Indian Constitution | Procedure for Amendment Download PDF

Indian Constitution | Procedure for Amendment Download PDF

Nature of the amending Process

THE nature of the amending process envisaged by the makers of our Constitution can be best explained by referring to the observation of Pandit Nehru (quoted under ‘Reconciliation of a written Constitution with Parliamentary Sovereignty’, ante), that the Constitution should not be so rigid that it cannot be adapted to the changing needs of national development and strength.

There was also a political significance in adopting a ‘facile procedure’ for amendment, namely, that any popular demand for changing the political system should be capable of realisation, if it assumed a considerable volume. In the words of Dr. Ambedkar, explaining the proposals for amendment introduced by him in the Constituent Assembly.

“Those who are dissatisfied with the Constitution have only to obtain in two-thirds majority, and if they cannot obtain even a two-thirds majority in the Parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.”

Elements of flexibility were therefore imported into a Federal Consti¬tution which is inherendy rigid in its nature. According to the traditional theory of federalism, either the process of amendment of the Constitution is entrusted to a body other Sian the ordinary Legislature or a special procedure is prescribed for such amendment in order to ensure that the federal compact may not be disturbed at the will of one of the parties of the federation, viz., the federal legislature.

But, as has been explained at the outset, the framers of our Constitution were also inspired by the need for the sovereignty of the Parliament elected by universal suffrage to enable it to achieve a dynamic national progress. They, therefore, prescribed an easier mode for changing those provisions of the Constitution which did not primarily affect the federal system. This was done in two ways—
(a) By providing that the alteration of certain provisions of the Constitution were ‘not to be deemed to be amendment of the Constitution’. The result is that such provisions can be altered by the Union Parliament in the ordinary process of legislation, that is, by a simple majority.

Procedure for Amendment

(b) Other provisions of the Constitution can be Amendment. changed only by the process of ‘amendment’ which is prescribed in Art. 368. But a differentiation has been again made in the procedure for amendment, according to the nature of the provisions sought to be amended.
While in all cases of amendment of the Constitution, a Bill has to be passed by the Union Parliament by a special majority, in the case of certain provisions which affect the federal structure, a further step is required, viz., a ratification by the Legislature of at least half of the States, before the Bill is presented to the President for his assent [Art. 368]. But even in these latter group of cases, the law which eventually effects the amendment is a law made by Parliament, which is the ordinary legislative organ of the Union. There is thus no separate constituent body provided for by our Constitution for the amending process. The procedure for amendment is—

I. An amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority (i.e., more than 50%) 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 voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.

II. If, however, such amendment seeks to make any change in the following provisions, namely,—
(a) The manner of election of the President [Arts. 54, 55]; (b) Extent of the executive power of the Union and the States [Arts. 73, 162]; (c) The Supreme Court and the High Courts [Art. 241, Chap. IV of Part V, Chap. V of Part VI]; (d) Distribution of legislative power between the Union and the States [Chap. I of Part XI]; (e) Any of the Lists in the 7th Schedule; (f) Representation of the States in Parliament [Arts. 80-81, 4th Schedule]; {g) Provisions of Art 368 itself,—the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent [Art. 368(2)]. Constitutionality of the Constitution (Ninety Seventh Amendment) Act, 2011 was challenged in “Rajendra N Shah v. Union of India & Am.” wherein, the Gujarat High Court delivered its judgment dated 22.04.2013 WP(PIL) No.166 of 2012, and declared the Constitution (Ninety Seventh Amendment) Act 2011, inserting part IXB contaning Articles 243ZH to 243ZT, as ultra vires the Constitution of India for not taking recourse to Article 368 (2) of the Constitution, providing for ratification by the majority of the State legislatures.2 The Constitution (Ninety Ninth) Amendment Act, 2014 and the National Judicial Appointment Commission Act, 2014 recently ratified by more than 50% of state legislatures and given assent to by the President of India, came into force with effect from 13.04.2015.

