Constitutional Law: Limitation on Power of Amendment

Parliamentary Power of Amendment-

The amendment power of the Indian parliament is not as flexible as the amendment power in England and not as strict as that in the US. The amendment power in India is a synthesis of both the systems. India’s constitution is known as being the melting pot of various features from constitutions all around the world. Even the amending power is a synthesis of various constitutions so as to ensure transparency, justice, fairness and rule of law. 

The procedure to amend the constitution is prescribed in Article 368 of the constitution. The various points of importance in the article are-

  1. The amendment procedure has to be in accordance with Article 368, otherwise it is not valid.
  2. Amendment procedure can be initiated in either house of the parliament. Procedure can be brought for repealing any clause of the act, for adding any feature to the constitution, for any form of variation or for any other purpose.
  3. A bill to amend needs to be introduced in either house of the parliament, and only when that bill is passed will the amendment be final. The bill cannot be introduced in any state legislature.
  4. The bill can be introduced by either a private member or a minister. No prior permission of the President is needed to introduce the bill in the parliament.
  5. A majority of the total membership of the house and a majority of ⅔ members of the house present and voting, should have passed the bill in both the houses in case a special majority is needed. Thus to pass an amendment bill, a special majority is needed, but in some cases a simple majority is sufficient to pass the amendment bill in certain cases.
  6. In case of disagreement between the two houses, there is no provision for a joint sitting to resolve such a crisis. This is a drawback of Article 368.
  7. In case the bill seeks to amend any federal provision of the constitution, it must be passed by half the states by a simple majority, i.e. a majority of the members of the house present and voting.
  8. The bill, after being passed by both the houses, and ratified by the states if necessary, will be presented to the President for assent. Once the President gives his assent, the bill would have been passed and the constitution would stand amended.
  9. The president has to give his assent, thus this is only an obligatory function of the president. He cannot withhold his assent, nor can he send it back for reconsideration. The president has no option, but to give his assent to the bill.

Some of the examples of Bills that can be passed by a simple majority are-

  1. Admission or Establishment of New states
  2. Creation or Abolition of Legislative Councils in each state
  3. Quorum in the Parliament
  4. Privileges of Parliament, its committees and its members
  5. Dissolution of constituencies
  6. Salaries and Allowances of the members of parliament
  7. Rule of Procedure in the parliament
  8. More conferment of power on the Supreme Court, etc

Bills that can be passed by a special majority-

  1. Fundamental Rights
  2. Directive Principles of State Policy
  3. All other provisions not in the 1st category that can be amended by a simple majority, and not in the 3rd category, elaborated below, that needs ratification by at least half the states.

Bills that can be passed by a special majority of the Parliament and Consent of the States-

  1. Elections of the President and the Manner of such Election
  2. The extent of executive power of the union and the states
  3.  Provisions relating to the Supreme Court and the High Court
  4. Any provision relating to the 7th Schedule
  5. Provisions relating to the State’s representation in the Parliament
  6. Legislative Power Distribution between the States and the Centre
  7. Power of the Parliament to amend the constitution and the basic structure (Article 368 itself)

Limitations-

Biggest limitation is that the parliament cannot amend any of the basic provisions of the constitution which are prescribed in Article 368 of the constitution. Such a limitation came after various judicial decisions and is the result of a huge scuffle between the parliament and the judiciary. Finally, the judiciary’s reasoning resonated with the Indian community and they laid down the concept of the basic structure of the constitution, which cannot be amended, in the Kesavananda Bharati Case[1]. The basic structure is that part of the constitution that cannot be amended, it may or may not include the fundamental rights. An example would be, if the parliament wants to amend any provision which may be related to the concept of Equality, such an amendment will be scrutinised by the judiciary as equality is part of the basic structure of the constitution, which cannot be abridged by the parliament. Thus, if the amendment affects this basic feature, it will be void.

