Amendment under Indian Constitution

Nitya Khare, a 2nd -Year Student of LNCT University, has written this Article on”Amendments under Indian Constitution”

Introduction

The backbone of Indian law is the Indian Constitution. Moreover, the Constitution is flexible and open to amendments. To know more about the amendments, their procedure, and their applicability, this article can be the source for that.

Indeed, there is a compelling reason why our founding fathers designed a constitution that is as flexible as it is today. By doing so, they ensured that the law can evolve alongside the nation, adapting to changing circumstances and needs. As a result, under Article 368 of the Constitution, the powers of Parliament to amend the Constitution are boundless, allowing them to modify any area of the Constitution they see fit.

Amendment of the Indian Constitution Under Article 368

Article 368 sets out the procedures by which Parliament can amend the Constitution. The procedure is as follows-

The bill will be introduced in both Houses of Parliament. In addition, the bill must be adopted by an absolute majority (whether vacant or absent) and at least two-thirds of those who are present and voting. If there is a disagreement between the two houses, no joint meeting is scheduled. Lastly, after receiving the majority, the bill is submitted to the president, who approves it.

If the provision referred to in Article 368 is amended, it must be ratified by at least half of the country. Ratification should be through a decision passed by the state legislature. However, this must be passed before the revised law is submitted to the President for approval

Modes of Amendment in the Indian Constitution

1.  Informal Method

2. Formal Method

Informal Method of Amendment

In this method, the words in the law do not change. It remains the same. The change takes place in its meaning and interpretation. For example, in Article 21, many amendments take place. Besides, it never changes the content of Article 21 but changes the context, scope, and ambit. The right to life includes free air, education, medical aid, dignity, speedy trial, fair trial, and many more.

Formal Method of Amendment

In this form of Amendment, the text or words are changed in the law. The provision is amended by way of addition, variation, or omission. For example, by the 42nd amendment [1], the words Secular, Socialist, and Integrity were added to the Preamble. Moreover, this amendment was done by way of adding to the Preamble. Likewise, the amendments are done by omission or variation.

Note- parliament cannot amend those provisions from the basic structure of the constitution. Finally, this was ruled by the Supreme Court in the case of the Kesavananda Bharti Case [2].

Procedure for the amendment

The procedure for the amendment of the constitution as laid down in Article 368 is as follows:

1. The amendment of the constitution can be initiated only by the introduction of a bill for the purpose in either house of parliament and not in the state legislature.

2. The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.

3. The bill must be passed in each house by a special majority, that is the majority of the total members of the house and a majority of two-thirds of the members of the house present and voting.

4. Each house must pass the bill separately. In case of disagreement between two houses, there is no provision for holding a joint sitting of the house. In addition, for the purpose of deliberation and passage of the bill.

5. If the bill seeks to amend the federal provision of the constitution, it must also be ratified by the legislatures of the half of states. What’s more a simple majority is a majority of the members of the house present and voting.

6. After being passed by both houses of parliament and ratified by the state legislatures, the bill is presented to the president for assent.

7. After the president’s assent, the bill becomes an act (constitutional amendment act).

Amendment of Fundamental Rights

Undoubtedly, the fundamental rights stated in Part III of the Constitution are the cornerstone of human rights in this country. Over time, the judiciary of this country has consistently affirmed through numerous landmark cases that the fundamental rights of individuals or private organizations are sacrosanct and cannot be tampered with. In fact, these rights have been accorded greater priority than other sections of the Constitution in a multitude of cases, underscoring their critical role in the constitutional framework. Besides, it is therefore evident that these rights constitute a vital and indispensable component of the Constitution.

But given that the parliament has the power to amend the constitution, could they also amend the fundamental rights of the constitution? And do they constitute the basic features of the Constitution? By analyzing the case of Sajjan Singh v. The State of Rajasthan and Golak Nath v. the State of Punjab, we shall answer the following questions.

Sajjan Singh v. State of Rajasthan, 1965 [3]

In this case, it was held that fundamental rights could be amended as long as they were indirect, incidental, or insignificant to the power given under Article 226, the article under which the High Court received its powers. 

Facts

In order to back up several legislatures with regard to agrarian reforms done by various states, the parliament had amended certain sections of the constitution. This was done through Acts such as the Constitution (First Amendment) Act, of 1951, Constitution (Fourth Amendment) Act, and the Constitution (Seventeenth Amendment) Act of 1964. The Constitution (Seventeenth Amendment) Act 1964, an Act that was questioned had amended 31A (acquisition of the estate by the state) and added 44 Acts to the Ninth Schedule.

