Amendment Procedures in the Constitution of India

Amendment procedure: – for the purposes of amendment the provisions of the constitution fall under three categories. The procedure of each category is laid down in the constitution.

Firstly, those that can be affected by a simple majority, required for passing of an ordinary law. These amendments contemplated in articles 4,169 and 239-A and paras 7 and 21 of the fifth and sixth schedules respectively 239-A fall within this class. They are specifically excluded from the purview of Article 368.

Secondly, those that can be affected by a special majority as laid down in Article 368(2). All constitutional amendments other than those referred to above come within this category and must be affected by a majority of the total membership of each house of parliament as well as by majority of not less than two-thirds of the members of that House present and voting.

Thirdly, those that require, in addition to the special majority as described above, ratification by resolution passed by not less than one- half of the State legislatures. This class comprises amendments which seek to make any change in the provisions referred in the proviso to article 368(2).

Amendments in the following provisions require such ratification:

The election and manner of election of the president

The extent of the executive power of the union

The extent of the executive power of a state

Provisions dealing with the Supreme Court

Provisions dealing with the High Courts in the States

High Courts for union territories

Distribution of legislative powers between the union and the states

The representation of states in parliament

Seventh schedule of the constitution

Article 368 i.e. the power and procedure of amendment of the constitution

In khiloto hollohan v. Zachillhu para 7 of the Tenth Schedule to the constitution, which bars the jurisdiction of the courts in respect of any matter connected with the disqualification of a member of a house under that schedule, has been invalidated by the court because it has the effect of amending the powers of the supreme court and the high courts without following the procedure required in the proviso to article 368(2).

The amending bill can be introduced in either House of Parliament , but it must be passed by each house by the special majority prescribed in article 368. The bill, after it has been passed by both houses and , if the amendment is such as requires ratification by the states, after it has been ratified by the required number of states must be presented to the president for his assent. After the assent of the president to the bill, the constitution shall stand amended. In other respects, the normal procedure of each House of Parliament is to be followed so far as that may be applicable consistently with the express provisions of Article 368 [1] .

AMENDMENT OF THE FUNDAMENTAL RIGHTS

The question whether an amendment of fundamental rights guaranteed by part III of the constitution is permissible under Article 368 came before the supreme court as early as in 1951 in Shankari Prasad Deo v. Union of India. In that case, validity of the constitution (first amendment) Act ,1951, especially the inclusion of Articles 31-A and 31-B was challenged in a petition under article 32. It was alleged under, inter alia, that as Article 13(2) prohibited making of laws under abridging fundamental rights, it prohibited such abridgment even by an amendment because an amendment was also a law. Rejecting the argument , the court held that the power to amend the constitution including the fundamental rights, was contained in Article 368 and that the word law in Article 13(2) did not include an amendment of the constitution which was made in the exercise of constituent and not legislative power. Later several other amendments were made in the constitution of which the fourth and the seventh amendments related to part III of the constitution. The seventeenth amendment which added several legislations to the Ninth Schedule making them immune from attack on the ground of violation of fundamental rights was challenged in the case of Sajjan Singh v. State of Rajasthan. Though three of the five judges (Ganjendragadkar C.J,&Wanchoo&Dayal JJ.) in that case fully approved the sankari Prasad case, two of them(Hidyatullah and Mudholkar,JJ.) in their separate but concurring opinions expressed serious doubts whether fundamental rights created no limitation on the power of amendment. In Golak Nath v. State of Punjab, the supreme court by a majority of six to five dissented from Sankari Prasad and Sajjan Singh and held that the fundamental rights were outside the amendatory process, if the amendment took away or abridged any fundamental right.

In Golak Nath case, three writ petitions were involved. One was filed by the son, daughter , and grandfathers of Golak Nath. In this petition, the inclusion of the Punjab Security of Land Tenures Act,1953 in the Ninth Schedule was challenged on the ground that the seventeenth amendment by which it was so included as well as the First and Fourth amendments abridging fundamental rights were unconstitutional. In other two petitions , inclusion of Mysore Land Reforms Act(10 of 1962 as amended by Act 14 of 1965) had been attacked on the same grounds. Most of the contentions raised on behalf of the petitioners and respondents summarised in the judgment had already been raised before the Supreme Court in Sankari Prasad and Sajjan Singh cases. The case was heard by an eleven- judge bench of the supreme court which by a majority of 6:5 held that the fundamental rights were outside the amendatory process if the amendment took away or abridged any of the rights and that Sankari Prasad case and Sajjan Singh case conceded the power of amendment over part III on an erroneous view of Article 13(2) and article 368 and to that extent they were not good law. The judgment was however given a prospective effect and therefore, it did not invalidate any of the amendments disputed court in the case.

This decision led to the passing of the constitution (twenty –fourth amendment) Act, 1971, which made significant changes in Article 368. Some of the significant changes made were.

Power and procedure to amend was put in the marginal note. The name of the power was constituent power. The amendment could be done by (a) alteration (b) variation (c) repeal

It took away president’s power to negate any sort of amendment.

Nothing in article 368 shall apply to article 13. In short article 368 was kept above article 13. Fundamental rights could be easily amended.

Year: 1973- Keshvanandabharti case

Article 368 provides for procedure+power{golaknath’s criticism}

F.R. may be amended {golaknath’s criticism}

The S.C. developed the doctrine of “basic structure” or basic provisions of the constitution. According to Justice H.R. Khanna , F.R. relating to property is not part of basic structure.

Consequences of Keshvananda Bharti decision:

So far as “basic structure” is concerned ,amendment of the constitution is not possible.

Supremacy of judicial review was affirmed.

42nd amendment act

Article 368(4): no constitutional amendment before or after 1976 shall be taken away by the judiciary in any court on any ground.

Article 368(5): constituent power is unlimited and is subject to no limitation whatsoever.

Consequences

Parliamentary power supreme.

Constituent power unlimited

Year: 1980-Minerva Mills case

Recognition of separation of power; between executive , judiciary and legislature.

Result

Declared articles 368(4) and 368(5) unconstitutional. Reaffirmed the power of judicial review.