Amending The Constitution: A Step-By-Step Guide

Amending the constitution is a complex and time-consuming process. The United States Constitution, for example, has only been amended 27 times since 1787, with amendments requiring a two-thirds majority vote in both the House of Representatives and the Senate. Similarly, the Indian Constitution's amendment procedure requires a bill to be introduced and passed by a special majority in both houses of Parliament before being ratified by state legislatures. The US and Indian constitutions differ in their flexibility, with the US Constitution's Article V providing specific procedures for amendments, while the Indian Constitution allows for a dynamic document that can be amended by a simple majority in Parliament for certain articles. Despite their differences, both constitutions demonstrate a careful approach to constitutional changes, ensuring stability and longevity.

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The amendment process

Once an amendment is proposed by Congress, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The amendment must then be ratified by three-quarters of the state legislatures, or by ratifying conventions in three-quarters of the states, as determined by Congress. This process is known as the "ratification clock". The vote of each state carries equal weight, and the amendment becomes part of the Constitution once ratified by a sufficient number of states.

In the case of the United States Constitution, the President does not have a constitutional role in the amendment process. However, in the Indian Constitution, after passing both houses of Parliament, the bill is presented to the President for assent. The President cannot withhold assent or return the bill for reconsideration, and after receiving assent, the bill becomes a constitutional amendment act.

It is important to note that the amendment process for the United States Constitution has been the subject of debate and interpretation by scholars and legal professionals. The Constitution does not specify deadlines for ratification or the ability of Congress to extend deadlines. Additionally, there is discussion around the ability to amend the amendment procedures outlined in Article V.

Ratification

The Indian Constitution also has a ratification process. After a bill is introduced and passed by a special majority in both houses of Parliament, it must be ratified by the legislatures of half of the states by a simple majority. The President must then give assent to the bill, after which it becomes a constitutional amendment act. The Indian Constitution's amending power is limited by the doctrine of Basic Structure, as ruled by the Supreme Court in 1973, ensuring that the 'Basic Structure of the Constitution' cannot be amended.

In the United States, the ratification process for constitutional amendments can be initiated by Congress or by a constitutional convention called for by two-thirds of the state legislatures. However, none of the 27 amendments to the Constitution have been proposed by a constitutional convention. Once an amendment is proposed, it is sent to the states for ratification. The states can ratify through their legislatures or by holding ratifying conventions. The vote of each state carries equal weight, and most amendments proposed since 1917 have included a deadline for ratification.

The process of ratification for constitutional amendments in the United States has been utilised since the early 1800s, with Chief Justice John Marshall noting that the Constitution was written "to endure for ages to come." Amending the Constitution is intentionally challenging, and the document has only been amended 27 times since 1787. The ratification process ensures that any changes to the Constitution are carefully considered and widely accepted by the states, reflecting the enduring nature of the document.

Congress's role

Congress plays a pivotal role in the process of amending the US Constitution, as outlined in Article V of the Constitution. The process begins with Congress proposing an amendment, which requires a two-thirds majority vote in both the House of Representatives and the Senate. This proposal takes the form of a joint resolution, which is then forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format, providing an information package for the states.

The role of Congress in this initial stage is crucial, as it sets the amendment process in motion. Notably, none of the 27 amendments to the Constitution have been proposed by a constitutional convention, which is the alternative method outlined in Article V. This highlights the dominance of Congress in initiating amendments.

Once the joint resolution is approved by Congress, it does not require presidential approval. This further underscores the independence of Congress in the amendment process, as it operates without the involvement of the executive branch.

After the amendment proposal is forwarded to the OFR, the Archivist of the United States, who heads NARA, administers the ratification process. The Archivist has delegated many of the associated duties to the Director of the Federal Register. The OFR examines ratification documents submitted by states for facial legal sufficiency and authenticating signatures. Once the required number of authenticated ratification documents is received, the OFR drafts a formal proclamation for the Archivist to certify the amendment's validity.

The certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete. This certification ceremony has, in recent times, been attended by various dignitaries, including the President, who acts as a witness to the process.

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The Basic Structure

In the context of the Indian Constitution, the Basic Structure was established by the Indian Judiciary in the landmark Keshavananda Bharati case of 1973. This ruling asserted that while the Parliament has the power to amend the Constitution under Article 368, it cannot amend the provisions that constitute the Basic Structure. This ruling ensured the protection of certain fundamental aspects of the constitution, deemed too important to be modified.

The Supreme Court of India has played a pivotal role in interpreting and delineating the boundaries of the Basic Structure. In the Minerva Mills vs. Union of India case in 1980, the Supreme Court invalidated provisions of the 42nd Constitutional Amendment Act, asserting that Parliament cannot infringe upon the power of 'judicial review' as it forms part of the Basic Structure.

In the United States, the process of amending the Constitution is outlined in Article V, which does not explicitly include self-amending procedures. The Constitution can be amended by a two-thirds majority vote in both the House of Representatives and the Senate, followed by ratification by three-fourths of the states. This amendment process ensures that any changes to the Constitution reflect the consensus of a supermajority, safeguarding against hasty or unilateral alterations.

Article V

The amendment process outlined in Article V can be used to amend itself, according to law professor George Mader. However, Article V has never been amended. There is debate over whether Article V is the only means of amending the Constitution. Some scholars argue that the American people can amend the Constitution using methods not outlined in Article V.

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