Malcolm Rivera
The Constitution of India is a dynamic document that can be amended to accommodate changes in society. Part XX (Article 368) of the Indian Constitution outlines the procedure for constitutional amendments, ensuring parliamentary authority remains in check. Amendments can be made by a simple majority (>50%) or special majority (66%, or two-thirds) of members present, depending on the article. The President's approval is required before any changes are proposed, but not after they are approved by Parliament. The Basic Structure Doctrine, established by the Supreme Court, ensures amendments do not alter the Constitution's fundamental structure. Amendments have been made to address issues such as rural governance, urban local bodies, and women's representation.
| Characteristics | Values |
|---|---|
| Authority | The Parliament of India has the authority to amend the Constitution. |
| Process | A constitutional change may be triggered by the presentation of a bill in either House of Parliament, with the President of India's approval. |
| Requirements | A simple majority (50%+) is required for most amendments, but a special majority (66% or two-thirds) is needed for certain provisions. |
| Limitations | The Basic Structure Doctrine prevents changes to the Constitution's "essential structure", including its fundamental principles. |
| Examples | The 73rd Amendment Act of 1992 added Part IX, dealing with rural panchayats, while the 74th Amendment Act of 1992 added Part IXA on urban local bodies. |
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What You'll Learn
Amendments must preserve the constitution's 'essential structure'
The Constitution of India is the supreme legal document of India and the world's longest written national constitution. It lays down the framework for the fundamental political code, structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens.
The Indian Constitution does not contain a provision to limit the number of amendments that can be made in a year. However, the Constitution can only be amended in the manner provided in Article 368, which dictates the procedure for constitutional amendments. An amendment bill must be passed by each house of Parliament by a two-thirds majority of its total membership when at least two-thirds are present and voting. This is known as a Special Majority. Certain amendments pertaining to the Constitution's federal nature must also be ratified by a majority of state legislatures.
The Basic Structure of the Indian Constitution refers to a set of core principles deemed essential, which cannot be destroyed or altered through amendments by Parliament. This concept was established by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala in 1973. The Doctrine of Basic Structure is a check on the amending power of Parliament and ensures that the fundamental ethos, principles, and the underlying framework of the Constitution remain intact, preserving its spirit.
The current limitation on amendments comes from the Kesavananda Bharati case, where the Supreme Court ruled that amendments to the Constitution must respect the "basic structure" of the Constitution, and certain fundamental features of the Constitution cannot be altered by amendment. Parliament attempted to remove this limitation through the Forty-second Amendment, but this was later declared invalid by the Supreme Court in Minerva Mills v. Union of India.
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The President must give approval before any changes
The process of amending the Indian Constitution is outlined in Part XX (Article 368) of the document. This process ensures the integrity of the constitution and keeps the Parliament of India's arbitrary authority in check.
Article 368 (1) grants the Parliament the authority to alter any provision of the constitution by means of addition, modification, or repeal, subject to the procedures outlined in Article 368 (2). However, it is important to note that any changes must not entail a fundamental change or destruction of the constitution's "essential structure".
A constitutional amendment may be triggered by the presentation of a bill in either House of Parliament, which is currently the only way to initiate this process. In each of these instances, the President of India must first give approval before any changes can be made. This presidential approval is a crucial step and ensures that the President, as the head of state, is involved in the amendment process.
The President's role in this process is to provide initial approval for any proposed constitutional amendments. This means that any changes to the constitution must be reviewed and consented to by the President before they can move forward in the amendment process. The President's approval serves as a check and balance in the system, ensuring that any modifications are carefully considered and aligned with the interests of the nation as a whole.
While the President's approval is necessary for initiating the amendment process, it is important to note that the President does not have the power to reject the modifications once they have been approved by Parliament. This aspect of the process highlights the collaborative nature of governance in India, where the executive and legislative branches work together to uphold the constitution while allowing for necessary changes to be made over time.
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Parliament has authority to alter provisions
The Constitution of India does not vest Parliament with the power to amend the Constitution. Instead, Parliament's power to amend the Constitution arises from other provisions in the Constitution, namely Articles 245, 246, and 248, which grant it the authority to create laws. As a result, it is argued that Parliament's power to amend and legislative powers are essentially the same.
