Amendment of the Indian Constitution: Procedure, Types and Limitations

Introduction

The Indian Constitution provides a procedure for making amendments to meet changing social, political and economic needs. Article 368 deals with the power of Parliament to amend the Constitution and the procedure for doing so. The Indian system balances flexibility, which allows necessary changes, with rigidity, which protects the Constitution from arbitrary changes.

Meaning of Constitutional Amendment

A constitutional amendment is a formal change made to the provisions of the Constitution by adding, changing or removing constitutional provisions.

The Constitution must be capable of responding to changing circumstances while protecting its fundamental principles. The amendment process allows Parliament to make necessary changes without replacing the entire Constitution.

Need for Constitutional Amendments

Constitutional amendments are necessary for several reasons:

• To meet changing needs: Social, political and economic conditions change over time. Amendments help the Constitution respond to these changes.
• To correct difficulties: Amendments can address problems that arise while applying constitutional provisions in practice.
• To correct gaps: Changes may be needed to address matters that were not fully considered when the Constitution was originally drafted.
• To reflect changing public priorities: The needs and expectations of people may differ across generations. Amendments allow constitutional provisions to respond to these changes.
• To support peaceful change: A legal amendment process provides a constitutional way to make changes instead of resorting to violence or other methods outside the Constitution.

Constitutional Provisions Relating to Amendments

Article 368, contained in Part XX of the Constitution, deals with Parliament's power to amend the Constitution and the procedure for making amendments.

Article 368(1) authorises Parliament, in the exercise of its constituent power (power to change the Constitution), to amend the Constitution by adding, changing or repealing (removing) provisions.

Article 368(2) lays down the procedure for introducing and passing a Constitutional Amendment Bill. Depending on the subject of the amendment, the Constitution requires different levels of approval.

Types of Constitutional Amendments in India

The Indian Constitution can be amended through three principal methods.

Amendment by Simple Majority

Some constitutional changes can be made by a simple majority of members present and voting in each House of Parliament. These changes are generally outside the special procedure under Article 368.

A simple majority means more members vote in favour of the Bill than against it, among those present and voting.

Examples include:

• Formation of new States and alteration of the areas, boundaries or names of existing States under Articles 2 and 3, subject to the constitutional procedure applicable to such laws.
• Creation or abolition of a State Legislative Council under Article 169.
• Certain matters relating to citizenship, parliamentary procedures and other provisions where the Constitution permits changes by ordinary legislation.

These changes are not treated as amendments under Article 368 merely because they affect constitutional provisions.

Amendment by Special Majority of Parliament

Most provisions of the Constitution are amended by a special majority under Article 368.

A Constitutional Amendment Bill must be passed separately by each House of Parliament. In each House, it requires both:

• A majority of the total membership of that House; and
• A majority of not less than two-thirds of the members present and voting.

Both conditions must be satisfied. The special majority requirement applies separately in the Lok Sabha and the Rajya Sabha.

A Constitutional Amendment Bill cannot be passed through a joint sitting of the two Houses if they disagree.

Amendment by Special Majority and Ratification by States

Certain amendments affect the federal structure (the division of powers between the Union and the States). Such amendments require both a special majority in Parliament and ratification by at least half of the State Legislatures.

State ratification means formal approval by the required number of State Legislatures through resolutions.

This additional requirement applies when an amendment seeks to change provisions relating to:

• The election of the President under Articles 54 and 55.
• The extent of the executive power of the Union or the States under Articles 73 and 162.
• The Supreme Court and High Courts, covered by Chapter IV of Part V and Chapter V of Part VI.
• The distribution of legislative powers between the Union and the States under Chapter I of Part XI.
• Any of the Lists in the Seventh Schedule: the Union List, State List or Concurrent List.
• The representation of States in Parliament.
• Article 368 itself.

Ratification by at least half of the States must take place before the Bill is presented to the President for assent.

Procedure for Amendment under Article 368

The procedure for a constitutional amendment under Article 368 involves the following steps.

Introduction of the Bill

A Constitutional Amendment Bill may be introduced in either the Lok Sabha or the Rajya Sabha.

It may be introduced by a Minister or a private member. Prior permission from the President is not required for introducing the Bill.

Passage by Both Houses of Parliament

The Bill must be passed separately by both Houses of Parliament by the required special majority.

Each House must independently satisfy the constitutional voting requirements. If one House rejects the Bill or fails to pass it, the amendment cannot proceed.

A joint sitting cannot be called to resolve a disagreement on a Constitutional Amendment Bill.

Ratification by State Legislatures, Where Required

If the amendment concerns any of the matters listed in the proviso to Article 368(2), at least half of the State Legislatures must ratify it.

Ratification is not required for every constitutional amendment. It is required only for the specified subjects.

Assent of the President

After the required parliamentary approval and, where applicable, State ratification, the Bill is presented to the President.

Under Article 368(2), the President shall give assent to the Bill. Once the President gives assent, the Constitution stands amended according to the terms of the amendment.

