Amendment of the Constitution

Amendment means the changes or the alteration of laws or documents by Parliamentary or Constitutional procedure. Article 368 of the Indian Constitution provides the powers to the Parliament to amend the provisions of the Constitution. There is the requirement of the amendment provisions to overcome the problems and the conflicts in the working of the Constitution. If no provisions were made for the amendment of the Constitution, the people would have recourse to extra method to change the Constitution. ¹

The procedure of amendment in other Constitutions like American, Australia and Switzerland is very difficult. It is a common criticism of the federal Constitution that is too conservative and too difficult to alter and that it is consequently behind the times. ²

The framers of the Constitution were aware that if the Constitution was so flexible it would be played by the ruling party and if it was too rigid then it will be difficult enough to alter the provisions. Therefore the framers adopted the middle course i.e. neither too flexible nor too rigid.  The purpose for providing the amendment of the Constitution to make the gradual changes as the changes in social condition makes it necessary to change the fundamental law.

The framers and makers of the Constitution have kept the balance between the danger of having non-amendable Constitution and a Constitution which is easily amendable. Dr Ambedker said that “One can, therefore, safely say that the Indian Federation will not suffer from the faults of rigidity of legalism.. its distinguishing feature is that it is a flexible federation.” ³

The various Articles of the Constitution are divided into three categories for the purpose of amendment:

• Amendment by Special Majority: Articles that can be amended by simple majority by the Parliament as that required for the passing of any ordinary law. Amendments in Article 5, 169 and 239-A can be done by simple majority. These Articles are excluded from the procedure prescribed under Article 368.
• Amendment by Special majority: Articles of the Constitution which can be amended by special majority is mentioned in Article 368. All Constitutional amendments other than Articles 5, 169 & 239-A  falls within this category and must be affected by a majority of the total membership of each House of Parliament as well as by a majority of not less than two-third of the member of that house present and voting.
• Amendment by Special majority and Ratification by States: Article which requires ratification by not less than half of the State Legislature. The States are also given a voice in the amendment of these matters. In these fundamental matters, the States have an important power and any amendment by Parliament may highly affect the fundamental basis of the system built up or provided by the Constitution. This class of Articles consists of amendments which tend to make any change in the provisions mentioned in Article 368.

The following provisions required such ratification by the States:

• Election of the President: Article 54 & 55 of the Constitution.
• Extent of the Executive powers of the Union and the States: Articles 73, 162 and Article 241 or 279-A.
• Articles dealing with Supreme Court, High Courts, Judiciary and Union Territories: Articles 124- 147, Article 214- 231, 241.
• Distribution of Legislative powers between the Centre and the State- Articles 245-255.
• Goods and Service Tax Council: Article 279-A inserted by 101 Amendment Act.
• Any of the Lists of VII Schedule.
• Representation of the States in Parliament IV Schedule.
• Article 368.

Procedure for amendment

A Bill for amending the Constitution must be introduced in either House of the Parliament. It must be passed by each house by a majority of the total membership of that House and majority of not less than two-third of the members of that house present and voting. When a bill is passed by both houses it shall be presented to the President for his assent who shall give assent to Bill and thereupon the Constitution shall stand amended. But a bill which tends to amend the provisions mentioned in Article 368 required in addition to the special majority mentioned above the ratification by half of these States. Thus it is clear that most of the provision of Constitution can be amended by an ordinary Legislative process, only a few provisions which deal with the federal principle require special majority and ratification by the States.

Most of the provisions of the Indian Constitution can be amended by a special majority. The procedure to amend the Constitution with the consent of these States are more rigid than the majority rule, is not so difficult as that of American or Australian procedure to amend the Constitution. In Australia the Constitutional Amendment must be proposed by an absolute majority of both Houses of Parliament. It must be submitted to the electors for approval within 6 months and must be approved by a majority of the electors in the majority of the States. Hence it is clear that the amending procedure in Australia and America is much more difficult than in the Indian Constitution.

Amendment of Fundamental Rights

In Shankari Prasad v. Union of India, ⁴ the validity of the 1^st amendment Act, 1951, Article 31-A 31-B of the Constitution was challenged. The Amendment was challenged on the grounds that it abridges the rights conferred by Part III which fell within the prohibition of Article 13 (2) and hence was void. The Supreme Court held that the power to amend the Constitution including the Fundamental Rights is contained in Article 368. The word ‘Law’ in Article 13 (8) means an ordinary law made in exercise of the Legislative powers and it does not include the Constitutional amendments. Thus, a Constitutional amendment will be valid even if abridges or takes away any of the Fundamental Rights

In Sajjan Singh v. State of Rajasthan, ⁵ the validity of 17^th Amendment Act, 1964 was challenged. The Supreme Court approved the judgment given in Shankari Prasad case and held at the word ‘Amendment’ of the Constitution means Amendment of all the provisions of the Constitution.

