The Constitution of India was adopted on the 26th of November, 1949, and came into force on the 26th of January, 1950. Since then, It has been amended a total of 105 times ( As of 2022 ), the latest one being on the 10th of August, 2021.
The Constitution of India is neither rigid nor flexible in nature. This means it is neither too easy to amend nor is it too hard to amend. Amendment of the Constitution includes everything like repealing, adding, omitting, substitution, etc. In this article, we cover the types and the process required for the amendment of the Constitution of India.
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Types of Amendments
There are three types of amendments that can be made to the Indian Constitution. Two of the three types of amendments are governed by Article 368.
The first type of amendment is the simplest one as it can be passed by a “simple majority” (more than half) in each house of the Parliament of India.
The second type of amendment occurs through a “special majority or supermajority” (two-thirds majority) in each house of the Parliament of India.
The third and last type of amendments is those amendments that require, along with a “special majority” in each house of the Parliament of India, ratification by at least one-half of the State Legislatures.
The second and third types of amendments are the amendments that are governed under Article 368 of the Constitution of India.
Ways of Amending the Constitution of India
As stated above, there are three ways to amend the constitution of India. Here we go into the depth of these provisions.
By Simple Majority
A simple majority, also known as an absolute majority, means a majority of more than half of the total members. For example, In a class of 100 students, if more than 50 students (not equal to 50) vote for something then that is known as a vote of a simple majority.
Various provisions can be amended by a simple majority of the two houses of Parliament which is outside the scope of Article 368 of the Constitution. These provisions are:
Formation or establishment of new states. Alteration of areas, boundaries, or names of existing states.
Abolition or creation of Legislative Councils.
Provisions related to the second schedule.
Quorum in Parliament.
Salaries and allowances related to Parliament
Rules and procedures to be followed in parliament
Privileges which are granted to the Parliament, its members, and committees.
Use of English language in parliament.
The number of judges in the Supreme Court.
Conferring more power to the Supreme Court
Use of official language.
Acquisition and termination of citizenship.
Elections to Parliament and state legislatures.
Delimitation of constituencies.
Union territories.
5th and 6th schedule.
By Special Majority
A special majority, also known as a supermajority, is just a majority of two-thirds of the total members. Taking the same example of a hundred students, for a special majority, you will need a majority of more than 66 students.
Most of the provisions in the Constitution of India require a special majority for amendments. It is applied at every stage of the reading of the bill. The provisions amended through special majority are:
Fundamental rights ( Part III ).
Directive Principles of State Policies ( Part IV )
Every other category which is not covered in the first and third types of amendments.
By Consent of States
The third and last type of majority consists of a special majority along with the consent of the states. There is no time limit within which states should give their consent to the bill that is being presented to the legislature. This type of majority is only required when the federal structure is needed to be amended.
The following provisions are to be amended using this type of majority:
Election of the President.
The extent of the executive power of the Union and the states.
Supreme Court and high courts.
Distribution of legislative powers between the States and the Union.
Any of the lists in the Seventh Schedule.
Representation of states in Parliament.
The provisions of Article 368.
The process of amending the Constitution
The process for the amendment of the Indian Constitution is prescribed under Article 368. It can be explained as follows:
Every amendment begins its journey in the form of a bill that can only be presented in either House of Parliament and not in the state legislatures.
The said bill can only be introduced by either a minister or by a private member and it does not require any prior permission from the President.
The bill must be passed in each House by a special majority, (that is, more than 50 percent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
Each House must pass the bill independently.
In the case of any disagreement between the two Houses, there is no provision for the holding of a joint sitting of the two Houses for the purpose of deliberation on the points which arose the disagreement.
If the bill is targeted to amend the federal provisions of the Constitution, it must, along with a special majority, also be ratified by the legislatures of half of the states by a simple majority.
After being passed by both the Houses of Parliament (as prescribed) and ratified by the state legislatures, if necessary, the bill is presented to the president for his assent.
The president is obligated to give his assent to the bill. He can neither withhold his assent nor return the bill for reconsideration by the Parliament.
After the President signs the bill, giving his assent, it becomes an Act ( a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.
Why is the amending procedure of the Constitution criticised?
The procedure that is applied for the amendment of our constitution is highly criticised, mainly due to the following reasons:
An amendment can be invoked in Parliament only.
The procedure is very rigid if a private member of the parliament wants to move a constitutional amendment bill
Since the constituent power is vested in the Parliament, it gives the ruling party an unfair advantage since they will have a greater probability of passing any amendment if they have the requisite numbers in both the Parliament. This can result in bills being passed which may not always be in favour of the country or its citizens.
The limited provisions require the consent of the states for amendment.
The Constitution lacks in providing a time frame for States to ratify or reject the amendment bill.
Amending the Basic Structure of the Constitution
Article 368 of the Indian Constitution empowers the Parliament to amend any part of the Constitution, even the Preamble but without affecting the ‘basic structure’ of the Constitution. The doctrine of ‘basic structure’ was established in the ruling of the landmark case of Kesavananda Bharati. The ‘basic structure’ of the Indian Constitution consists of:
Supremacy of the Constitution.
Unity and sovereignty of India.
The democratic and republican form of government.
Federal character of the Constitution.
Secular character of the Constitution.
Separation of power.
Individual freedom.
Rule of law.
Judicial review.
Parliamentary system.
Rule of equality.
Harmony and balance between the Fundamental Rights (Part III) and DPSP (Part IV).
Free and fair elections.
Limited power of the parliament to amend the Constitution.
Power of the Supreme Court of India ( Articles 32, 136, 142, and 147 ).
Power of the High Court ( Articles 226 and 227 ).
Little Known Facts
The Constitution of India is the most amended in the world. On average, the constitution has been amended about twice a year. America’s Constitution in comparison, which is more than 2 centuries old, has only been amended 27 times.
The procedure of amendment of the constitution was borrowed from the South African constitution.
The constitutional amendment procedure in our country is neither as rigid as in America nor as flexible as in Britain.
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