Constitutional Law: Procedure of Amendment

The socio-economic and political condition keeps on changing.  If the changes were not made in constitution, then difficulties will arise as to keep up with those changes and will become a hurdle in development. The Constitution of India declares India as a Sovereign, Socialist, Secular, Democratic, Republic country and was passed on 26 November 1949. Due to the constantly changes in the society, the procedure for the amendment was necessary and Article 368 provides for the procedure of Amendment. The provision related to amendment procedure in the Constitution of India is enshrined under Article 368 in Part XX of the Constitution. Part XX contains only one Article 368. It deals with the powers of Parliament to amend the Constitution. It lays three special methods for the amendment of different parts of the constitution.

PROCEDURE FOR THE AMENDMENT 

The procedure for the amendment is as follows:

  • The process of amendment is almost similar to that of a legislative process. The constitutional amendment bills may be passed by the Parliament same as the ordinary bills are passed.
  • For modification in specific provisions of the Constitution, simple majority of the Legislature of the State is needed.
  • And for certain amendments for certain provisions, it may only be made by a special majority of Parliament. That is the majority of the total membership of each House and by a majority of not less than two-thirds of the members present and voting in both the Houses.
  • For Amendments to certain laws, not less than half of the States with special majority of legislative confirmation is needed.
  • A bill as to the amendment of the Constitution can be initiated in either House of Parliament that is either by Council of ministers or by the House of peoples and not in the state legislatures can be done either by a minister or by a private member. For doing so, president prior permission is not needed.[1]
  • Then, it is necessary to be approved by both the houses with required majority needed.
  • The bill is separately passing from both Lok Sabha and Rajya Sabha. But if there is some conflict as to the bill between both houses, then bill is considered to be defeated and there is no provision for holding a joint sitting of both Houses for the passing of the bill. Article 108 that talks about joint sitting of both houses in cases of disagreement has no connection with the Article 368 as this is substantive and procedural Article.
  • When the bill passed from both the houses, then it is sent to the President for his assent. The President must give his assent to the bill as it is mandatory. He cannot exercise any discretionary power and neither can withhold his assent nor can return the bill to the Lok Sabha and Rajya Sabha for reconsideration.
  • But any amendment is open for the judicial review in cases it affects the basic structure or violates the fundamental rights. Judicial review is basically the basic structure of the constitution.
  • Once the bill receives the President’s assent, it becomes an Act.[2]

LANDMARK CASES

  1. In Shankari Prasad v. Union of India[3], the validity of the First Amendment was questioned through which Article 31A and 31B were added in the Constitution. This question arises the validity of the amendment of fundamental rights under Article 368. It was held that Article 368 provides general and strict power as to the amendment of the constitution to the parliament by proper procedure.
  2. In Golaknath v. the State of Punjab[4], petitioner filed a writ petition for the validity of Constitution (Seventeenth Amendment) Act, 1964 and fourth Amendment. The six judges from eleven judges bench held that the parliament has no power to amend the fundamental rights of the Constitution and amendments were laws. Also, the court held that it is the duty of the parliament to correct the errors in the law but has no power to amend the fundamental rights.

After this landmark judgment, in 1971, the 24th Amendment was passed and amendment was made in Article 13 and 368. Clause (4) is added in Article 13 that states that Article 13 will not apply to Amendment made in the Constitution under Article 368. Also, in Article 368, new clauses were added. A new heading was introduced that goes by “Parliament’s power to amend the Constitution”.  Secondly, it was also added that the Parliament may change, make an addition or can repeal any provision of the Constitution by the procedure as provided in this Article.

  • In Kesavananda Bharati v. State of Kerala[5], the plaintiff was the leader of a Hindu monastic institution in Kerala. The two-state Land Reform Act was challenged as it restrict the way his property was managed as it is the violation of Article 25, Article 26 , Article 14 , Article 19(1)(f)  and Article 31. Court established the Basic Structure Doctrine of the constitution and validity of 24th25th and 29th amendments were challenged. 24th Amendment made changes to Article 13 and Clause (4) was inserted as any amendment done under Article 368 will not be covered under Article 13. And under Article 368, the Parliament has the power to add, repeal and amend any section of the constitution. 25th Amendment added clause (2) in Article 31 and allowed the state to take property for a certain amount that will not be questioned in any court of law. Article 31C was also added to ensure that Directive Principles will not be subject to the Articles 14, 19 and 31. 29th Amendment added Kerala Land Reforms Act, 1963 and other land reform Acts to the Ninth Schedule.

