‘Basic structure’ of the Constitution
Kesavananda Bharati case-1973 and other judgement of Indian Constitution has pointed out following as Basic Structure.
- The supremacy of the Constitution.
- Democratic and Republic nature of the Indian Polity Secularism
- Separation of powers between legislature, executive and Judiciary
- Federal character
- Judicial review
- Freedom and dignity of the individual
- Rule of law
- Unity and Integrity of the nation
- Balance between Fundamental Rights and Directive Principles of State Policy
- The Principle of equality
- Free and fair elections
- Independence of Judiciary
- Limited powers of the Parliament to amend the Constitution
The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:
An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
- The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
The bill must be passed in each House by a special majority- a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
- If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
- After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
- The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
The 24th constitutional amendment of 1971 made obligatory on the part of the President to give the assent for the constitutional amendment bill.
After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.
HOW MANY METHODS ARE MENTIONED TO AMEND THE CONSTITUTION?
Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority.
But, some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process). Notably, these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.
Therefore, the Constitution can be amended in three ways:
(a) Amendment by simple majority of the Parliament,
(b) Amendment by special majority of the Parliament, and
(c) Amendment by special majority of the Parliament & the ratification of half of the state legislatures.
By Simple Majority of Parliament
A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament outside the scope of Article 368. These provisions include:
- Admission or establishment of new states.
- Formation of new states and alteration of areas, boundaries or names of existing states.
- Abolition or creation of legislative councils in states.
- Second Schedule—emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
- Quorum in Parliament.
- Salaries and allowances of the members of Parliament.
- Rules of procedure in Parliament.
- Privileges of the Parliament, its members and its committees.
- Use of English language in Parliament.
- Number of judges in the Supreme Court.
- Conferment of more jurisdiction on the Supreme Court.
- Use of official language.
- Citizenship—acquisition and termination.
- Elections to Parliament and state legislatures.
- Delimitation of constituencies.
- Union territories.
- Fifth Schedule—administration of scheduled areas and scheduled tribes.
- Sixth Schedule—administration of tribal areas.
By Special Majority of Parliament
Special majority is a majority (that is, more than 50 per cent) of the total membership of each House
a majority of two-thirds (2/3rd ) of the members of each House present and voting.
The expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees. The provisions which can be amended by this way includes:
(i) Fundamental Rights;
(ii) Directive Principles of State Policy; and
(iii) All other provisions which are not covered by the first and third categories.
By Special Majority of Parliament and Consent of States
Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority.
If one or some or all the remaining states take no action on the bill, it does not matter; the moment half of the states give their consent, the formality is completed.
There is no time limit within which the states should give their consent to the bill.
The following provisions can be amended in this way:
- Election of the President and its manner.
- Extent of the executive power of the Union and the states.
- Supreme Court and high courts.
- Distribution of legislative powers between the Union and the states.
- Any of the lists in the Seventh Schedule.
- Representation of states in Parliament.
- Power of Parliament to amend the Constitution and its procedure (Article 368 itself).
For UPSC mains Examination
Critical Evaluation /Main points of criticism:
1)The power to initiate an amendment – The power to initiate an amendment to the Constitution lies with the Parliament. Hence, unlike in USA, the state legislatures cannot initiate any bill or proposal for amending the Constitution except in one case, that is, passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states. Here also, the Parliament can either approve or disapprove such a resolution or may not take any action on it.
2)Major part of the Constitution can be amended by the Parliament alone either by a special majority or by a simple majority. Only in few cases, the consent of the state legislatures is required and that too, only half of them, while in USA, it is three-fourths of the states.
3)The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them. Also, it is silent on the issue whether the states can withdraw their approval after according the same.
4) Undemocratic:-The critics hold that since the process of amendment does not provide for a system of getting consent or approval of the people of India, it is an undemocratic method.
5)Very Flexible: –The Parliament alone can amend most of the constitutional provisions.
6)Very Rigid:-Some scholars feel that the Constitution of India is very rigid. It worked as a flexible constitution during 1950-1989 only because of the presence of single party dominance in Indian politics. In this era of coalition governments, it has become a very rigid constitution.
7)Lack of Procedure for resolving deadlocks over Amendment Bills: –The Constitution does not provide for any method of resolving deadlocks between the two Houses of parliament over an amendment bill.
8)Less Importance to States: –Except for the ‘ten provisions’ listed by Article 368, all parts of the Constitution can be amended by the Union Parliament alone without the consent of the State Legislatures. States do not have even the right to propose amendments.
9)The provision for Judicial Review over Amendments: –Some critics also object to the system of judicial review which permits the Supreme Court and every High Court to judge the constitutional validity of the amendments passed by the Parliament.
This makes the Supreme Court of India a super legislature with the negative power of the rejecting duly passed amendments. On all these grounds, the critics strongly criticise the method of amendment of the Constitution of India.
In defence of the amendment method, it can be said that:
1) It is the best possible method of amendment. It has both the quality of being rigid as well as flexible. It strikes a good balances.
2) In a developing country like India, the constitution is an instrument of social change and that is why it has undergone frequent amendments.
3) The detailed and lengthy size of the constitution and its character as a common constitution of both the Union and States, have also been responsible for the incorporation of several and frequent amendments.
4) The existing method of Amendment stands justified as a natural necessity of India’s pluralist society and developing polity.
Pandit Jawaharlal Nehru–Said in the Constituent Assembly, ‘While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution. There should be a certain flexibility. If you make any Constitution rigid and permanent, you stop the nation’s growth, the growth of a living, vital, organic people’
Dr B R Ambedkar-Said in the Constituent Assembly that, ‘The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or Australia, but has provided for a facile procedure for amending the Constitution
Question UPSC (Main) Exam. ( CSE-2002)
How is the Constitution amended? Do you think that the procedure for amendment makes the constitution a play thing in the hands of the Centre ?
Source: Indian Polity by Laxmikanth