Matters listed in the Second Schedule, such as emoluments, allowances, and privileges of the President, governors, Speakers, judges, etc.

●       Quorum in Parliament.

●       Salaries and allowances of members of Parliament.

●       Rules of procedure in Parliament.

●       Privileges of Parliament, its members, and its committees.

●       Use of the English language in Parliament.

●       Number of puisne judges in the Supreme Court.

●       Conferment of more jurisdiction on the Supreme Court.

●       Acquisition and termination of citizenship.

●       Elections to Parliament and state legislatures.

●       Delimitation of constituencies.

●       Administration of Union territories.

●       Administration of scheduled areas and tribes (Fifth Schedule).

●       Administration of tribal areas (Sixth Schedule).

2. By a Special Majority of Parliament

Most provisions in the Constitution require a special majority for amendments. This means a majority of more than 50% of the total membership of each house and a two-thirds majority of members present and voting. This special majority is necessary at the third reading stage of the bill, although it is also applied at other stages for caution. Provisions that require this type of amendment include:

●       Fundamental Rights.

●       Directive Principles of State Policy.

●       All other provisions are not covered by the simple majority or requiring state consent.

3. By Special Majority of Parliament and Consent of States

Certain provisions related to the federal structure require not only a special majority in Parliament but also the consent of at least half of the state legislatures. These states need to pass the amendment by a simple majority. There is no time limit for states to give their consent, and the process is complete once half of the states agree. Provisions that require this type of amendment include:

●       Election of the President and its manner.

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

●       Powers and functioning of the Supreme Court and High Courts.

●       Distribution of legislative powers between the Union and 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).

Historical Amendments

There have been several amendments to the Indian Constitution after its adoption with the intention of coping with rising political, societal and economical issues. These amendments have assumed significant features in charting the course of India’s democracy & legal framework. Each of these amendments holds important significance as these facilitate improvements in governance and political stability, expansion of rights based on colour and race leading to social justice, and other overhauls pertaining to economical growth. Few of main amendments are mentioned below:

  1. First Amendment - Amendments made in the Constitution of India in 1951 through the First Amendment Bill affected freedom of speech and expression mainly by altering the provisions of the Constitution in the following ways. Regarding freedom of speech the act put certain limitations by allowing the state to place reasonable restrictions on the exercise of the freedom for the reasons of social order, contempt of court and for encouraging the spirit of enmity between different groups. The amendment also added Article 19(2) to the Constitution despite the fact that it deals with these limitations.

Some of the earlier decisions that come under this constitutional amendment include the Shankari Prasad v. Union of India judgment in 1951 and the Sajjan Singh v. State of Rajasthan judgment in 1965, which supported constitutional amendment making power of the parliament legalize any part of the Constitution including the fundamental rights of Indian citizens.

  1. 42nd Amendment - The 42nd Amendment Act of 1976 can be termed as one of the most important in the Indian constitutional history Popularly known as the national emergency amendments these changes were made during the emergency declared by the then Prime Minister Indira Gandhi in 1975. Fueling the fears that federalism is being undermined it considerably entrenched the authority of the central government as opposed to that of the state governments. It also brought the new idea of ‘Fundamental Duties’ of the citizens of India and changed the course of power distribution between the Parliament, executive, and the judiciary branches of the country.

Major holdings related to this amendment are Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1077, wherein the SC sought to delete certain provisions of the 42nd Amendment and reasserted the constitutional analysis of the basic structure of the Constitution.

  1. 44th Amendment - The new provisions of law include the 44th Amendment act of 1978 that tried to repeal some of the measures contained in 42nd Amendment. It touched the restoration of several rights which were either restricted or held in abeyance during Emergency to rein drive the ‘Doctrine of the Basics’. This amendment also explained the doctrine of judicial review in more detail, and it also restricted the authority of the executive branch particularly through explaining how it could declare a state of Emergency.

  2. 73rd/74th Amendments - The 73rd and 74thconstitutional amendments made in 1992 classified significant changes in local self-governments in rural area through developing Panchayati Raj Institutions at three tiers and in the urban areas by tracing Municipalities. These alterations were aimed at consolidating the centre and decentralize the local bodies so that such could self-govern.

Some of those landmarks regarding relief; these amendments being are as follows: In this case State of Karnataka v. Ranganatha Reddy, the Apex court of India observed that in order to ordain decentralization of power and resources it is imperative for the government to ensure the handing over of powers and resources continually.

Judicial Review and Amendments: Role of the Judiciary in Reviewing Constitutional Amendments

The Indian judiciary plays a crucial role in reviewing constitutional amendments to ensure their conformity with the basic principles and structure of the Constitution. Through judicial review, the courts examine whether an amendment violates any fundamental rights or undermines the essential features of the Constitution. This oversight is essential for upholding the supremacy of the Constitution and preserving the balance of power between different branches of the government.

