Isabella Carter
The Indian Constitution is one of the most comprehensive constitutions in the world, and its framers wished for it to be flexible and adaptable. Amending the Constitution involves making changes to the nation's fundamental law. The Parliament has the power to amend the Constitution, and this is stated under Article 368. The procedure for amendment is laid down in Part XX (Article 368) of the Constitution of India, which ensures the sanctity of the Constitution and checks Parliament's arbitrary power. An amendment may be initiated by introducing a Bill in either House of Parliament, and when passed by a two-thirds majority in each House, it is presented to the President for assent. The Constitution (Twenty-fourth Amendment) Act, 1971, added two clauses to bring Fundamental Rights under Parliament's amending power.
| Characteristics | Values |
|---|---|
| Who can amend the Constitution of India? | Parliament |
| What is the process of amending the Constitution of India? | The process of amending the Constitution of India involves introducing a Bill in either House of Parliament, passing it with a majority of the total membership and a majority of not less than two-thirds of the members present and voting, and then presenting it to the President for assent. |
| Are there any limitations to amending the Constitution? | Yes, there are limitations imposed by the Basic Structure Doctrine established by the Supreme Court, which protects the fundamental structures and principles of the Constitution. Additionally, certain amendments require ratification by the Legislatures of at least half of the states. |
| What is the role of the President in amending the Constitution? | The President is required to give assent to a Constitution Amendment Bill passed by both Houses of Parliament, according to Article 368. |
| How flexible is the Constitution of India? | The Constitution of India is considered flexible, allowing the government to amend it depending on various issues. The framers intended for it to aid the country's growth and evolve alongside it. |
| What is the procedure for amending the Constitution outlined in? | The procedure for amending the Constitution is outlined in Article 368 of the Constitution of India. |
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What You'll Learn
The Constitution (Twenty-fourth Amendment) Act, 1971
The process of amending the Constitution involves making changes to its provisions, and the procedure for doing so is outlined in Part XX (Article 368) of the Constitution. This procedure ensures the sanctity of the Constitution and prevents the Parliament of India from exercising arbitrary power.
The Twenty-fourth Amendment specifically addresses the Parliament's power to amend the Constitution. Before this Amendment, the Supreme Court's decision in the Golak Nath case (1967) restricted Parliament's power to amend any part of the Constitution, including Part III, which relates to fundamental rights. The Twenty-fourth Amendment reversed this decision, expressly granting Parliament the power to amend any provision of the Constitution, including those related to fundamental rights.
The Amendment also made it obligatory for the President to give assent to a Constitution Amendment Bill passed by both Houses of Parliament. This was done to ensure that the Directive Principles of State Policy could be implemented. However, some constitutional experts argued that giving Parliament undisputed authority could threaten democratic principles.
The Twenty-fourth Amendment faced criticism from the Indian press, jurists, and members of the Constituent Assembly, who deemed it too far-reaching and legally questionable. Despite this opposition, the Supreme Court upheld the Amendment's validity in 1973 in the case of Kesavananda Bharati v. State of Kerala.
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Article 368
The procedure for amending the Constitution, as outlined in Article 368, involves the introduction of a Bill in either House of Parliament. For the amendment to pass, it must be approved by a majority of the total membership of each House and a majority of at least two-thirds of the members present and voting. Once passed by both Houses, the Bill is presented to the President for their assent, after which the Constitution is amended according to the terms of the Bill.
However, if the amendment proposes changes to specific articles (such as Articles 54, 55, 73, 162, or 241) 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 a resolution before being presented to the President for assent. This ensures that significant changes to the Constitution require a broader consensus and approval beyond just the Parliament.
The Constitution (Twenty-fourth Amendment) Act, 1971, amended Article 368 to clarify and emphasise the power of Parliament to amend any provision of the Constitution. This amendment also made it mandatory for the President to give assent to a Constitution Amendment Bill. This amendment addressed a Supreme Court judgment in the Golak Nath case (1967), which had restricted Parliament's power to amend parts of the Constitution related to fundamental rights.
