The amending process in our Constitution of India is envisaged by the makers
can be best explained by referring to the observation of Pandit Jawahar Lal
Nehru "that the Constitution should not be so rigid that it can not be adapted
to the changing needs of national development and strength.
There was also a political significance in adopting a "facile procedure" for
amendment, namely, that any popular demand for changing the political system
should be capable of realization, if it assumed a considerable parameter. The
famous words of Dr. Ambedkar, explaining the proposals for amendment introduced
by him in the Constituent Assembly.
History of the Constitution:
Since the commencement on January 26, 1950, Constitution of India has been
amended 105 times till 2022 by passing Acts of parliament in the manner
prescribed by Article 368. The 42nd, 43rd and 44th Amendments must be given a
fuller treatment in view of its serious repercussions in the political as well
as the legal world.
All previous amendments paled into insignificance after the passing of the 42nd
Amendment Act, 1976 which alone would illustrate how momentous is the amending
power under the Indian Constitution, and how easy it is to change extensive and
significant provisions of our Constitution, without covering any detailed
Theory of federalism:
Provisions of flexibility were therefore taken from Federal Constitution which
is inherently rigid in its nature. According to the traditional theory of
federalism, either the process of amendment of the Constitution is entrusted to
a body other than the ordinary Legislature or a special procedure is prescribed
for such amendment in order to ensure that the federal compact may not be
disturbed at the will of one of the parties of the federation.
But the framers of our Constitution were also inspired by the need for the
sovereignty of the parliament elected by universal suffrage to enable it to
achieve dynamic national progress. Therefore, they prescribed the easier mode
for changing those provisions of the Constitution which did not primarily affect
the federal system.
Procedure for Amendment:
- An amendment of the 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 majority (i.e., more than 50%) of
the total membership of that House and by the majority of not less than
two-thirds member of that House present and voting, it shall be presented to
the President for his assent an upon such assent being given to the bill,
the Constitution shall stand amended in accordance with the terms of the
- However, such amendment seeks to make any changes in the following
- The manner of election of the President (Article 54,55)
- Extent of the executive power of the Union and the States (Article
- The Supreme Courts and High Courts (Article 241, Chapter IV of Part V,
Chapter V of part VI
- Distribution of legislative powers between Union and the States (Chapter
1 of Part XI)
- Any of the entries and list provided in Schedule 7
- Representation of States in the Parliament (Article 80-81, 4th Schedule)
- Provisions enumerated under Article 368 itself
Provided the following provisions, the amendment shall also require to be
ratified by the legislature of not less than one-half of the States by
resolution to that effect passed by those legislatures before the Bill making
provisions for such amendment is presented for assent.
After considering the mentioned above provisions, it is very clear that the
amending process prescribed by our Constitution has several distinct features as
compared with the corresponding provisions in the leading Constitutions of the
world. The procedure for amendment must be classed as "rigid" insofar as it
requires a special majority and, in some cases, a special procedure for
amendment as compared with the process or procedure prescribed for ordinary
legislation. But the procedure is not as complicated as difficult as in the USA
or in any other rigid constitution.
- Subject to the special procedure laid down in Article 368 our
constitution vests constituent power upon the ordinary Legislature of the
union, the Parliament and there is no separate body for amending the
constitution as exist in some other constitutions.
- The state legislature cannot initiate any bill or proposal for amendment
of the constitution. The only mode of initiating a proposal for amendment is
to introduce a Bill in either House of the Parliament.
- Subject to the provisions of Article 368, Constitution Amendment Bills
are to be passed by the Parliament in the same way as ordinary bills. In
other words, they may be initiated in either House and may be amended like
other bills subject to the majority required by Article 368, but for the
special majority prescribe, they must be passed by both the houses like any
No Joint Session for Constitution Amending Bills
- It would be pointed out, in this context, that there is another
important point on which the passage of a Constitution Amendment Bill
differs from the procedure relating to the passage of a Bill for ordinary
legislation: Art, 108 provides that if there is a disagreement between the
Houses of Parliament regarding the passage of a Bill, the deadlock may be
solved by calling a joint session of the two Houses of Parliament.
But it is very clear from Art, 108 (1) that the procedure for joint session
is applicable only to Bills for ordinary legislation which come under
Chapter II of Part V of the Constitution of India and not to Bills for
amendment of the Constitution, which are self-contained procedure contained
in Article 368(2). The requirement of a special majority in both Houses, in
Article 368(2) would have been insignificant to the provision as to calling
the joint session been available in this sphere.
