Q.

What is the procedure for amending the

constitution? On what grounds an
amendment may be held ultra vires by the
Supreme Court?
A rigid constitution is a must in a federal system of governance. In case of Indian constitution, it
has been argued that it is not rigid enough. That there have been 93 amendments in last 50
years proves this fact. As a comparison, there have been only 27 amendments in the
constitution of USA in the past 200 years. This has been done deliberately to ensure that the
constitution can be changed as per the needs of the times. However, to prevent excessive
changes on the whims of the ruling party, sufficient safeguards have been put.

The procedure of amending the constitution is given in Article 368. It says that the parliament
can amend the constitution under its constituent power. A bill must be presented in either house
of the parliament and must be approved by a majority of each houses and not less than 2/3
majority of each house present and voting. After such approval the bill is presented to the
president for his assent, upon whose assent the constitution shall stand amended as per the
provisions of this article. However, if the amendment seeks to make a change in

Articles 54, 55, 73, 162, or 241

Chapter 4 of part 5, chapter 5 of chapter 6, or chapter 1 of part 11
any of the lists in the 7th schedule
representation of the states in the parliament
in this article itself

the bill must also be ratified by not less than half of the states before it is presented to the
president for his assent.

For amending articles 5, 169, or 239-A, only a simple majority of both the houses of the
parliament is required.

Power of the parliament to amend the constitution

There has been a lot of controversy on the power of the parliament to amend the
constitution. Article 13 of the original constitution said that the state shall not make any law that
takes away or abridges the rights given to the citizens in Part III and any such law made in
contravention of this article shall be deemed void to the extent of contravention. Thus, it seemed
that parliament cannot amend the constitution in a way that takes away the fundamental rights
of the citizens.

This logic was first tested by the Supreme Court in the case of Shankari Prasad vs Union of
India AIR 1951. In this case, an amendment to add art 31 A and 31 B to the constitution was
challenged on the ground that they take away fundamental right of the citizens and therefore not
allowed by article 13. It was argued that "State" includes parliament and "Law" includes
Constitutional Amendments. However, SC rejected the arguments and held that power to
amend the constitution including fundamental rights is given to the parliament by art 368 and
that "Law" is art 13 refers only to ordinary law made under the legislative powers.

In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the judgement given in the
case of Shankari Prasad and held that the words "amendment of the constitution" means
amendment of all provisions of the constitution.

However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC reversed its previous
judgement and held that parliament has no power from the date of this judgement to amend part
III of the constitution so as to take away any fundamental right. It held that "amendment" is a law
as meant under art 13 and so is limited by art 13(2).

To overcome the judgement in the case of Golak Nath, the parliament added another clause in
art 13by the 24th amendment in 1971 It says that this article does not apply to the amendment
of the constitution done under art 368. A similar clause was added in art 368 for clarity in the
same amendment, which says that amendment done under art 368 shall not come under the
purview of art 13.

This amendment itself was challenged in the case of Keshavanand Bharati vs State of Kerala
AIR 1973. In this case, SC reversed its judgement again and held that "Law" in art 13 only
means ordinary law made under legislative power, The 24th amendment is only clarifying that
position and so it is valid. However, it further held that "amendment" means that the original
spirit of the constitution must remain intact after the amendment. Thus, the basic structure or
features of the constitution cannot be changed. According to C J Sikri, the basic structure of the
constitution includes - Supremacy of the Judiciary, democratic republic, secularism, separation
of powers among judiciary, legislative, and the executive, and the federal character of the
constitution.

This judgement was delivered by 7:6 majority and is one of the most important judgements in
the history of independent India. The effect of this judgement can be seen in the case of Indra
Sawhney vs Union of India 1993, where SC prevented the politicians from running amok in the
matter of reservation. It this case it held that inclusion of creamy layer violates the fundamental
right of equality, which is a basic feature of the constitution and so its inclusion cannot be
permitted even by constitutional amendment.

Conclusion
During Constituent Assembly Discussions, it was noted that rigid constitutions such as that of
USA cause a lot of problems and is undesirable. Dr. Ambedkar said that flexible federation is a
distinguished feature of the constitution. In the hindsight, it can be said that the safeguards to
prevent the spirit of the constitution were not enough. Politicians have time and again shown
that they can modify it easily to serve their vote based politics.