Procedure for Amendment of the Indian Constitution: A Step-by-Step Guide

The Indian Constitution's amendment process, outlined in Article 368, is designed to balance adaptability with stability, keeping pace with India's evolving socio-economic landscape.

The Indian Constitution, as the supreme law of the land, is a meticulously crafted document that upholds democratic principles, fundamental rights, and the rule of law. To remain relevant in a dynamic society, the Constitution includes a structured yet flexible amendment process under Article 368. This procedure for amendment of the Indian Constitution ensures that modifications can address new societal challenges and shifts in public policy, while maintaining stability. With legislative and, in some cases, state-level involvement, the amendment process accommodates India's diverse cultural, social, and economic fabric, enabling the Constitution to evolve without compromising its foundational principles. Since its inception, the Indian Constitution has been amended multiple times, reflecting the needs and aspirations of a continually progressing society.

Constitutional Provisions for Amendment

Article 368 of the Indian Constitution empowers the Parliament with the right to amend the Constitution. It lays down various procedures for the different kinds of amendments. Amendments may be proposed for several reasons, like ensuring effective governance, strengthening the rights of citizens, or including new values concerning the economy, society, or politics. The different types of amendments are distinguished according to the level of legislative support required, which reflects the significance of the proposed changes.

Types of Amendments

There are three types of amendments based on the majority required:

1. Simple Majority Amendments: Amendments that can be passed by a simple majority require only a majority vote of members present and voting in both Houses of Parliament. These are generally amendments that pertain to non-fundamental aspects of governance and administration. Such amendments are simple and do not engage Article 368.

Examples of Amendments requiring Simple Majority

• Admission or establishment of new states
• Change in boundaries or names of States
• Abolition or creation of Legislative Councils in states, etc.

2. Special Majority Amendments: The special majority amendments require a majority of the total membership of each House and a two-thirds majority of the members present and voting. This majority applies to provisions fundamental to governance and citizen rights.

Examples of Amendments requiring Special Majority

• Fundamental Rights
• Distribution of powers between the Union and the states
• Directive Principles of State Policy
• The Forty-second Amendment (1976)
• The Sixty-ninth Amendment (1991)

3. Special Majority of Parliament and Ratification by States: Some amendments demand a special majority in Parliament and ratification by at least half of the state legislatures. In general, such amendments concern the federal structure of the Constitution and require the assent of the states as they relate directly to the powers' distribution between the Union and state governments. There is no time limit within which the consent to the Bill by the states should be given.

Examples of Special Majority and State Ratification Amendments:

• Election of the President and its manner
• Any of the lists in the Seventh Schedule
• One Hundred and First Amendment (2016)

Procedure for Amendment

The three-stage process of amending the Indian Constitution is the introduction of the Bill, Discussion and Voting, and the President's Assent.

1. Introduction of the Bill: A bill for amendment can be introduced either in the Lok Sabha or in Rajya Sabha and can be introduced by any member of Parliament, including ministers and private members. However, it cannot be presented in any of the state legislatures.
2. Discussion and Voting: Once introduced, the amendment bill is debated and discussed in both Houses of Parliament. The requirement for the passage of the bill varies with the character of the amendments proposed:

• For Simple Majority Amendments: A simple majority.
• For Special Majority Amendments: A two-thirds majority of members present and voting along with a majority of the total membership is required in each House.
• For Amendments Involving State Ratification: After passage in Parliament, the bill must be ratified by at least half of the state legislatures. This requirement underlines the importance of state consent in amendments that alter the federal structure.

3. President's Assent: Once the amendment bill has been approved by Parliament and by the states if needed, it is presented before the President for assent. The assent of the President gives a bill the status of being a formal amendment to the Constitution.

Judicial Review of Amendments

The judiciary gives the utmost importance to deciding whether amendments to the Constitution have altered the “basic structure” of the Constitution. The term “basic structure doctrine” was coined because of the landmark judgement by the Supreme Court of India in Kesavananda Bharati v. State of Kerala (1973), wherein the Court decided that Parliament could not amend the basic structure of the Constitution.

Notable Cases

Kesavananda Bharati Sripadagalvaru & Ors. vs. State Of Kerala And Anr (1973)

Some of the key holdings of the Court are as follows:

• Article 368 contains the power as well as the procedure for amendment of the Constitution. Even before the 24th Amendment, the power was implicit, though the amendment made it express. Therefore, Parliament may amend the Constitution through the procedure as contained under Article 368.
• The procedure as contained under Article 368 is the only mode of amending the Constitution. This excludes alternative methods like referendums or constituent assemblies.
• The term “amendment” also covers additions, variations, and repeals. This the Court clarified by referring to the wording of other Articles such as Article 4, paragraph 7 of the Fifth Schedule, and paragraph 21 of the Sixth Schedule.
• Parliament, exercising the powers of a Constituent Assembly in amending the Constitution, does not enjoy the powers of the Union Legislature. The difference was driven by comparing an amendment procedure with normal parliamentary procedures, like a requirement of ratification in respect of certain amendments which must be obtained from no less than half of all the State Legislatures.
• The Court conceded that Article 368 itself might be amended, even including provisions concerning fundamental rights. This was well within the purview of the explicit provision contained in Clause (e) of the proviso to Article 368.

This decision explained that even though the Indian Constitution retained superiority over its structure, it provides for a structured and controlled procedure for amendments.

