(Sample Material) IAS PRE GS Online Coaching : Polity - "Constitution Amendment"

(Sample Material) IAS PRE GS Online Coaching

Polity - "Constitution Amendment"

Constitution reflects the aspirations and needs of the people of the country. It has to be a dynamic document giving shape to the popular aspirations as they evolve from time to time. It has to facilitate socio-economic change and national security. Therefore, all constitutions provide for built-in procedures for amendment. Such procedures can be rigid or flexible. Rigid procedure is elaborate, difficult and special. It is a characteristic of federal Constitutions where the Constitution involves distribution of powers to the two levels of government and so can be amended only when both the tiers of government accept the same. Rigidity, thus, usually involves ratification by state legislatures. However, only federal provisions are covered by the rigid procedure and not the non-federal parts of the Constitution.

Flexibility means passing an amendment Bill in the same manner as an ordinary Bill. Indian Constitution has a combination of both.

Constitutions undergo amendments informally (imperceptibly) and formally (perceptibly). In the former method, there are two ways

• Judicial pronouncements
• Conventions

Supreme Court of India has contributed to the evolution of constitutional amendment in a significant way verdicts. Some important rulings are-

• Introduction of the doctrine of Basic features of the Constitution and the ruling that they can not be amended by the Parliament (Keshavananda Bharati case verdict of the Supreme Court 1973).
• FRs and DPSPs are complementary and such balance between the two Parts of the Constitution can not be disturbed (Minerva Mills case verdict 1980).
• Territory can not be ceded except by an amendment Act (Berubari case 1960)
• Even though Art.361 gives Governor of a state immunity from judicial review, judiciary has the right to invalidate any wrong and malafide actions that a Governor may take (Bihar assembly dissolution case 2006).

Conventions and Constitutional change

Conventions are a set of unwritten rules that have come to be accepted as having the force of law. British Constitutional expert Dicey is of the opinion that conventions can not be enforced by courts as they are unwritten. But there is also an opinion that they are enforceable and; there is no distinction between Constitutional law and an established Constitutional convention and the latter is enforceable if it is long established (Justice Kuldip Singh, former judge of Supreme Court of India).

Some conventions in India in the field of Constitution and governance are:-

• Prime Minister hails from the Lok Sabha
• President dissolves the Lok Sabha on the advice of the Union Council of Ministers
• Government accepting the recommendations of the Finance Commission

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Formal and Perceptible method

It refers to an amendment according to the procedure laid down in the Constitution.

Before we discuss it,lets find out three types of majority:

1. Simple Majority = ½(Members present & voting) +1
2. Absolute Majority = ½(Total membership of the house) ⇒ 273 for LS,123 for RS
3. Special Majority = ⅔(Members present & voting) +1   & Absolute Majority ,whichever is larger.

Art.368

The Constitution amendment process is given in Art.368 in which two methods of amendment are mentioned.
One category of amendments are those which can be made by Parliament by the prescribed ‘special majority’. The second category of amendments require ratification by at least one half of the State Legislatures after being passed by a special majority by each House of the Parliament.

But some other provisions of the Constitution can be amended by Simple  Majority.but these amendments are not deemed to be amendments of the Constitution for the purpose of Article 368.Therefore Constitution can be amended in three ways:

1)Simple Majority of Parliament

2) Special Majority  of Parliament

3) Special Majority of Parliament & by ratification by half of the states by simple majority

Amendment by Simple  majority:

1. Creation of new states,changing name or boundary of a state
2. Abolition or creation of Legislative Council in states.
3. 2nd Schedule,5th Schedule ,6th Schedule
4. Quorum in parliament
5. Salaries of MPs
6. Rules of procedure in parliament
7. Privileges of Parliament,its members,its committees.
8. Use of english language in Parliament
9. Conferment of more jurisdiction to Supreme Court
10. citizenship
11. Elections to parliament and state legislatures
12. Delimitation of constituencies
13. Union Territories

Amendment by special majority

A Bill seeking to amend any other provision of the Constitution has to be passed in each House of Parliament by a special majority which means

• A majority of not less than two-thirds of

• Absolute Majority i.e.Majority of the ‘total membership of that House. Total membership means total number of members comprising the House irrespective of any vacancies or absentees on any account Special majority is required at all stages of the passage of the Constitution Amendment Bill, according to Rules of Lok Sabha, like
• Consideration
• Reference to the Parliamentary Committee
• Adoption of the recommendations of the Committee
• Each clause that is taken up
• Amendments to each clause
• Voting in the third and final stage.

The provisions which can be amended by special majority are 1) FRs 2) DPSP  3)All other provisions which are not covered by first and third category.

 By special Majority of parliament & Ratification by states All provisions of the Constitution can be amended by a special majority in the parliament except the ‘federal provisions’. They require amendment by special majority of Parliament  and  by ratification by  half of State Legislatures by simple majority. The following features fall in this category:

• Manner of election of the President
• Extent of the executive °power of the Union and the States
• Supreme Court and the High Courts; high Courts in UTs
• Distribution of legislative powers between the Union and States (Seventh Schedule)
• The representation of States in Parliament
• Very procedure for amendment as specified in the Constitution (Art.368)

In the above cases, the amendment, after it is passed by the special majority has also to be ratified by Legislatures of not less than one-half of the States by resolutions by a simple majority before the Bill is presented to the President for assent. The Constitution does not contemplate any time-limit within which the State Legislatures should ratify the amendments referred to them.

The Bill in respect of the Constitution (Fifty-second Amendment) Act, 1985, popularly known as the Anti-Defection Law was not ratified by the State Legislatures. In the Kihoto Hollohan case, the Supreme Court upheld the validity of the Tenth Schedule but declared its paragraph 7 invalid for want of ratification by State Legislatures as the law against defections affects States too; and further that it restricted judicial review and so needs state legislatures to ratify the Bill. While doing the apex court treated paragraph 7 as severable part from the rest of the Schedule. (Doctrine of Severability).

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