The procedure of amendment in the Indian constitution is laid down in Part XX (Article 368) of the Constitution of India.
Types of amendments
The original constitution provided for three categories of amendments.
- The first type of amendments includes that can be passed by “simple majority” in each house of the Parliament of India.
- The second type of amendments includes that can be effected by the parliament by a prescribed “special majority” in each house; and
- The third type of amendments includes those that require, in addition to such “special majority” in each house of the parliament, ratification by at least one half of the State Legislatures.
Procedure of Amendments
As per the procedure laid out by article 368 for amendment of the Constitution, an amendment can be initiated only by the introduction of a Bill in either House of Parliament. The Bill must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.
There is no provision for a joint sitting in case of disagreement between the two Houses. Total membership in this context has been defined to mean the total number of members comprising the House irrespective of any vacancies or absentees on any account vide Explanation to Rule 159 of the Rules of Procedure and Conduct of Business in Lok Sabha.
The Bill, passed by the required majority, is then presented to the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than one-half of the States.
These provisions relate to certain matters concerning the federal structure or of common interest to both the Union and the States viz., the election of the President (articles 54 and 55); the extent of the executive power of the Union and the States (articles 73 and 162); the High Courts for Union territories (article 241); The Union Judiciary and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI); the distribution of legislative powers between the Union and the States (Chapter I of Part XI and Seventh Schedule); the representation of States in Parliament; and the provision for amendment of the Constitution laid down in article 368. Ratification is done by a resolution passed by the State Legislatures.
There is no specific time limit for the ratification of an amending Bill by the State Legislatures. However, the resolutions ratifying the proposed amendment must be passed before the amending Bill is presented to the President for his assent.
Private Members’ Bills
A Bill for amendment of the Constitution by a Private Member is governed by the rules applicable to Private Members’ Bills in general. The period of one month’s notice applies to such a Bill also. In addition, in Lok Sabha, such a Bill has to be examined and recommended by the Committee on Private Members’ Bills before it is included in the List of Business.
Role of state legislatures
The role of the states in constitutional amendment is limited. State legislatures cannot initiate any Bill or proposal for amendment of the Constitution. They are associated in the process of the amendment only through the ratification procedure laid down in article 368, in case the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368.
The only other provision for constitutional changes by state legislatures is to initiate the process for creating or abolishing Legislative Councils in their respective legislatures, and to give their views on a proposed Parliamentary bill seeking to affect the area, boundaries or name of any State or States which has been referred to them under the proviso to Article 3. However, this referral does not restrict Parliament’s power to make any further amendments of the Bill.
Role of Union territories
Union territories have no say in constitutional amendments, including the ratification process which is only open to States. Delhi, Puducherry and Jammu and Kashmir are three union territories that are entitled, by special constitutional amendments, to have an elected Legislative Assembly and a Cabinet of ministers, thereby enjoying partial statehood powers. These three territories can participate in the ratification process.
Limitations of Constitutional Amendments
The Constitution can be amended any number of times by the Parliament; but only in the manner provided. There is no such limit provided in the constitution of India which allows it to enact only certain number of amendments in a year. In other words, Parliament is free to enact any number of constitutional amendment in any given year. Although Parliament must preserve the basic framework of the Constitution, there is no other limitation placed upon the amending power, meaning that there is no provision of the Constitution that cannot be amended.
The current limitation on amendments comes from Kesavananda Bharati vs. The State of Kerala, where the Supreme Court ruled that amendments of the constitution must respect the “basic structure” of the constitution, and certain fundamental features of the constitution cannot be altered by amendment. Parliament attempted to remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that “there shall be no limitation whatever on the constituent power of Parliament to amend …this Constitution”. However, this change was itself later declared invalid by the Supreme Court in Minerva Mills v. Union of India.
