Analysis of amendment procedure in the

Constitution : dynamic or outdated

By
 Ayush Verma
 -
November 15, 2020
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This article is written by Khyati Basant, from Symbiosis Law School, Noida. This article gives a brief analysis of the
amendment procedure.

Table of Contents
 Introduction 
 The Indian Constitution 
 Constitutional amendment in India 
 Procedure for a constitutional amendment 
o Simple majority 
o Special majority 
o Ratification by State 
 Basic structure of the Constitution 
 Conclusion 
 Reference 
Introduction 

Like the other Constitutions, the Indian Constitution is in the form of a written document. We all know that the
moment a State’s constitution is reduced to paper, the amending clause has taken considerable changes as it is so
much the purpose of the Constitution. In a nation like India which is democratic, the Constitution is defined as
superior or supreme law with greater efficiency, authority and higher sanctity than ordinary legislation and greater
permanence. The meaning of a written constitution is in the way it amends.

The Constitution can be split into two – regulated and unregulated procedural. Where the Constitution is sovereign
and the government is a legislative entity with limitations on its authority, the statutes are liable to be stuck as
ultra vires if they break legislative law, it can be considered a ‘regulated State’. The authority of the legislature to
filter the Constitution of such a state is either limited or inexistent. On the other hand, in an ‘unregulated
constitution’ such as that of the United Kingdom, where the parliament is sovereign and has absolute authority, the
constitutional rule can be changed simply by enacting legislation following it. The Indian Constitution is managed,
the power to amend it requires a great deal of wisdom and minimal effort as the cases where the same is
concerned require a great deal of effort. 

India’s constitution lays out the basis on which Indian polity is ruled. The Constitution declares India to be an
independent, democratic socialist republic, promising order, dignity and freedom for its people. This was approved
on 26 November 1949 by India’s Constituent Assembly and came into force on 26 January 1950. India celebrates
Republic Day on 26 January each year. It is the longest written constitution in the history of any sovereign country,
with 395 articles and 12 schedules, as well as various revisions, for a total of 117,369 words in the English
language version.

The Indian Constitution 

The Constitution is a dynamic document. Although this Constitution is as strong and enduring as we want it to be,
there is no longevity. What we can do today might not be entirely applicable tomorrow. Government pattern must
change and the constitution must adapt itself to the economic and social development of the nation. The proposed
constitution abolished complex and daunting processes such as a convention or referendum decision. Amendment
powers are left to the central and provincial legislature. It is the approval of the state legislatures that are needed
for modifications to particular matters and there are very few. The other clauses of the Constitution are left to the
Parliament to amend. The main restriction is that it is made by a vote of not less than two-thirds of the members
present and voting in each House and by a vote of the overall membership of each house. The world is not static; it
goes on changing. The social, economic and political circumstances of the people go on changing and the
constitutional law of the nation must, therefore, adapt in order to the changing needs, changing the lives of the
people. If no arrangements were made for modification of the constitution, the people would have recourse to
extra-constitutional processes including insurrection to reform the constitution. The Indian constitution’s framers
were keen to create a text that could evolve with a rising population, adapting itself to a rising people’s shifting
circumstances. The Constitution needs to be updated in every period. No-one may say this is the finish.

Constitutional amendment in India 

The Constitution, considered to be the people’s ‘common will,’ is a foundational text that determines the state’s
status and control of its different institutions. It is not only the foundational law of the land but the living organic
stuff from which the other laws are to be produced according to the nation’s necessity. Instead of leaving this
important task entirely to the judiciary, the framers of the Indian Constitution inserted Article 368 as a formal
method to provide for a constitutional amendment. Articles 368 (Power to amend the Constitution and Procedure
thereof) – Notwithstanding anything contained in this Constitution, Parliament may, in the exercise of its
constituent power, amend any provision of this Constitution following the procedure laid down in this Article by way
of addition, variation or repeal. The Indian legislature is responsible for formulating new legislation, amending the
existing laws and squashing obsolete ones in certain situations. The Constitution will also be revised, being simply
a statute. The constitution’s amenability explicitly poses the issue of the likelihood of abuse of the powers granted
to the government to undermine the nation’s democratic principles. The rights of the government to change the
constitution have always been a matter of controversy and over the years there has been much disagreement. The
Constitution lays out the fundamental government system by which the people want to be regulated themselves. It
establishes the government’s main organs-executive, legislature and judiciary. Not only does the Constitution
describe the powers of each entity but it also points out its obligations. This governs the relationship between the
different bodies, and the government and the people.
Procedure for a constitutional amendment 
An amendment to the Constitution may only be initiated by introducing a Bill for that purpose in either House of
the Parliament and, when the Bill is passed in each House by a majority of the total membership of that House and
by a majority of not less than two-thirds of the members of that House present and vote, it shall be presented to
the President, who shall give his assent to the Bill. Only the House of the People (Lok Sabha) or the Council of
State (Rajya Sabha) has been given the right to initiate the amendment procedure. The process laid down in Article
368 shall be complemented by the rules defined by every House for governing its practice and the conduct of its
business. Like the Constitutions of the United States, Switzerland and Australia, no opportunity has been granted
to the citizens of India either at the incorporation point or at the ratification point to express themselves regarding
the constitutional change. They must entrust the future of their Constitution to the members of Parliament and, in
some cases, to those of their respective state legislatures. 

