Jonah Patel
The Indian Constitution is a flexible document that can be amended any number of times, but only in a specified manner. While there is no limit to the number of amendments that can be made in a year, the basic framework of the Constitution must be preserved. The procedure for amendment is laid down in Part XX (Article 368) of the Constitution of India, which outlines the power of Parliament to amend the Constitution. The amendment process involves introducing a Bill in either House of Parliament, passing it with a two-thirds majority, and presenting it to the President for assent. However, certain articles and chapters of the Constitution require additional ratification by the Legislatures of at least half of the States before the President's assent. Despite the broad powers granted to Parliament, there are limitations to the amending power, particularly regarding the Basic Structure Doctrine established by the Supreme Court to protect fundamental rights and prevent Parliamentary Totalitarianism.
| Characteristics | Values |
|---|---|
| Amendment initiation | Only by the introduction of a Bill for the purpose in either House of Parliament |
| Majority required | Two-thirds majority |
| Ratification | Requires ratification by the Legislatures of not less than one-half of the States by resolution |
| Presidential assent | Required |
| Limitation | Parliament cannot do indirectly what it cannot do directly |
| Basic structure | The Basic Structure Doctrine, including judicial review, cannot be amended |
| Ninth Schedule | No additions can be made that are against the basic structure |
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What You'll Learn
The Basic Structure Doctrine
The doctrine was developed in response to conflicts between the Supreme Court and Parliament, where Parliament sought to exercise discretionary power to amend the Constitution, while the Supreme Court wanted to restrict that power. The Basic Structure Doctrine thus forms the basis of the Supreme Court's power to review and strike down constitutional amendments and acts enacted by Parliament that conflict with or seek to alter the "basic structure" of the Constitution.
The evolution of the Basic Structure Doctrine can be traced back to the debate regarding the scope of Parliament's power to amend the Constitution under Article 368, which started as early as 1951. Initially, the Supreme Court held that any part of the Constitution was amendable, and Parliament could amend any provision, including the Fundamental Rights, by passing a Constitution Amendment Act in compliance with the requirements of Article 368. However, in 1967, the Supreme Court reversed its earlier decisions in the Golaknath v. State of Punjab case.
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The President's Role
Any amendment to the Constitution must be introduced as a Bill in either House of Parliament, and it must be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. This is known as a special majority.
Once the Bill has been passed by the required majority, it is then presented to the President, who must give their assent to the Bill. This is an obligatory step, and without the President's assent, the Constitution cannot be amended. Once the President has given their assent, the Bill becomes an Act, and the Constitution stands amended in accordance with the terms of the Act.
In addition to the above, the President also has the power to modify, by order, provisions of the Constitution in their application to the State of Jammu and Kashmir, as per Article 370 (1) (d). This provision gives the President some direct influence over the Constitution and how it is applied in a specific state, which is separate from the role they play in the amendment process.
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Supreme Court vs Parliament
The Indian Constitution is a flexible document, allowing for amendments to be made to it. The Parliament of India has the power to amend the Constitution by way of addition, variation, or repeal of any provision. However, the Constitution also outlines that there should be no limitation on the power of Parliament to amend the Constitution. This has led to a conflict between the Supreme Court and Parliament, with the Supreme Court wanting to restrict Parliament's power.
The Supreme Court of India has played a crucial role in interpreting and upholding the Indian Constitution. In the landmark case of Kesavananda Bharati, the Supreme Court established the "Basic Structure Doctrine", which places limits on the power of Parliament to amend the Constitution. The case was heard by a bench of 13 judges, making it one of the largest benches in Indian legal history. The Court held that certain fundamental features of the Constitution, such as democracy, secularism, federalism, the rule of law, and the power of judicial review, are part of the basic structure and cannot be amended or abrogated by Parliament through constitutional amendments.
The Kesavananda Bharati case is significant as it challenged the 24th, 25th, and 29th Amendments to the Indian Constitution, which sought to curtail the powers of the judiciary and the fundamental rights of citizens. The case became a pivotal moment in Indian constitutional history, with Sri Kesavananda Bharati being remembered as a key figure in defending democracy and the rule of law. The judgment upheld the Basic Structure Doctrine, ensuring that the Constitution remains responsive to changing times while preserving its core values and principles.
