The Indian Constitution, the longest of any sovereign nation in the world,
provides a global framework to lead and rule the country, taking its social,
cultural and religious diversity into consideration. The Constitution of
India, a distinctive text with many special elements, is the longest written
constitution in the world . It came into effect on January 26, 1950, the day
that India celebrates each year as the Republic Day. the makers of our
Indian constitution wanted the Constitution to help the country thrive and
grow next to it. So, based on the different points raised, the government
can modify the Constitution. Article 368 confers these authorities.
Constitutions are usually classified as 'flexible
' or 'rigid
' depending upon
the process through which they can be amended. Prof. A.V. Dicey defines two
types of Constitutions—the flexible as 'one under which every law of every
description can legally be changed with the same ease and in the same manner
by the same body', and the rigid Constitutions as 'one under which certain
laws generally known as constitutional or fundamental laws, cannot be
changed in the same manner as ordinary laws'.
The United Kingdom having an unwritten Constitution, is the best example of
an extremely flexible Constitution as there is no distinction between the
legislative power and the constituent power. The British Parliament has the
power to change the Constitution by the ordinary process of legislation.
Pandit Jawaharlal Nehru stated to the Constituent Assembly explaining why it
was vital to introduce an element of flexibility in the Constitution:
was no permanence in the constitution, as it would stop the nation's
The mechanism for amending the provisions is generally complicated
in a federal constitution, so that the provisions are not too often
distorted. Nevertheless, our ancestors and framers of our
constitution wanted undue rigidity to be avoided. At the same time they
knew that it would be subject to repeated modifications if the Constitution
were made flexible. Therefore, the Indian constitution took a middle route
in avoiding both extremes. It is not too rigid to avoid major adjustments or
too flexible to allow trivial alterations.
Procedure Of Amendment Of The Indian Constitution
A constitutional amendment can be begun only by introducing a bill in either
House of Parliament (Lok Sabha or Rajya Sabha), not in state legislatures.
The bill must be passed by a special majority in each House, which is
defined as a majority (that is, more than 50%) of the overall membership of
the House and a majority of two-thirds of the members of the House present
and voting. The bill must be passed by each House separately.
There is no
provision for calling a combined sitting of the two Houses for the purpose
of consideration and passing of the bill if the two Houses disagree. If the
bill aims to change the federal provisions of the Constitution, it must be
ratified by the legislatures of half of the states by a simple majority, or
a majority of the House members present and voting. The bill is brought to
the president for assent once it has been duly enacted by both Houses of
Parliament and ratified by state legislatures, if necessary. The bill must be
signed by the president. The bill becomes an Act (i.e., a constitutional
amendment act) after the president signs it, and the Constitution is amended
in accordance with the terms of the act.
The Constitution Can Be Amended In Three Ways
- Amendment by simple majority of the parliament
- Amendment by special majority of the parliament and,
- Amendment by special majority of the parliament and the ratification of
half of the state legislature
Some of the articles that can be amended by Parliament by simple majority
are listed below:
- Formation of new states, creation or abolition of legislative councils
is made by such procedure. Thus, amendment at the instance of the states, or
amendment by state legislature, is included in such category.
- Admission or establishment of new states.
- Formation of new sates and alteration of areas, boundaries or names
of existing states.
- Abolition or creation of legislative councils in states.
- Second Schedule: Emoluments, allowances, privileges and so on.
- Quorum in Parliament.
- Salaries and allowances of MPs.
- Rules of procedure in parliament.
- Privileges of Parliament,, its members and its committees.
- Use of official language.
- Citizenship: acquisition and termination.
- Election to Parliament and state legislature.
- Delimitation of constituencies.
- Union Territories.
- 5th Schedule (Provision as to administration and control of schedule
area and schedule tribes.
- 6th Schedule (Provision for administration of tribal areas in state
of Assam, Meghalaya,Tripura, Mizoram and Arunachal Pradesh
The Constitution can be modified solely by the Union Parliament using this
procedure. It is a rigid system in that it requires a special majority to
modify the constitution, but it is considered flexible technique because any
amendment can be passed by parliament alone.
the provision that can be amended by this way include:
Amendment by special majority and ratification by state:
- Fundamental Rights
- Directive principles of state policy, and
- All other provision which are not covered by 1st and 3rd category
For some articles of the Constitution, a special majority is insufficient.
It is appropriate to consult the states and obtain their assent when an
amendment proposes to change an article dealing to the allocation of powers
between states and the Central Government, or articles relating to
representation. First, the amendment bill is to be passed by both the Houses
of the Union Parliament by a majority of total membership and a 2/3rd
majority of members present and voting in each House.
Secondly, after this the amendment bill has to secure ratification from at
least half of the several State Legislatures (now at least 14 state
The following provisions require such ratification by the
- Election of President: Article 54 and Article 55
- Executive Power of Centre and state- Article 73 and Article 162.
- Supreme court: Article 124 and 227 , High courts: Article 214 to Article
231, Judiciary for UT: Article241.
- Distribution of Legislative Power: Article 245 and 255.
- Part XI, Chapter 1.
- Lists of 7th Schedule.
- Representation of state in council of states: 4th Schedule.
- Article 368 itself.