Basic Structure of the Constitution-

The basic structure of the constitution was laid down in the Kesavananda Bharati case. Various Judicial decisions and their impact on the concept of basic structure and its inception are noted below-

  1. The question whether fundamental rights can be abridged first came for consideration in the case of Shankari Prasad Singh Deo V. Union of India[2], in the year 1951. In the case, the curtailment of the right to property was challenged. The question was whether fundamental rights can be abridged, by way of amendment of the constitution. The supreme court decided that power of the parliament includes the power to amend the fundamental rights. The word law in Article 13 includes also includes constitutional amendment laws apart from ordinary laws.
  2. The decision of the Shankari Prasad case was altered in the Golakh Nath v. State of Punjab[3] case. In the Golakh Nath case the 71st constitutional amendment was challenged. It inserted certain state acts to the 9th Schedule of the Constitution. If any act is put in the 9th Schedule of the constitution, it cannot be amended in the future even if the said acts violate the fundamental rights of the constitution. Acts put in the 9th schedule are protected from judicial review. The court noted that fundamental rights are ‘tencendental’ and ‘immutable’ and cannot be abridged by any constitutional amendment.
  3. The parliament passed the 24th amendment to displace the judgement in the Golakh Nath case. The act said that the parliament can abridge Article 368, and such an amendment will be law, within the meaning on Article 13.
  4. In the Kesavananda Bharati case the judiciary removed all doubts and decided the matter once and for all. The Supreme Court agreed with the parliament and ruled those fundamental rights can be abridged, except when they are included in the basic structure of the constitution. The judiciary formed the concept of the basic structure and any feature of the constitution included in the basic structure cannot be abridged by any constitutional amendment as well.
  5. The concept of the basic structure of reaffirmed in the Indira Nehru Gandhi case[4], of 1975. The 39th constitutional amendment had been challenged. The amendment ordered to keep all disputes during elections, which involved the prime minister and the speaker out of the jurisdiction of the courts. The court ruled it as being an invalid amendment.  The court has said that the provisions amended could not be, as they were part of the basic structure of the constitution.
  6. Again to counter the basic structure, the parliament passed the 42nd amendment which said that there was no limitation on the power of the parliament and that any amendment could not be countered in the court, even if such amendment was violative of the fundamental rights. The 42nd amendment tried to give the parliament ultimate power to amend any provision. They wanted no limitation on their powers to amend, so this was a way of removing judicial review for any of their actions. But in the Minerva Mills v. Union of India[5] case the Supreme Court reaffirmed the concept of the basic structure. The court said that judicial review is part of the basic structure of the constitution and thus, this power of the judiciary cannot be amended. The court said, “limited amending power is part of the basic features of the constitution. Therefore, the limitations on that power cannot be destroyed.” The parliament cannot expand its powers to change the constitution and its basic features as per their whims and fancies. Judicial review is an absolute power of the judiciary.
  7. The concept of basic structure was then again reaffirmed in the Waman Rao and Ors. v. Union of India. [6] The court clarified that the doctrine would apply to all cases after the Kesavananda Bharati judgement, and the parliament cannot amend the basic features from the year when this concept was made, i.e., 1973, passing of the said judgement.

Today, the position is the same. The parliament can amend even the fundamental rights, but cannot amend the basic features of the constitution. Deciding what constitutes the basic features is a continuous process. The court interprets in each judgement, and if they feel any concept should be in basic structure, they include the same in it, so that it cannot be abridged by the parliament. Various judgements have defined the features of the basic structure. Some of them are-

  1. Constitutional Supremacy
  2. Federal character of the state
  3. Welfare State
  4. Secular Character of the state
  5. Separation of Powers between the legislature, the executive and the judiciary
  6. Rule of Law
  7. Sovereign, Democratic and Republican nature of the Indian Parliament
  8. Free and Fair Elections, etc.

