Amendment of the Constitution

Amendments to the Indian Constitution represent pivotal moments in the nation’s legal and political evolution, shaping its governance structure and societal norms. These amendments reflect the dynamism and adaptability of the Indian Constitution, allowing it to respond to the changing needs and aspirations of its diverse population. For aspirants preparing for the Union Public Service Commission (UPSC) examinations, understanding the process and significance of constitutional amendments is indispensable, as it forms a cornerstone of Indian polity and governance.

Meaning of constitutional amendment

The process of modifying the nation’s fundamental law, known as Constitutional Amendment, in India is neither as flexible as Britain’s nor as rigid as the USA’s but represents a synthesis of both approaches. This amendment procedure reflects the intention of the constituent legislative assembly to establish a dynamic document. According to Article 368 of the Indian Constitution, Parliament holds the authority to amend it and its procedures. However, Parliament is restricted from amending provisions considered as forming the Basic Structure of the Constitution, as determined by the Supreme Court in the Kesavananda Bharati case (1973).

Article 368

Article 368 of Part XX of the Constitution of India outlines two methods for amendments:

1. Amendments by a special majority of Parliament. Amendments by a special majority of the Parliament require the approval of the majority of the total membership of each House and a two-thirds majority of the members of each House present and voting. Examples of provisions amended through this process include Fundamental Rights, Directive Principles of State Policy, and so forth.
2. Amendments by a special majority of Parliament along with ratification by half of the total states. Amendments requiring a special majority of the Parliament and the ratification of half of the state legislatures involve states’ ratification through a simple majority. This method is used to amend provisions related to the federal structure. Examples include the election and manner of the President, any of the lists in the Seventh Schedule, representation of states in Parliament, and Article 368 itself.

However, certain provisions of the Constitution can be amended by a simple majority of Parliament, akin to the ordinary legislative process.

This pertains to a majority consisting of over 50% of the members present and voting. Numerous articles in the Constitution specify that they can be amended through a simple law passed by Parliament. In such instances, no special procedure for amendment is necessary. Examples include:

• Article 2: Admission or establishment of new states.
• Fifth Schedule: Provisions concerning the Administration and Control of Scheduled Areas and Scheduled Tribes.
• Citizenship: Acquisition and termination.
• Elections to Parliament and state legislatures.

Importantly, these amendments do not fall under the purview of Article 368 and are not considered as amendments to the Constitution.

Procedure of Amendment of constitution

Amendments can only be initiated by introducing a bill in either house of Parliament.
The bill can be introduced by a minister or a private member without prior permission from the President. It must be passed in each house by a special majority, requiring a majority of the total membership and two-thirds of the members present and voting. Each house must pass the bill separately, and there is no provision for a joint sitting if there is disagreement.
If the bill seeks to amend the Constitution, it must be ratified by half of the states’ legislatures by a simple majority. After passing both houses, the bill is presented to the President for assent.
The President must give assent to the bill and cannot withhold it or return it for reconsideration. Upon the President’s assent, the bill becomes a constitutional amendment act.

Important constitutional amendment

1. First Amendment (1951): Protected property rights and added laws to the Ninth Schedule.
2. Fourth Amendment (1955): Authorized government takeover of absentee landlord estates.
3. Seventh Amendment (1956): Extended government powers for property acquisition and compensation.
4. Eleventh Amendment (1961): Authorized government takeover of “inam” lands.
5. Sixteenth Amendment (1966): Enabled taxation on agricultural income.
6. Eighteenth Amendment (1971): Created Meghalaya state, added Santali language, and abolished privy purses.
7. Twenty-fifth Amendment (1971): Recognized property rights as legal, not fundamental.
8. Thirty-ninth Amendment (1975): Protected Sikkim’s constitutional position post-merger.
9. Forty-second Amendment (1976): Added “secular” and “socialist” to the Preamble, introduced Fundamental Duties.
10. Forty-fourth Amendment (1978): Reversed changes made by the Forty-second Amendment.
11. Fifty-second Amendment (1985): Recognized Scheduled Castes and Tribes Act as a fundamental right.
12. Sixty-first Amendment (1989): Lowered voting age from 21 to 18.
13. Seventy-third Amendment (1992): Recognized panchayats’ rights as a fundamental right, provided for reservation of seats.
14. Seventy-fourth Amendment (1992): Recognized municipalities’ rights as a fundamental right, provided for reservation of seats.
15. Seventy-seventh Amendment (1995): Provided reservation of seats for Scheduled Castes and Tribes in cooperative societies.
16. Ninety-third Amendment (2006): Provided reservation of seats for Scheduled Castes and Tribes in higher education institutions.
17. Ninety-fifth Amendment (2009): Provided reservation of seats for Scheduled Castes and Tribes in government job promotions.
18. One hundred and third Amendment (2019): Provided reservation of seats for economically weaker sections in higher education institutions.

Limitations on the amending power

The doctrine of Basic Structure, established by the Indian Judiciary in the Keshavananda Bharati case on April 24, 1973, imposes limits on the amending power of Parliament, ensuring that the ‘Basic Structure of the Constitution’ remains unaltered.

Accordingly, amendments under Article 368 are deemed valid only if they do not infringe upon the basic structure of the Constitution. Moreover, the Supreme Court has affirmed that Article 368 itself constitutes a part of the Basic Structure.

Several landmark judgments have further delineated the boundaries of Parliament’s amending power:

• Minerva Mills vs. Union of India (1980): The Supreme Court nullified provisions of the 42nd Constitutional Amendment Act, 1976, which sought to curtail the judiciary’s power of judicial review. It held that Parliament cannot diminish judicial review, as it is integral to the Basic Structure.
• L. Chandra Kumar v. Union of India (1997): The Supreme Court clarified that Tribunals (Article 323A and 323B) cannot replace the judicial review powers vested in the High Courts by the Constitution.
• I.R. Coelho v. State of Tamil Nadu (2007): The Supreme Court emphasized that Parliament cannot expand its amending power through the modification of Article 368, thereby undermining the foundational principles of the Constitution.
• The Constitution (99th Amendment) Act, 2014: This amendment, which proposed the establishment of a National Judicial Appointment Commission (NJAC), was invalidated by the Supreme Court on the grounds that it encroached upon the independence of the judiciary, a vital component of the Basic Structure.

These judicial pronouncements underscore the importance of preserving the essential framework and principles of the Constitution, ensuring its integrity and stability.

While the inclusion of provisions for amending the constitution was a progressive step envisioned by the founders of our nation, it’s crucial to prevent their misuse. Mishandling these provisions could result in undue legislative or executive authority, potentially destabilizing the fabric of our society. Thus, maintaining a delicate balance is imperative to uphold the dynamic nature of our constitution while safeguarding its fundamental principles.