The doctrine of Basic Structure as Established by the Kesavananda Bharati Case

The landmark Kesavananda Bharati case (1973) introduced the doctrine of basic structure, which holds that certain fundamental principles and features of the Constitution are beyond the amending power of the Parliament. These essential features, including democracy, secularism, federalism, and the rule of law, form the bedrock of the Indian Constitution and cannot be altered or abrogated by constitutional amendments. This doctrine acts as a safeguard against arbitrary amendments that could undermine the core values and principles of the Constitution.

Over the years, the Supreme Court of India has invoked the doctrine of basic structure to strike down or alter several constitutional amendments deemed violative of the Constitution's core principles. It includes the 24th Amendment Act, of 1971, which sought to curtail the scope of judicial review in matters related to property rights, and the 42nd Amendment Act, of 1976, which attempted to expand the powers of the executive at the expense of judicial independence and fundamental rights. In landmark rulings, the Supreme Court intervened to uphold the sanctity of the Constitution, reaffirming the supremacy of its basic structure over transient political exigencies. These instances show the vital role of the judiciary as the guardian of the Constitution and the rule of law, ensuring that constitutional amendments remain consistent with the foundational principles of Indian democracy.

Challenges and Controversies Amending the Constitution of India

Political and Legal Challenges in Amending the Constitution

Generally, the process of amendment of the Constitution of India involves some difficulties that are both – political and legal. Amendments politically undergo a lot of criticism from the opposition parties, the civil society organizations and in most cases from within the ruling party. Topics like reservation systems, the system of federalism, and issues concerning the treatment of minority groups can turn people into extremes of the spectrum or increase the risk of polarization. Also, the requirement of a two-thirds majority in both houses of Parliament or a specified majority in certain circumstances makes it more challenging. Constitutionally alterations have to respond to the basic structure doctrine formulated by the Supreme Court, which in its own right placed restrictions on how the Constitution can be amended. This forms a rather careful equilibrium between parliament’s authority to alter and the judicial system’s responsibility of preserving the Constitution’s cardinal features.

Controversial Amendments and Their Repercussions

There are amended laws that have attracted a lot of controversy in India because of the effects they claim to have had on its democratic structure and the social consciousness of the nation. An instance in this context is the 42nd Amendment Act of 1976 which heightened the authoritarian climate with the filled Emergency stretching out the authority of the executive branch while restructuring freedoms of the basic rights. This amendment was considered as a violation of the principles of federalism and the system of checks and balances. Also, the 44th Amendment Act of 1978 was brought for holding in certain abuse of the 42nd Amendment Act and to reestablish fundamental rights. Controversially, The Citizenship (Amendment) Act, 2019 which provides exemptions to certain religious groups sparked massive protests and legal battles. Changes provoking controversy always result in legal conflicts before the courts and political turmoil on the streets, thus indicating how much the process of constitutional changes interferes with the principles of democracy.

Role of the President in the Amendment Process

The participation of the President in the amendment process of the constitution of India is central but its power is restricted by the constitution. Amendments to the Constitution can only be made under the guidelines of Article 368 which defines the powers of the President about the amendment procedure. However, the role of the President is very significant, even though he has the responsibility to formally make amendments, it is more like a formality.

When an amendment bill is being passed in the Parliament, it is forwarded to the President for signifying his approval. The President also has the power to approve or veto the bill, thus having power of checking on the legislature if it proposes undesirable amendments. Yet, this power is theoretical, as the President does not have extensive power on his own and has to adhere to the Council of Ministers’ recommendations.

Also, the President has powers to assent sparingly, which is constitutionally restricted to amendments not changing the federal character, the representation of states in the lower house, or any other provisions as are contained in the provision of Article 368.

Consequently, although the President is seen to possess a more considerable formal role in the amendment process, in practice the role is more limited by the principles of parliamentary democracy as enshrined in the constitution.

Conclusion

The principles of fairness, equality and rights of people form the fundamentals upon which Indian laws are based. Article 368 on amendments provides a way to change it or amend it. It is possible to make small changes that can be approved by just a few needings as well as much bigger ones depending on states’ agreement. However, frequently there are issues arising in the course of this process such as disputes among politicians and inquiries from courts. Some significant debates were sparked off by the 42nd Amendment Act but the Constitution remained intact due to important rules referred to as doctrine of basic structure. Despite the active involvement of the President in amending, there are provisions aimed at ensuring that it is done fairly. In general, updating process reveals how India continually attempts to achieve a balance between old habits and new thinking thus reflecting what people want or need most.

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Archi Sharma
Archi Sharma
03 jun.

Great article! I really enjoyed..

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Tanishka Rana
Tanishka Rana
03 jun.

Very insightful

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