India’s Constitutional Amendments: Flexibility & Rigidity for a Dynamic Democracy
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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 the future generations will respect this document.
- At the same time they recognised that in the future, this document may require modifications.
- They wanted the Constitution to be ‘flexible’ and at the same time ‘rigid’.
- A constitution that can be very easily changed or modified is often called flexible.
- Some other features were so central to the spirit of the Constitution.
- To protect these from change, makers of the constitution made these provisions rigid.
- The Indian Constitution combines both 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 procedure for the amendment of 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”.
- 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.
- Bill does not require prior permission of the president.
- The bill must be passed in each House by a special 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)
- There is no provision for holding a joint sitting of the two Houses in case of disagreement.
- If the bill seeks to amend the federal provisions of the Constitution,
- Iit must be ratified by a special majority and
- It must also be ratified by the legislatures of half of the states by a simple majority.
- 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 has no powers to send it back for reconsideration.
- The president must give his assent to the bill.
- 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 and
- These constitutional amendments fall outside the scope of Article 368.
- These parts 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.
How does India strike a balance between flexibility and rigidity in constitutional amendments?
- The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament. Special majority requires,
- In the first place, those voting in favour of the amendment bill should constitute at least half of the total strength of that House.
- Secondly, the supporters of the amendment bill must also constitute two-thirds of those who actually take part in voting.
- Both Houses of the Parliament must pass the amendment bill separately in this same manner (there is no provision for a joint session).
- For every Constitutional amendment bill, this special majority is required.
- Requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.
- The provisions which can be amended by this way includes
- Fundamental Rights;
- Directive Principles of State Policy; and
- All other provisions which are not covered by the first and third categories.
Federal Dynamics in India’s Constitutional Amendments: Special Majority, State Consent and Flexible Rigidity
- For some articles of the Constitution, special majority is not sufficient.
- When a Constitutional amendment aims to modify an article related to federal features ( distribution of powers between the States and the central government, or articles related to representation) it is necessary that the States must be consulted and that they give their consent.
- 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.
- 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.
- For some parts of the Constitution, greater or wider consensus in the polity is expected.
- This provision also respects the States and gives them participation in the process of Constitutional amendment.
- There is no time limit within which the states should give their consent to the bill.
- At the same time, care has been taken to keep this procedure somewhat flexible even in its more rigid format
- Consent of only half the States is required and a simple majority of the State legislature is sufficient.
- 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.
- 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.
- Distribution 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 is no provision for a special body like the Constitutional Convention (as in the USA) or Constitutional Assembly for amending the Constitution.
- Lack of Time Frame and Withdrawal Provision: 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 constitutional amendment bills are to be passed by the Parliament 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’.