General features of the Amending Procedure

It is clear from the above that the amending process prescribed by our Constitution has certain distinctive features as common features with the corresponding provisions in the leading Procedure Constitutions of the world. The procedure for amendment must be classed as ‘rigid’ insofar as it requires a special majority and, in some cases, a special procedure for amendment as compared with the procedure prescribed for ordinary legislation. But the procedure is not as complicated or difficult as in the U.S.A. or in any other rigid Constitution:

(a) Subject to the special procedure laid down in Art. 368, our Constitution vests constituent power upon the ordinary legislature of the Union,
i.e., the Parliament (of course, acting by a special majority), and there is no . separate body for amending the Constitution, as exists in some other Constitutions (e.g., a Constitutional Convention).
(b) The State Legislatures cannot initiate any Bill or proposal for amendment of the Constitution. The only mode of initiating a proposal for amendment is to introduce a Bill in either House of the Union Parliament.
(c) Subject to the provisions of Art. 368, Constitution Amendment Bills are to be passed by the Parliament in the same way as ordinary Bills.3 In other words, they may be initiated in either House, and may be amended like other Bills, subject to the majority required by Art 368. But for the special majority prescribed, they must be passed by botn the Houses, like any other Bill.

It would be pointed out, in this context, that there is another important No Joint-Session pohit on which the passage of a Constitution Amendment for Constitution ment Bill differs from the procedure relating to the passage of a Bill for ordinary legislation: Art. 108 provides that if there is a disagreement between the two Houses of Parliament regarding the passage of a Bill, the deadlock may be solved by a joint session of the two Houses. But it is clear from Art. 108(1), that the procedure for joint session is applicable only to Bills for ordinary legislation which come under Chap. 2 of Part of the Constitution, and not to Bills for amendment of the Constitution, which are governed by the self- contained procedure contained in Art 368(2). The requirement of a special majority in both Houses, in Art 368(2) would have been nugatory had the provision as to joint session b§en available in this sphere.
(d) The previous sanction of the President is not required for introducing in Parliament any Bill for amendment of the Constitution.
(e) The requirement relating to ratification by the State Legislatures is more liberal than the corresponding provisions in the American Constitution. While the latter requires ratification by not less than three fourths of the States, under our Constitution ratification by not less than half of them suffices.
(f) In the case of an ordinary Bill, governed by Art. Ill, when the Bill, after being passed by both Houses of Parliament, is presented to the President, he may, instead of assenting to it, declare that he ‘withholds assent therefrom’. In the latter case, the Bill cannot become an ‘Act’. But the amendment of Art. 368 in 1971 has made it obligatory for the President to give his assent to a Bill for amendment of the Constitution, when it is presented to him after its passage by the Legislature.

President bound to give assent

In short, though the formality of the President’s assent has been retained in the case of an amendment of the Constitution, in order to signify the date when the amendment Bill becomes operative as a part of the Constitution, the President’s power to veto a Bill for amendment of the Constitution has been taken away, by substituting the words ‘shall give his assent’ in Cl. (2) of the Art. 368, as it stands after the Constitution (24th Amendment) Act, 1971.
There has been a historical controversy as to whether an amendment of the Constitution, made in the manner provided for under Art. 368, must have to conform to the requirements of Art. 13(2), as a ‘law’ as defined in Cl. (3) of Art. 13; or, in other words, whether a Constitution Amendment Act would be void if it seeks to take away or is inconsistent with a fundamental right enumerated in Part III of the Constitution.

Is Part III or ant other part of the constitution Unamendable

A. Until the case of Golak Nath the Supreme Is Part in or any Court had been holding that no part of our Constitution was unamendable and that Parliament might, by passing a Constitution Amendment Act, in compliance with the requirements of Art. 368, amend any provision of the Copstitution, including the Fundamental Rights and Art. 368 itself.3 It was held that ‘law’ in Art 13 (2) referred to ordinary legislation made by Parliament as a legislative body and would not include an amendment of the Constitution which was passed by the Parliament in its constituent capacity.

