India’s Constitutional Amendments: Flexibility & Rigidity for a Dynamic Democracy

India’s Evolutionary Path in Constitutional Amendments #

• The makers of our Constitution wanted to strike a balance. They placed the Constitution above ordinary law and expected that future generations will respect this document. 
• At the same time, they recognised that, in the future, this document may require modifications.
• The framers of the Indian Constitution wanted it to be both ‘flexible’ and at the same time ‘rigid’.
  • They designed it so that some parts could be easily changed, making it flexible.
  • However, certain core features central to the spirit of the Constitution were made difficult to change, ensuring they remained rigid.
  • This way, the Indian Constitution balances both flexibility and rigidity
• The Indian Constitution combines both of these characteristics.
  • However, the procedure laid down for its amendment is neither as easy as in Britain nor as difficult as in the USA.
• Article 368 of PART XX: provides power and procedure to Parliament for constitutional amendments.
• Supreme Court in the Kesavananda Bharati case (1973) evolved the basic structure doctrine and further consolidated the balance between rigidity and flexibility. 
  • It says  that certain parts cannot be amended, it has underlined the rigid nature while by allowing amendments to all others it has underlined the flexible nature of the amending process.

How Does India Execute Constitutional Amendments? #

Article 368 provides the procedure for the amendment of the constitution as below:

• It says, “Notwithstanding anything in this Constitution, Parliament may, in exercise of 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”.
• Introduction of Bill: A bill for constitutional amendment can be introduced in any house of the Parliament.
  • That bill can be introduced as a government bill or a private member bill. 
• No Prior Approval: Bill does not require prior permission of the president.
• Passing the Bill: The bill must be approved in each House by a special majority, meaning it needs more than 50 percent of the total members and a two-thirds majority of the members present and voting.
• No Joint Sitting: If there is a disagreement between the two Houses, there is no provision for a joint sitting to resolve it
• Amendment of Federal Provisions: If the bill seeks to amend the federal provisions of the Constitution,
  • It must be ratified by a special majority and
  • It must also be approved by a simple majority in the legislatures of half of the states.
• Obligatory Presidential Assent: After being 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 cannot send the bill back for reconsideration and must give their assent to it.
  • The 24th constitutional amendment act 1971 made it obligatory for the president to give his assent to the constitutional amendment bill.
• After the president’s assent, the bill becomes a constitutional amendment act, and the Constitution shall stand amended in accordance with the terms of the bill.

What Paths Does India Follow for Constitutional Amendments? #

• Article 368 of the Constitution provides two methods of amending the Constitution and they apply to two different sets of articles of the Constitution.
  • Special Majority Amendment: Some provisions of the constitution can be amended by special majority.
  • Special Majority and State Ratification: While federal provisions of the constitution can be amended by special majority plus ratification by the half states.
• Simple Majority Amendments Beyond Article 368: Whereas several provisions of the constitution can be amended  by simple majority in Parliament which is similar to ordinary law  as mentioned in some articles ( Article 2 and Article 3). 
  • However, these are not considered to be amendments to the constitution as per article 368.
• Thus, the Constitutional amendment can be amended in three ways: Simple majority, Special majority, and Special majority plus ratification of the half states.

Understanding Constitutional Amendments in India through Simple Majority #

• There are many articles in the Constitution which mention that these articles can be amended by a simple law of the Parliament.
• No special procedure for Constitutional amendment is required in such cases and there is no difference at all between an amendment and an ordinary law. 
• These constitutional amendments fall outside the scope of Article 368. 
• These sections of the Constitution are very flexible.
• These provisions include,
  • Admission or establishment of new states.
  • Abolition or creation of legislative council in state.
  • Quorum in parliament.
  • Salaries and allowances of the members of parliament.
  • Privileges of the parliament.
  • Use of official language and Use of English language in Parliament.
  • Number of puisne judges in the Supreme Court.
  • Citizenship—acquisition and termination.
  • Elections to Parliament and state legislatures and Delimitation of constituencies.
  • Union territories, Fifth Schedule and Sixth Schedule.