In Golaknath v. State of Punjab, ⁶ the validity of 17^th Amendment Act, 1964 was again challenged. The Supreme Court by a majority 6:5 had overruled its previous decisions in Shankari Prasad and Sajjan Singh case and held that the Parliament has no power from the date of decision, in this case, to amend III Part of the Constitution. The power of Parliament to amend the Constitution is derived from Article 245 and not from Article 368. Article 368 laid down the procedure for amendment of the Constitution.

An amendment is a law within the meaning of Article 13 (2) and therefore if it violates any Fundamental Rights it may be declared void. The word ‘Law’ in Article 13 (2) includes every law, statutory as well as constitutional law and hence a Constitutional amendment which contravened Article 13 (2) will be declared void.

To remove the difficulties, Parliament enacted the Constitution 24^th Amendment Act. The amendment made the following amendments:

• It inserted in new clause 4 in Article 13 which provides that ‘nothing in this Article shall apply to any amendment of the Constitution made under Article 368.
• It replaced the old heading to Article 368 ‘Procedure for amendment of the Constitution’ with the new heading ‘Power of Parliament to amend the Constitution and Procedure thereof’.

Thus, the Constitution 24th amendment Act, 1971 not only restored the amending power of the Parliament but also extend its scope by adding the words ‘to amend or repeal any provision of the Constitution in accordance with the procedure laid down in this Article.

But in Kesavananda Bharti case, The SC has held that any provision of the Constitution can be amended by the Constitution but without destroying the basic structure of the Constitution. The validity of Constitutional 24^th, 25^th & 29^th Amendment Acts were challenged, is popularly known as Fundamental Rights case. The Court by majority overruled the Golakh Nath’s case and held that the 24^th Amendment does not enlarge the amending power of the Parliament. It only declares the true legal position and held that under Article 368 Parliament does not have the power to amend the basic structure or framework of the Constitution. It held that the first part of the 25^th Amendment is valid but held that the second part is invalid.

The six Judges ( Sikri, CJ, Shelat, Grover, Hegde, Reddy and Mukherjee, JJ.) has held that there are inherent limitations on the amending power of Parliament and Article 368 does not confer power to amend the Constitution to destroy the essential elements of the basic features of the Constitution. The essential of the basic structure are as follows:

• Supremacy of the Constitution
• Democratic and Republican form of government
• Separation of Powers between the Legislature, the Judiciary and the Executive.
• Secular and Federal Character of the Constitution.
• Unity and Integrity of the Nation.

Basic Structure of the Constitution

The Supreme in its judgement has held that the basic structure of the Constitution cannot be amended. The basic structure includes provisions like Democratic and Republican form of Government, Supremacy of the Constitution, Judicial Review, Sovereign, Socialist, Secular and Federal character, Fundamental Rights etc.

Criticism of the Amending Procedure

The criticisms are as follows:

• There is no provision for the public opinion in any of the Constitutional Amendments.
• The limit has not been prescribed regarding the Ratification by the States.
• To validate the amendment it must be passed in both the Houses. Any solving procedure has not been prescribed when the differences in the opinions of both the Houses arise.
• How the assent of the President is obtained.
• The State Legislatures have a mere voice in the Amendment Procedure.

Conclusion:

The amendment power has been provided to the Parliament under Article 368. A Bill of the Amendment of the Constitution has to be introduced in either House of the Parliament which must be passed by simple majority or in some cases by special majority i.e. not less than 2/3^rd members of the House present and voting and Ratification by State Legislature. After understanding the procedure of the amendment it is understood that the Parliament has the sole power to amend the Constitution but the Supreme Court has the power to declare the act unconstitutional and it maintains a check on the unlimited power of the Parliament to amend the Constitution like in Kesavananda Bharti case the doctrine of basic structure has been laid down.

There are certain gaps too in the procedure as to how and after what notice a Bill has to be introduced, how the President’s assent is obtained. Thus, it cannot be overlooked that a country having a written Constitution, the procedure laying down the manner of amending the Constitution acquires a great importance and in every case, such procedure has to be followed strictly so as to abide the spirit of the Constitution.

“The views of the authors are personal“

Reference:

1. Keshvananda Bharti v. State of Kerala, AIR 1973 SC 1461
2. K.C. Wheare: Federal Government, p. 209 (1963 Edn.)
3. Dr. Ambedker,- CAD Vol. IX, pg. 1569
4. AIR 1951 SC 455
5. AIR 1965 SC 845
6. AIR 1971 SC 1643