Amendment to the Constitution of India
The legislature is the organ of the government responsible for making the laws
for regulating society and no legislature can make a law that will be able to
fulfill the needs of society for an indefinite time. As the law is implemented
to regulate the behavior of human beings in society and society is dynamic and
keeps on changing with the changing circumstances so it is imperative for the
law also to change itself according to the changing society.
The constitution is
the supreme law of the land made to protect basic fundamental rights, establish
a responsible government, provide for the power and functions of the organs of
the government and their limits therein, and so on. Even the framer of the
constitution knew that due to changing societal values constitution also needs
to be amended with the changing society's needs and requirements so the
constitution also contains the provisions for the amendment of the constitution
included under Article 368 of the Indian Constitution. To understand the
constitutional provisions of the constitution amendment, the topic has to be
studied in two scenarios: before the 24th amendment to the constitution and
after the 24th amendment to the constitution.
Before the 24th Constitutional Amendment
Part XX Amendment Of The Constitution
Procedure for amendment of the Constitution as provided originally under article
"An amendment of this Constitution may be initiated only by the introduction of
a Bill for the purpose in either House of Parliament, and when the Bill is
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, it shall be presented to the President for his assent and upon such
assent being given to the Bill, the Constitution shall stand amended in
accordance with the terms of the Bill.
Provided that if such amendment seeks to make any change in:
- article 54, article 55, article 73, article 162 or article 241, or
- Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
- any of the Lists in the Seventh Schedule, or
- the representation of States in Parliament, or
- the provisions of this article,
The amendment shall also require to be ratified by the Legislatures of not less
than one-half of the States specified in Parts A and B of the First Schedule by
resolutions to that effect passed by those Legislatures before the Bill making
provision for such amendment is presented to the President for assent."
Before the passing of the 44th amendment to the constitution, more change was
introduced in the constitution by The Constitution (Seventh Amendment) Act 1956
sub-clause (30) passed in relation to The state reorganization act of 1956 which
omitted "specified in Parts A and B of the First Schedule" as the classification
of stated in part A, B, C, and D. was ended by the act of 1956.
As per Article 368, the constitution can be amended in three ways:
- Amendment by simple majority: By simple majority means that the provisions
of the constitution can be amended like ordinary law and the provisions that
can be amended by simple majority includes Article 5, 169, and 239A.
- Amendment by the special majority: Apart from provisions that can be
amended by a simple majority and the provisions included in the proviso to
article 368 all other provisions of the constitution can be amended only by
a special majority. Amendment by special majority included two essentials:
For instance, if an amendment is to be passed by the House of people, then in
the case of the special majority such amendment is to be passed by a majority of
the total membership of that house of parliament which is 276 members voting in
its favor of the total membership of 550 members and also the two-third majority
of the members present and voting suppose if 531 members are present at the time
of voting when the bill is presented for voting in the house of people then 354
members to vote in favor of the bill. If both the requirements are fulfilled
then only a bill to amend the constitution will be considered approved and then
will be presented to the president for his assent and upon receiving such assent
the amendment will stand amended as per the terms of the bill.
- Majority of the total membership of that house of parliament.
- 2/3rd majority of the members present and voting of that house.
- Amendment by the special majority and rectification by half of the
states: if a bill consists of provisions for the amendment of the provisions
of the constitution dealing with article 54: Election of president, article
55: Manner of election of president, article 73:Extent of executive power of
the union, article 162: Extent of executive power of the state, article 241:
high courts for union territory, chapter IV of part V: Union Judiciary,
chapter V part VI: High Courts in the state, Chapter I Part XI: Legislative
Any of the list in the schedule VII, Representation of states in parliament
Sabha and Rajya Sabha), or the provision of this article the bill so passed by
the parliament with the special majority to be laid before the state legislature
and will only be presented to the president for his assent if half of the states
rectify for such bill.
The basic reason behind this provision is that the
constitution has established separation of power and independence of union and
state in their respective domain and by virtue of the bill to amend the
constitution if any changes are to be implemented to change that situation then
the states should also have an authority to decide whether a such amendment to
be made or not.
Also, India is a federal nation and the distribution of power
between union and state is established by the constitution if by virtue of
amendment to the constitution, any changes that are to be made to change such a
situation bill has to be passed only if the half of the state legislature agrees
to the same. So before such a bill can be presented to the president for assent,
half of the state legislatures have to rectify the bill.
Judicial interpretation of the power to amend the constitution
The case that led to the passing of the 24th constitutional amendment is the Golaknath case
but before discussing that case two important cases have to be discussed one is
the Shankri Prasad case and the other is the Sajjan Singh case
. In both the Shankri prasad and Sajjan Singh cases, the supreme court held a similar
viewpoint that the power to amend the constitution is a constituent power and
only ordinary legislative power is subject to judicial review.
means the power to amend the constitution without any limitation and if the
framers of the constitution wanted to keep the amending power under check
provisions were to be incorporated while framing the constitution. So as per the
rule laid down in both cases, the parliament has unlimited power to amend the
constitution in whatever manner they desire.
But the situation changed after the decision of the supreme court in the Golak
Nath case in which it is interpreted by the supreme court that Article 368 of
the Indian Constitution only talks about the procedure to amend the constitution
and is silent on the power to amend the constitution and also the parliament do
not have any constituent power in it.
