JAMIA MILLIA ISLAMIA

FACULTY OF LAW

NAME – SHANTANU AGNIHOTRI

COURSE – B.A. LLB (HONS.)
SEMESTER II

ROLL NO- 57

SUBJECT – POLITICAL SCIENCE

THEME – AMENDING THE CONSTITUTION

SUBMITTED TO: Dr. MOMIN NOORJAHAN

A
mendment, in government and law, an addition or alteration made to a constitution,
statute, or legislative bill or resolution. Amendments can be made to existing
constitutions and statutes and are also commonly made to bills in the course of their
passage through a legislature. Since amendments to a national constitution can fundamentally
change a country’s political system or governing institutions, such amendments are usually
submitted to an exactly prescribed procedure.i

Like any other written constitution, the Constitution of india also provides for its amendment in
order to adjust itself to the changing conditions and needs. However, the procedure laid down for
its amendment is neither as easy as in Britain nor as difficult as in USA. In other words, the
Indian Constitution is neither flexible nor rigid but a synthesis of both.

The procedure of amendment in the constitution is laid down in Part XX (Article 368) of
the Constitution of India. This procedure ensures the sanctity of the Constitution of India and
keeps a check on arbitrary power of the Parliament of India.

However, there is another limitation imposed on the amending power of the constitution of India,
which developed during conflicts between the Supreme Court and Parliament, where Parliament
wants to exercise discretionary use of power to amend the constitution while the Supreme Court
wants to restrict that power. This has led to the laying down of various doctrines or rules in
regard to checking the validity/legality of an amendment, the most famous among them is
the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda
Bharati vs State of Kerala. ii

Restriction on Parliament’s Amendment powers: The framers of the Constitution were so

intellect that they know that if they choose flexible Amendment procedure, the ruling party can
use that procedure as their weapons so they adopted a middle course. They made the procedure
neither too rigid nor too flexible. if the parliament wants to make any changes or amend the
Constitution they have to propose the bill in the parliament and after the voting if the bill gets the
majority, the bill will be sent to the president for his consent after the consent of the president the
bill got passed and the Amendment completes, but this powers are not absolute.
The procedure for the amendment of the Constitution as laid down in Article 368 is as
follows: An amendment of the Constitution can be initiated only by the introduction of a bill for
the purpose in either House of Parliament (Lok Sabha & Rajya Sabha) and not in the state
legislatures. The bill can be introduced either by a minister or by a private member and does not
require prior permission of the president. The bill must be passed in each House by a special
majority, that is, a majority (that is, more than 50 per cent) of the total membership of the House
and a majority of two-thirds of the members of the House present and voting. Each House must
pass the bill separately.

In case of a disagreement between the two Houses, there is no provision for holding a joint
sitting of the two Houses for the purpose of deliberation and passage of the bill. If the bill seeks
to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of
half of the states by a simple majority, that is, a majority of the members of the House present
and voting. After duly passed by both the Houses of Parliament and ratified by the state
legislatures, where necessary, the bill is presented to the president for assent. The president must
give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for
reconsideration of the Parliament. After the president’s assent, the bill becomes an Act (i.e., a
constitutional amendment act) and the Constitution stands amended in accordance with the terms
of the Act.iii

A brief description of the above types of amendments in Indian Constitution has been laid
down By Simple Majority of Parliament- A number of provisions in the Constitution can be
amended by a simple majority of the two houses of Parliament outside the scope of Article 368.
These provisions include: Admission or establishment of new states. Formation of new states and
alteration of areas, boundaries or names of existing states. Abolition or creation of legislative
councils in states. Second Schedule-emoluments, Allowances, privileges and so on of
the president, the governors, the Speakers, judges, etc.
By Special Majority of Parliament-The majority of the provisions in the Constitution need to
be amended by a special majority of the Parliament, that is, a majority (that is, more than 50
percent) of the total membership of each House and a majority of two-thirds of the members of
each House present and voting. The expression ‘total membership’ means the total number of
members comprising the House irrespective of the fact whether there are vacancies or absentees.

The special majority is required only for voting at the third reading stage of the bill but by way
of abundant caution, the requirement for the special majority has been provided for in the rules
of the Houses in respect of all the effective stages of the bill. The provisions which can be
amended by this way include: (i) Fundamental Rights; (ii) Directive Principles of State Policy;
and (iii) All other provisions which are not covered by the first and third categories.

By Special Majority of Parliament and Consent of States-Those provisions of the

Constitution which are related to the federal structure of the polity can be amended by a special
majority of the Parliament and also with the consent of half of the state legislatures by a simple
majority. If one or some or all the remaining states take no action on the bill, it does not matter;
the moment half of the states give their consent, the formality is completed. There is no time
limit within which the states should give their consent to the bill. The following provisions can
be amended in this way: Election of the President and its manner. Extent of the executive power
of the Union and the states. Supreme Court and high courts.iv

Criticisms of the amendment procedure of the Indian Constitution- There is no provision for
a special body like Constitutional Convention (as in USA) or Constitutional Assembly for
amending the Constitution. The power is vested in the Parliament and only in few cases, in the
state legislatures. The state legislatures cannot initiate any bill or proposal for amending the
Constitution except in one case, that is, passing a resolution requesting the Parliament for the
creation or abolition of legislative councils in the states.Here also, the Parliament can either
approve or disapprove such a resolution or may not take any action on it. In few cases, the
consent of the state legislatures is required and that too, only half of them, while in USA, it is
three-fourths of the states. The Constitution does not prescribe the time frame within which the
state legislatures should ratify or reject an amendment submitted to them. Also, it doesn’t talk on
the issue whether the states can withdraw their approval after according the same. There is no
provision for holding a joint sitting of both the Houses of Parliament if there is a deadlock over
the passage of a constitutional amendment bill. The process of amendment is similar to that of a
legislative process except for the special majority. The provisions relating to the amendment
procedure are too ambiguous. Hence, they leave a wide scope for taking the matters to the
judiciary. Despite these defects, it cannot be denied that the process has proved to be simple and
easy and has succeeded in meeting the changed needs and conditions. The procedure is not so
flexible as to allow the ruling parties to change it according to their moods and not so rigid as to
be incapable of adapting itself to the changing needs. v

i
https://www.britannica.com/topic/amendment
ii
M Laxmikanth-INDIAN POLITY, Sixth edition, McGraw Hill Education Pvt. Ltd.(2020)
iii
https://byjus.com/free-ias-prep/types-of-amendment/
iv
M Laxmikanth-INDIAN POLITY, Sixth edition, McGraw Hill Education Pvt. Ltd.(2020)
v
Durga Das Basu, Introduction to the Constitution of India, 22nd edition, LexisNexis(2015)