Introduction to Constitutional Amendments
Part V of the constitutional law series
The Constitution of India provides for its amendment in order to adjust itself according to the changing conditions and needs.
Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.
It states that the Parliament may amend the Constitution by way of addition, variation, or repeals any provision in accordance with the procedure laid down for the purpose.
Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law.
The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on the arbitrary power of the Parliament of India.
However, there is another limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power.
This has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kerala.
Amendments of the Indian Constitution — What is Article 368?
To define the constitutional amendment process, Article 368 of Part XX of the Constitution of India provides for two types of amendments.
- By a special majority of Parliament
- By a special majority of the Parliament with the ratification by half of the total states
But, some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process).
Notably, these amendments are not deemed to be amendments to the constitution for the purposes of Article 368. Any of these amendments follow a certain procedure.
Hence, this blog will talk in detail about the types of amendments in the Indian Constitution, the constitutional amendment process, and the scope of amendability.
Types of Amendments in the Indian Constitution
The list of types of amendments can be found below. There are three ways in which the Constitution can be amended:
- Amendment by a simple majority of the Parliament
- Amendment by a special majority of the Parliament
- Amendment by a special majority of the Parliament and the ratification of at least half of the state legislatures.
A brief description of the above types of amendments to the Indian Constitution has been laid down below.
1. By a simple majority of parliament
A number of provisions in the Constitution can be amended by a simple majority of the two houses of Parliament outside the scope of Article 368.
These provisions include:
- 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.
- Second Schedule-emoluments,
- Allowances, privileges, and so on of the president, the governors, the Speakers, judges, etc.
- Quorum in Parliament.
- Salaries and allowances of the members of Parliament.
- Rules of procedure in Parliament.
- Privileges of the Parliament, its members, and its committees.
- Use of the English language in Parliament.
- The number of puisne judges in the Supreme Court.
- Conferment of more jurisdiction on the Supreme Court.
- Citizenship acquisition and termination.
- Elections to Parliament and state legislatures.
- Delimitation of constituencies.
- Union territories
- Fifth Schedule-administration of scheduled areas and scheduled tribes.
- Sixth Schedule-administration of tribal areas.
2. By Special Majority of Parliament
- The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority (that is, more than 50 percent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting.
Total membership: the total number of members comprising the House irrespective of the fact whether there are vacancies or absentees.
- The special majority is required only for voting at the third reading stage of the bill but by way of abundant caution, the requirement for the special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.
- The provisions which can be amended in this way include (i) Fundamental Rights; (ii) Directive Principles of State Policy; and (iii) All other provisions which are not covered by the first and third categories.
3. By Special Majority of Parliament and Consent of States
Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority.
If one or some or all the remaining 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 President and its manner.
- The 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).
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