The contentions of the Petitioners

The petitioners who were aggrieved by the legislatures stated that none of these legislatures could be allowed as the Constitution (Seventeenth Amendment) Act was unconstitutional. They contended:

The powers prescribed by Article 226 will be affected by the Seventeenth Amendment and thus the Act should follow the special provisions set down by Article 368.

The decision held in Sri Sankari Prasad Singh Deo v. Union of India and the State of Bihar should be reconsidered.

The Seventeenth Amendment Act deals with land. Furthermore, Parliament has no right to make laws with respect to land and thus the Act is invalid.

The Act went against the decisions of courts of competent jurisdiction and was thus unconstitutional.

Issues

Whether the Acts violated the powers prescribed by Article 266?

Should the decision of Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar be considered?

Whether the Acts deal with the land?

Can Parliament validate laws that have been ruled invalid by the courts?

Held

Laws did not affect Article 226

In determining whether the provisions of Article 336 apply to the Act, it is essential to ascertain whether its impact on the powers of Article 226 is indirect, incidental, or insignificant. Also, to comprehend the effects of the Act, it is necessary to examine its pith and substance.

It is clear that the Act’s primary aim is to amend fundamental rights in order to eliminate impediments to the implementation of socio-economic policies. Therefore, its impact on the powers of Article 226 is incidental and insignificant, and it does not trigger the procedures prescribed under Article 336.

In order to review the decisions of a previous case, the court must ask itself, “Is it absolutely necessary and essential that a question already decided should be reopened?”. One must analyze the harm done by the decision, its effect on the public good, the validity of the question, and how compelling the question is.

It was held by the bench that according to the guidelines placed, the case should not be reopened. Besides, it shall gravely endanger the laws passed under the Amendment Act.

Parliament made no laws on land

The court held that through these Acts, Parliament did not make any laws regarding land. In addition, they merely validated land legislatures that were previously passed.

Parliament can validate laws that were ruled invalid

The power given under Article 368 can be done both prospectively and retrospectively. Also, the parliament can validate laws that have been called invalid by the courts.

Importance

The dissenting opinion of Justice J.R. Mudholkar theorized the ‘basic features’ of the Indian constitution for the first time. Moreover, it was his dissent that was used in the famous Kesavananda Bharati case.

He asked, “It is also a matter for consideration whether making a change in a basic feature of the constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the constitution; and if the latter, would it be within the purview of Article 368 ?”

It was also questioned whether one could harmonize a duty to the Constitution and the power to amend it.

He further observed that it was strange that rights stated to be fundamental to one’s self can be so easily amended. He believed that while Article 368 stated the provision and process to amend the Constitution, it did not necessarily give the power or the right to amend it.

It was also stated that the preamble is the greatest indicator of the basic features of the Constitution.

He went on to question, whether Article 368 provides the power to amend any of the basic features stated there.

I. C. Golaknath & Ors vs. State of Punjab & Anrs., 1971

This case reversed the judgment of Sajjan Singh v. the State of Rajasthan. It stated that the parliament does not have the power to amend fundamental rights.

Facts

The petitioner filed a writ petition against the Constitution (Seventeenth Amendment) Act, [4], which included in the Ninth Schedule, among other Acts, the Punjab Security of Land Tenures Act, [5], and the Mysore Land Reforms Act [6] as amended by Act [7].

Issue

Could fundamental rights be amended?

Held

Articles 245, Article 246, and Article 248 of the constitution deal with the power of parliament to amend. Article 368 merely talks about the procedure to amend.

Along with this, an amendment can only become a law if it abides by Article 13 of the Constitution. Thus, if a certain amendment takes away or abridges any rights mentioned in Part III, it is considered void.

However, the difficulty that the court had to face was the Acts in question may have abridged fundamental rights, but they were considered valid by previous judgments. They used the doctrine of prospective overruling and stated for those laws, the amendment will still be considered. But they also explicitly stated that from the date of the judgment onwards, Parliament would not have the power to amend any provisions of Part III of the constitution.

Importance

While the ratio of this case was reversed in the case of Kesavananda Bharati, some of Golak Nath’s arguments were used in the case.

It was ruled that there were no limitations on amending under Article 368. But this was with the restriction that “Parliament cannot do indirectly what it cannot do directly.” Also, that is amending is strictly a legislative power, not a constitutional one

The Constitution may be altered or amended in three different ways, namely,

1. Amendment by a simple majority

2. Amendment by special majority

3. Amendment by a special majority with ratification by the state legislature.

What is Amendment Simple Majority?

