From a young age, Indians are taught to take pride in their country and their Constitution. The Constitution of India sets the tone of the country’s polity, establishes the framework for the functions of different organs, and lays down the nature of the relationship among them. It supersedes any provision made by the Parliament of India that may contrast to the provisions mentioned in the Constitution.
The Indian Constitution, framed by the Drafting Committee and passed on 26 November 1949, is considered to be one of the lengthiest constitutions worldwide. On 26 November 1949, the Constitution had 395 articles and 12 schedules; with different amendments, as there is no limitation on the numbers of amendments, the provisions in the Constitution have increased and are still growing. The drafters of the Indian Constitution had many arrangements influenced by various constitutions around the world; those provisions had been moulded by the framers of the Indian Constitution to fit the needs of the country.
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The Constituent Assembly on Amendments of Constitution
The Constitution lays down the basic structure of the country, and it is vital for it to steadily change with time lest it halts the growth of the country; on the flip side, it should be solid enough to facilitate the steady growth of the country and the welfare of the countrymen. To answer this dilemma, the drafting committee made the amending process of the Indian Constitution partly flexible and partly rigid. There are three established procedures to amend the Constitution- one with a simple majority, second with a special majority and, the third with the special majority and ratification by a minimum of one-half of the state legislatures. This stance of the drafting committee was a subject to debate among the members of the Constituent Assembly. Many believed it to be ironic if the constituent assembly, not an elected board, passed the Constitution with a simple majority. In contrast, the future Parliament, elected on adult suffrage, the true representative of the people of India, will have a complicated procedure to amend the same Constitution. B.R. Ambedkar had argued that the members of the constituent assembly did not represent any party and had no motivation for personal gain. Conversely, the members of future Parliament representing various parties might harbour partisan motives and work on amendments to promote their party measures; at this phase, the partly rigid nature of the amending process would come to play and check the abuse of the authority[i].
Nature of the Process of Amendment
The partly flexible and partly rigid nature of the amending process is singular; it can be referred to as a hybrid of the ‘theory of fundamental law’ from the United States of America and the ‘theory of parliamentary sovereignty’ from the United Kingdom. The three amending processes are subject to the particular article up for Amendment. The Bill for the Amendment can be introduced to any of the two houses of Parliament, Rajya Sabha or Lok Sabha. When passed by one of the houses with the required votes, the Bill is introduced to the other House. There is no provision of a joint sitting of Lok Sabha and Rajya Sabha over any disagreement arising out of the Bill. If ratification by the state legislatures is required, it is customarily done before presenting the Bill for presidential assent as the President of India is the third part of the Indian Parliament. After the presidential approval, the Bill becomes a Statute.
Types of Amendment Procedures
With a Simple Majority
As mentioned above, there are three categories of amendments followed by the Indian legislature. The first category requires a simple majority of the House. Articles 4 (2), 169, 239A (2), 239AA (7b), 243M (4b), 243ZC (3), 244A (4), 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI [ii] when amended are passed through this category.
The Parliament executes amendments to these articles by a simple majority which is otherwise the specification required to pass any other ordinary law. However, the amendments made under this category are not considered under article 368 of the Constitution. Article 368 of the Constitution deals with the amending process of the specific power and procedures of the Indian Constitution. Article 4 of the Constitution states that any law made by the Indian Parliament under Articles 2 and 3 (admission of new states, and formation of new states, alteration of areas or boundaries of existing states, respectively). For the Amendment of the First schedule or Fourth or supplemental, incidental and consequential provisions schedule will not be considered an Amendment of the Constitution for Article 368.
With a Special Majority
The second category of Amendment is the one with a special majority and then the assent of the President of India. Article 368 of the Indian Constitution defines a special majority as the majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. The article states that nothing in article 13 shall apply to any amendment made under the article 368. Article 368 (1) states that Parliament may in the exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution following the procedure laid down in this article.
With a Special Majority and Ratification of the State Legislatures
The third category is the one with a special majority with the ratification from the one-half of the state legislatures. Article 368 (2) itself provides a list of articles, chapters, schedules and parts of the Constitution whose Amendment needs a special majority and ratification from one-half of the state legislatures and then for the assent of the President of India for it to be constitutional. The list contains: (a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article [iii]. It is essential to note clauses (4) and (5) of the article state that no amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty Second Amendment) Act, 1976] shall be called in question in any court on any ground[iv]. There shall be no limitation whatsoever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article respectively[v]. Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively; Clauses (1) and (2) inserted in the year 1971 and (4) and (5) in 1976.
First and Latest Amendments to the Constitution
Though there might be many Bills for the Constitutional amendments, all do not see the light of the day, many lapses. There have been 104 amendments in the Indian Constitution as of January of 2020. The first amendment to the Constitution was around one year after the Constitution was adopted and India had become a republic. The First Amendment to the Constitution of India was enforced on 10 May 1951; it added the special provision for the advancement of any socially and educationally backward classes. The Amendment also put the effort to try to secure the constitutional validity of zamindari abolition laws fully and to place a reasonable restriction on freedom of speech, a fundamental right enshrined in the Constitution; Schedule 9 was introduced to protect against laws that are contrary to the Constitutionally guaranteed fundamental rights. These laws infringe upon property rights, freedom of speech and equality before the law. The latest Amendment to the Constitution, 104th when serialised, was enforced from 25 January 2020. This Amendment removed the reservation of the seats for Anglo-Indians in the Lok Sabha and State Legislatures. It also increases the period of the reservation of the seats of Scheduled Castes and Scheduled Tribes in the Lok Sabha and State Legislatures.
The stance of Indian Judiciary and Indian Parliament on the Amendments
The Amendment of the Constitution has always been a topic of contention between the Indian Parliament and Indian Judiciary; the conflict involving Parliamentary Supremacy on the one hand and the other Judicial review of the Scope and extent of the power and how much power is to be exercised. As mentioned above, any amendment that transgresses Article 13 will be void. The Supreme Court, for the first time, struck down a constitutional amendment in the year 1967 as it infringed the provision provided in article 13.[vi] In the Kesavananda Bharati v. State of Kerala[vii], the Supreme Court stated that the Parliament should not try to corrupt and alter the basic structure and a few fundamental features of the Constitution. The Parliament enacted the 42nd Amendment where it was mentioned ‘there shall be no limitation whatever on the constituent power of Parliament to amend …this Constitution’. This statement was later overturned in the case of Minerva Mills v. Union of India[viii]. Thus, the amendment process and its rigidity or flexibility are highly dependent on the nature of the part of the Constitution to be amended.
[i] Constituent Assembly of India Debates (Proceedings)- Volume VII. 4th November 1948.
[ii] The Constitution of India.
[iii] The Constitution of India, art. 368.
[iv] The Constitution of India, art. 368 (4).
[v] The Constitution of India, art. 368 (5).
[vi] 1967 AIR 1643, 1967 SCR (2) 762.
[vii] 1973 4 SCC 225.
[viii] AIR 1980 SC 1789
Setakshi Pratha | Rajiv Gandhi National University of Law, Punjab