The Constitution provides for the following four procedures for amendment:

1. Amendments may be made by a simple majority of Parliament to certain provisions of the Constitution, in
the same manner as the ordinary statute is adopted by Parliament. These changes can be transferred in
the case of a government of a member, or the case of a government of the European Union.
2. Modification of specific provisions of the Constitution may take place by a simple majority of the
Legislature of the State in the same manner as the ordinary act.
3. Amendments to certain provisions, sometimes referred to as enshrined provisions, may only be made by a
special majority of Parliament. By a majority of the total membership of each House, and by a majority of
not less than two-thirds of the members present and voting in each House. For the intent of amending the
Constitution, no joint sitting of both houses may be held.
4. Amendments to such laws require not less than half of the States, in addition to a special majority of
legislative confirmation.

Simple majority 
Constitution’s provisions may be amended by a simple vote, as this is necessary for the passing of common law.
The Parliament of the state legislatures may amend these provisions by a simple majority since they do not affect
or disturb the federal balance of power between the Union and the states. Since the entry and formation of new
states would change the constitution’s federal character. Some of the provisions that can be amended are : 

1. Admission of a new state as provided under- Article 2

2. Provisions concerning 

The extent of laws made by Parliament and by the

legislatures of states
So far as the subjects of law are concerned, the Constitution uses the Government of India Act of 1935 as its basis
and subdivides authority into three lists between the Union and the States. These are:

(i)The Union list,

(ii) the State list, and 

(iii) the Concurrent list.

There are 98 subjects on the Union List, over which the Union has exclusive authority. The topics on the Union list,
for example, security and foreign relations, are of national significance, etc. There are 59 topics in the State List
over which countries have exclusive jurisdiction. The concerns listed on a State list, such as public order, police and
public safety, are of local or national importance. The Concurrent List contains 52 subjects like criminal and civil
cases, marriage and divorce, economic and special planning unions, money, media, magazines, employment,
management of the population and preparation of the families, etc. and both the Union and States can enact laws
on this list but the federal rule prevails over state law in the case of a dispute between the law of the Central and
the State law. The purpose of the constitutional inclusion of the list was to ensure continuity in key legal principles
across the country. Legislatures both in the parliament and in the State may make laws on matters mentioned
above, but a preliminary and ultimate right of the centre is to legislate on established matters. In the event of a
conflict between the law of the State and the law of the Union on a subject in the Concurrent List, the law of the
Parliament shall prevail.

Residuary powers of legislation

The Constitution also confers on the Union Parliament residual powers (subjects not mentioned on any of the three
lists). Article 248 notes that, concerning anything that is not listed in any of the three lists, the Parliament has the
exclusive authority to make legislation. It represents the constitutionalist inclinations to a strong core. Another
unique feature of the residual powers is that the final judgment on whether or not a particular matter falls within
the residual powers of the court. In comparison to the convention of other federations around the world, residual
powers have been granted to the Union, where the residual powers are assigned to the States. In the case of a
dispute, however, it is up to the court to determine whether a particular issue falls under the residual power or not.
The Parliament is therefore allowed to enact any legislation on any issue not mentioned in List II or III. This
authority shall include the authority to legislate, which does not include a tax on either of them (the Governor-
General, and not a federal legislature which exercised these powers, must be observed until independence).

Entry 97 of List I also provides for the exclusive powers of Parliament to make laws on all subjects not mentioned
in List II or III. The remaining powers of legislation shall be solely delegated to the Union Parliament under Article
248 and Entry 97 List I. The spectrum of residual powers, however, is limited as all the topics included in all three
lists and residual powers come under, or not, the Court’s view of a case. The reasoning for this power is that it
allows the House to legislate on any issue that has avoided the House’s oversight and on the subject that currently
can not be recognized. It requires Parliament, therefore, to enact legislation on topics that have taken society
forward. The constitutional framers intended, however, that the use of residual powers should be the final and not
the first step. 

In the case of Kartar Singh v. State of Punjab and UOI v. H.S. Dhillon’s case, the court held that parliament may
combine its power with the residual power under Article 248 under entry into the Union List or Competition List.
Also in the case of UOI v. H.S. Dhillon, it was held that Gift Tax Act, Inquiry Act Commissions, etc. are valid under
the parliamentary residuary power. In the case of State of A. P. v. National Thermal Power Corpn. Ltd. the
Supreme court held that unless an entry does not state an exclusion from the area of legislation that is evident at
the time of obvious reading, the absence of exclusion can not be read, if a particular clause in the Constitution that
forbids such legislation is valid, as allowing the legislative power not expressly excluded from it.