While the Parliament of India has the power to amend the Constitution, the Supreme Court's interpretation and enforcement of the Basic Structure Doctrine act as a check on Parliament's power. This doctrine ensures that the Constitution's fundamental features cannot be altered and preserves the separation of powers between the legislature and the judiciary. The conflict between the Supreme Court and Parliament highlights the tension between legislative power and constitutional interpretation in India's democratic system.
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States' Involvement
The Indian Constitution is the most amended national constitution in the world, with 106 amendments since its enactment in 1950. The Constitution is amended roughly twice a year, and there are three types of amendments. The first type of amendment must be passed by a "simple majority" in each house of the Parliament of India. 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 involvement of states in the amendment process is necessary to protect their interests. The Chairman of the Drafting Committee reminded members that other Draft Articles provided for amendments by a simple majority, and that Draft Article 304 concerned a special category of articles requiring a higher threshold for amendment. He cited the amendment provisions of Ireland, Switzerland, Australia, and the United States to demonstrate that no major constitution in the world allowed all parts of the constitution to be amended by a simple majority.
Article 368 of the Indian Constitution mentions two types of amendments. The first type of amendment is by a special majority of the Parliament (Lok Sabha & Rajya Sabha). The second type of amendment is by a special majority of the Parliament with the ratification of half of the total states. An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures. The bill can be introduced by a minister or 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 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. After being passed by both Houses of Parliament, the bill is presented to the President for assent.
The President must give his assent to the bill; he cannot withhold it or return it for reconsideration. After the President's assent, the bill becomes an Act, and the Constitution is amended accordingly. The Constitution can be amended any number of times by Parliament, but only in the manner provided. While there is no limit to the number of amendments that can be enacted in a year, Parliament must preserve the basic framework of the Constitution. This means that there is no provision of the Constitution that cannot be amended.
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Judicial Review
The Indian Constitution can be amended any number of times by Parliament, but only in the manner provided. While there is no limit to the number of amendments that can be enacted in a year, Parliament must preserve the basic framework of the Constitution.
The procedure for amendment is laid down in Part XX (Article 368) of the Constitution of India. Article 368 grants Parliament the power to amend the Constitution by way of addition, variation, or repeal of any provision. However, there is a limitation on the amending power of the Constitution, which developed during conflicts between the Supreme Court and Parliament. The Supreme Court wants to restrict Parliament's discretionary use of power to amend the Constitution, leading to the laying down of various doctrines or rules to check the validity and legality of amendments.
The most famous of these is the Basic Structure Doctrine, which holds that certain fundamental features of the Constitution, such as democracy, secularism, federalism, the rule of law, the supremacy of the Constitution, and the independence of the judiciary, cannot be amended by Parliament. The power of judicial review is an integral part of the Basic Structure Doctrine and cannot be taken away by Parliament through constitutional amendments.
The Kesavananda Bharati judgment, delivered on 24 April 1973, is a landmark judgment of the Supreme Court of India. The case was filed by Sri Kesavananda Bharati, challenging the constitutional validity of the 24th, 25th, and 29th Amendments, which sought to curtail the powers of the judiciary and the fundamental rights of citizens. The Supreme Court, in a historic 7:6 majority decision, upheld the basic structure doctrine and placed limits on Parliament's power to amend the Constitution.
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Frequently asked questions
The Basic Structure of the Indian Constitution cannot be amended. This includes the Ninth Schedule, which cannot be altered to go against the basic structure.
The Basic Structure Doctrine was established by the court to balance the Parliament's duty to follow the constitution and its duty to perform socio-economic duties.
The Ninth Schedule is a part of the Indian Constitution and no additions can be made to it that go against its basic structure.
Article 368 outlines the procedure for amending the Constitution and the power of Parliament to do so. It states that an amendment may be initiated by the introduction of a Bill in either House of Parliament and must be passed by a two-thirds majority.