Understanding Constitutional Amendments in India through Special Majority #

• Understanding the Special Majority: The majority of the provisions in the Constitution need to be amended by a special majority of Parliament. Special majority requires,
  • First, at least half of the total members of the House must vote in favour of the amendment bill.
    Second, two-thirds of the members who participate in the voting must also support the bill.  
• Separate Passage in Both Houses: Both Houses of Parliament must pass the amendment bill separately in this same manner (there is no provision for a joint session). 
• Special Majority Requirement in All Stages of the Bill: Requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.
• Mandatory Special Majority: For every Constitutional amendment bill, this special majority is required. 
• Provisions Amendable by Special Majority: The provisions which can be amended by this way includes
  • Fundamental Rights;
  • Directive Principles of State Policy; and 
  • All other provisions not included in the first and third categories.

Understanding Constitutional Amendments in India through Consultation and Consent of States #

• Amendments Involving Federal Features: For some articles of the Constitution, special majority is not sufficient. 
  • When a constitutional amendment aims to modify an article related to federal features (the distribution of powers between the States and the central government, or articles related to representation), it’s important for the States to be consulted and to provide their consent. 
• Adding Rigidness to the Constitution: Federalism means that powers of the States must not be at the mercy of the central government.
  • These provisions add an element of rigidness to the constitution.
• State Legislative Consent Requirement: The Constitution has ensured this by providing that legislatures of half the States have to pass the amendment bill before the amendment comes into effect. 
  • Some parts of the Constitution require a broader consensus across the country.
    
  • This rule also involves the states and allows them to be involved in amending the Constitution.
    
  • There’s no specific time limit for the states to agree to the bill.
• Flexible Procedure for State Legislative Consent: At the same time, care has been taken to keep this procedure somewhat flexible even in its more rigid format
  • Only half of the state’s consent is required, and a simple majority of the state legislature is enough.
• Half State Consent Requirement: Once half of the states give their consent, the formality is completed.(Irrespective of views of other states). 
  • Thus, the amendment process is not impracticable even after taking into consideration this more stringent condition.
• Amendable Provisions: Provisions under this which can be amended includes,
  • Election of the President and its manner.
  • Extent of the executive power of the Union and the states.
  • Supreme Court and high courts.
  • The division of legislative powers between the Union and the states.
  • Any of the lists in the Seventh Schedule.
  • Representation of states in Parliament.
  • Article 368 itself- Power of Parliament to amend the Constitution and its procedure.

India’s Constitutional Amendment Process: A Critical Appraisal of Challenges and Limitations #

• Large Number of Amendments: There is always criticism about the number of amendments to the Constitution of India.
  • More than 103 amendments took place in 70  years does seem to be somewhat odd.
• Absence of a Dedicated Body: There isn’t a specific body like the Constitutional Convention in the USA or a Constitutional Assembly dedicated to amending the Constitution.
• Lack of Time Frame and Withdrawal Provision: There is no time limit given to the state for ratification of the bill.
  • Also, it is silent on the issue whether the states can withdraw their approval after the same.
• Absence of Joint Sittings: There is no provision for holding a joint sitting of both the Houses of Parliament,
  • If there is disagreement over the passage of a constitutional amendment bill Like ordinary bill.
• Similarity to Ordinary Legislative Process: The process of amendment is similar to that of an ordinary legislative process except for the special majority, 
  • The Parliament passes constitutional amendment bills in the same way as ordinary bills.
• Exclusive Authority of Parliament: The State Government can not initiate a constitutional amendment bill, It is the sole authority of the parliament. 

What is the Evolution and Dynamics of Constitutional Amendments in India? #

• K C Wheare– ‘strikes a good balance between flexibility and rigidity’.
  • For various amendment procedures he said, ‘This variety in the amending process is wise but rarely found’.
• 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’.
• Granville Austin, ‘the amending process has proved itself one of the most ably conceived aspects of the Constitution. 
  • Although it appears complicated, it is merely diverse’.