This refers to the majority of more than 50% of the members present and voting and it is outside the ambit of Article 368. Besides, it is also known as the functional majority or working majority. Also, the simple majority is the most frequently used form of majority in Parliamentary business. In addition, When the constitution or the laws do not specify the type of majority needed, the simple majority is considered for voting.

To understand the simple majority, let us consider a situation in Lok Sabha. On a particular day, out of the total strength of 545, 45 were absent and 100 abstained from voting on an issue. So only 400 members were present and voting. Then the simple majority is 50% of 400 plus 1, i.e. 201.

Cases where the simple majority is used:

To pass Ordinary/Money/Financial bills.

To pass Non-Confidence Motion/Adjournment Motion/Censure Motion/Confidence Motion.

For removing the Vice President majority required in Lok Sabha is the simple majority – A67 (b).

To declare a financial emergency.

To declare a state emergency (President’s rule).

Formation of new states and alteration of areas, boundaries, or names of existing states,

Abolition or creation of legislative councils in states,

Use of official language,

Citizenship – acquisition, and termination,

Election of Speaker/Deputy Speaker of Lok Sabha and State Legislatures.

Fifth Schedule – administration of scheduled areas and scheduled tribes,

Sixth Schedule – administration of tribal areas.

What is Amendment Special Majority?

All types of majorities other than the absolute, effective, or simple majority are known as the special majority. Moreover, the special majority are of 4 types, with different clauses. Also, the two most significant provisions that can be changed by a special majority are the Fundamental Rights and Directive Principles of State Policy (DPSP), however, any changes must stay within the constraints of the Basic Structure of the Constitution.

1 – Special Majority as Per Article 249.

2 – Special Majority as per Article 368.

3 – Special Majority as per Article 368 + 50 percent state ratification by a simple majority.

Special Majority as Per Article 249

Special majority as per article 249 requires a majority of 2/3rd members present and voting. For example, if out of the 245 members in Rajya Sabha, only 150 are present and voting, then the special majority required as per Article 249 would be 101.

Cases where special majority as per article 249 is used:

To pass the Rajya Sabha resolution to empower the parliament to make laws in the state list. (Valid up to 1 year, but can be extended any number of times).

Special Majority as Per Article 368

Accordingly, it is evident that constitutional amendments in India are subject to rigorous scrutiny and careful consideration. Furthermore, the passage of these amendments involves a complex and nuanced process that requires a significant level of political consensus and support. Therefore, it can be said that constitutional amendments play a vital role in shaping the legal and political framework of the country. Moreover, the stringent requirements outlined in Article 368 and the additional requirements for passage in the Rajya Sabha reflect the importance of preserving the integrity and stability of the Constitution. In conclusion, understanding the nuances of constitutional amendments is crucial for anyone seeking to gain a deeper understanding of the Indian legal and political system.

To pass a constitutional amendment bill that does not affect federalism?

Removal of judges of SC/HC.

Removal of CEC/CAG.

Approval of a national emergency requires a special majority as per Article 368 in both houses.

Resolution by the state legislature for the creation/abolition of the Legislative Council (Article 169).

Special Majority as Per Article 368 Plus State Ratification

This type of special majority is required when a constitutional amendment bill tries to change the federal structure. Also, a Special majority as per article 368 plus state ratification requires a majority of 2/3rd members present and voting supported by more than 50% of the state legislatures by a simple majority.

Cases where special majority as per article 368 plus state ratification is used:

To pass a constitutional amendment bill that affects federalism like the position of High Court Judges?

Important Amendments of the Indian Constitution

Here is a list of some major amendments to the Indian Constitution:

First Amendment (1951) – Amendment under Indian Constitution

This amendment protected the rights of property owners and made it more difficult for the government to enact land reform measures. Also, it added the Ninth Schedule, which protected certain laws from being challenged in the courts.

Fourth Amendment (1955) – Amendment under Indian Constitution

This amendment authorized the government to take over the management of “absentee landlord” estates, which were estates owned by landlords who did not live on or manage the land.

Seventh Amendment (1956) – Amendment under Indian Constitution

This amendment extended the powers of the government to acquire property for public purposes and to provide compensation to the owners.

Eleventh Amendment (1961) – Amendment under Indian Constitution

This amendment authorized the government to take over the management of “inam” lands, which were lands granted to individuals or institutions by the government.

Sixteenth Amendment (1966) – Amendment under Indian Constitution

This amendment authorized the government to levy taxes on agricultural income.

Eighteenth Amendment (1971) – Amendment under Indian Constitution

This amendment made significant changes to the Indian Constitution, including creating a new state (Meghalaya), including a new language (Santali) in the Eighth Schedule, and abolishing the privy purses of the former rulers of the princely states.

