Constitutional Amendment Article 368 in part XX gives powers to parliament to amend the constitution and its procedures. Parliament can amend it by adding article, or delete any provision, but however parliament cannot amend those provisions which change the ‘basic structure’ of parliament.

Introduction

The constitution of India is not rigid and not flexible, but it is a combination of these both. Article 368 in part XX gives powers to parliament to amend the constitution and its procedures. Parliament can amend it by adding article, or delete any provision, but however parliament cannot amend those provisions which change the ‘basic structure’ of parliament (The supreme court of India has ruled this in Kesavananda Bharti case in 1973). The American constitution is very rigid & that of Britain very flexible. Our constitution is the synthesis of these two constitutions.

Types of Amendment Article 368 gives two types of amendments first is by special majority & other is by special majority with ratification of half of states with simple majority. Some articles of constitution can be amended by simple majority that is majority of members of each house present and voting but these type of amendments are not considered to be amendments under Article 368.

The amendments can be done by three ways:

1. Amendments by simple majority of parliament (i.e. majority of the people present and voting)

2. Amendments by special majority of parliament

3. Amendments by special majority of the parliament and the ratification of half of the state legislatures

Amendment by Simple majority Special majority means amendment of the constitution under article 368 involving 1) majority of the total membership of the house (i.e. more than 50% of the total members of the house) plus ii)majority of two-third of the members of each house present and voting (i.e. the people present at the time of voting in the house should amount to two-third).

Following provisions can be amended by special majority;

1. Fundamental rights

2. Directive principles of state policy

3. All the provisions which are not covered by first and third categories.

4. Amendment by special majority and with the consent of States

5. The important thing to understand under this type of amendment is that it comes under the scope of article 368.

6. It is needed only when there is a question about amendment of the federal structure of the constitution.

7. Federalism is the political structure where there is proper division of the powers between the centre and the state.

Hence, all the provisions in the constitution which involves federal character have to be amended by this type of amendment.

For this case, both the houses of Parliament should pass the said bill by special majority. After that half of the number of states should pass the same bill with simple majority in their respective state legislatures.

No definite time limit has been set up for the state legislatures to pass the said bill under this provision i.e. it has been left at the discretion of the states.

Following provisions can be amended by this way:

1. Distribution of legislative powers between the center and states.

2. Power of parliament to amend the constitution and its procedure.

3. Election of the president and its manner.

4. Any of the lists in the seventh schedule.

5. Extent of the executive power of the union and the states.

6. Representation of states in parliament.

7. Amendments by special majority

The provisions that can be amended by simple majority is outside the scope of Article 368. These provisions that can be amendedby simple majority are as follows:

Procedure for amendment All the amendment procedures of the constitution are present in article 368 is given below:

The move for amendment can be initiated in either house of parliament (but not in state legislature. Can be introduced by any minister/private member & does not need permission of President for such bill)

Each house should pass the bill with special majority.

The amendment bill must pass be passed separately, (if the hoses do not agree on bill there is no provision for joint setting of the houses).

If the amendment bill is regarding the federal character of the constitution then after the passage of the bill in both the houses of Parliament it is presented to the state. Otherwise if it is not regarding federal character it directly goes to the President for his assent.

(the bill involving federal character)After the passage of the bill from the parliament and ratified by the state legislature then bill is presented to the president for his assent.

President can neither return the bill nor withhold the bill. He needs to give assent to the said bill. (It is compulsory for the President). After the assent from the President, that bill becomes a constitutional amendment act.

Amendment and the Fundamental Rights

1. Shankari Prasad Case(1951)

Case questioning that whether fundamental rights can be amended under Article 368 & also questioned the constitutional validity of First amendment act that curtailed the right to property.

SC said that Parliament can amend the Fundamental rights under 368. Also, laws under Article 13 are ordinary laws & hence can be taken away by Parliament by amendment.

2. Golak Nath Case(1967)

Case questioned the constitutional validity of putting some state laws under Schedule 9 of the constitution (by 7th Amendment Act)

Any law put under Schedule 9 is not available for Judicial Review

SC said that it’s decision in Shankari Prasad Case was wrong & Fundamental rights have an important position in the constitution & hence can’t be amended under article 368.

Constitutional amendment is also a law under Article 13 & hence can’t take away the fundamental rights.

Parliament after this judgment enacted the 24th amendment act, 1971 which amended the Article 13 & Article 368. The new law stated that Parliament can take away any Fundamental right by use of Article 368 & such a constitutional amendment act will not be considered as a “law” under article 13.

3. Kesavananda Bharati Case(1973)

SC sated that 24th Constitutional amendment act is valid & Parliament can take away Fundamental rights.

SC at this time came out with doctrine of “basic structure”. It states that Parliament cannot amend the constitution under Article 268 that relates to the change of basic structure of the constitution i.e. Parliament can’t take away those fundamental rights that are a part of basic structure of the constitution.

Parliament then enacted 42nd Constitutional amendment act, 1976. It states that there is no limit to the power conferred by Article 368 to the Parliament & any change brought about by article 368 cannot be questioned in the court of law.

4. Minerva Mills Case(1980)

The provisions that were laid down by the 42nd Constitutional Amendment act, 1976 were declared invalid by the Supreme Court in this 1980 Supreme Court case.

5. Waman Rao Case(1981)

Supreme Court stated that any amendment act can’t change the basic structure of the constitution & these would apply to the amendments after April 24,1973.

So, as of now, Parliament can do any type of amendment & even amend the Fundamental rights but which are not changing the “basic structure” of the constitution.

 

Some negative aspects of the amendment procedure 

1. The provisions under amendment are very vague & hence require a lot of understanding.

2. No difference between the ordinary bill & the constitutional amendment bill except for special majority.

3. No special body for such purpose is present.

4. States in India have no right to start the constitutional amendment procedure.

5. No way to solve any deadlock between the two houses of the Parliament. There is no provision for joint sitting of the house in case of deadlock over amendment bill.

6. Most part of the constitution can be amendment by way of special majority & simple majority alone. Only in few cases, states ratification is required.

7. No time limit given to states for passing the amendment bill involving federal character