Amendment of the Constitution of India

The Constitution of India vests constituent power upon the Parliament subject to the special procedure laid down therein.

[1] During the discussion in the Constituent Assembly on this aspect, some members were in favor of adopting an easier mode of amending procedure for the initial five to ten years.

But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions.

Kamath favored ensuring procedural safeguards to avoid the possibility of hasty amendment to the Constitution.

The Draft Constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or a referendum ...

What is said to be the absurdity of the amending provisions is founded upon a misconception of the position of the Constituent Assembly and of the future Parliament elected under the Constitution.

The future Parliament if it met as Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which has acted as an obstacle in their way.

Although there is no prescribed time limit for ratification, it must be completed before the amending Bill is presented to the President for his/her assent.

Article 169 empowers Parliament to provide by law for the abolition or creation of the Legislative Councils in States and specifies that though such law shall contain such provisions for the amendment of the Constitution as may be necessary, it shall not be deemed to be an amendment of the Constitution for the purposes of article 368.

[1] Ambedkar speaking in the Constituent Assembly on 17 September 1949, pointed out that there were "innumerable articles in the Constitution" which left matters subject to laws made by Parliament.

Thus, by passing ordinary laws, Parliament may, in effect, provide, modify or annul the operation of certain provisions of the Constitution without actually amending them within the meaning of article 368.

Other examples include Part XXI of the Constitution—"Temporary, Transitional and Special Provisions" whereby "Notwithstanding anything in this Constitution" power is given to Parliament to make laws with respect to certain matters included in the State List (article 369); article 370 (1) (d) which empowers the President to modify, by order, provisions of the Constitution in their application to the State of Jammu and Kashmir; provisos to articles 83 (2) and 172 (1) empower Parliament to extend the lives of the House of the People and the Legislative Assembly of every State beyond a period of five years during the operation of a Proclamation of Emergency; and articles 83(1) and 172 (2) provide that the Council of States/Legislative Council of a State shall not be subject to dissolution but as nearly as possible one-t Part-xx Article 368 (1) of the Constitution of India grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation.

"[1] The provisions in italics were inserted by the 42nd Amendment but were later declared unconstitutional by the Supreme Court in Minerva Mills v. Union of India in 1980.

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.

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.

There are gaps in the procedure as to how and after what notice a Bill is to be introduced, how it is to be passed by each House and how the President's assent is to be obtained.

This point was decided by the Supreme Court in Shankari Prasad Singh Deo v. Union of India (AIR 1951 SC 458).

Hence, barring the requirements of special majority, ratification by the State Legislatures in certain cases, and the mandatory assent by the President, a Bill for amending the Constitution is dealt with the Parliament following the same legislative process as applicable to an ordinary piece of legislation.

[1] The Rules of Procedure and Conduct of Business make certain specific provisions regarding amendment bills in the Lok Sabha.

[1][9] By strictly adhering to article 368, the provision is intended to ensure the validity of the procedure adopted, but also guard against the possibility of violation of the spirit and scheme of that article 29 by the consideration of a Bill seeking to amend the Constitution including its consideration clause by clause being concluded in the House with only the bare quorum present.

However, the Speaker may, with the concurrence of the House, put any group of clauses or schedules together to the vote of the House, provided that the Speaker will permit any of the clauses or schedules be put separately, if any member requests that.

Such amendments should, however, normally be brought by the Government after considering the matter in all its aspects and consulting experts, and taking such other advice as they may deem fit.

(ii) Some time should elapse before a proper assessment of the working of the Constitution and its general effect is made so that any amendments that may be necessary are suggested as a result of sufficient experience.

(iii) Generally speaking, notice of Bills from Private Members should be examined in the background of the proposal or measures which the Government may be considering at the time so that consolidated proposals are brought forward before the House by the Government after collecting sufficient material and taking expert advice.

The proviso of article 3 provides that no bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the bill has been referred by the President to the Legislature of the State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

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.

The Constitution Bench in its majority judgement upheld the validity of the Tenth Schedule, but declared Paragraph 7 of the Schedule invalid because it was not ratified by the required number of the Legislatures of the States as it brought about in terms and effect, a change in articles 136, 226 and 227 of the Constitution.

However, in the dissenting opinion, the minority of the Judges held that the entire Amendment is invalid for want of ratification.

This is partly because the Constitution is so specific in spelling out government powers that amendments are often required to deal with matters that could be addressed by ordinary statutes in other democracies.

Amendments have been made with the intent of reform the system of government and incorporating new "checks and balances" in the Constitution.