B. But, in Golak Nath’s case,a majority of six Judges in a special Bench of eleven overruled the previous decisions3 and took the view that though there is no express exception from the ambit of Art. 368, the Fundamental Rights included in Part HI of the Constitution cannot, by their very nature, be subject to the process of amendment provided for in Art. 368 and that if any of such Rights is to be amended, a new Constituent Assembly must be convened for making a new Constitution or radically changing it.

Golak Nath

The majority, in Golak Nath’s case, rested its conclusion on the view Golak Nath that the power to amend the Constitution was also a legislative power conferred by Art 245 by the Constitution, so that a Constitution Amendment Act was also a ‘law’ within the purview of Art. 13(2).

C. After the Golak Nath decision, Parliament sought to supersede it by amending Art. 368 itself, by the Constitution (24th Amendment) Act, 1971, as a result of which an amendment of the Constitution passed in accordance with Art. 368, will not be ‘law’ within the meaning of Art. 13 and the validity of a Constitution Amendment Act shall not be open to question on the ground that it takes away or affects a fundamental right [Art. 368(3)]. Even after this specific amendment of the Constitution, the controversy before the Supreme Court did not cease because the validity of the 24th Constitution Amendment Act itself was challenged in a case from Kerala [Keshavananda. v- State of Kerala), which was heard by a’Full Bench of 13 Judges. The majority of the Full Court upheld the validity of the 24th Amendment and overruled the case of Golak Nath.

The question has thus been settled in favour of the view that a Constitution Amendment Act, passed by Parliament, is not ‘law’ within the meaning of Art. 13. The majority, in Keshavananda’s case, upheld the validity of Cl. (4) of Art. 13 [and a corresponding provision in Art. 368(3)], which had been inserted by the Constitution (24th Amendment) Act, 1971, and reads as follows:

“Nothing in this article tie., article 13, shall apply to any amendment made under article 368. ”

Fundamental Rights amendable

In the result, fundamental rights in India can be amended by an Act passed under Art. 368, and the validity of a Constitution Amending Act cannot be
questioned on the ground that that Act invades or encroaches upon any Fundamental Right.
D. Another question which has been mooted since the case of Golak Nath is, whether, outside Part III (Fundamental Rights), there is any other provision of the Constitution of India which is immune from the process of amendment in Art. 368. Though the majority in Keshavananda’s case5 has overturned the majority view in Golak Nath that Fundamental Rights cannot be amended under Art. 368, it has affirmed another proposition asserted by the majority in Golak Nath’s case, namely, that—

Basic Features of the Constitution not amendable

(i) There are certain basic features of the Constitution of India, which cannot be altered in exercise of the power to amend it under Art- 368. If, therefore, a Constitution Amend- not amendable. ment Act seeks to alter the basic structure or framework of the Constitution, the Corn! would be entitled to annul it on the ground of ultra vires, because the word ‘amend’, in Art 368, means only changes other than altering the very structure of the Constitution, which would be tantamount to making a new Constitution.
(ii) These basic features, without being exhaustive, are—sovereignty and territorial integrity of India, the federal system, judicial review, Parliamentary system of government.
(iii) Applying this doctrate that judicial review is a basic feature of the Constitution of India, the majority in Keshavananda held the second part of of the Constitution (25th Amendment) Act, 1971, relating to Art 31C, as invalid. The portion so invalidated read-

“and no law containing a declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy”.

Article 31C, which was introduced by s. 3 of the 25th Amendment Act, provided—(a) that if any law seeks to implement the Directive Principle contained in Art. 39(b)-(c) ie., regarding socialistic control and distribution of the material resources of the country, such law shall not be void on the ground of contravention of Art 14 or 19; (b) it further provided that if anybody challenges the constitutionality of any such law, the.Court would be precluded from entering even into the preliminary question, namely, whether such law is, in fact, a law, ‘giving effect to’ Art 39(b) or (c), if on the face of the Act, there was a declaration of the Legislature that it is for giving effect to such Directive policy. In other words, by adding a declaration to an Act, the Legislature was empowered by the 25th Constitution Amendment Act, to deprive the Courts of their power to determine the validity of the Act on the ground that it contravened some provision of the Constitution. The majority held that Art 368 did not confer any such power to take away judicial review, in the name of ‘amending’ the Constitution.

