Introduction

The procedure for amending the Constitution of India, outlined in Part XX under Article 368, serves as a crucial mechanism for adapting the supreme law of the land to changing societal needs and circumstances. This procedure delineates the steps and requirements necessary for altering various provisions of the Constitution, ensuring that amendments are deliberated upon carefully and reflect the collective will of the people and their representatives.

Amendment of the Constitution and the Doctrine of Basic Structure

• Amendment Procedure: The procedure for amending the Constitution is neither flexible (Britain) nor rigid (USA). 
  • It is the synthesis of both.
• Kesavananda Bharati case, 1973: It states that Parliament may amend the Constitution but can’t amend those provisions which form the basic structure of the Constitution.
• Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976, respectively.
• Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law.

Procedure for the Amendment of the Constitution (Article 368)

• Introduction of Bills: A Constitutional Amendment Bill can be introduced only in either house of Parliament. [UPSC 2013]
• Introduced by: Either by a minister or private member.
• No Prior Approval: Prior permission of the President is not required to introduce the bill. [UPSC 2022]
• Type of Majority needed: Special Majority: Majority of the total membership of that house (50%) + by a majority of not less than 2/3 of the members of that house present and voting (2/3 of Present & Voting). [UPSC 2022]
  • Both houses need to pass the bill with a special majority separately.
• No Joint Sitting: There is no provision for a joint sitting in case of disagreement between the two Houses.
• Role of State Government: While Amending federal provisions, Special majority + ratification by the legislatures of half of the states by a simple majority.
• Role of the President: 24th Constitutional Amendment: It also amended Article 368 to expressly that Parliament has the power to amend any provision of the Constitution. 
  • The amendment further made it obligatory for the President to give his assent, when a Constitution Amendment Bill was presented to him. [UPSC 2022]
  • Limitations on Veto Power: He can neither withhold his assent to the bill nor return the bill for reconsideration by the Parliament.
  • After the president’s assent, the bill becomes an Act, and the Constitution stands amended in accordance with the terms of the Act.

Types of Constitutional Amendments 

• Article 368 provides for two types of amendments by a special majority of Parliament and also through the ratification of half of the states.
• Some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament.
  • However  these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.
• Thus, the Constitution can be amended in three ways:
  • Amendment by simple majority of the Parliament (Do not come under article Under Article 368)
  • Amendment by special majority of the Parliament (Under 368)
  • Amendment by special majority of the Parliament and the ratification of half of the state legislatures.(Under 368)

Supreme Court ( Final Interpreter & Guardian of the Constitution)

• Extensive Jurisdiction of SC: The Constitution of India has conferred a very extensive jurisdiction and vast powers on the Supreme Court.
  • SC is the final interpreter and guardian of the Constitution and also the guarantor of the fundamental rights of the citizens.
• Kesavananda Bharati Case (1973):
• SC laid down a new doctrine of the ‘basic structure’ of the Constitution.
• Therefore, any constitutional amendment that is ultra vires or goes against the ‘basic structure’ of the Indian Constitution can be nullified by the SC.

Criticism of the Amendment Procedure

• Exclusive Authority of Parliament: States cannot initiate the amendment (Only Parliament can).
  • States have only one way to propose the amendment i.e. create the legislative council in the state.
• No Time Limit for States: The Constitution does not mention the time within which state legislatures ratify or reject the amendment.
• Silent on Withdrawal of States: The Constitution is also silent on whether the states can withdraw their approval once given.
• Absence of Special Amendment Body: No provision for a special body for amendment + Only in a few cases, the consent of the state legislatures is required.
• No Joint Sitting: No provision for holding a joint sitting.
• Expansive Judicial Review Potential: Wide scope for taking matters to the judiciary due to vague provisions.

Conclusion

• Amendment to the Constitution typically involves multiple stages of consideration, debate, and approval to ensure that proposed changes reflect the will of the people and have broad support across different segments of society. 
• By requiring significant levels of consensus, the process helps safeguard the integrity and stability of the constitutional framework while allowing for necessary adaptations over time. 
• Overall, the amendment procedure serves as a crucial mechanism for ensuring the relevance and responsiveness of the Constitution to evolving societal needs and values.

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