However, giving Parliament complete control over constitutional amendments
is risky. The constitution would be reduced to a tool to build Parliament's
tyranny, rather than being the backbone of our democracy. The administration
will change a number of provisions to ensure that its powers are
unrestricted. While this is a frightening concept, it is not far off the
The government has attempted to build a state where the legislative is
paramount through several amendments such as the 39th Amendment and the
second clause of the 25th Amendment.
That is why the Indian Constitution's Basic Structure Doctrine was created
by the judiciary in a series of historic instances.
Theory of basic structure (doctrine of basic structure)
The term "basic structure" does not appear anywhere in the Indian
Constitution. The idea that the Parliament can't pass laws that change the
constitution's essential framework has evolved over time and in various
circumstances. The objective is to safeguard people's rights and liberties
while preserving the nature of Indian democracy. This doctrine aids in the
protection and preservation of the constitution's spirit.
The idea of the constitution's basic structure is one component that has
shaped the development of the Indian Constitution for a long time. The
landmark Kesavananda Bharati case led to the creation of the Constitution in
the following ways: it established tight constraints on Parliament's
capacity to modify the Constitution. It states that no amendment can violate
the Constitution's basic structure; it allows Parliament to amend any part
of the Constitution (within this limitation); and it establishes the
judiciary as the supreme authority of whether an amendment violates the
basic structure and what constitutes the fundamental structure.
Nehru Gandhi v. Raj Narayan
Under this case, once again the basic structure
concept was reaffirmed. The Supreme Court applied the same theory and struck
down the 4th clause of Article 329 A on the ground that the Amendment is
beyond the power of the parliament and it destroyed the basic structure of
the Constitution. The Amendment was made regarding the jurisdiction of all
courts including the Supreme Court, regarding the dispute of an election of
the Prime Minister of India.
The basic structure of the doctrine consists of the following features:
- Supremacy of constitution
- Republican and democratic form of government and sovereignty of country
- Secular and federal character of constitution
- Separation of powers between legislature, Executive and Judiciary
India's Supreme Court has ruled that the constitution, not Parliament, is
supreme in India. The court said Parliament can't change the structure of
the Constitution because India's Constitution is a fundamental law of the
land and cannot amend it. However, parliament can amend its structure to
make changes to the constitution.
Amenability Of The Constitution
"Whether any part of the Fundamental Rights provisions of the constitution
could be revoked or limited by amendment of the constitution"
This question was raised in:
Shankari Prasad v. Union of India:
In this case, the legitimacy of the
constitution (1st amendment), 1951, was challenged through a petition under
article 32, specifically the insertion of articles 31 A and 31 B. It was
claimed, inter alia, that because Article 13(2) prohibits the enactment of
laws abridging fundamental rights, it also prohibits such abridgement
through amendment because an amendment is a law.
The court rejected the
claim, holding that Article 368 comprised the ability to modify the
constitution, including the fundamental rights, and that the word law in
article 13(2) did not include a constitutional modification made in the
exercise of constituent rather than legislative power. Therefore, a
constitutional Amendment will be valid even if it abridges or takes away any
of the fundamental rights.
Sajjan Singh v. State of Rajasthan:
In this case, The constitutionality of
the 17th Amendment Act, 1964 was challenged on the grounds that one of the
acts introduced by the amendment in the 9th Schedule affected the petitioner
since the amendment was under the jurisdiction of Article 368 and the
proviso to Article 368 had not been met. The Supreme Court upheld the
judgment in the Shankari Prasad case, ruling that the matter was correctly
resolved under Article 13 (2). The term "amendment" refers to any change to
the Constitution's provisions.
Golak Nath vs. The State of Punjab:
The Supreme Court overruled its verdict
in the Shankari Prasad and Sajjan Singh cases, holding that Parliament had
no authority to amend Part 3 of the Constitution so as to abridge or
eliminate any of the Fundamental Rights. It further stated that Article 368
merely establishes the procedure for amending the Constitution. Furthermore,
the Court stated that an amendment is a law under Article 13(2) of the
Indian Constitution, and that it may be ruled unconstitutional if it
breaches any basic right.
24th Amendment Act, 1971
Parliament enacted 24th amendment act,1971 as a result of the difficulties
created by the ruling of supreme court in Golaknath v/s The State Of
The ruling in golaknath vs the state of Punjab overturned a
previous Supreme Court decision that supported Parliament's competence to
change all elements of the Constitution, including Part III, which deals
with fundamental rights.
To overturn the verdict, the government planned to
amend article 368 of the Constitution to explicitly state that Parliament
has the right to amend any section of the Constitution, putting Fundamental
Rights within the scope of that procedure and barring judicial scrutiny of
The marginal heading of article 368 was changed to Power of Parliament
to amend the Constitution and procedure therefor.
President was put under an obligation to give assent to any Bill amending
the Constitution by changing words from it shall be presented to the
President who shall give his assent to the Bill and thereupon" to "it shall
be presented to the President for his assent and upon such assent being
given to the Bill.
All laws and constitutional amendments are now subject to judicial
examination, and laws that violate the fundamental framework are likely to
be overturned by the Supreme Court. In essence, Parliament's power to modify
the Constitution is limited, and any constitutional revisions must be
decided by the Supreme Court, which is the last arbiter and interpreter.