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Indian Polity / Centre State Relations

Notes on Amendment of Indian Constitution

    Article 368 notes the procedure of Amendment of Indian Constitution. Amending process of our constitution has been adopted from the constitution of South Africa. Amendment of the Constitution of India includes, (i) Adding or inserting a new Article, (ii) Deletion of an Article ( added Article is deleted ), (iii) Repealing an Article ( if original Article is deleted ) and (iv) Alteration of an Article.

    Amendment Procedure of Indian Constitution

    Article 368 provides only two procedures to amend the Constitution. However in India, 3 procedures are followed. They are -

    1. Amendment with Simple majority.
    2. Amendment with Special majority ( 2/3rd members present and voting plus majority of total membership of each individual House of the Parliament ).
    3. Amendment with 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, Acquisition procedures of Citizenship, Parliamentary procedures, 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 2/3rd members present and voting plus majority of total membership of each individual House.

      For example, if the total strength of Lok Sabha is 545, 2/3rd 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 2/3rd 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 2/3rd 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 itself, etc. are all amended with this procedure.

    Rules and Regulations in Amendment of the Constitution

    • A Bill relating to Amendment of the Constitution may be initiated by either House of the Parliament.
    • The Bill may be initiated by a private member or the Government by itself.
    • All the Amendments must be approved by both the Houses with the required majority separately. In the case of conflict between the two Houses, the Bill is treated to be defeated.
    • Assent of the President to the Constitution Amendment Bill is mandatory. He can not exercise his discretionary power here. The President of India is bound to give his assent.
    • There is no Joint Session of Parliament in case of Constitution Amendment Bill because Article 368 is a self-contained procedure. It has no relation to Article 108, which talks about Joint Session of Parliament. Article 368 is a procedural and substantial Article.
    • Constitutional Amendment is open to judicial review because judicial review comes under basic structure.
    • Parliament to some extent, has limited power to Amend the Constitution. But Constitution of India does not impose or mention any limitation on the amending power of the Parliament. Subsequent limitations are imposed by Judiciary on Parliament in the name of basic structure.
Extra Information

    • Important amendments in Indian constitution include amending the Article 368 itself whcih was amended 3 times so far.
      (i) In 1956 by 7th Amendment.
      (ii) In 1971 by 24th Amendment.
      (iii) In 1976 by 42nd Amendment ( Which is generally called Mini Constitution as lot of Amendments were done to the Constitution)
    • Constitution of India is basically Rigid with certain incorporated flexible features like some Articles that are amended with simple majority. But most of the Amendments are done with special majority.
    • States have only participatory role but not initiating role in amending the Constitution of India.