- The previous sanction of the President is not required for introducing
in Parliament any Bill for amendment of the Constitution.
- The requirement relating to ratification by the State Legislatures is
liberal than the corresponding provisions in the American Constitution.
While it requires ratification by not less than three-fourths of the States
in the Country.
- In the case of an ordinary Bill, governed by Article 111, when the Bill
after being passed by both Houses of Parliament, it is presented to the
President, he may, instead of giving assent to it, declare that he
'withholds his assent". In the latter case, the Bill cannot become an Act.
But the amendment of Article 368 in 1971 has made it obligatory for the
President to give his assent to a Bill for amendment of the Constitution
when it is presented to him after its passage by the house of Parliament.
- In short, though the formality of the President's assent has been
retained in the case of an amendment of the Constitution Bill. In order to
signify the date when the amendment becomes operative as a part of the
Constitution, the President's power to veto a Bill for amendment of the
Constitution has been taken away, by substituting the words "shall" give his
assent in Clause (2) of Article 368, as it stands after the Constitution
(24th Amendment) Act 1971.
Fundamentals Rights Amenable:
As a result, Fundamental Rights in India can be amended by an act passed under
Article 368, and the validity of a Constitution on the ground that the Act
invades or encroached upon any Fundamental rights.
Another question which has been mooted since the case of Golaknath
whether outside Part III (Fundamental Rights), there is any other amendment in
Article 368. Though the majority in Keshavanandas's case
the majority view in Golak Nath that Fundamental Rights cannot be amended under
Article 368, it has affirmed another proposition asserted by the majority in
Golak Nath's Case.
Basic features of the Constitution not amenable:
- There are certain basic features of the Constitution of India which
cannot be altered in exercise of the power to amend it under Article 368.
If, therefore, a Constitution Amendment Act seeks to alter the basic
structure or framework of the constitution. The court would be entitled to
annul it on the ground of ultra vires, because the word "amend" in Article
368 means only changes other than altering the very basic structure of the
constitution, which would be tantamount to making a new constitution.
- These basic feature without being exhaustive are sovereignty and
territorial integrity of India, the federal system, Judicial Review,
Parliamentary system of government.
- Applying this Doctrine that Judicial review is a basic feature of the
Constitution of India the majority in "Keshavnanda Bharti case". Held the
second part of section 3 of the Constitution 25th Amendment Act 1971
relating to article 31C as invalid.
List of Basic Feature:
After the various decisions of the Hon'ble Supreme Court and interpretation of
Article 368 of the Constitution of India, the Court framed the list of basic
structures of the Constitution which are as follows:
- Supremacy of the Constitution
- Rule of law
- The principles of separation of power
- Judicial review
- Objectives of the Preamble to the Constitution
- Unity and integrity of nation
- Freedom and dignity of an individual
- Sovereign, democratic and republic structure
- The principles of equality
- Fundamentals Rights enshrined in Part III
- Provisions of social and economic Justice
- Balance between Fundamentals Rights and DPSP
- Parliamentary form of Government
- Free and Fair Elections
- Limitations on amending power under Article 368
- Independence of Judiciary
- Social justice
- Power of Supreme Court and High Courts
- Effective access to justice
It is evident that, instead of being rigid, as some critics supposed during the
early days of the Constitution, the procedure for amendment has rather proved to
be too flexible in view of the ease with which as many as amendments have been
made during the first 63 years of the working of the Constitution.
So long as the party in power at the centre has a solid majority in Parliament
and in more than half of the State Legislatures, the apprehension of impartial
observers should not be as to the difficulty of amendment, but as to the
possibility of its being used too often either to achieve political purposes or
to get rid of judicial decisions which may appear to be unwholesome to the party
in power. Judges may of course, but has already been demonstrated in the highest
Tribunal is likely to change its views in the light of their experience.
The Hon'ble Supreme Court finally settled the law that all the amendments to the
constitution made on or after 24th April1973 by which 9th schedule is amended by
inclusion of various laws therein shall be tested on the text on the basic or
essential features of the Constitution as reflected in article 21 read with
Article 14 article 19 and the principal underlying them.
Written By: Preeti Dalal,
Advocate, Supreme Court of India
Member, Executive Council- AGISS Research Institute
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