Criticism of the Amendment Procedure-

  1. Many scholars compared it to the constitutional amendment powers of the US. Many have criticized the amendment procedure, saying there is no special body to amend the constitution like that in the US. There is no dedicated body to amend the constitution.
  2. The power to initiate amendments lies only with the parliament. The bill to amend the constitution can be initiated in either house of the parliament. The state legislature does not have any powers to initiate constitutional amendment. The state legislatures can introduce a bill only for one reason and that is creation and abolition of the legislative councils in their respective states. This bill also can be either passed by the parliament or rejected by them. Thus, the amendment power is not federal in its character. More power has been given to the centre.
  3. Major part of the constitution can be passed by the Parliament alone, either by a simple or a special majority. Only in extremely few cases do the states need to give their consent. If we compare it to the US, consent of the states is mandatory and that to of ⅔ of the states. Their constitution is highly federal in its nature. But since federalism is also part of our basic structure, we should also try and develop a procedure which puts the states at an equal footing with the centre, in relation to their amendment powers, as we live in a democratic society.
  4. Also, there is no time limit prescribed within which assent should be given. Thus, assent can be given at any time or can be delayed if the number of half is not reached, as half the states need to give their assent. There is also a doubt regarding the fact that whether a state can withdraw its assent to a bill. There is no provision in the constitution which clarifies the above points, and the judiciary has also not decided the above questions.
  5. There is no provision to resolve any disagreement between both the houses. In usual circumstances, when the houses disagree, there is a provision for joint sitting in the constitution. As per Article 108 of the constitution if there is a disagreement between both the houses of the parliament, a joint sitting is held. It can only be held for ordinary and financial bills and not for money bills or constitutional amendment bills. The bill in dispute, if passed by majority of the members of both the houses present and voting, then it is said to be passed by both the houses. Such a provision, to resolve a disagreement is missing for constitutional amendments.
  6. The President is bound to give assent to constitutional amendment bills. He cannot reject the bill or send it back for reconsideration. Such a provision is  un-democratic as it puts an absolute duty on the president to give his assent. He cannot even send the bill for reconsideration, which is authoritarianism.
  7. A process of amendment is similar to that of a legislative process of passing ordinary bills. No care has been made to make the process special. A special process is needed sometimes, as per the importance of the function.
  8. The amendment procedure may be overtaken by the judiciary. The judiciary can put any feature into the basic feature and thus move it out of the control of the parliament. Thus the judiciary puts limitations on the parliament’s powers on amendment. This could be a good thing or a bad thing and the ultimate decision on whether the judiciary’s steps have been right will depend on the facts and circumstances of each case or situation.

Conclusion-

Despite the criticism, the process has been a simple and easy process. It isn’t a rigid process that isn’t able to meet the needs of the present society and it isn’t even as flexible, so as to enable the parliament to change everything provision of the constitution as per their whims and fancies. It is a perfect balance. Pandit Jawaharlal Nehru also believed in striking a balance between rigidity and flexibility. He said that flexibility is also extremely important as flexibility guarantees organic growth of the country and its population.

The Parliament has powers to amend the constitution, which may even include the fundamental rights, but not any feature of the basic structure of the constitution. The concept curbs parliamentary power from becoming autocratic, and dictatorial. Dr. B.R. Ambedkar, father of the Indian constitution observed in the Constituent Assembly that, “the assembly, has not only reframed from putting a seal of finality and infallibility on the constitution, but has provided for a facile procedure for amending the constitution.” Thus, the Indian constitution is a mix of various amending procedures used around the world and the constitution makers have been able to make the procedure of amendment flexible and at the same time, rigid by not allowing important provisions to be amended by a simple majority. The judiciary has also extensively deliberated on the amending procedure and had formed the basic structure of the constitution, so as to ensure justice and fairness. Thus, today we can say the amending procedure of the indian constitution is one of the best in the world, so as to ensure growth and stability at the same time.

K.C. Wheare has admired the variety of the amending procedure and has said, “this variety in amending procedure is wise, but rarely found.” Granville Austin has said, “the amending procedure has proved itself one of the most ably conceived aspects of the Constitution. Although it appears complicated, it is merely diverse.”


[1] (1973) 4 SCC 225

[2] AIR. 1951 SC 458

[3] 1967 AIR 1643

[4] 1975 AIR 865

[5] AIR 1980 SC 1789

[6] (1981) 2 SCC 362


Author: Afra Ansari from Campus Law Centre, Faculty of Law, DU.


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