(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
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
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
- 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
- Government accepting the recommendations of the Finance Commission
Formal and Perceptible method
It refers to an amendment according to the procedure laid down in the
Before we discuss it,lets find out three types of majority:
- Simple Majority = ½(Members present & voting) +1
- Absolute Majority = ½(Total membership of the house) ⇒ 273 for LS,123
- Special Majority = ⅔(Members present & voting) +1 & Absolute Majority
,whichever is larger.
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
Amendment by Simple majority:
- Creation of new states,changing name or boundary of a state
- Abolition or creation of Legislative Council in states.
- 2nd Schedule,5th Schedule ,6th Schedule
- Quorum in parliament
- Salaries of MPs
- Rules of procedure in parliament
- Privileges of Parliament,its members,its committees.
- Use of english language in Parliament
- Conferment of more jurisdiction to Supreme Court
- Elections to parliament and state legislatures
- Delimitation of constituencies
- 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
the members of that House present and voting and a
- 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
- 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
- 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).