Polity

Types of Amendments

Types of Amendments

As we all know, the Constitution of India is neither too rigid, like the Constitution of the USA, nor too flexible, like that of Britain. Our Constitution Framers believed that Constitution must strike a right balance between certain values, norms, and procedures as being authoritative, and at the same time allow enough flexibility in its operations to adapt to changing needs and circumstances. A too rigid Constitution is likely to break under the weight of change; and a Constitution that is too flexible will give no security, predictability, or identity to a people.

Types of Amendments
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Successful Constitutions like the Indian Constitution strike the right balance between preserving core values and adapting to new circumstances. By striking a balance between the possibility to change the provisions and the limits on such changes, the Constitution of India has ensured that it will survive as a document respected by the people. This also ensures that any section or group cannot, on its own, subvert the Constitution.

So, in this article, we’d be discussing the types of amendments that could be made to the Constitution of India.

Types of Amendments

Article 368

Before understanding the types of amendments that could be made in the Indian Constitution, it’s necessary to understand what constitutional amendment actually means and the article related to Constitutional amendments in the Indian Constitution.

Constitutional Amendment basically means the process of altering or amending a law or document (such as the Constitution) by the parliamentary or constitutional procedure.

Article 368 of the Indian Constitution, included in Part XX, states:
“The Parliament may, in the exercise of its constituent power, amend by way of addition, variation, or repeal any provision of the Constitution in accordance with the procedure laid down for the purpose.”

However, the powers of the Parliament to amend the Constitution are by no means unlimited, as there are various restrictions on the amending powers of the Constitution which are provided in Article 13 of the Constitution, which has been deliberately discussed in the Keshwananda Bharati Case, read the article to understand the restrictions.

In the Keshwananda Bharati Case, 1973, the Supreme Court of India evolved the doctrine of the Basic Structure of the Constitution, under which the Parliament cannot amend the provisions which are mentioned in the Basic Structure of the Constitution. And the power to include provisions of the Constitution in the Basic Structure lies only with the Judiciary.

Types of Amendments
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Procedure to amend the Constitution

The procedure to amend the Indian Constitution is mentioned in Article 368 of the Constitution, which states that:

  • An amendment to the Constitution can be initiated only by introducing a Bill for the purpose in either House of the Parliament ( Lok Sabha or Rajya Sabha). Such a Bill cannot be introduced in the State Legislature.
  • Such a Bill providing for the Constitutional Amendment can be introduced by a Minister or a private member. The Bill does not require prior permission from the President to be introduced in Parliament.
  • Such a Bill must be passed by both Houses of Parliament with a special majority.
    • Special Majority: A majority of the total membership of the House and a majority of two-thirds of the members of the house present and voting.
  • The Bill must be passed in each house separately. In case of a disagreement between the two houses, there is no provision for holding a joint sitting of the two houses for the purpose of deliberation and passage of the Bill.
  • If the Bill seeks to amend the federal provisions of the Constitution, it must be ratified, in addition to the Parliament, by at least half of the State Legislatures by a simple majority.
    • Simple majority- A majority of the members of the house present and voting.
  • After being passed by both the Houses of Parliament, and by half of the State Legislatures when necessary, the Bill is produced before the President of India for his/her assent. (Click here to read about the veto powers of the president)
  • As we know that generally, the President has the power to refuse to give his assent to the Bill presented before him and send it back to the Parliament for reconsideration, and he even has the power to withhold his assent to the Bill, which is known as ‘pocket veto‘.
  • However, in the case of a Constitutional Amendment Bill, the President is bound to give his assent to the Bill, he can neither return the Bill to the Parliament for reconsideration nor withhold his assent to the Bill.
  • Finally, after the assent of the President, the Bill becomes an Act and the Constitution stands amended in accordance with the terms of the Act.

Most of the procedures discussed are common for the different types of amendments.

Different types of amendments

As discussed earlier, the powers and procedure of the Constitutional Amendment are provided under Article 368 of the Indian Constitution. Article 368 provided for two types of amendments:

  • By a special majority of the Parliament and;
  • Through the ratification of half of the States by a simple majority.
Types of Amendments
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However, there are various other Articles in the Constitution that provides for amendment of certain provisions of the Constitution by a simple majority of the Parliament, i.e. majority of members of each House of the Parliament (Lok Sabha and Rajya Sabha) present and voting. However, these amendments are not deemed to be amendments to the Constitution for the purposes of Article 368. So, basically, there are three ways for the amendment of the Constitution, these are:

  • By a simple majority of the Parliament,
  • By a special majority of the Parliament,
  • By a special majority of the Parliament and ratification of half of the state legislatures.
Amendment by Simple Majority of the Parliament

There are a number of provisions in the Constitution of India which can be amended by a simple majority of the Parliament which are outside the scope of Article 368, these are:

  • Admission or establishment of new states.
  • Formation of new states and alteration of areas, boundaries, or names of existing states.
  • Abolition or creation of Legislative Councils in states.
  • Second Schedule of the Constitution: It deals with provisions related to allowances, privileges, emoluments of [resident of India, Governors, Speaker and Deputy Speaker of Lok Sabha, Chairman and Deputy Chairman of Rajya Sabha, Chairman and Deputy Chairman of Legislative Councils of the States, Judges of Supreme Court and High Court and Comptroller and Auditor General of India (CAD).
  • Quorum in the Parliament
  • Salaries and allowances of the members of Parliament
  • Rules of procedure in Parliament
  • Privileges of the Parliament, its members, and its committees.
  • Use of English in the Parliament.
  • The number of puisne judges in the Supreme Court.
  • Conferment of more jurisdiction on the Supreme Court.
  • Use of official language
  • 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.
Amendment by Special Majority of the Parliament

Special Majority: A majority of the total membership of each House and a majority of the two-thirds of the members of each House present and voting.

The provisions of the Constitution which need to be amended by a special majority of the Parliament include:

Amendment by Special Majority of the Parliament and Consent of the States
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In simple terms, the provisions relating to the federal distribution of powers between the Centre and States, such as the distribution of legislative, financial, and administrative powers, can be amended only after attaining the special majority of the Parliament and the consent of half of the state legislatures by a simple majority.

Hence, it means that when half of the State Legislatures give their consent to the particular Bill, it does not matter if one or some or all the remaining states take no action on the Bill, as the formality of requiring the consent of half of the State Legislatures is fulfilled.

The provisions of the Constitution which could be amended in this way include:

  • Election of the President and its manner
  • The extent of the executive power of the Union and the States
  • Supreme Court and High Courts
  • Distribution of Legislative Powers between the Union and the States (provided in Article 246 of the Constitution, 7th Schedule)
  • Goods and Services Tax Council
  • Any of the Lists in the Seventh Schedule
  • Representation of states in the Parliament
  • Power of Parliament to amend the Constitution and its procedure (provided in Article 368 of the Indian Constitution)
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Objectives Resolution: Actual and Simplified texts

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Central Vigilance Commission of India: Composition and Functions

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Subordinate Courts of India: Structure and Constitutional Provisions

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Unitary Features of the Indian Constitution

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Administrative Relationship between Centre and State

Rajamannar Committee: Overview and Recommendations

Zonal Councils: Structure and Functions

Veto Powers of the President

Parliamentary Forums: Structure and Functions

Present Position of Right to Property

 

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