- Under Article 368 (specific provision) of the Constitution, the Parliament is the repository of the constituent power of the Union and hence, it can amend the Constitutional provision as per the requirement/s (within the circumscribed limit).
- Article 368 (1) states that notwithstanding anything in this Constitution, the Parliament may exercise its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
- Article 368 (2) states that an amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is 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, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill.
- Article 368 (4) states that no amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.
- Article 368 (5) states that for the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
Amendment Procedure of Indian Constitution
Article 368 of Indian Constitution provides only two procedures to amend the Constitution. However in India, 3 procedures are followed. They are
1. Amendment by Simple majority.
2. Amendment by Special majority (2/3 members present and voting plus majority of total membership of each individual House of the Parliament).
3. Amendment by Special majority plus ratification with simple majority by more than half of the State Legislatures.
Amendment by Simple majority
- There are certain Articles, PARTS and Schedules which are amended by the Parliament with a simple majority. That means half the members or above, present and vote just like an Amendment of ordinary law.
- Any Amendment that is made to the Constitution by simple majority is not deemed to be Amendment under Article 368 because there is no much difference in Amendment of ordinary law and certain parts of the Constitution.
- Examples like Creation and the Abolition of States, Parliamentary procedures, Ways of Acquiring Citizenship, Delimitation of Constituencies, etc. are amended with simple majority.
Amendment by Special majority
- Some PARTS of the Constitution like PART III, PART IV and all other parts which are not covered in first and third procedures are amended with special majority. It is the majority in which 2/3 members present and voting plus majority of total membership of each individual House.
- For example, if the total strength of Lok Sabha is 545, 2/3 members present and voting should be greater than 273 which is just above the halfway mark of 545.
- Let us say, in total 400 members were present in Lok Sabha at the time of making the Amendment, in which 275 supported and 125 opposed the move. In this case, the Amendment is deemed to be passed because 275 out of 400 is greater than 2/3 majority and at the same time 275 is greater than 273.
Amendment by Special majority with ratification by States
- It is also special majority of the Parliament with 2/3 members present and voting plus majority of total membership of each individual House of the Parliament and at the same time ratification with simple majority by more than half of the State Legislatures.
- If there exists an Upper House in a State, even the Upper House has to ratify it. The State Legislatures must have to ratify the Bill within the time duration specified by the President. If less than half the states ratify it, the Bill is deferred and it will be sent back to the States which rejected it.
- If a State said “No” it can say “Yes” later. But “Yes” state cannot say “No” later. Examples like Federal and Interstate relations, Representation to States in Parliament, Universal Adult Franchise, Procedure of the election of President of India, Article 368 of Indian Constitution itself, etc. are all amended with this procedure.
- The Constitution of India provides for a distinctive amendment process when compared to the Constitutions of other nations.
- This can be described as partly flexible and partly rigid. The Constitution provides for a variety in the amending process.
- This feature has been commended by Australian academic Sir Kenneth Wheare who felt that uniformity in the amending process imposed “quite unnecessary restrictions” upon the amendment of parts of a Constitution.
- An amendment of the Constitution 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. This is known as special majority.
- There is no provision for a joint sitting in case of disagreement between the two Houses.
- 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 provision to article 368, it must be ratified by the Legislatures of not less than one-half of the States.
- Although there is no prescribed time limit for ratification, it must be completed before the amending Bill is presented to the President for his assent.
- Every constitutional amendment is formulated as a statute. The first amendment is called the “Constitution (First Amendment) Act”, the second, the “Constitution (Second Amendment) Act”, and so forth. Each usually has the long title “An Act further to amend the Constitution of India”.
- 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.
Passing of the Bill & Ratification
- 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.
Rules of Procedure in Parliament for Constitutional Amendments
- Article 368 does not specify the legislative procedure to be followed at various stages of enacting an amendment.
- 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.
- The Rules of Procedure and Conduct of Business make certain specific provisions regarding amendment bills in the Lok Sabha.
- They relate to the voting procedure in the House at various stages of such Bills, in the light of the requirements of article 368; and the procedure before introduction in the case of such Bills, if sponsored by Private Members.
- Although the “special majority”, required by article 368 is prima facie applicable only to the voting at the final stage, the Lok Sabha Rules prescribe adherence to this constitutional requirement at all the effective stages of the Bill, i.e., for adoption of the motion that the Bill be taken into consideration; that the Bill as reported by the Select/Joint Committee be taken into consideration, in case a Bill has been referred to a Committee; for adoption of each clause or schedule or clause or schedule as amended, of a Bill; or that the Bill or the Bill as amended, as the case may be, be passed.
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