So, the court established the Doctrine of Basic Structure and overruled Golak Nath v. State of Punjab. Court held that even before 24th Amendment, the parliament only has the limited power to amend the Constitution by the procedure mentioned. Also, Article 368 does not allow parliament to change the basic structure of the Constitution and has no power to abolish or abridge the fundamental rights. And the basic structure shall consist some characteristics like the supremacy of the Constitution, secular nature, federal nature, separation of powers between three pillars of democracy and the Republic and Democratic forms of the government. Also, held that under the 25th Amendment, the word ‘amount’ relates to the market value of the property. After this 42nd amendment was introduced and Article 368(4) and (5) was added.

  • In Minerva Mills Ltd. & Ors vs Union Of India & Ors[6], the government passed the Sick Textile Undertakings (Nationalisation) Act, 1974 to take over the management of mills. Minerva Mills was accused of a sick industry by government and under Section 18A in The Industries (Development and Regulation) Act, 1951, the company was to be managed by the government. So, the constitutionality of Constitution (Forty Second Amendment) Act, 1976 was raised as it destroys the basic structure of the Constitution and amendment made in Article 368(5) gives parliament power without limitation. So, court held that the newly amendment was unconstitutional as it is against the social and economic justice and struck down the Clauses (4) and (5) of Article 368.  
  • In L. Chandra Kumar v. Union of India[7], the validity of the Article 323A and 323B was challenged. These Article states that the High Court and the Supreme court was excluded by the 42nd Amendment. So, these provisions were declared as unconstitutional and judicial review power of the court lies with the High court and Supreme Court under Article 226 and Article 32 respectively and it was given by the basic structure. Also, the parliament has no power to amend this.
  • In Indira Nehru Gandhi vs Shri Raj Narain & Anr[8], Raj Narain contented against Indira Gandhi and Indira Gandhi was re-elected with a sweeping majority in the Parliament. Petition was filed blaming Indira Gandhi for using unfair means. High Court held that her guilty of election malpractices. She tried to move to the Supreme Court but they shifted the judgment. So, Indira Gandhi declared emergency because of internal emergencies. The Supreme Court tried to stop but Parliament added Article 329A by 39th Amendment.  This was related to the jurisdiction of all courts as to the dispute of an election of the Prime Minister of India. It was challenged. The Supreme court reaffirmed the concept of basic structure and struck down the Article 329A (4) as it is beyond the power of the parliament and will destroy the basic structure. It is unconstitutional as free and fair election is a part of the Basic Structure and taking away this right is the infringement.
  • In M. Nagraj v. Union of India[9], the constitutional validity of the 77th Amendment was challenged that added Article 164A as this nullified number of decisions. The 81st Amendment, 82nd Amendment and 85th Amendment that added Article 164B, proviso to Article 335 and consequential seniority was added respectively. 81st Amendment introduced the promotion in reservation which was declared as unconstitutional in the landmark judgment of Indra Sawhney’s case.

A five-judge Bench held these amendments valid and stated that these do not violate the basic feature of the constitution. These only apply to SC and ST and do not obliterate constitutional requirements like 50% ceiling limit in reservation, creamy layer rule, etc. And these are not beyond the amending powers of the parliament.

42ND AMENDMENT

Once the decision of the Supreme court was passed in Kesavananda Bharti case, the 42nd Amendment was introduced. That added the word secular and socialist in the preamble and Article 368(4) and (5) was added and declares that parliament has the power as to the Amendment without any limitation on the power. The parliament will have the unlimited power to change or repeal any part of the Constitution. It was challenged in the case of Minerva Mills v. Union of India. It was contended that this amendment will destroy the basic structure of the Constitution. The Supreme Court struck down the Clauses (4) and (5) of Article 368 added by the 42nd Amendment and held that the parliament’s limited power is in the basic structure itself.  

So, the Parliament has limited power to amend the Constitution and cannot damage the basic structure of the Constitution. Also, the Article 368 does not provide the parliament to make the amendment regarding the fundamental rights of the Constitution. In addition to that, the Parliament cannot increase it Amendment powers by amending Article 368.[10] So, it is clear that the constitution is supreme in India and not the parliament. Parliament cannot have unlimited power of amend as there is clear distinction between the ordinary legislative power and the constituent power. The parliament is elected for a fixed period of five years.

