Amendment of the Constitution

The Constitution of India, like any living document, must adapt to the changing needs of the society it governs. A constitution that is completely static is a recipe for revolution, while one that is too easily altered loses its sanctity. India's framers struck a delicate balance, creating a constitution that is partly rigid and partly flexible.

Contained within Part XX (Article 368), the power of Parliament to amend the Constitution, and the procedure thereof, is clearly laid out. It is important to note that while Parliament has the constituent power to amend any provision of the Constitution, this power is not absolute. As established in the landmark Kesavananda Bharati case (1973), Parliament cannot alter the 'Basic Structure' of the Constitution. This ensures that the foundational principles of the Indian republic remain inviolate.

The formal procedure laid out in Article 368 involves several critical steps designed to prevent hasty alterations to the supreme law of the land:

• Initiation: An amendment bill can only be introduced in either House of Parliament (Lok Sabha or Rajya Sabha), never in a State Legislature.
• Introduction: It can be introduced by a minister or a private member and does not require prior permission of the President.
• Special Majority: The bill must be passed in each House by a special majority, which means a majority of the total membership of the House AND a majority of two-thirds of the members present and voting.
• Separate Passage: Each House must pass the bill separately. Crucially, there is no provision for a joint sitting in case of a deadlock between the two Houses over an amendment bill.
• State Ratification (When Required): If the amendment seeks to alter the federal provisions of the Constitution, it requires ratification by the legislatures of at least half of the states through a simple majority.
• Presidential Assent: Once passed (and ratified, if necessary), the bill is presented to the President. Since the 24th Amendment Act (1971), the President must give assent; they can neither withhold assent nor return the bill for reconsideration.

While Article 368 outlines the procedure for formal amendments, the Constitution practically provides for three ways to amend its provisions:

• Category 1: Simple Majority of Parliament (Outside Article 368)
  • Many provisions can be amended by a simple legislative process, similar to ordinary bills. These include: admitting new states (Article 2), altering boundaries (Article 3), abolishing state legislative councils (Article 169), rules regarding citizenship (Article 11), elections to Parliament, and the Fifth/Sixth Schedules.
• Category 2: Special Majority of Parliament (Under Article 368)
  • This is the standard amending procedure for most of the Constitution, particularly Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV).
• Category 3: Special Majority + State Ratification (Under Article 368)
  • Reserved for deeply entrenched federal features. Examples include: Election of the President (Articles 54, 55), Distribution of legislative powers (Seventh Schedule), Supreme Court and High Courts, and notably, Article 368 itself.

The scope of Parliament's amending power has been the subject of intense judicial scrutiny over the decades:

• Shankari Prasad Case (1951) & Sajjan Singh Case (1965): The Supreme Court held that Parliament possessed absolute power to amend the Constitution, including Fundamental Rights.
• Golaknath Case (1967): A dramatic reversal. The SC ruled that Fundamental Rights are 'transcendental and immutable' and cannot be abridged by Parliament. It stated that an amendment is a 'law' under Article 13.
• 24th Amendment Act (1971): Parliament reacted by explicitly stating in Article 368 that it has the power to amend any part of the Constitution, including Fundamental Rights, and such amendments are exempt from Article 13.
• Kesavananda Bharati Case (1973): The most consequential ruling. The SC upheld the 24th Amendment but introduced the "Basic Structure Doctrine". Parliament can amend any part, but cannot destroy the basic structure or framework of the Constitution.
• 42nd Amendment Act (1976): Attempted to establish parliamentary supremacy by stating there are no limitations on the amending power and barring judicial review of amendments.
• Minerva Mills Case (1980): The SC struck down the absolute amending power and the bar on judicial review introduced by the 42nd Amendment, reaffirming that judicial review itself is a basic feature of the Constitution.

[!WARNING] Common Exam Traps:

• Joint Sittings: Remember, there is absolutely NO provision for a joint sitting for Constitutional Amendment bills. If there is a deadlock, the bill dies.
• State Initiation: State legislatures cannot initiate an amendment to the Constitution of India.
• Prior Permission: Unlike Money Bills, Constitutional Amendment Bills do NOT require the prior recommendation of the President to be introduced.
• Simple Majority ≠ Article 368: Adjustments like changing state boundaries are amendments, but they are conceptually "ordinary law" and fall outside the scope of the Article 368 procedure.
• The President's Veto: The President has zero veto power over a Constitutional Amendment bill. After the 24th Amendment (1971), it is mandatory for the President to give assent.