It is worth noting that Article 368 and the amendment process it outlines are distinct from the traditional theory of federalism, which typically assigns constitutional amendments to a body other than the Legislature. The framers of the Indian Constitution opted for a blend of the "theory of fundamental law" and "theory of parliamentary sovereignty", resulting in a unique amendment process compared to other nations.
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Parliament's power to amend
The Parliament of India has the power to amend the Constitution of India. The procedure for this is laid down in Part XX (Article 368) of the Constitution. This article outlines the process for amending the Constitution and ensures the sanctity of the Constitution while also keeping a check on the arbitrary power of the Parliament.
The first step in the process of amending the Constitution is the introduction of a Bill in either House of Parliament. The Bill must then 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 present and voting. Once the Bill has passed in both Houses, it is presented to the President for assent. With the President's assent, the Constitution stands amended in accordance with the terms of the Bill.
There are certain amendments that require additional steps. If an amendment seeks to make changes to specific articles of the Constitution, such as Article 54, 55, 73, 162, or 241, or certain chapters of the Constitution, it must be ratified by the Legislatures of at least half of the states specified in Parts A and B of the First Schedule. This ratification must be done by passing resolutions in these Legislatures before the Bill is presented to the President for assent.
The Parliament's power to amend the Constitution has been a subject of debate and conflict between the Supreme Court and Parliament. The Supreme Court has sought to restrict Parliament's power, while Parliament has wanted to exercise discretionary power. This has led to the development of various doctrines and rules to check the validity and legality of amendments, such as the Basic Structure Doctrine established in the Kesavananda Bharati case.
The Constitution (Twenty-fourth Amendment) Act of 1971 is an example of Parliament's power to amend the Constitution. This amendment clarified Parliament's power to amend any provision of the Constitution, including Fundamental Rights, and made it obligatory for the President to give assent to a Constitution Amendment Bill.
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The Basic Structure Doctrine
The development of the Basic Structure Doctrine in India was influenced by conflicts between the Supreme Court and Parliament over the latter's discretionary use of power to amend the constitution. The doctrine emerged as a check on the power of Parliament to amend the Constitution, ensuring that it could not destroy the Constitution's basic structure while still allowing for necessary changes to be made over time. This doctrine has been recognised and applied in several subsequent cases, including Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, where the Supreme Court used it to strike down parts of the 39th and 42nd Amendments, respectively, and paved the way for the restoration of Indian democracy.
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The President's role
In addition to this, the President plays a role in the initiation of the amendment process under certain circumstances. According to Article 3, a bill for the amendment of the Constitution cannot be introduced in either House of Parliament unless it is recommended by the President. Furthermore, if the proposed bill affects the area, boundaries, or name of any state, the President must refer it to the State Legislature for their opinion before introducing it in Parliament.
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).
While the President's role in the amendment process is limited, it is an important check to ensure the sanctity of the Constitution and prevent arbitrary power by Parliament. The requirement for Presidential assent adds an extra layer of approval to the process, ensuring that any changes to the Constitution are carefully considered and agreed upon by both the legislative and executive branches of the government.
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Frequently asked questions
The Parliament of India has the power to amend the Constitution.
The process of amending the Constitution of India is known as "amendment". Amendments to the Constitution are made by passing a special majority vote in Parliament. The Bill must be passed in each House of Parliament by a two-thirds majority and then presented to the President for their assent.
While Parliament has unrestricted powers to amend the Constitution, they cannot amend, repeal or add sections that would affect its basic structure. The Basic Structure Doctrine was established by the judiciary through various landmark cases, including Kesavananda Bharati v. The State of Kerala.
The Basic Structure Doctrine states that there are certain fundamental structures and founding principles of the Constitution that are essential for its survival. These include free and fair elections, the federal nature of the nation, judicial review, and the separation of powers.
Article 368 is the specific provision in the Constitution that deals with the power and procedure for its amendment. It outlines the process for Parliament to amend the Constitution by way of addition, variation, or repeal.
