Eleanor Finch
The Indian Constitution is the most amended national constitution in the world, with 106 amendments since 1950. The process of amending the constitution involves a bill being introduced in either house of parliament, which must then be passed by a special majority in each house (a majority of more than 50% of the total membership of the house and a majority of two-thirds of the members of the house present and voting). If the bill seeks to amend federal provisions, it must also be ratified by the legislatures of half of the states by a simple majority. The constitution spells out governmental powers in great detail, meaning that many matters addressed by statute in other democracies must be addressed via constitutional amendment in India. This has resulted in the constitution being amended roughly twice a year.
| Characteristics | Values |
|---|---|
| Number of amendments since 1950 | 106 |
| Frequency of amendments | Twice a year |
| Types of amendments | 3 |
| First type of amendment | Passed by a "simple majority" in each house of the Parliament of India |
| Second type of amendment | Passed by a prescribed "special majority" of each house of Parliament |
| Third type of amendment | Passed by a "special majority" in each house of Parliament and ratified by at least half of the State Legislatures |
| Basis for amendments | Addition, variation, or repeal of any provision of the Constitution |
| Amendment initiator | Either house of Parliament |
| Bill introduction | No requirement for prior presidential permission |
| Bill passage | Special majority in each house of Parliament |
| Federal provisions | Ratified by legislatures of half of the states by a simple majority |
| State consent | Consent of half of the states required |
| Legislative procedure | Not specified in Article 368 |
| Fundamental rights | Cannot be taken away or curtailed by Parliament |
| Basic structure | Cannot be altered by amendments |
| Amendment procedure | More flexible than Britain's, less rigid than the USA's |
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What You'll Learn
The three types of amendments
The Constitution of India is the most amended national constitution in the world, with 106 amendments since 1950. This is because the Constitution is highly detailed, requiring amendments to be made roughly twice a year.
There are three types of amendments, the first of which requires a simple majority in each house of the Parliament of India. This means that more than half of the members present and voting in both houses must vote in favour of the amendment. Examples of this type of amendment include changing the number of seats in the Lok Sabha and the Rajya Sabha, and changing the name of a state.
The second type of amendment must be passed by a prescribed "special majority" in each house of Parliament. This type of amendment is governed by Article 368, which does not specify the legislative procedure to be followed but does require a two-thirds majority in both houses.
The third and final type of amendment must be passed by a "special majority" in each house of Parliament and ratified by at least half of the State Legislatures. This type of amendment also requires a two-thirds majority in both houses of Parliament.
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The role of the President
The President of India is the head of the executive branch of the country's government. The President is tasked with preserving, protecting, and defending the constitution and the law.
The President's role in amending India's constitution is largely ceremonial, with the Prime Minister exercising executive power. The President is obligated to act on the Prime Minister's wishes, although they do retain the power to ask the council to reconsider its advice. The council is not required to make any changes before resubmitting the advice, in which case the President must adhere to it.
The President's assent is required when a Constitution Amendment Bill is passed by both Houses of Parliament. The President's assent is also required when an amendment seeks to make changes to specific articles of the Constitution, including articles 54, 55, 73, 162, and 241.
In addition, the President plays a role in the process of initiating an amendment. An amendment may be initiated by introducing a Bill in either House of Parliament, and when the Bill is passed by a majority in each House, it is presented to the President for assent.
The President also has the power to dismiss a state government and assume direct authority if the state government cannot be conducted according to the Constitution. This power, known as the President's rule, has been abused in the past, leading to courts asserting their right of review.
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The role of the Parliament
The Indian Constitution vests constituent power upon the Parliament, subject to the special procedure laid down therein. Article 368 grants Parliament the power to amend the Indian Constitution. The procedure for the Amendment of the Constitution of India as per Article 368 is as follows: A bill for the amendment of the Constitution can be introduced only in either house of the Parliament, not in the State Legislatures. The bill can be introduced either by a minister or by a private member and does not require prior permission from the President. The bill must be passed in each House by a Special Majority, that is, a majority (more than 50%) of the total membership of the House and a majority of two-thirds of the members of the House present and voting. Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for deliberation and passage of the bill. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a Simple Majority, that is, a majority of the members of the House present and voting.
The first type of amendment must be passed by a "simple majority" in each house of the Parliament of India. The framers of the Constitution adopted a combination of the "theory of fundamental law", which underlies the written Constitution of the United States, with the theory of "parliamentary sovereignty" as existing in the United Kingdom. The second type of amendment must be passed by a prescribed "special majority" of each house of Parliament. The third type of amendment must be passed by a "special majority" in each house of Parliament and ratified by at least one half of the 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 the Parliament. This concept, though not explicitly mentioned in the Constitution, was established by the Supreme Court in the landmark Kesavananda Bharati case (1973). The Doctrine of Basic Structure is a check on the amending power of the Parliament and ensures that the fundamental ethos, principles, and the underlying framework of the Constitution remain intact, preserving its spirit.
