Here’s All You Need To Know About Procedure For Amendment Of Constitution
Introduction
Only the introduction of a Bill in either House of Parliament may begin the process of a constitutional amendment. The process to be followed in the event of a constitutional change is outlined in Part XX (Article 368) of the Indian Constitution. All other laws are created and upheld in accordance with the country's constitution, which is the fundamental law of the territory. If changes are necessary, they must be introduced with extreme prudence.
Key Ideas For Constitutional Amendment
• Similar to previous written constitutions, the Indian Constitution allows for revision to address new circumstances and demands.
• However, the process for changing it is neither as easy as in the UK nor as difficult as in the US.
• In other words, there are elements of both flexibility and rigidity in the Indian Constitution.
• The concept of modifying the constitution was taken from South Africa's constitution.
• Part XX of the Constitution's Article 368 describes the process for amending the Constitution in detail.
• It states that any provision of the Constitution may be changed by the Parliament acting in accordance with its constituent authority by being added to, modified, or repealed in accordance with the procedure established for that purpose.
• The 'fundamental structure' of the Constitution, however, cannot be changed by Parliament. This was decided by the Supreme Court in the Kesavananda Bharati case (1973).
• By means of the 24th Amendment Act of 1971 and the 42nd Amendment Act of 1976, the Parliament modified Article 368 in and of itself.
How To Modify The Indian Constitution?
• According to Article 368, the process for changing the Constitution is as follows:
• State legislatures cannot begin a constitutional amendment, only the introduction of a bill in one of the two Houses of Parliament may do so.
• There is no need for prior presidential approval, the measure may be filed by either a minister or a private member.
• A special majority, defined as a majority of the overall membership of the House plus a majority of two-thirds of the members present and voting, is required to pass legislation in each House.
• Each House must pass the legislation on its own. If the two Houses disagree, there is no provision for calling a joint session of the two Houses to discuss and enact the bill.
• A simple majority, or a majority of the present and voting House members, must also approve the bill in the legislatures of half the states if it seeks to alter federal provisions of the Constitution.
• After being formally approved by both Houses of Parliament and, if necessary, state legislatures, the bill is presented to the president for approval.
• The president must sign the legislation. He is unable to change his mind about the law or send it back to Parliament for revision.
• The Constitution is amended in accordance with the text of the bill once the president has signed it into law, converting the bill into an Act (also known as a constitutional amendment act).
Constitutional Amendment Techniques
The Constitution may be altered in three different ways:
1. By a simple majority.
2. By a special majority.
3. Special majority with state legislature approval.
Amendment by a Simple Majority
• The constitution contains a significant number of articles that are only temporary in nature. Nevertheless, they are subject to revision by a simple majority in the Parliament. A simple majority of the members present and voting, or more than 50%, is referred to as a simple majority. The following constitutional clause also fits under this category:
• State name and boundary modifications, as well as the creation of new states.
• Parliamentary quorum required for business to be transacted.
• The creation or admission of new States.
• Defining constituency boundaries.
• The legislative council in the States may be established or eliminated by the Parliament.
• President, Vice-President, and Supreme Court and High Court judges' salaries and benefits.
• Members of Parliament have certain authority, benefits, and immunities.
• Obtaining citizenship and losing it.
Amendment by Special Majority
• Only the introduction of a measure intended for either House of Parliament may begin the process of amending the constitution.
• When a bill is approved by not less than 2/3 of the members of each House who are present and voting.
• The following constitutional clause also fits under this category:
• Fundamental Rights
• Directive Principles of State Policy
• This approach can be used to alter the Constitution in its entirety, with the exception of the specified clauses mentioned in Article 368.
Special Majority with ratification by State Legislature
• A majority is regarded to be more than 50% of the States. For such a clause in the constitution, a bill for an amendment must be approved by both houses of parliament with a simple majority of the members present and voting and a majority of that house's total membership. Then, the amendment must be ratified by state legislatures in at least half of the states.
• In this context, Article 368 of the Constitution lists a number of articles that can only be changed through a strict process. Which are:
• Pertaining to the election of the President (Articles 54 and 55).
• Extent of the Union's and the State's administrative authority (Articles 73 and 162).
• The seventh schedule.
• (Part V, Chapter 4) contains provisions relating to the Supreme Court of India.
• (Part VI, Chapter 5) Provisions relevant to the High Court of India.
• (Article 241) High Court for Union Territories.
• State representation in the legislature (Articles 80 and 81)
• Article 368 of the Constitution contains a provision addressing the amending process itself.
Important Elements of The Amendment Process
• Our constitution gives Parliament, the Union's regular legislative body, the right to make constitutional amendments, unlike some other nations, ours does not have a distinct body for this purpose.
• Only the Parliament, not the State Legislature, may introduce a bill for the change of the Constitution.
• No previous approval from the President is necessary in order to present a measure amending the constitution in the parliament.
• It must be approved individually by both houses of Parliament.
• In its final form, a constitutional amendment measure is forwarded to the president for approval, and he is not allowed to object.
• This has been established by the 24th Amendment Act, 1971, which eliminated the President's ability to reject a measure for amending the constitution by changing the wording "shall give his assent" in Clause (2) of Article 368.
• However, there is no deadline by which the President must provide his assent.
• In the Keshavnanda Bharati case, the Supreme Court determined that parliament cannot alter the "Basic structure" of the constitution.
The Amendability of The Indian Constitution
• Nowhere in the Constitution does it specifically mention the idea of the Basic Structure. It is a development in the law that the Supreme Court gave shape to in the Kesavananda Bharati v. State of Kerala case (1973).
Criticism of The Constitutional Amendment Process
• There is no provision for a particular body, such as a Constitutional Convention (as in the United States) or a Constitutional Assembly, to alter the Constitution.
• State legislatures occasionally and Parliament both hold the constituent authority.
• Constitutional revisions may be made by Parliament. As a result, state legislatures cannot, unlike in the USA, introduce any legislation or proposals to amend the Constitution, with the exception of passing a resolution encouraging the Parliament to establish or dissolve legislative councils in the states. The Parliament has a similar choice in this situation: it can accept or reject the resolution, or it can do nothing.
• The majority of the Constitution can only be amended by the Parliament, either with a special majority or a simple majority. The approval of state legislatures is only occasionally required, and even then, only in half the cases, as opposed to three-fourths of the states in the US.
• The Constitution is silent on the timing of when state legislatures must adopt or reject a proposed amendment. It is also unclear whether states can withdraw their consent after giving it.
• There is no provision for a joint session of both Houses of Parliament in the event that a constitutional amendment measure cannot be passed. However, a provision is made for a joint session in the case of an ordinary legislation.
• The legislative process and the amendment process are similar. Constitutional amendment bills must be approved by Parliament in the same way as regular laws, with the exception of the special majority.
Conclusion
Despite these drawbacks, the process for amending the constitution has shown to be simple and simple to implement, and it has been able to adapt to changing circumstances and demands. The approach is not flexible enough for the ruling parties to change it as they like. Additionally, it is not rigid enough to prevent it from being able to respond to shifting needs. According to K.C. Wheare, it "strikes a reasonable balance between flexibility and stiffness."