The foregoing view of the majority in Keshavananda’s case as to ‘basic features’ is debatable inasmuch as there is no express limitation upon the amending power conferred by Art. 368(1). If it is supposed that there are some implied limitations, it is difficult to appreciate how the Court, after holding that the Fundamental Rights did not constitute such inviolable part of the Constitution, could come to the conclusion that judicial review, which is an adjunct of Fundamental Rights, could be so considered. It would, therefore, be no wonder if another Full Bench of the Supreme Court comes to overturn this view in Keshavananda’s case, on the grounds—

(i) that Art. 368(1), as it stands amended in 1971, makes it clear that not only the procedure, but also the ‘power’ to amend the Constitution is conferred by Art. 368 itself and cannot be derived from somewhere else, such as Art. 245. Hence, the limitations, if any, upon,the amending power must be found from Art. 368 itself and not from any theory of implied limitation;
(ii) that the word ‘repeal’ in Art. 368(1) also makes it clear that ‘amendment’, under Art. 368, includes a repeal of any of its provisions, including any supposed ‘basic’ or ‘essential’ provision;
(iii) that the Constitution of India makes no distinction between ‘amendment’ and ‘total revision’, as do some other Constitutions, such as the Swiss. Hence, there is no bar to change the whole Constitution, in exercise of the amending power, which is described as the ‘constituent power1 [Art. 368(1)] and that, accordingly, it would not be necessary to convene a Constituent Assembly to revise the Constitution in toto.

The Indira Government sought to arrest these implications of Keshava- nanda,5 and cut the fetters sought to be imposed on The 42nd Amend- the sovereignty of Parliament (as a constituent body), ment’ by inserting two Cls. (4)-(5) in Art. 368, by the 42nd Amendment Act, 1976.6 Clause (5) declares that “there shall be no limita¬tion” “on the constituent power of Parliament to amend” the provisions of this Constitution and that at aay rate, the validity of no Constitution Amendment Act “shall be called in question in any court on any ground” [Cl. (4)].
The foregoing attempt to preclude judicial review of Constitution Amending Acts has, however, been nullified by the Supreme Court, by striking down Cls. (4)-(5) as inserted in Art. 368 by the 42nd Amendment Act, by its decision in the Minerva Mills case, on the ground that judicial review is a ‘basic feature’ of the Indian Constitutional system which cannot be taken away even by amending the Constitution.

So far, the decision in Keshavananda5 has been followed in subsequent cases by the Supreme Court As a result, Art. 368, as so interpreted by the highest Court, would lead to the following propositions:
(i) Any part of the Constitution may be amended after complying with the procedure laid down in Art. 368.
Art. 368 as
(ii) No referendum or reference to Constituent interpreted by the Assembly would be required to amend any provision Supreme Court. Df the Constitution.
(iii) But no provision of the constitution or any part thereof can be amended if it takes away or destroys any of the ‘basic features’ of the Constitution. Thus, apart from the procedural limitation expressly laid down in Art 368, substantive limitation founded on the doctrine of ‘basic features’, has been introduced into our Constitution, by judicial innovation.The constitutional values/overarching principles would fall outside the amendatory power under Art 368 of the Constitution. The Parliament can not amend the Constitution to abrogate these principles so as to rewrite the Constitution.

