Constitutional Amendment Process: Brief Analysis

In this article, we will discuss the constitutional amendment process in India in a simple and easy way and try to understand its important aspects.

So to understand well, definitely read this article till the end and also read other articles related to this topic.

For the existence of the constitution, it becomes necessary to mold the constitution in the same way with changing times, circumstances, needs and ambitions etc. That is why the constitution is amended.

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| Introduction to Constitutional Amendment Process

Having a constitution in a country makes some basic things very clear, such as who has to do what and what not, what things can be done when and when not etc.

But with the change of time and situation, the needs, ambitions etc. of people keep on changing. And in such a situation, there is a need to change the rules-law or system accordingly.

One of the reasons why people still have reverence in the Indian Constitution is that it is able to mold itself according to the need. And it is efficient because it is neither too rigid nor too flexible to modify.

In other words, the Indian Constitution amendment process is sometimes rigid and sometimes flexible depending on the nature of the law or provisions. Yet it is not so rigid as the American system that only 27 amendments take place in 200 years and it is not so flexible as the British constitutional system to amend whenever it wants. And speaking of France, five times the constitution has been changed there.

How rigid or how flexible is the Indian Constitution amendment process, it can be gauged from the fact that in almost 73 years, when I am writing this article, 104 Constitutional amendments have been done. That is why it is also called mixed Amendment process.

| constitutional provision

Article 368 of Part 20 of the Constitution empowers Parliament to make additions, changes or cancellations of any provision of the Constitution. Yes but except in the basic structure of the constitution.

In fact, in 1973, the Supreme Court, while hearing the Kesavananda Bharati case, gave a new principle, which is called the principle of the basic structure of the constitution. Under this, a condition was added in the constitutional amendment process that the Parliament could never amend the basic structure of the constitution. Because without basic structure there would be no constitution which came into force on 26 January 1950. Overall, this decision made the constitutional amendment a bit harsh so that the Parliament could not break the foundation of the constitution.

| constitution amendment bill

There is a difference between making a completely new law and amending a made law. Although both would have been in the same place, in the Parliament. Actually, to amend the constitution, that amendable part has to be introduced in the house in the form of a bill.

Mainly four types of bills are introduced in the Parliament – Ordinary Bill, Money Bill, Finance Bill and Constitution Amendment Bill . The process of amending the Constitution begins with the laying of this Constitution Amendment Bill on the Table of the House.

| Constitutional Amendment Process

Article 368 deals with the constitutional amendment process. Which is the following –

1. The work of amending the constitution can be done only by introducing a constitution amendment bill in either house of the parliament. This cannot be done in a state legislature.

2. A certain Constitutional Amendment Bill can be laid on the Table of Parliament by a Minister or a private member. It does not require the approval of the President.

3. It is mandatory for the amendment bill to be passed by both the houses with a special majority . And at the same time, it is necessary to get the bill passed separately in each house. Because there is no arrangement like joint sitting of both the houses.

4. After it is passed by a special majority in both the houses, it is sent to the President for his assent. (Though sometimes it is sent first to the State Legislature, then to the President. When it is sent is discussed further)

5. The President has to give his assent, he can neither keep the bill with him nor send it to the Parliament for reconsideration.

6. After the President’s assent, the Amendment Bill becomes an Act. Like any other Act, it also becomes a part of the Constitution.

In how many ways can the Constitution be amended?

According to Article 368, two types of amendment have been arranged – 1. by a special majority of the Parliament, and 2. by a special majority of the Parliament as well as by the recommendation of half the State Legislature.

1. By special majority of the Parliament

Most of the provisions of the Constitution are amended by a special majority of the Parliament. Special majority means a majority (50%) of the total members of each house and two-thirds majority of those present and voting in the house on that day.

Example – If we talk about Lok Sabha, then there are total 545 members. Its simple majority is 273. Now let’s assume that only 420 members are present in the house on the day the voting is to be held and all of them will participate in the voting, then there should be a two-thirds majority of all of them. That is, the consent of 280 members. This is what a special majority is.

Fundamental Rights, Directive Principles of State Policy, etc., are amended under this system. Also all those provisions not falling under the categories ‘by simple majority’ and ‘by special majority + recommendation from half the states’; amended under this arrangement.

2. By a special majority of the Parliament as well as the recommendation of half the State Legislature

Any amendment related to the federal structure of India requires the approval of at least half of the state legislatures along with a special majority of the Parliament. Remember here that in the state legislature, work is done only by a simple majority.

The following topics related to the federal structure can be seen-

The election of the President and its procedure. (Articles 54 and 55)
️ Extension of the powers of the Central and State Executive. (Articles 73 and 162)
Supreme Court and High Court. (Article 241, Chapter 4 of Part 5 of the Constitution and Chapter 5 of Part 6)
Division of legislative powers between the Center and the State. (Chapter 1 of Part 11 of the Constitution)
Any matter relating to the Seventh Schedule.
Representation of States in Parliament
The power of Parliament to amend the Constitution and the procedure for the same (Article 368).

Read to Understand Majority – types of majority

Remember here-

There is also another type of amendment which is called ‘ Amendment by simple majority of Parliament ‘. But it does not come under Article 368. Simple majority simply means the total members present or more than 50 percent of the members participating in the voting. That is, at least 51 out of 100. The following subjects are covered under this:-

(a) the entry of new states into the Indian Union or the formation of new states by changing the boundaries of the existing states or change in the names of the states. (Articles 2, 3 and 4)

(b) the creation and abolition of the State Legislative Council (Article 169).

(d) the administration of tribal areas in the States of Assam, Meghalaya and Mizoram (para 21 of the Sixth Schedule).

(e) Quorum in Parliament

(f) Salaries and allowances of Members of Parliament and privileges of Parliament, its members and its committees

(g) Acquisition and termination of citizenship

(h) Elections to Parliament and State Legislatures, etc.

Criticism of the constitutional amendment process

1. State Legislature is not required for amendment of most parts of the Constitution. This gives a kind of monopoly to the Parliament.

2. There is no provision for joint sitting of both the Houses in case of deadlock on the issue of constitutional amendment whereas such arrangement has been made in the case of an ordinary bill.

3. With the introduction of the principle of the basic structure of the Constitution, the Supreme Court has got extensive powers of judicial review, which works to curtail the powers of the Parliament in the matter of constitutional amendment.

Despite all this, however, the Indian Constitution amendment process strikes a fine balance between rigid and flexible.