In Waman Rao v. Union of India[11], court held that all amendments to the constitution made before April 24, 1973 including those made to the Ninth Schedule were valid and constitutional. But amendments made to the constitution on and after that date to Ninth Schedule is challenged on the ground that they are beyond the constituent power of parliament as they cannot damaged the basic structure.

In S.P. Sampat Kumar v. Union of India[12], the validity of Article 323A and provisions of Administrative Tribunals Act, 1985 was challenged on the ground that by excluding jurisdiction of High Courts under Article 226 in service matters had destroyed the power of judicial review. And it is the basic feature of the constitution. Court held that validity of the Article and act and suggested some necessary changes to be made under the Act. The Act has excluded judicial review by High courts in service matters under Article 226 and 227 but not excluded under Article 32 and 136. And it does not affect the basic structure.

WHETHER THE TERM LAW INCLUDES THE CONSTITUTIONAL AMENDMENT?

Whether the term law includes amendment in it or not was challenged in the case of Shankari Prasad v. Union of India[13]. In this case, court held that the word law in clause (2) of Article 13 does not include amendment made by the parliament under Article 368. So, Article 13(2) will not affect the amendments made under Article 368 in exercise to the constitutional power. This judgment was followed in the case of Sajjan Singh v. State of Rajasthan[14]. But in Golak Nath v. State of Punjab[15], this decision was challenged. The supreme court then overruled the judgment and that the word law in clause (2) includes even the amendment made by the parliament that takes away the fundamental rights of the citizens. And hence, it can be declared as void.

Supreme court’s decision in Golak Nath case created difficulties. So, to avoid these, the Constitution (24th Amendment) Act, 1971 was passed. By this amendment, a new clause that is clause (4) in Article 13 was added that made the constitutional amendments under Article 368 out from the ambit of term law. So, these cannot be challenged for taking or abridging away the fundamental rights. This was again challenged in the case of Kesavananda Bharti v. State of Kerala[16]. In this case, the decision of the Golak Nath case was overruled and the amendment validity was upheld. And parliament can amend Part III but cannot change the basic structure. Power to amend Part III is limited.[17]

TYPES OF MAKING AMENDMENTS

  1. Amendment by Simple majority: – This procedure is easy and most flexible method of making amendment. Some provisions can be changed by simple majority of members of both of the Houses.

Some of the provisions that can be amended by this are: 

  • Under Article 2 for the admission of a new state, alteration of areas, boundaries or names of existing States and in the formation of new States
  • Under Article 11 concerning Indian Citizenship
  • Thirdly under Article 73(2) regarding the exercise of the executive authority or its agents relating to which the Parliament is authorized to legislate. 
  • Under Article 172 concerning the membership of Legislative Councils
  • The amendment can be made as to the increase in the High Court judge’s wages and allowances under Article 221(2) and in Schedule II as well.
  •  Under Article 343(3) that is related with English-language.
  • In delimitation of constituencies or for the quorum of the two Houses of Parliament.
  • For the appointment of Judges and jurisdiction of Supreme Court or for abolition or creation of Upper Houses in any state.
  • Provision as to Rules of procedure in Parliament and Privileges of the Parliament, its members and its committees.[18]
  • Amendment by Special majority: This procedure is rigid and difficult to amend the Constitution. An amendment to the Constitution can also be made by introducing a Bill in either of the House of the Parliament. When it is passed by a majority of House’s total membership in each House of Parliament and by a majority of not less than two-thirds of the House’s membership present and voting. The term ‘total membership’ here means to include all the members comprising the House whether there are vacancies or absentees. Then, it is sent to the President for his assent. He is obligated to give his consent to an Alteration Bill that approved by either of the House of Parliament. After receiving President’s assent, following rules are amended. 

Some of the provision which is amended by this method are: –

  • Amendment in the Fundamental Rights.
  • Secondly, this method is used for the provision related to the Directive Principles of State Policy and all other provisions not covered under Part III and Part IV.
  • Special majority and Ratification by State: – This procedure is also rigid. It is related to the federal structure. By this method, amendment is made by 2/3rd Majority of the Parliament with the ratification by at least half of the several State Legislatures. There is no time limit for giving consent by the states. First, the bill is 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 that is Lok Sabha and Rajya Sabha. Then, it requires ratification from at least half of the State Legislatures by simple majority. Then, president gives his assent as to that bill. It is used when the amendment is related to the allocation of powers between states and the Central Government or to the representation, consult and consent of the states is necessary. At least half of the state legislatures must pass the bill before bringing it into effect.

