Article 368’s Role and the Constitutional Amendment Procedure

--> March 27, 2024 1986 0

Introduction

The procedure for amending the Constitution of India , outlined in Part XX under Article 368 , serves as a crucial mechanism for adapting the supreme law of the land to changing societal needs and circumstances. This procedure delineates the steps and requirements necessary for altering various provisions of the Constitution, ensuring that amendments are deliberated upon carefully and reflect the collective will of the people and their representatives.

Amendment of the Constitution and the Doctrine of Basic Structure

• Amendment Procedure: The procedure for amending the Constitution is neither flexible (Britain) nor rigid (USA).
  • It is the synthesis of both.

  Note: The amendment to the constitution feature is borrowed from the constitution of South Africa.

  Procedure for the Amendment of the Constitution (Article 368)

  • Introduction of Bills: A Constitutional Amendment Bill can be introduced only in either house ofParliament . [UPSC 2013]
  • Introduced by: Either by a minister or private member.
  • No Prior Approval: Prior permission of thePresidentis not required to introduce the bill. [UPSC 2022]
  • Type of Majority needed: Special Majority : Majority of the total membership of that house (50%) + by a majority of not less than 2/3 of the members of that house present and voting (2/3 of Present & Voting). [UPSC 2022]
    • Both houses need to pass the bill with a special majority separately.
    • The amendment further made it obligatory for thePresidentto give his assent , when a Constitution Amendment Bill was presented to him. [UPSC 2022]
    • Limitations onVeto Power: He can neither withhold his assent to the bill nor return the bill for reconsideration by the Parliament.
    • After the president’s assent , the bill becomes an Act, and the Constitution stands amended in accordance with the terms of the Act.
    • Article 368 provides for two types of amendments by a special majority of Parliament and also through the ratification of half of the states .
    • Some other articles provide for the amendment of certain provisions of the Constitution by a simple majority ofParliament .
      • However these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.
      • Amendment by simple majority of the Parliament (Do not come under article Under Article 368)
      • Amendment by special majority of the Parliament (Under 368)
      • Amendment by special majority of the Parliament and the ratification of half of the state legislatures.(Under 368)
      • • The majority of members of each house present and vote.
        • This is similar to the ordinary law-making process.
        • Exclusions from Article 368: Such amendments are not considered under Art.368 .
        • Example: Recently, the number of SC judges was increased from 31 to 34 by the Supreme Court (Number of Judges) Amendment Act, 2019.
        • • Majority of the total (irrespective of the vacancies/absentees) membership of each house (more than 50%) and majority of two-thirds of the members of each house present and voting.
          • The majority of the provisions in the Constitution need to be amended by a special majority.
          • The expression ‘ total membership ’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.
          • Example : 103rdamendment to provide 10% reservation to EWS.
          • Special majority + Ratification of half (50%) of the state legislatures by a simple majority .
          • Most of the federal provisionsare amended by this method. [UPSC 2013]
          • Half of States’ Consent: If one or some or all the remaining states take no action on the bill, it does not matter; the moment half of the states give their consent, the formality is completed.
          • Absence of Time Limit for State Consent: There is no time limit within which the states should give their consent to the bill.
          • Example : 101stAmendment related to GST .
          • The following provisions can be amended by this method,
          • Election of the President and its manner. (Article 54 and 55)
          • Extent of executive power of the Union and the states.
          • Supreme Court and High Courts . (Article 124 & 214)
          • Distribution of legislative powers between the Union & the states.
          • Goods and services Tax council
          • Seventh Schedule (3 lists). (Art. 246)
          • Representation of states in parliament.
          • Article 368 itself.

          Supreme Court ( Final Interpreter & Guardian of the Constitution)

          • Extensive Jurisdiction of SC: The Constitution of India has conferred a very extensive jurisdiction and vast powers on the Supreme Court.
            • SC is the final interpreter and guardian of the Constitution and also the guarantor of thefundamental rights of the citizens.

            Criticism of the Amendment Procedure

            • Exclusive Authority ofParliament: States cannot initiate the amendment (Only Parliament can).
              • States have only one way to propose the amendment i.e. create the legislative council in the state.
              • Amendment to the Constitution typically involves multiple stages of consideration , debate, and approval to ensure that proposed changes reflect the will of the people and have broad support across different segments of society.
              • By requiring significant levels of consensus, the process helps safeguard the integrity and stability of the constitutional framework while allowing for necessary adaptations over time.
              • Overall, the amendment procedure serves as a crucial mechanism for ensuring the relevance and responsiveness of the Constitution to evolving societal needs and values.

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