list of basic Features

The Supreme Court has refused to foreclose its features. list of ‘basic features’. From the various decisions so far, the following list may be drawn up:
(a) Supremacy of the Constitution.
(b) Rule of law.
(c) The principle of Separation of Powers. .
(d) The objectives specified in the Preamble to the Constitution.
(e) Judicial review; Arts. 32 and 226/227.
(f) Federalism.
(g) Secularism.
(h) The sovereign, democratic, republican structure.
(i) Freedom and dignity of the individual.
(j) Unity and integrity of the Nation.
(k) The principle of equality, not every feature of equality, but the quintessence of equal justice.
(l) The ‘essence’ of other Fundamental Rights in Part HI.
(m) The concept of social and economic justice—to build a welfare State; Part IV in toto.
(n) The balance between Fundamental Rights and Directive Principles.
(o) The Parliamentary system of government.
(p) The principle of free and fair elections.
(q) Limitations upon the amending power conferred by Art. 368.
(r) Independence of the Judiciary but within the four comers of the Constitution and not beyond that.
(s) Effective access to justice. . . _
(t) Powers of the Supreme Court under Arts. 32, 136, 141, 142.
(u) Legislation seeking to nullify the awards made in exercise of the judicial power of die State by Arbitration Tribunals constituted under an Act.
(v) Reasonableness.
(w) Social justice.
(x) Art 21 r/W Arts. 14 and 19; Arts. 15 and 14 r/w Arts. 16(4), (4-A) &(4-B); Arts. 20 and 32, etc. including the principles or essence underlying them.12
(y) The balance provided for between the Part III (Fundamental Right) and die Part IV (Directive Principles).

A History of the Amendments of the Constitution since 1950

Since its commencement on January 26, 1950, Constitution of India has been amended 100 times till May 2015 by passing Acts of Parliament in the A History of manner prescribed by Art. 368 Since all these Amendment Acts have been mentioned, with full particulars,it is Slnce needless to reproduce them in the present Chapter.

The 42nd Amendment

Nevertheless, the 42nd, 43rd and the 44th Amendments must be given a fuller treatment in view of its serious repercussions in the political as well as the legal world. All previous amendments paled into insignificance after the passing of the 42nd Amendment Act, 1976, which alone would illustrate how momentous is the amending power under the Indian Constitution, and how easy it is to change extensive and vital provisions of the Constitution, without any elaborate formalities, when the ruling Party has a comfortable majority in the two Houses of Parliament.
The 42nd Amendment Act was practically a ‘revision’ of the Constitution, for the following reasons:
(i) In extent, it introduced changes in the Preamble, as many as 53 Articles, as well as the 7th Schedule.
(ii) As to substantive changes, it sought to change the vital principles underlying the 1949- Constitution:
I. Judicial Review of ordinary laws. It made, for the first time, a distinction between Union and State laws, for the purpose of challenging their constitutionality on the ground of contravention of any provision of the Constitution and provided, broadly, (a) that a High Court could not prono¬unce invalid any Central law, including subordinate legislation under such law, on the ground of unconstitutionality; (b) that the Supreme Court could not, in its jurisdiction under Art. 32, pronounce a State law as uncons¬titutional, unless a Central law had also been challenged in such proceeding. If any law was made to implement any of the directives included in Part IV [Art. 31C] or in exercise of the new power under Art 31D to ban antinational activities or associations the validity of such law could not be challenged on the ground of contravention of Arts. 14, 19, 31. Above all, an artificial majority of Judges was required both in the Supreme Court and the High Courts, in order to pronounce a law to be unconstitutional and invalid.

II. Judicial Review of constitution Amendment Acts. By amending Art. 368, it was provided that a law, which is described as a Constitution Amendment Act, would be completely immune from challenge in a Court of law, whether on a procedural or substantive ground. Thus, even if such a Bill had not been passed in conformity with the procedure laid down in Art. 368 itself, nobody would be entitled to challenge it in any Court on that ground,—a position which is juristically absurd.

III. Fundamental Duties. For the first time, a Chapter on Fundamental Duties [Art. 51A1 was introduced in order to counteract the sweep of Fundamental Rights. Even though no sanction has been appended to these Duties, it is obvious that if a Court takes these Duties into consideration along with fundamental rights, the scope of the free play of the rights would, to that extent, be narrowed down.
IV. Fundamental Rights devalued. By expanding the scope of Art 31C, it was provided that if any law seeks to implement any of the Directive Principles included in Part IV, such law would be altogether immune from judicial review on the ground of contravention of Fundamental Rights. This is exactly the reverse of what was provided in the 1949-Constitution. The load on Fundamental Rights, in short, became ruthlessly heavy after the cumulative burden of Arts. 31A, 31B, 31C, 31D, 51A.