Limitations on Parliament's Power to Amend the Constitution

Although Parliament has broad powers to amend the Constitution, those powers are not unlimited.

Article 13 and Constitutional Amendments

Article 13 generally provides that laws inconsistent with Fundamental Rights are void to the extent of the inconsistency.

Article 368(3) states that Article 13 does not apply to constitutional amendments made under Article 368. However, this does not mean that Parliament has unlimited power to amend the Constitution.

The Basic Structure Doctrine

The Supreme Court established the basic structure doctrine in Kesavananda Bharati v. State of Kerala (1973).

Under this doctrine, Parliament may amend any provision of the Constitution, including provisions relating to Fundamental Rights, but it cannot destroy or damage the Constitution's basic structure.

The basic structure refers to the fundamental features that preserve the identity and essential character of the Constitution.

Features recognised by the Supreme Court as part of the basic structure include:

• Supremacy of the Constitution.
• Democracy and the republican form of government.
• Secularism.
• Federalism.
• Separation of powers.
• Judicial review (the power of courts to examine the constitutionality of laws and government action).
• The rule of law.
• The independence of the judiciary.

The list is not exhaustive. Whether a particular amendment violates the basic structure depends on its effect on the Constitution's essential features.

Article 368(4) and Article 368(5)

The Forty-Second Constitutional Amendment Act, 1976, inserted clauses (4) and (5) into Article 368.

Article 368(4) attempted to prevent constitutional amendments from being challenged in court. Article 368(5) declared that Parliament's constituent power had no limitations.

In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court struck down these clauses as unconstitutional. The Court held that Parliament's amending power is limited and that this limitation is itself part of the basic structure.

Therefore, constitutional amendments remain subject to judicial review.

Important Case Law

Shankari Prasad Singh Deo v. Union of India (1951)

The Supreme Court held that a constitutional amendment made under Article 368 was not a law within the meaning of Article 13. At that time, the Court accepted Parliament's power to amend Fundamental Rights.

I.C. Golak Nath v. State of Punjab (1967)

The Supreme Court held that Parliament could not amend Fundamental Rights through the constitutional amendment procedure as it then stood. This decision led to further constitutional and judicial developments concerning Parliament's amending power.

Kesavananda Bharati v. State of Kerala (1973)

This landmark judgment established the basic structure doctrine. The Supreme Court held that Parliament could amend any part of the Constitution, including Fundamental Rights, but could not destroy or damage its basic structure.

Minerva Mills Ltd. v. Union of India (1980)

The Supreme Court struck down clauses (4) and (5) of Article 368, inserted by the Forty-Second Amendment, to the extent challenged in the case. It held that limited amending power and judicial review are part of the basic structure of the Constitution.

I.R. Coelho v. State of Tamil Nadu (2007)

The Supreme Court held that laws placed in the Ninth Schedule through constitutional amendments made after 24 April 1973 could be examined by courts if they damaged or destroyed the basic structure by violating Fundamental Rights that form part of that structure.

Difference Between the Three Methods of Amendment

Practical Example

Suppose Parliament proposes to change a constitutional provision concerning the distribution of legislative powers between the Union and the States under the Seventh Schedule.

The amendment would require:

• Passage by the Lok Sabha through the special majority prescribed by Article 368.
• Passage by the Rajya Sabha through the same special majority.
• Ratification by the Legislatures of at least half of the States.
• Assent of the President.

If the amendment fails to obtain the required majority in either House or the necessary State ratification, it cannot become part of the Constitution.

By contrast, a constitutional change that the Constitution permits Parliament to make by ordinary legislation, such as the abolition of a State Legislative Council under Article 169, follows its specific procedure rather than the Article 368 procedure.

Flexibility and Rigidity of the Indian Constitution

The Indian Constitution is neither completely flexible nor completely rigid.

It is flexible because certain changes can be made by a simple majority. It is rigid because most constitutional amendments require a special majority, and amendments affecting specified federal provisions also require State ratification.

The basic structure doctrine adds another safeguard by preventing Parliament from destroying the Constitution's essential features.

This combination allows the Constitution to adapt to changing circumstances while protecting its fundamental principles.

Summary

• A constitutional amendment is a formal change made by adding, changing or removing constitutional provisions.
• Article 368 provides the principal procedure for amending the Indian Constitution.
• Constitutional changes follow three principal methods: simple majority, special majority, and special majority with ratification by at least half of the States.
• A special majority requires a majority of the total membership of each House and at least two-thirds of the members present and voting.
• State ratification is required for amendments affecting specified federal provisions under Article 368(2).
• The President must give assent after the required procedure has been completed.
• In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court established the basic structure doctrine.
• Parliament cannot destroy or damage the Constitution's basic structure through an amendment.
• In Minerva Mills v. Union of India (1980), the Supreme Court reaffirmed the limited nature of Parliament's amending power and the importance of judicial review.
• The Indian amendment process balances flexibility with rigidity and allows constitutional change while protecting the Constitution's essential principles.