The Indian constitution-makers were fully aware of the difficulties of operating a federal constitution of the world, as a result, they adopted a middle path for a constitutional amendment that was not too flexible or rigid. This process of constitutional amendment has been adopted from the Constitution of South Africa.
Procedure for Amendment of the Constitution
Part 20 of the Constitution, Article 368 deals with constitutional amendments. The power to amend the Constitution in India has been given to the Parliament. State Legislatures do not have the power to amend the Constitution. Parliament can amend any part of the Constitution including the Preamble and Fundamental Rights but cannot amend the ‘Basic Structure’ of the Constitution. (Kesavananda Bharati v State of Kerala). Article 368 gives the power and procedure to amend the constitution
Provision has been made for three types of process for constitutional amendment——
1- Amendment by simple majority
2- Amendment by special majority, and
3- Amendment by special majority and ratification of the states. Amendment by special majority and ratification of the states.
* Amendment by simple majority
Parliament can amend certain provisions of the Constitution by passing a bill by a simple majority (according to the procedure specified in the relevant article). A simple majority means a majority of more than half of the members present and voting in the House.
This is the simplest process of amending the constitution, but the amendments made by it have to be referred to as s. The constitution is not considered an amendment within the meaning of 368, although it changes some of the provisions of the Constitution.
This constitutional amendment is similar to ordinary law. Which provisions can be amended by a simple majority, as has been told in the related article or schedule. Some of the major provisions to be amended by a simple majority are as follows —–
- Entry of new states into the Union – pr. -2
- Formation of new states or change in area, name or extent of existing states -3
- Citizenship Provisions-Art.-11
- Creation or abolition of Legislative Council in the States – Article 169
- Creation of Legislature or Council of Ministers for Union Territory – Article 239A
- Salaries and allowances of President, Vice President, Judges etc.
- In the first 5th, 6th and 8th schedule etc.
*Amendment by special majority
Procedure for amendment by special majority mentioned in 368. A special majority means a majority of the total number of members of the House and a two-thirds majority of the members present and voting. Except for such provisions in the Constitution which cannot be amended by a simple majority and which require the ratification of half of the states to amend, all other provisions can be amended by Parliament by a special majority.
Thus most amendments to the constitution can be done by this process. In fact, unless otherwise provided, it is possible to amend almost all the articles of the Constitution by this method.
*Amendment by special majority and ratification of the states.
This is the most difficult process of the constitutional amendment. This process also – pr. Mentioned in 368. According to this procedure, an amendment of the Constitution requires a special majority of each House of Parliament as well as ratification of at least half of the State Legislatures. Here the State Legislatures mean the ratification of both the Legislative Assembly and the Legislative Council (if any) of that State. It amends those provisions of the Constitution, which are related to the federal structure.
- Article 368(2) lays down the provisions which are required to be amended by this process. Such provisions are set out below. as —
- Article 54 – Election of the President,
- Article 55 – Manner of election of the President,
- Article 73 – Relating to the extension of executive powers of the Union Government.
- Article 162 – Regarding the extension of the executive power of the State Governments
- Article 241 – High Courts for Union Territories,
- Part 5 Chapter 4 – Judiciary of the Union,
- PART VI CHAPTER 5 – THE HIGH COURTS OF THE STATES,
- Part 11 Chapter 1 – Legislative Relations between the Union and the States,
- In any list (Union List, State List, Concurrent List-Union List, State List, Concurrent List) mentioned in the Seventh Schedule,
- Representation of States in Parliament -Representation of States in Parliament( Schedule 4, or
- In article 368 itself (the process of amending the constitution),
- It is noteworthy that the amendment bill in the constitution by the state legislature is required to be ratified by a simple majority, not by a special (two-third) majority.
* Modification process
For the amendment of the Constitution, first the ‘Constitution Amendment Bill’ is introduced in the Parliament. This bill can be introduced in either house of the Parliament. The prior consent of the President is not necessary to introduce a Constitution Amendment Bill in the Parliament. The bill is sent for the assent of the President when it is passed by each House of the Parliament by a simple or special majority, as the case may be. If amendment s. 368(2), before sending a bill to the President for assent, it is necessary to get it ratified by a simple majority of at least half of the State Legislatures.
The President is bound to give his assent to the Constitution Amendment Bill. That is, the Constitution Amendment Bills can neither be withheld nor sent back for reconsideration. On receipt of the President’s assent, the Constitution Amendment Bill becomes a Constitution Amendment Act, and the Constitution is amended according to the provisions of this Act.
It is to be noted that in the event of a difference of opinion between both the Houses of Parliament on the Constitution Amendment Bill, their joint session (Article 108) is not called, that is, the bill is passed separately by both the Houses with the required majority. Therefore, if a constitutional amendment bill passed by the Lok Sabha is rejected by the Upper House (Rajya Sabha), then that bill finally lapses.