The constituent power enjoyed by the
constituent assembly to frame the constitution in whatever manner they require
came to an end after the framing and implementation of the constitution and the
constitution is the supreme law of the land and no authority can go beyond the
This arose a situation where if there is no constituent
power in the parliament to amend the constitution then from where the power to
amend the constitution is derived because there can be no legislative or
executive exercise of the power if it is not backed by a constitutional or
The answer to the same is also provided by the supreme
court in the Golak Nath case
and it is held that the power to amend the
constitution is derived from Article 245 read with Schedule VII List I Entry 97
(Residuary powers) and as the power to amend the constitution is derived from a
List provided under the Schedule VII it is an ordinary legislative exercise of
power and being an ordinary legislative power it will be included under the
definition of law provided under article 13 of the constitution and will be
subject to Judicial review and scrutiny for being constitutionally valid or not.
After the 24th Constitutional amendment
After the Golakanth case,
the parliament responded by incorporating the
24th amendment to the constitution rendering the judgment of the supreme court
nullified and the changes that are introduced in the 24th constitutional
amendment are as follows:
- Changes in Article 368
- Heading of article 368 changed from "Procedure for amendment of the
constitution" to "Power of Parliament to amend the Constitution and
procedure thereof": The parliament made this change so that amendment to the
constitution can be kept outside the preview of article 13 as in the case of
Golaknath it was held that the article 368 only contains the procedure to
amend the constitution and not the powers so parliament explicitly provided
that the Article 368 also includes the power to amend the constitution.
- Article 368 (1) Provided that the parliament while exercising its power
to amend the constitution has the power to amend by way of addition,
variation, or repeal any provision of this constitution in accordance with
the procedure laid down in this article. So not only the heading was changed
but also the powers which can be exercised are also provided and includes
the power of addition, variation, or repeal the provision of the
- Article 368 (2) article 368 was renumbered as article 368 (2) and the
words "it shall be presented to the president for his assent and upon such
assent being given to the bill" substituted for "it shall be presented to
the president who shall give his assent to the bill" so it is made
compulsory for the president to give assent to the bill to amend the
- Article 368 (3) was added providing that "nothing in article 13 shall
apply to any amendment under this article" so it is explicitly provided that
article 13 does not apply to article 368 meaning thereby that the court will
not have the power to judicial review any amendment done under 368.
- Changes introduced under article 13: under article 13 clause (4) was
added and it provided " nothing in this article shall apply to any amendment
of this constitution under article 368" so not only in article 368 the
provision for non-application of article 13 were provided in the article 13
also provision was added that there is no application of article 13 over the
The 24th amendment made by parliament was challenged in the Kesavananda Bharti case
and in this case, the supreme court held the 24th constitutional amendment valid
but developed the doctrine of basic structure and it is provided by the supreme
court that although there will be no limitation on the parliament powers to
amend the constitution in the manner they desire but no amendment can be made to
take away or violate the basic structure of the constitution. Basic structure
means the constitutional values that are enshrined in the constitution and forms
the soul of the Indian constitution.
These values can be equated to constitutionalism. Constitutionalism simply means
the objectives and principles the constitution wants to achieve and some of the
values that will form part of the basic structure of the constitution that are
provided were a democratic form of government, judicial review, fundamental
rights, and secularism.
It is also provided that the values that are enumerated by the court in its
decision forming part of the basic structure are only explanatory and not
exhaustive and the constitutional courts can provide for further values that
will form part of the basic structure and in subsequent cases, various high
courts and the supreme court provided different values such as free and fair
election, speedy trial, free legal aid, independence of the judiciary to be
forming part of basic structure.
One of the notable effects of the development of the doctrine of basic structure
was that the power of courts of judicial review is now beyond the limits of
article 13 meaning that if a constitutional amendment is considered ordinary
legislation under article 13 the power of the court to judicially review that
amendment would only be limited to the violation of part III as provided under
article 13 but now the court has to see whether the amendment is violating the
basic values of the constitution or not and the whole constitution will be
included while determining the basic values and the power of the court in
regards to judicial review specifically in case of constitutional amendment is
further strengthened to a greater extent.
After the Kesavananda Bharti case, the parliament by the 42nd amendment to the
constitution added two more clauses to article 368 as clauses (4) and (5).
Clause (4) provided that any amendment to the constitution made after the
42nd amendment came into force cannot be called into question in any court of
law. Clause (5) provided that there will be no limitation on the power of
parliament to amend the constitution whatsoever.
In the case of Minerva Mills both clauses (4) and (5) were held unconstitutional
as being interfering with the independence of the judiciary and power of
judicial review which forms part of the basic structure of the Indian
constitution and even the immunity of laws as enjoyed by inclusion in the Ninth
Schedule of the Constitution was also made subject to judicial review if such
law is included on or after 23rd April 1973 the date on which judgment of basic
structure doctrine was passed by the supreme court.
To conclude, it is observed that although initially even the supreme court
agreed that there is no limitation on the parliamentary power to amend the
constitution and even fundamental right comes under the power of parliament for
being amendable but gradual development in the subsequent decision of the
supreme court has curtailed the power of parliament to amend the constitution
and the role of the judiciary in the protection of the constitution is
strengthened to a greater extent.
- Mr. Rahul Shamota, Working at Trinity Institute of Professional
Studies, New Delhi and
- Ms. Yashika Sharma, Working at Trinity Institute of Professional
Studies, New Delhi