The 43rd and 44th Amendments

When the Janata Party came to power towards the end of March, 1977, The 43rd and 44th they sought to take early steps to fulfil their election Amendments. pledge to undo the extensive mischief which had been done to the Constitution by the 42nd Amendment Act, as outlined above. But owing to the fact that the Janata had no majority—not to speak of a 2/3 majority—in the Rajya Sabha, which was required to pass a Constitution Amending Bill under Art. 368,10 their attempts in this behalf were chequered and only partially successful. The first step was abortive, namely, that the 43rd Amendment Bill which was introduced in the Lok Sabha in April, 1977, had to be left over till the next Session, hoping to gain some more seats in the Rajya Sabha at the periodical election to be held to that House in the meantime. Eventually, the 43rd Amendment Act, 1977 was passed with the aid of the votes of Congress(O).10 The attitude of that Party, however, changed, when the next Bill [viz., the 45th) was taken to the Rajya Sabha in 1978 as a result of which this Bill was enacted, only in a truncated shape, as the 44th Amendment Act, 1978.
The changes made by the 43rd and the 44th Amendment Acts are summarised in Table IV, post. Briefly speaking,—
(i) The 43rd Amendment Act, 1977, simply repealed those provisions which had been added by the 42nd Amendment Act to curb judicial review, e.g., Arts. 31D, 32A, 144A, 226A, 228A.
(ii) The changes made by the 44th Amendment Act are more extensive:
(a) It not only omitted some more of the Articles which had been inserted by the 42nd, e.g., Arts. 257A, 329A; but also made amendments in other Articles in order to restore those provisions to their ante-1976 text, e.g., Art. 226.
(b) Apart from combating the mischiefs introduced by the 42nd Amendment, the 44th Amendment Act introduced additional changes, e.g., by omitting the fundamental right to property in Art 19(l)(f) and Art. 31(2).
(c) Since Janata failed to secure the passage of a number of clauses of the 45th Amending Bill, the stamp of die 42nd Amendment on various provisions, such as Art 368, still remains. Besides, the Janata Government have themselves retained some of the provisions as amended by the 42nd Amendment, which they considered to beneficial, e.g., Art. 74(1); Art. 311.

The 73rd and 74th Amendments

Of the subsequent amendments, the 73rd and 74th Amendment Act of The 73rd and 74th deserve special mention inasmuch as it has Amendments. introduced the electoral system for the composition of the units of local government below the States, viz., the Panchayats in the rural areas, and the Municipalities in the urban areas It is evident that, instead of being rigid, as some critics supposed during the early days of the Constitution, the procedure for amendment has rather proved to be too ’ flexible in view of the ease with which as many as 100 amendments have been made during the first 66 years of the working of the Constitution. So long as the Party in power at the Centre has a solid majority in Parliament and in more than half of the State Legislatures, the apprehension of impartial observers should be not as to the difficulty of amendment but as to the possibility of its being used too often either to achieve political purposes or to get rid of judicial decisions which may appear to be unwholesome to the party in power. Judges may, of course, err but, as has already been demonstrated, even the highest tribunal is likely to change its views in the light of further experience.18 In the absence of serious repercussions or emergent circumstances or a special contingency (e.g., to admit Sikkim—by the 35th and 36th Amendments), therefore, the process of constitutional amendment should not be resorted to for the purpose of overriding unwelcome judicial verdicts so often as would generate in the minds of the lay public an irreverence for the Judiciary—thus shaking the very foundation of constitutional government.

The Hon’ble Supreme Court finally settled the law that all amendments to the Constitution made on or after 24-04-1973 by which Ninth Schedule is amended by inclusion of various laws therein shall be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with article 14, article 19 and the principle underlying them. Now there is no blanket protection available to the laws inserted in the Ninth Schedule by constitutional amendments on or after 24-04-1973 and it shall be a matter of constitutional adjudication by examining the nature and extent of infraction of fundamental right by a statute, sought to be constitutionally protected.