The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of I.C. Golak Nath and Ors. vs. State of Punjab and Anr. An amendment was struck down on the basis that it violated Article 13: "The State shall not make any law that takes away or abridges the rights conferred by [the charter of Fundamental Rights]". The term "law" in this article was interpreted as including a constitutional amendment. Parliament responded by enacting the twenty-fourth Amendment of the Constitution of India, which declared that "nothing in Article 13 shall apply to any amendment of this Constitution".
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The role of the Supreme Court
The Indian Constitution vests constituent power upon the Parliament, subject to the special procedure laid down therein. However, the Supreme Court has played a pivotal role in interpreting the Constitution and arbitrating on amendments made by Parliament.
The Supreme Court has acted as a check on Parliament's legislative enthusiasm, particularly regarding the protection of fundamental rights. In the landmark case of I.C. Golak Nath and Ors. vs. State of Punjab and Anr. in 1967, the Supreme Court ruled that Parliament could not take away or curtail any fundamental rights guaranteed by Part III of the Constitution. This was a significant reversal of its earlier stance, where it had upheld Parliament's power to amend all parts of the Constitution. The ruling was based on the interpretation of Article 13, which states that the State shall not make any law that infringes on the fundamental rights conferred.
The Supreme Court further elaborated on this concept in the Kesavananda Bharati case in 1973, where it recognised the "'basic structure' doctrine for the first time. This doctrine holds that Parliament cannot distort, damage, or alter the fundamental features or basic structure of the Constitution under the pretext of amending it. The Supreme Court, as the interpreter of the Constitution, ensures that any amendments made by Parliament respect this basic structure.
The Supreme Court has also clarified the legislative procedure for enacting amendments. In the case of Shankari Prasad Singh Deo v. Union of India, the Court addressed the gaps in the procedure outlined in Article 368, providing guidance on introducing Bills, passing them through each House, and obtaining the President's assent.
In addition to interpreting the Constitution and checking Parliament's power, the Supreme Court has the authority to declare laws made by Parliament or state legislatures invalid if they violate any provision of the Constitution. This power, granted by the Constitution, ensures that the Supreme Court can act as a safeguard against laws that infringe on the rights and freedoms guaranteed by the Constitution.
The dynamic interplay between Parliament and the Supreme Court in the amendment process reflects the framers' intention to create a flexible and adaptable Constitution that can evolve with the changing needs of Indian society.
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The Basic Structure
The concept of the "basic structure" was first introduced by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case in 1967. However, it was only in 1973 that the concept surfaced in the text of the apex court's verdict. The Golaknath case itself was a significant moment in the evolution of the Basic Structure Doctrine, as the Supreme Court ruled that the state could not restrict any fundamental rights protected by the basic structure doctrine, such as the right to land ownership and the practice of a profession.
Despite its critical role in safeguarding the Constitution, the Basic Structure Doctrine has also faced criticism, particularly regarding its potential to limit parliamentary sovereignty and the scope of constitutional amendments. Some political parties have argued that the doctrine restricts the ability of Parliament to make necessary changes to the Constitution and adapt to changing conditions. However, supporters of the doctrine emphasize that it is necessary to protect the core principles and values of the Constitution, ensuring that any amendments made are consistent with its fundamental structure.
Amending the Constitution: Who Holds the Power?
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Frequently asked questions
The process of amending India's constitution is outlined in Article 368, which grants Parliament the power to amend the constitution. A bill for the amendment of the constitution can be introduced in either house of Parliament, by a minister or private member, and does not require prior permission from the President. The bill must be passed in each House by a special majority, which is a majority of more than 50% of the total membership of the House and a majority of two-thirds of the members of the House present and voting. If the bill seeks to amend federal provisions, it must also be ratified by the legislatures of half of the states by a simple majority.
There are three types of amendments to the Indian Constitution. The first type must be passed by a simple majority in each house of Parliament. The second type must be passed by a prescribed "special majority" in each house of Parliament. The third type must be passed by a "special majority" in each house and ratified by at least half of the State Legislatures.
Examples of provisions that can be amended by a simple majority include the abolition or creation of Legislative Councils in states.
The Supreme Court has ruled that Parliament cannot amend provisions that form the "Basic Structure" of the constitution. This includes fundamental rights and the power of 'judicial review'. Additionally, the constitution cannot be amended to increase Parliament's power to amend the constitution beyond what is provided for in Article 368.