Indira Nehru Gandhi vs. Shri Raj Narain & Anr (1975)

In this case, the Court discussed the power of amendment under Article 368 and the concept of basic structure. The Court held that:

• While Parliament has the power to amend the Constitution, this power is not absolute and cannot alter the basic structure of the Constitution.
• The basic structure incorporates the concept of democracy, the rule of law, and the separation of powers.
• The concept of basic structure acts as a restraint upon the amending power.
• Judicial review is a very prominent component of the basic structure that ensures free and fair elections.

Minerva Mills Ltd. & Ors vs. Union Of India & Ors (1980)

The Court in Minerva Mills discussed the process of amending the Indian Constitution, especially clauses (4) and (5) of Article 368 introduced by the 42nd Amendment. The Court held that these clauses were unconstitutional as they attempted to vest unlimited power in the Parliament to amend the Constitution, thereby nullifying the principle of a limited amending power that had already been established in the Kesavananda Bharati landmark case.

Following is the breakdown of the findings of the Court:

• Clause (4) sought to strip the power of judicial review of Constitutional amendments. The Court argued that this would make fundamental rights meaningless because they would lack redress. Moreover, it would make Article 13 which establishes the supremacy of the Constitution over inconsistent laws, ineffective.
• Clause (5) stated that there was no limitation on Parliament's amending power, an attempt to override the 'basic structure doctrine' introduced by Kesavananda Bharati. According to this doctrine, the parliament could amend the Constitution but could not alter its basic structure. The Court reaffirmed the fact that since Parliament is a creation of the Constitution, it could not enjoy unlimited powers of amendment.

According to the Court, clauses (4) and (5) aimed to overthrow the principle of basic structure since they confer absolute amending power upon Parliament and could thereby amend even the basic structure of the Constitution.

The Court concluded that by upholding clauses (4) and (5), India's controlled Constitution wherein power is distributed and limited would turn into an uncontrolled one concentrating absolute power in the Parliament.

Waman Rao And Ors vs. Union Of India (Uoi) And Ors. (1980)

The Court held that Article 368 provides the process to amend the Indian Constitution. The Parliament was authorised to amend any provision of the Constitution by addition, variation, or repeal. However, Article 13 does not apply to these amendments.

In the case of Minerva Mills, the Court declared Clauses (4) and (5) of Article 368 unconstitutional. These clauses, introduced by the 42nd Amendment, had tried to restrict judicial review and expand Parliament's amending power. The Court found the clauses damage basic features of the Constitution like judicial review and the idea of limited amending power.

Hence, the power of the Parliament to amend the Constitution is not absolute. The power to amend the Constitution vests in the Parliament, but it is subjected to judicial review. An amendment cannot damage or destroy the basic structure of the Constitution.

Notable Amendments

Following are some of the amendments that had a great influence on Indian polity and society:

• 1st Amendment, 1951: It added the Ninth Schedule to the Constitution which provided a list of Central and State laws that cannot be challenged in Courts.
• 42nd Amendment, 1976: Called as the “mini-Constitution,” it made wide-ranging alterations to the Constitution. It also introduced Fundamental Duties and certain alterations in the Preamble of the Constitution.
• 44th Amendment, 1978: It replaced the term ‘internal disturbance’ with ‘armed rebellion’ which was related to the National Emergency. It also deleted the Right to Property from the Fundamental Rights and made it a legal right.
• 61st Amendment, 1988: It decreased the voting age from 21 years to 18 years.
• 101st Amendment, 2016: Introduced GST to simplify the structure of indirect tax by providing one uniform tax throughout the country.
• 103rd Amendment, 2019: Provided 10% reservation for Economically Weaker Sections

Limitations of Procedure of Amendment of the Constitution

Although the procedure for amendment of the Constitution is comprehensive and flexible in many respects, it has very notable legal as well as practical limitations. Some of the key limitations that characterise the amendment process are the following:

• Judicial Review and the Basic Structure Doctrine: The Basic Structure Doctrine, as enunciated by the Kesavananda Bharati case circumscribes the power of Parliament to amend the Constitution. This denies Parliament the freedom to make alterations that might change the essence of democratic and Constitutional principles.
• Role of Political Considerations and Consensus Requirements: Considering that some amendments require a two-thirds majority, or even ratification by all states, political support in terms of party lines and state regions is required. Political opposition and absence of consensus can be a bottleneck to amend crucial topics such as fundamental rights or federal relations.
• Absence of Popular Involvement: Unlike some Constitutions that mandate referendums or public participation in the process of making significant amendments, the Indian Constitution does not involve citizens' direct participation in the amendment process. This procedure restricts the role of the public in Constitutional changes, which might otherwise ensure greater legitimacy and popular sentiment.

Practical Impact of The Amendment Process

The amendment process allows for democratic flexibility in response to the dynamic needs of the society. Simple amendments provide administrative changes, while special and state-ratified amendments ensure strong deliberations for matters that affect federalism or individuals' rights. Allowing different amounts of legislative support through the amendment process prevents arbitrary changes, and thus maintains the integrity of the Constitution.

Conclusion

The procedure for amendment of the Indian Constitution is essential for ensuring both stability and adaptability in the country’s governance framework. By balancing core principles with the flexibility to address new societal needs, the amendment process helps the Constitution remain relevant in a changing world. The judiciary’s power to review amendments safeguards the integrity of these changes, ensuring they align with the Constitution’s core democratic values. This structured procedure reflects India’s commitment to Constitutional democracy, allowing it to evolve while upholding its foundational ideals amidst modern challenges.