Amendment of the Constitution

The Indian Constitution, being a written document, contains a built-in mechanism to amend itself to keep pace with evolving social, political, and economic realities. What distinguishes India's amendment process from those of other nations is its deliberate balance: it avoids the extreme flexibility of the British parliamentary system (where statutes can be changed by a simple majority) and equally avoids the extreme rigidity of the American model (which demands supermajorities and three-fourths state ratification). The result is a synthesis of flexibility and rigidity — a design that constitutional scholars have praised for its practicality.

Article 368 in Part XX of the Constitution is the primary provision governing Parliament's constituent power. It authorises Parliament to amend the Constitution by way of addition, variation, or repeal of any provision, subject to the prescribed procedure.

Critical limit: Parliament cannot amend provisions that form the Basic Structure of the Constitution. This restriction was judicially established in the landmark Kesavananda Bharati v. State of Kerala (1973) case.

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The step-by-step process prescribed under Article 368:

1. Initiation in Parliament only: A constitutional amendment bill can be introduced exclusively in either House of Parliament. State legislatures have no power to initiate such a bill.

2. No presidential permission required: The bill may be introduced by a minister or a private member. Unlike some other bills, prior permission of the President is not needed.

3. Special majority in each House: The bill must be passed in each House separately by:

   • A majority of the total membership of that House (i.e., more than 50% of all members, regardless of vacancies or absentees), and
   • A majority of two-thirds of the members present and voting.

4. No joint sitting in case of deadlock: If the two Houses disagree, there is no provision for a joint sitting — unlike ordinary legislation where a joint sitting can resolve a deadlock. A constitutional amendment bill that fails in either House simply cannot proceed.

5. State ratification (where applicable): If the bill seeks to amend provisions related to the federal structure of the Constitution, it must additionally be ratified by the legislatures of at least half of the states by a simple majority (majority of members present and voting). There is no prescribed time limit for states to give their consent, and inaction by some states is inconsequential once half the states have ratified.

6. Presidential assent is mandatory: After passing both Houses and receiving state ratification (where required), the bill is sent to the President. The President give assent — he can neither withhold it nor return the bill for reconsideration. This obligation was formalised by the .

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Though Article 368 technically provides for two types, a complete picture reveals three distinct amendment modes:

1. Amendment by Simple Majority of Parliament

Certain provisions can be amended by a simple majority of both Houses — the same majority required for ordinary legislation. Crucially, these are not treated as amendments under Article 368, so they do not attract the procedural stringency of that article.

Key provisions in this category:

• Admission or establishment of new states
• Formation of new states; alteration of boundaries, areas, or names of existing states
• Abolition or creation of Legislative Councils in states
• Second Schedule (emoluments/allowances/privileges of the President, Governors, Speakers, judges, etc.)
• Quorum requirements in Parliament
• Salaries and allowances of Members of Parliament
• Rules of procedure in Parliament
• Privileges of Parliament, its members, and committees
• Use of English language in Parliament
• Number of puisne (ordinary) judges in the Supreme Court
• Conferment of additional jurisdiction on the Supreme Court
• Official language provisions
• Citizenship (acquisition and termination)
• Elections to Parliament and state legislatures
• Delimitation of constituencies
• Union territories
• Fifth Schedule (administration of Scheduled Areas and Scheduled Tribes)
• Sixth Schedule (administration of Tribal Areas)

2. Amendment by Special Majority of Parliament

The largest category of constitutional provisions falls here. This requires:

• More than 50% of the total membership of each House, and
• Two-thirds majority of members present and voting in each House.

The term 'total membership' counts all sanctioned seats irrespective of vacancies or absent members. The special majority is technically required at the third reading stage, though parliamentary rules extend this requirement to all effective stages of the bill.

This category covers:

• Fundamental Rights
• Directive Principles of State Policy
• All other constitutional provisions not falling under the simple majority or state-ratification categories

3. Amendment by Special Majority of Parliament + Ratification by Half the States

Provisions affecting the federal structure require both the special parliamentary majority and ratification by legislatures of at least half the states by simple majority. There is no time limit for state ratification, and non-action by some states is immaterial once the threshold is met.

Provisions requiring this process:

1. Election of the President and the manner thereof
2. Extent of executive power of the Union and the states
3. The Supreme Court and High Courts
4. Distribution of legislative powers between Union and states
5. Any of the Lists in the Seventh Schedule
6. Representation of states in Parliament
7. Article 368 itself — the power of Parliament to amend the Constitution

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Despite its overall effectiveness, the amendment procedure has drawn criticism on several grounds:

• No special amending body: Unlike the USA (which can convene a Constitutional Convention), India has no dedicated constituent body. The power rests entirely with Parliament and, in limited cases, state legislatures.

• States cannot initiate amendments: Unlike the USA (where two-thirds of state legislatures can petition Congress for a convention), Indian states cannot initiate constitutional amendments. The one exception is passing a resolution requesting Parliament to create or abolish a Legislative Council — and even then, Parliament is free to ignore it.

• Parliament's dominance: The vast bulk of the Constitution — including Fundamental Rights — can be amended by Parliament alone (by special majority), without any reference to the states. State participation is required only for a narrow category of federal provisions, and even then only half the states need to ratify (compared to three-fourths in the USA).

• No time limit for state ratification: The Constitution does not set a deadline within which states must ratify or reject a proposed amendment. It is also silent on whether states can withdraw their ratification once given.

• No joint sitting for deadlock: A deadlock between the two Houses over a constitutional amendment bill has no resolution mechanism. This is an anomaly since joint sittings are available for ordinary bills but not for the more important constitutional ones.

• Amendment process resembles ordinary legislation: Except for the special majority requirement, the constitutional amendment process closely mirrors the ordinary legislative process. Critics argue this makes it insufficiently distinguished.

• Sketchy provisions invite judicial intervention: The relatively sparse provisions on the amendment procedure leave wide room for judicial interpretation and litigation, leading to repeated Supreme Court interventions.

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Despite these critiques, the amendment procedure has functioned well in practice. Key observations:

• K C Wheare praised the procedure as one that 'strikes a good balance between flexibility and rigidity' and admired its variety, calling this quality 'wise but rarely found'.

• Granville Austin called the amending process 'one of the most ably conceived aspects of the Constitution', describing it as 'merely diverse' despite appearing complex.

• Jawaharlal Nehru in the Constituent Assembly emphasised that a Constitution must allow for growth: making it too rigid would stifle the nation's organic development.

• Dr B R Ambedkar noted that the Assembly deliberately avoided making the Constitution either unamendable (as in Canada) or excessively difficult to amend (as in the USA or Australia), instead opting for a 'facile procedure'.

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• Article 368 is in Part XX of the Constitution.
• The Basic Structure doctrine was established in Kesavananda Bharati (1973) — Parliament cannot amend the Basic Structure.
• The 24th Amendment Act (1971) made presidential assent to amendment bills mandatory.
• Simple majority amendments are NOT deemed amendments under Article 368 — a common UPSC trap.
• Deadlock between Houses over an amendment bill has no joint sitting remedy.
• State ratification requires only half the states; no time limit is prescribed.
• Article 368 itself requires the special majority + state ratification procedure for amendment.
• The Seventh Schedule (Union, State, and Concurrent Lists) requires state ratification to amend.