Procedure of Amendment of the Constitution

Being the most lengthy constitution, the Constitution of India has provisions of all sorts’important, less important and even unimportant; significant; transitional and even provisional; broader, larger and even smaller: enduring, continual and even time-related. It would not have been wise to provide for a single and lone procedure seeking amendment for all the articles/clauses of the Constitution. The framers thought it proper to keep the question of amending the Constitution open and accessible. Though Article 368, in Part XX, of the Constitution, provides for the method as well as the initiative of the Parliament to undertake the process of amendment of the constitution, it is, it should be noted, not the only method available in the Constitution. There are articles which indicate other possible procedures of bringing about changes directly and indirectly. To this aspect of amendment’s procedure, we may, now, turn our attention to.

Article 368: Power of the Parliament to Amend the Constitution and Procedure therefore: The 368 article reads: Notwithstanding, anything in the Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this constitution in accordance with the procedure laid down in this article. An amendment of this 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 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 who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with terms of the Bill:

Provided that if such amendment seeks to make any change in Article 54, Article 55, Article 73, Article 162, Article 241, or Chapter IV of Part V, Chapter V of Part VI, or Chapter I to Part XI, or Any of the Lists in the Seventh Schedule, or The representation of States in Parliament, or The provision of this Article. 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 provisions for such amendment is presented to the President for assent.

Nothing in Article 13 shall apply to any amendment under this amendment.

No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground. For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article’

In the above text, the article, clauses 1 and 3 and amendment in clause 2, were inserted by the 24th Amendment Act 1971 and clauses 4 and 5, by the 42 Amendment Act, 1976. The clauses and (5) of Article 368 have been struck down in the Minerva Mills V Union of India (1980) and the Wamman Rao (1981) cases. The above article makes clear : (i) that the Parliament’s power of amendment is its constituent power; (ii) that the Parliament shares this power, wherever necessary, with the States; (iii) that not less than one-half of the states have to ratify the amendment proposal passed by the two Houses of the Parliament; (iv) that the majority required for passing the amending proposal has to be two-thirds, of the members present and voting (which has to be at least the majority of the total number of members) in each House; (v) that such a method is used while amending articles/provisions, the list of which is contained in Article 368 itself; (vi) that the use of the word ‘resolutions’ in 368 related to the ratification of the states, implies, resolutions passed by the state legislatures with simple majority.

Amendment to be made by Parliament through Simple Majority There are provisions/articles in the Constitution which can be amended by Parliament, i.e. through simple majority, say 51% of the members in each House. Such amending proposals are initiated by any House of Parliament. Some of the following, for example, are amended by the method as mentioned above:

Admission of a new state under Article 2, along with the consequential amendments in Schedule I (which defines the territory of a State) and Schedule IV (which deals with the allocation of seats to the State in the Rajya Sabha); Provisions relating to the citizenship of India, Article 11; Provisions relating to the exercise of executive power by a State or in respect of a matter over which Parliament has power to make laws, Article 73(2); Provisions relating to the salaries and allowances of ministers: Article 75(6) and the consequential amendments of Schedule II; Provisions to the salaries and allowances of the Speaker and the Deputy Speaker of the House of the People, and the Chairman and the Deputy Chairman of the Council of States: Article 97 and the consequential amendments to Schedule II;

• Provisions relating to the salaries and allowances of the Members of Parliament, Article 106; Provisions relating to the number of judges in the Supreme Court, Article 124(1);
• Provisions relating to the privileges, allowances and rights of judges of the Supreme Court, Article 125(2);
• Provisions relating to the appeals to the Supreme Court, Article 133(3);
• Provisions relating to review of the judgments of the Supreme Court, Article 137;
• Provisions relating to the salaries and allowances of the Comptroller and the Auditor-General, Article 148(3) and the consequential amendments to Schedule II;
• Provisions relating to the composition of the Legislative Councils, Article 172(2);
• Provisions relating to the salaries and allowances of the judges of the High Courts, Articles 221(2) and the consequential amendments to Schedule II;
• Provisions relating to English language, Article 343(3);
• Provisions relating to the language to be used in the Supreme Court and the High Courts, Article 348(1);
• Provisions relating to the creation of Legislature and Council of Ministers for a Union Territory, Article 239 A;
• Provisions relating to the administration and control of the Schedule Areas and Scheduled Tribes, Para 7 of Schedule V; and
• Provisions relating to the administration and control of Tribal Areas, Para 21 of Schedule VI.