Constitution

Parliament’s power to

amend the Constitution of

India

by Esha Jain

Practically every Constitution has some

formal method of constitutional

amendment. This method consists in

changing the language of the

constitutional provisions so as to adopt

them to the changed context of the

social needs. In some countries, the

process may be easier than in others,

and accordingly, the Constitutions are

sometimes classified into flexible or

rigid. In a rigid Constitution, the

process of amending the Constitution is

more elaborate and difficult than the

enactment of ordinary laws.

In a flexible Constitution, the

amendment may be affected rather

easily. The best example of such a

Constitution is the English Constitution,

which may be amended by passing an

ordinary Act of Parliament and there is

no distinction between ordinary

legislation and constituent legislation. A

federal Constitution is usually of a rigid

type, for it seeks to achieve a balance

between the Centre and the States.

In India, the most important process to

modify and adopt the text of the Indian

Constitution is contained in Article 368.

For the purpose of amendment, various

Articles of the Constitution are divided

into three categories:

(1) Amendment by simple majority:

Amendments contemplated in Articles

5, 6, and 239-A, can be made by simple

majority. These Articles are specifically

excluded from the purview of the

procedure prescribed in Article 368.

(2) Amendment by special majority:

Articles which can be amended by

special majority are laid down in Article

368. All constitutional amendments,

other than those referred to as above,

come within this category and must be

effected by a majority of the total

membership of each House of the

Parliament, as well as by a majority of

not less than two-thirds of the

members of that House present and

voting.

(3) By special majority and

Ratification by States:

Articles which require in addition to the

special majority and ratification by not

less than one-half of the State

Legislatures come under this category.

These are fundamental matters where

States have important power under the

Constitution and any unilateral

amendment by Parliament may vitally

affect the fundamental basis of the

system built up by the Constitution.

This class of articles consists of

amendments which seek to make any

change in the provisions mentioned in

Article 368. The following provisions

require such ratification by States:

(1) Election of President—Articles 54

and 55.

(2) Extent of Executive power of the

Union and States—Articles 73 and 162.

(3) Articles dealing with Judiciary—

Supreme Court and the High Court’s—

Articles 124 to 147 and 214 to 231, and

241.

(4) Distribution of legislative powers

between the Centre and the States.

(5) Any of the Lists of VII Schedule.

(6) Representation of States in

Parliament IV Schedule.

(7) Article 368 itself.

Procedure for Amendment under

Article 368:

A Bill to amend the Constitution may

be introduced in either House of

Parliament. It must be passed by each

House by a majority of not less than

two-thirds members of total

membership of that House present and

voting. When a Bill is passed by both

Houses, it is presented to the President

for his assent, who shall give his assent

to the Bill and the Constitution shall

stand amended.

The question whether amendment of

fundamental rights are covered by the

proviso to Article 368, came for

consideration in Shankari Prasad v.

Union of India, AIR 1951 S.C. 455. In

this case, validity of the First

Amendment which inserted Articles 31-

A and 31-B, was challenged.

The Supreme Court held that power to

amend the Constitution including the

fundamental rights, was contained In

Article 368 and that the word “Law” in

Article 13 (2) includes only an ordinary

law and not constitutional

amendments. Therefore, a

constitutional amendment will be valid

even if it abridges or takes away any of

the fundamental rights.

Same line of approach was followed in

SaJJan Singh vs. State of Rajas than, AIR

1965 S.C. 845, in which the validity of

Seventeenth Amendment of the

Constitution was challenged. Supreme

Court approved the majority Judgment

given In Shankari Prasad case, that

“amendment of the Constitution” means

amendment of all the provisions of the

Constitution.

But In Golak Nath vs. State of Punjab,

AIR 1967 S.C. 1643, and Supreme

Court overruled the decisions of

Shankari Prasad and Sajjan Singh cases

and held that Parliament had no power

to amend Part III of the Constitution so

as to abridge or take away the

fundamental rights.

The Constitution (24th Amendment) Act,

1971, was passed to remove the

difficulties created by the decision of

Golak Nath case. This amendment

provides that Article 13 does not

include the amendment of the

Constitution made under Article 368. It

added a new sub-clause In Article 368

which provides that “notwithstanding

anything in this Constitution,

Parliament may, in exercise of

constituent power, amend by way of

addition, variation, or repeal any

provision of the Constitution.”

The validity of this Amendment was

again challenged In Keshvanand Bhartiv.

State of Kerala, AIR 1973 S.C. 1461. In

this case, Supreme Court overruled the

decision of Golak Nath case and held

that Article 368, even before the 24th

Amendment of the Constitution,

contained the powers as well as the

procedure of the amendment.

As regards the scope of the amending

power contained in Article 368, the

court said that the word “amendment”

has been used in various places to

mean different things. In Article 368, It

means any addition or change in any of

the provisions of the Constitution. The

fundamental rights cannot be

abrogated, but they can be amended

reasonably. The court further said that

every part of the Constitution can be

amended provided in the result the

basic structure of the Constitution

remains the same.

To remove the difficulties created by

the decision of Keshvanand Bharti Case,

the Constitution (42nd Amendment)

Act, 1976, has added two new clauses

(4) and (5) to Article 368 of the

Constitution. Clause (4) provides that

no constitutional amendment (including

the provisions of Part III) or purporting

to have been made under Article 368

whether before or after the

commencement of Constitution (42nd

Amendment) Act, 1976, shall be called

in question in any court on any ground.

Clause (5) declares that there shall be

no limitation whether on the

constituent power of Parliament to

amend by way of addition, variation or

repeal the provisions of the

Constitution under this Article.

In Minerva Mills Ltd. v. Union of India,

AIR 1980 S.C. 1789, the Supreme Court

held clauses (4) and (5) of Article 368

as void, because through these clauses

all limitations on the amending power

of the Parliament were removed.

The court held that Parliament cannot

have unlimited power to amend the

Constitution. “Limited amending power”

is the basic feature of the Constitution.

The court, however, held that the

doctrine of basic structure is to be

applied only in judging the validity of

the amendments to the Constitution

and it does not apply for judging the

validity of ordinary laws made by the

Legislature.