Article 368 of the Indian Constitution outlines the procedure for Parliament to amend the Constitution. An amendment to the Constitution can only be initiated by introducing a Bill in either House of Parliament. The Bill must be passed in each House by a majority of the total membership of that House and by a majority of no less than two-thirds of the members present and voting. Once passed, the Bill is presented to the President for their assent, and upon receiving it, the Constitution is amended according to the terms of the Bill.
However, if the amendment seeks to make changes to specific articles (such as Articles 54, 55, 73, 162, 241, or 279A) or chapters (such as Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI), it must be ratified by the Legislatures of at least half of the States through resolutions before being presented to the President for assent.
It is important to note that Parliament's power to amend the Constitution is subject to certain limitations. According to Article 368, Parliament cannot use its amending powers to "damage," "alter," or "destroy" the "basic structure" or framework of the Constitution. The concept of the "'basic structure'" of the Constitution has been recognised by the majority verdict in several judgements, upholding the validity of the Twenty-fourth Amendment.
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A simple majority can amend certain articles
Article 368(1) of the Indian Constitution grants Parliament the authority to amend the Constitution. This can be done by addition, modification, or repeal, but it must follow the procedure outlined in Article 368(2). A simple majority—more than 50% of the total number of members present and voting—can amend certain articles of the Constitution. This includes amendments such as the admission of a new state under Article 2 and Schedule IV, and Article 11, among other things.
The process of amending the Constitution is designed to ensure the integrity of the document and keep Parliament's arbitrary authority in check. The "Basic Structure Doctrine," established by the Supreme Court, is one of the most well-known doctrines that determine the legitimacy of an amendment. This doctrine ensures that any changes do not fundamentally alter or destroy the Constitution's "essential structure."
While a simple majority is sufficient for certain amendments, other provisions of the Constitution require a special majority of 66%, or two-thirds, of the members present and voting in that House. This type of amendment is used in instances where it is necessary to pass a constitutional amendment without harming the basic structure of the Indian Constitution.
It is important to note that a constitutional amendment can only be triggered by the presentation of a bill in either House of Parliament, and it requires the approval of the President of India. While the President's approval is necessary for initiating the process, once the modifications have been approved by Parliament, they cannot be rejected by the President.
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Special majority (66%) required for some provisions
The procedure for amending the Constitution of India is laid down in Part XX (Article 368) of the Constitution of India. This article provides for two types of amendments. The first type of amendment is by a special majority of the Parliament (Lok Sabha and Rajya Sabha). This is further divided into two categories. The first category, as per Article 249, requires a two-thirds majority of members present and voting, in the case of empowering Parliament to make laws on issues included in the state list. The second category, as per Article 368, requires a majority of two-thirds of members present and voting, supported by more than 50% of the total strength of the House.
The second type of amendment is by a special majority of the Parliament with the ratification of at least half of the state legislatures. This type of amendment is also divided into two categories. The first category, as per Article 368, requires a simple majority of half of the state legislatures in India, in addition to the requirements of the second category of the first type of amendment. The second category of the second type, as per Article 361, requires a two-thirds majority of the total membership of the House.
The provisions that can be amended by a special majority include those related to the federal structure of the polity, such as the election of the President and its manner, the extent of the executive power of the Union and the states, the Supreme Court and high courts, and the representation of states in Parliament.
The procedure for amendment is similar to the legislative process, except for the special majority requirement. A bill for the amendment of the Constitution can be introduced in either house of the Parliament, not in the State Legislatures. Each house must pass the bill separately, and there is no provision for a joint sitting of the houses in case of a disagreement. After being passed by both houses, the bill is presented to the President for assent, which he must give. After the President's assent, the bill becomes an Act, and the Constitution stands amended.
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Frequently asked questions
Article 368 (1) of the Indian Constitution grants the Parliament the authority to alter any provision of the constitution by means of addition, modification, or repeal. The President of India must first give their approval before any changes can be made.
The Basic Structure Doctrine was established by the Supreme Court and ensures that any amendments to the Constitution do not entail a fundamental change or destruction of the Constitution's "essential structure".
Certain articles of the Constitution can be altered by a simple majority (more than 50%) of the members present and voting on the amendment. Other provisions may require a special majority (66%) of not less than two-thirds of the members present and voting.
The Constitution (73rd Amendment) Act, 1992, added Part IX, which included Articles 243 to 243-O, dealing with the formation and functioning of the three-tier system of panchayats in rural regions.