Twenty-fifth Amendment (1971) – Amendment under Indian Constitution

This amendment recognized the right to property as a legal right rather than a fundamental right.

Thirty-ninth Amendment (1975) – Amendment under Indian Constitution

This amendment protected the constitutional position of the state of Sikkim after it was merged with India.

Forty-second Amendment (1976) – Amendment under Indian Constitution

This amendment made a number of changes to the Indian Constitution, including the addition of the words “secular” and “socialist” to the Preamble and the insertion of the Fundamental Duties of citizens.

Forty-fourth Amendment (1978) – Amendment under Indian Constitution

This amendment reversed many of the changes made by the Forty-second Amendment and restored the rights and freedoms of citizens.

Fifty-second Amendment (1985) – Amendment under Indian Constitution

This amendment recognized the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as a fundamental right.

Sixty-first Amendment (1989) – Amendment under Indian Constitution

This amendment lowered the voting age from 21 to 18.

Sixty-ninth Amendment (1991) – Amendment under Indian Constitution

This amendment recognized the capital city of Delhi as a Union Territory with a legislature.

Seventy-third Amendment (1992) – Amendment under Indian Constitution

This amendment recognized the right to panchayats (local self-governments) as a fundamental right and provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in panchayats.

Seventy-fourth Amendment (1992) – Amendment under Indian Constitution

This amendment recognized the right to municipalities (local self-governments) as a fundamental right and provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in municipalities.

Seventy-seventh Amendment (1995) – Amendment under Indian Constitution

This amendment provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in posts in cooperative societies.

Ninety-third Amendment (2006) – Amendment under Indian Constitution

This amendment provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in higher education institutions.

Ninety-fifth Amendment (2009) – Amendment under Indian Constitution

This amendment provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in the promotion to government jobs.

One Hundred and Third Amendment (2019) – Amendment under Indian Constitution

This amendment provided for the reservation of seats for economically weaker sections of society in higher education institutions.

One Hundred and Fourth Amendment (2020) – Amendment under Indian Constitution

Extended the deadline for the cessation of seats for SCs and STs in the Lok Sabha and state assemblies from Seventy years to Eighty. Moreover, Removed they reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies.

Conclusion

Firstly, the Indian Constitution was meticulously crafted to be a dynamic and flexible statute that could accommodate the diverse needs of the various social strata in Indian society. Furthermore, it was also designed to remain relevant and viable throughout time, without losing its relevance or becoming obsolete.

Finally, the foundation of modern democracy is the constitution which could be torn apart by misuse leading to an overabundance of legislative or executive power.

Frequently Asked Questions about the Amendments under The Indian Constitution?

Q: What is an amendment to the Indian Constitution?

A: An amendment to the Indian Constitution is a change or addition made to the existing text of the Constitution.

Q: How many times has the Indian Constitution been amended?

A: The Indian Constitution has been amended 104 times as of September 2021.

Q: What is the process for amending the Indian Constitution?

A: The process for amending the Indian Constitution is laid out in Article 368 of the Constitution. In addition, it requires a two-thirds majority in both the Lok Sabha (lower house of parliament) and the Rajya Sabha (upper house of parliament), as well as ratification by at least 50% of the state legislatures.

Q: Which amendment to the Indian Constitution abolished the practice of untouchability?

A: The 22nd Amendment to the Indian Constitution abolished the practice of untouchability.

Q: Which amendment to the Indian Constitution introduced the concept of the Directive Principles of State Policy?

A: The 42nd Amendment to the Indian Constitution introduced the concept of the Directive Principles of State Policy.

Q: Which amendment to the Indian Constitution lowered the voting age from 21 to 18?

A: The 61st Amendment to the Indian Constitution lowered the voting age from 21 to 18.

Q: Which amendment to the Indian Constitution made education a fundamental right?

A: The 86th Amendment to the Indian Constitution made education a fundamental right.

Q: Which amendment to the Indian Constitution introduced the Anti-Defection Law?

A: The 52nd Amendment to the Indian Constitution introduced the Anti-Defection Law.

Q: Which amendment to the Indian Constitution made the Right to Information a fundamental right?

A: The 92nd Amendment to the Indian Constitution made the Right to Information a fundamental right.

Q: Which amendment to the Indian Constitution introduced the Goods and Services Tax (GST)?

A: The 101st Amendment to the Indian Constitution introduced the Goods and Services Tax (GST).

1. 1976
2. AIR 1973 SC 1461
3. 1 SCR933
4. 1964
5. Act 10 of 1953
6. Act 10 of 1962
7. Act 14 of 1965