Parliament’s power to legislate on State List

Although the Central Government does not have the power in the common circumstances to legislate on matters
mentioned in that State, the Parliament of the Union may only make laws on such matters under some special
conditions. These special conditions are:

a) In the National Interest (Art.249)

Several Articles of the Indian Constitution defined the parliament’s predominance in the legislative area. Article
249 provided that, where Rajya Sabha has declared, by a resolution approved by not less than two-thirds of the
members present and voting, that it is required or reasonable, in the national interest for Parliament to lay down
laws in respect of any matter mentioned in the State List referred to in the resolution, it becomes lawful for
Parliament to lay down laws for the whole or any part of the proceedings. For the time in question, such a
resolution was in place not for more than one year. However, the Rajya Sabha could extend the term of such a
resolution for a further duration of one year from the date on which it would otherwise have ceased to operate. The
law of Parliament, which Parliament should have been responsible for passing such a resolution by Rajya Sabha,
ceased to have any effect on the expiry of a term of six months after the date on which the resolution ceased to be
in force, except in the case of things done or omitted to be done before the expiry of that time. This provision
allowed the Rajya Sabha, representing the States, to place any matter of local significance but national interest in
the concurrent list. The Rajya Sabha can do so at any moment, whether emergency or not.

b) Under Proclamation of National Emergency (Art. 250)

Article 250 notes that in the case of a declaration of emergency, Parliament shall have the power to make law on
any item on the State List. This legislation shall extend in the case of a national emergency (Article 352) and every
State in compliance with the Order of the President (Article 356) or the event of a financial emergency (Article
360). Under this time, the laws of the State or States shall remain inoperative to the degree that they are contrary
to the law of the centre (Art. 251). Thus, the Parliament as a whole will legislate on the subjects specified in the
State List while the National Emergency Declaration is in effect. However, the laws enacted by the Parliament
according to this clause shall cease to affect the expiration of a period of six months after the termination of the
Proclamation, except in the case of items done or omitted to be done before the expiration of that time.

          

c) By Agreement between States (Art. 252)

Article 252 provides for regulation by invitation. If the Legislatures of two or more States adopt a resolution and
order the centre to make a law on a specific item of the State Register, it shall be legal for the Parliament to make
a law. In the first place, such law shall apply to the States which have made such a request, unless any other State
may subsequently follow it by passing such a resolution. Third, such laws can only be amended or repealed by
Parliament. The parliament may also make laws about a State subject if two or more states’ legislatures agree that
a parliament is allowed to make laws concerning any issue mentioned in the State List concerning that Matter.
Subsequently, any act passed by the Parliament shall extend to those States and to any other State which has
passed such a resolution. Parliament also has the power to amend or revoke any act of this kind.

d) To Implement Treaties (Art. 253)

To implement treaties or international conventions, Parliament shall have the power to legislate concerning any
subject. In other words, even about a state issue, the usual distribution of powers does not preclude Parliament
from passing legislation to satisfy its foreign obligations or through such legislation (Article 253). The Parliament
may pass any Treaty, international agreement or convention, with any other country or state, or any decision
taken during an international conference, association or other entity, within the whole and any part of the territory
of India. Any law enacted by this Parliament shall not, in that it covers the subject listed in the list of States, be
invalidated.

e) Under Proclamation of President’s Rule (Art. 356)

By Article 356 and Article 357 of the Indian Constitution, the prevalence of Parliament was further defined. Article
356 stipulated that if the President was satisfied that there existed a situation in which the government of the State
can not be enforced according to the provisions of the Constitution, he may declare exercisable by or under the
competence of the Parliament the powers of the Legislature of that State. Parliament must delegate the legislative
power to the President, as provided for in Article 357. The President may also allow the Parliament to exercise the
powers of the State legislature during the Declaration of the Rule of the President as a result of the collapse of
constitutional machinery in the State. Nevertheless, all such regulations passed by Parliament cease functioning six
months after the declaration of the rule of the President is over.

Conclusion
The Constitution authorizes the centre in the following ways to have control over the state legislature:

1. The Governor can withhold for President’s consideration those forms of bills approved by the State
legislature. The President has an absolute veto on them.
2. In the State legislature, even with the prior approval of the President as imposing limitations on free
trade and commerce can bill are made on such matters enumerated in the State list.
3. It is necessary for the President for the States to withhold the bills of funds and other budgetary
measures approved during national crises by the State legislature.

As a result, it is very clear from the scheme of allocation of legislative powers between the Union and the States
that framers have bestowed more authority on the Parliament than against the States. The States do not have sole
authority over the topics given to the States by the Constitution and therefore rendering the States, to that degree,
subordinate to the Centre. The centralization pattern is contradictory with the fundamental values but, rather than
adopting conventional provisions of a federal constitution, the legislative system is more concerned with country
unity. All these provisions of the constitution are therefore justified as they offer clarification and eradicate the
confusion between the powers of the centre and state. Unless this theory of legislative supremacy were to be
removed, there would be a risk of two similarly dominant pieces of government giving rise to a dispute, agitation,
confrontation, and confusion as a result of competing legislation. These provisions guarantee that there is an
overarching regulatory framework and that there is continuity in the basic laws.

Reference