Some of the provisions in which this method applies are:

  • Provision as to the election of the President.
  • Secondly, for the scope of the executive power of the Union or a State, ratification of the states is also needed in case of High Courts in Union Territories.
  • For the provisions of the Supreme Court of India and High Courts in States, this method is applied.
  • For Legislative Relations between the Union and States and for the division of powers between the Union and States under 7th schedule, this method is needed.
  • Another provision is the representation of states in the Parliament and for Article 368 as well.[19]

CONCLUSION

The procedure of amendment is provided under Article 368. The existing method of Amendment is good for India’s pluralist society and developing polity. The procedure is not highly flexible that will allow the parties to change it according to their whims and fancies. Also, it is not very so to make it impossible for adapting changes according to the society demand and needs. The Parliament under Article 368 can amend any part including the Fundamental Rights but cannot affect the basic structure of the Constitution. Article 32 gives the right to individuals to seek justice in case of violation of fundamental rights to the Supreme Court and it cannot be amended. Also, the Preamble is the part of the constitution and can be subjected to Amendments under article 368 but the basic structure cannot be altered.

Criticisms of the amendment procedure: –

 But the amendment procedure has many criticisms.

  • There is no provision for a special body like Constitutional Assembly for the amendment of the Constitution.
  • Less importance is given to the States. The state legislature cannot introduce any bill for the amendment of the constitution for the creation or abolition of legislative councils in the states. This can only be done by the parliament.
  • In addition to that, there are only a few cases where the consent of the state legislatures is required and the major part can be amended by the Parliament alone. It can be done either by a special majority or by a simple majority.
  • One of another criticisms is that there is no specific time mentioned for the ratification or the rejection of an amendment by the state legislature.
  • In case of disagreement between lower house and upper house, there is no provision for holding a joint sitting of both Houses in case of constitutional amendment bill.

[1] Aap Tax Law, ARTICLE 368, 369 OF CONSTITUTION OF INDIA 1949, https://www.aaptaxlaw.com/constitution-of-india/article-368-369-constitution-power-of-parliament-to-amend-constitution-procedure-temporary-power-make-laws-matters-state-concurrent-list-article-368-369-of-constitution-of-india-1949.html

[2] Byju’s, Basic Structure – Landmark cases, https://byjus.com/free-ias-prep/landmark-cases-relating-basic-structure-constitution/

[3] Shankari Prasad v. Union of India, 1951 AIR 458, 1952 SCR 89

[4] Golaknath v. the State of Punjab, (1967 AIR 1643, 1967 SCR (2) 762)

[5] Kesavananda Bharati v. State of Kerala, 1967 AIR 1643; 1967 SCR (2) 762

[6] Minerva Mills Ltd. & Ors vs Union Of India & Ors, 1980 AIR 1789, 1981 SCR (1) 206

[7] L. Chandra Kumar v. Union of India, 1995 AIR 1151, 1995 SCC (1) 400

[8] Indira Nehru Gandhi vs Shri Raj Narain & Anr, 1975 AIR 1590, 1975 SCC (2) 159

[9] M. Nagraj v. Union of India, (1996) 2 SCC 755

[10] Your article library, Procedure of Amendment of the Constitution: Method of Amendment, by K.K Ghai, https://www.yourarticlelibrary.com/constitution/procedure-of-amendment-of-the-constitution-method-of-amendment/40333

[11] Waman Rao v. Union of India, AIR 1981 SC 271

[12] S.P. Sampat Kumar v. Union of India, AIR 1987 SC 386

[13] Shankari Prasad v. Union of India, 1951 AIR 458, 1952 SCR 89

[14] Sajjan Singh v. State of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933

[15] Golak Nath v. State of Punjab, (1967 AIR 1643, 1967 SCR (2) 762)

[16] Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461

[17] Blog ipleaders, Analysis of amendment procedure in the Constitution : dynamic or outdated, By Ayush Verma, November 15, 2020, https://blog.ipleaders.in/analysis-amendment-procedure-constitution-dynamic-outdated/

 

[18] Blog ipleaders, Power of the Parliament under Article 368 to Amend the Constitution, By Krishnendra Joshi, May 10, 2019, https://blog.ipleaders.in/amendment-power-parliament-article-368/

[19] Blog ipleaders, The Amendment of the Constitution: Article 368, By Mariya Paliwala, January 13, 2020, https://blog.ipleaders.in/the-amendment-of-the-constitution-article-368/#Procedure_to_Amendment

 


Author: Akshika Agrawal from Jaipur National University.


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