The Indian Constitution, like all written constitutions, allows for amendments to adapt to the requirements and circumstances of the times. The process outlined for its revision, however, is neither as simple as in the United Kingdom nor as complex as in the United States. In other words, the Indian Constitution is a combination of both flexibility and rigidity. The Constitution’s Article 368, included in Part XX, addresses Parliament’s amendment authority and process. According to the method established for that purpose, the Parliament may, in the exercise of its constituent power, change any provision of the Constitution by adding to, changing, or repealing it. However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case1 (1973).
Procedure for Amendment
According to Article 368, the process for amending the Constitution is as follows:
1. Only a bill introduced in either House of Parliament, not in the state legislatures, may be used to propose a constitutional amendment.
2. The bill does not need the president’s previous approval and can be filed by a private member or a minister.
3. A special majority—that is, a majority of the House’s entire membership and a majority of two-thirds of the members present and voting—must approve the law in each House.
4. The bill must be passed independently by each House. There is no clause that calls for a joint session of the two Houses to discuss and enact the measure in the event of a disagreement between them.
5. The legislatures of half of the states must ratify the law by a simple majority, or a majority of the House members present and voting, if it aims to change the federal provisions of the Constitution.
6. The law is forwarded to the president for assent once it has been properly 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 law or send it back to the Parliament for further review.2.
8. The bill becomes an Act (a constitutional amendment act) upon the president’s consent, and the Constitution is modified in line with the Act’s provisions.
Types of Amendment
Two methods of change are allowed by Article 368: a special majority of Parliament and the ratification of half of the states by a simple majority. A simple majority of Parliament, or a majority of the members of each House present and voting, can alter specific portions of the Constitution, according to some other articles (similar to the standard legislative process). Interestingly, for the purposes of Article 368, these modifications are not considered to be changes to the Constitution.
Consequently, there are three ways to modify the Constitution: (a) by a simple majority of the Parliament, (b) by a special majority of the Parliament, and ratification by half of state legislatures.
A simple majority of the two Houses of Parliament can change a few of the Constitution’s sections that are outside its purview of Article 368. Among these clauses are:
- The creation or admission of new states.
- The creation of new states and modifications to the regions, borders, or names of already-existing states.
- Members of Parliament’s salaries and benefits.
- The elimination or establishment of state legislative councils.
- The Second Schedule, which includes the president, governors, speakers, judges, and other officials’ salaries, benefits, and privileges.
- Parliamentary quorum.
- How many Puisne judges are there in the Supreme Court
- Parliamentary process rules.
- The Parliament, its members, and its committees’ privileges.
- The English language is used in Parliament.
- Granting the Supreme Court further jurisdiction.
- Use of formal language.
- Obtaining and losing citizenship.
- State legislature and parliamentary elections.
- Constituency delineation.
- Union territories.
- Fifth Schedule: management of designated tribes and regions.
- Tribal lands are administered under the Sixth Schedule.
By a parliamentary special majority
A special majority of the Parliament is required to modify the bulk of the Constitution’s provisions, meaning that a two-thirds of each House’s members who are present and voting, as well as the majority of each House’s overall membership. The phrase “total membership” refers to the entire number of members that make up the House, regardless of absentees or vacancies.
“In actuality, the special majority is only necessary for voting during the bill’s third reading stage, but out of caution, the Houses’ rules have stipulated that a special majority is required for all of the bill’s effective stages”
Fundamental Rights, Directive Principles of State Policy, and any other provisions not falling under the first or third category are among the clauses that can be changed in this manner.
Critics have raised several concerns regarding the amendment procedure of the Indian Constitution, including the following points:
- Lack of Special Amendment Body: The Constitution does not provide for a special body, such as a Constitutional Convention (as found in the USA) or a separate Constitutional Assembly, to handle amendments. Instead, the power to amend the Constitution is vested solely in Parliament, with limited involvement from state legislatures.
- Initiation of Amendments: Only Parliament has the authority to initiate amendments to the Constitution. Unlike in the USA, state legislatures cannot propose amendments, except for one instance, which involves passing a resolution requesting Parliament for the creation or abolishment of legislative councils in the states. Even in this case, the Parliament retains the power to approve, disapprove, or take no action on the resolution.
- Majority Requirement: A significant portion of the Constitution can be amended by Parliament alone, either through a special majority or a simple majority. In contrast, the consent of state legislatures is only necessary in a few cases and requires approval from just half of them, whereas the USA requires consent from three-fourths of the states for similar processes.
- No Time Frame for Ratification: The Constitution does not specify a time limit within which state legislatures must ratify or reject an amendment. Additionally, it does not clarify whether states can withdraw their approval after granting it.
- No Joint Sitting Provision: There is no provision for a joint sitting of both Houses of Parliament in case of a deadlock over a constitutional amendment bill. However, joint sitting provisions exist for ordinary bills.
- Legislative Process Similarity: The amendment process resembles the standard legislative process. Except for instances that require a special majority, constitutional amendment bills are treated like ordinary bills in Parliament.
- Vagueness of Provisions: The provisions relating to the amendment procedure are deemed too vague, which opens the door for judicial intervention in matters concerning amendments.
Despite these criticisms, it is acknowledged that the amendment process has proven to be relatively straightforward and effective in adapting to changing needs and circumstances. The procedure is not overly flexible, which would allow ruling parties to alter it at will, nor is it so rigid that it cannot accommodate necessary changes. As noted by K.C. Wheare, it strikes a commendable balance between flexibility and rigidity.
Pandit Jawaharlal Nehru remarked in the Constituent Assembly that while the aim was to make the Constitution solid and enduring, no Constitution can be entirely permanent. There should be a degree of flexibility to allow the nation to grow and evolve.
Dr. B.R. Ambedkar also emphasized the lack of a final and infallible designation for the Constitution, stating that the Assembly provided a more manageable process for amending the Constitution, unlike in Canada or Australia, where more stringent conditions are applied.
K.C. Wheare praised the variety of amendment procedures laid out in the Indian Constitution, stating that such diversity is both wise and uncommon. Granville Austin described the amendment process as one of the Constitution’s most well-conceived aspects, noting that while it appears complex, it is fundamentally diverse.
