The chapter introduces the student to the need for and the processes of amending the constitution of India. The chapter provides in-depth details about how the constitution can be changed and also about the special majority and Parliamentary democracy. We also highlight a landmark dispute named Kesavananda Bharati Case and its outcomes.
Why should the constitutions be amended?
It is not rare for countries to modify their constitutions in reaction to changing circumstances, shifting social ideologies, or even political upheavals.
The Soviet Union had four constitutions in its life of 74 years. After the disintegration of the Soviet federation in 1991, the newly formed Russian Federation adopted a new constitution in 1993
The Indian Constitution - A living document
The Constitution of India was adopted on 26 November 1949. Its implementation formally started on 26 January 1950. The constitution was questioned many times for its viability but the makers of our constitution had framed a very robust Constitution; its basic framework is very much suited to our country even today.
The Constitution makers were very farsighted and provided many solutions for future situations.
How does the same constitution continue to serve India?
Our Constitution accepts the necessity of modifications according to changing needs of society. In the actual working of the Constitution, there has been enough flexibility of interpretations. The political practice and judicial rulings have shown maturity and flexibility in implementing the constitution.
The above factors have made our Constitution a living document rather than a closed and static rulebook.
Why should the constitution be modifiable?
The provisions of the constitution would naturally reflect efforts to tackle the problems that the society is facing at the time of the making the constitution. The constitution must be a document that provides the framework of the government for the future as well. It has to be able to respond to the challenges that may arise in the future.
The constitution will always have something that is contemporary and something that has more durable importance:
A constitution is not a frozen and unalterable document, the constitution is a framework for the democratic governance of the society.
The constitution is a sacred document and that it is an instrument that may require changes from time to time.
Our constitution is not a static document, it is not the final word about everything; it is not unalterable.
How To Amend the Indian Constitution?
Balancing approach of our Constitution
The Constitution must be amended if so required. But it must be protected from unnecessary and frequent changes. The Constitution is supposed to be ‘Flexible’ and ‘Rigid’ at the same time. (Flexible means open to changes and rigid means resistant to changes.)
The framers of the Constitution were well aware that the document could have flaws or errors; they understood that no document could be completely error-free. At the same time, the Constitution was establishing a federal polity, which meant that the States' rights and powers could not be altered without their assent.
Other aspects of the Constitution were so important to the spirit of the document that the framers were eager to protect them from modification. These requirements had to be spelt out in detail.
As a result of these factors, various methods of altering the Constitution have been proposed.
The Amending power of the constitution exists with the Parliament. It may in the exercise of its constituent power to amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
What are the different ways of amending the constitution?
The constitution can be amended by 3 basic ways:
1. 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 amendment is required in such cases and there is no difference at all between an amendment and an ordinary law. These parts of the Constitution are very flexible.
The wording ‘by law’ indicates that these articles can be modified by the Parliament without recourse to the procedure laid down in Article 368. Many other articles of the Constitution can be modified by the Parliament in this simple manner.
2. Simple Majority in Both Houses Separately
Similar to the method mentioned above, this way requires the article to be modified by passing in both the houses by a simple majority.
3. Special Majority
It requires a special majority of the Parliament and the consent of half of the State legislatures. All amendments to the Constitution are initiated only in the Parliament.
Besides the special majority in the Parliament, no outside agency like a constitution commission or a separate body is required for amending the Constitution
What is the Special Majority in the Amendment procedure?
Amendment to the Constitution requires two different kinds of special majorities:
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 Parliament must pass the amendment bill separately in this same manner (there is no provision for a joint session). For every amendment bill, this special majority is required.
The basic principle behind the amending procedure is that it should be based on broad support among the political parties and parliamentarians.
Does the president have the power to send an amendment for reconsideration?
The President has no powers to send it back for reconsideration in an amendment bill. These details show how rigid and complicated the amending process could have been. Only elected representatives of the people are empowered to consider and take final decisions on the question of amendments. In the case of constitutions, which are very difficult to amend, they are described as rigid.
The Indian Constitution combines both of these characteristics.
The Sovereignty of elected representatives (parliamentary sovereignty) is the basis of the amendment procedure.
Ratification by States
For some articles of the Constitution, a special majority is not sufficient. When an amendment aims to modify an article related to the 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.
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.
The provisions about fundamental rights are also protected in this way
The Constitution of India can be amended through large-scale consensus and limited participation of the States.
Why Have There Been So Many Amendments?
There is always criticism about the number of amendments. It is said that there have been far too many amendments to the Constitution of India. On the face of it, the fact that ninety-three amendments took place in fifty-five years does seem to be somewhat odd.
Amendments are not only due to political considerations.
Barring the first decade after the commencement of the Constitution, every decade has witnessed a steady stream of amendments. This means that irrespective of the nature of politics and the party in power, amendments were required to be made from time to time.
Are the amendments because of the inadequacies of the original Constitution? Is the Constitution too flexible?
The anti-defection amendment (52nd amendment), this period saw a series of amendments in spite of the political turbulence. Apart from the anti-defection amendments (52nd and 91st), these amendments include, the amendment bringing down the minimum age for voting from 21 to 18 years, the 73rd and the 74th amendments, etc.
In this same period, there were some amendments clarifying and expanding the scope of reservations in jobs and admissions.
After 1992-93, an overall consensus emerged in the country about these measures and therefore, amendments regarding these measures were passed without much difficulty (77th, 81st, and 82nd amendments).
What are some controversial amendments to the Indian constitution?
In particular, the 38th, 39th and 42nd amendments have been the most controversial amendments so far. These three amendments were made in the background of an internal emergency declared in the country from June 1975. They sought to make basic changes in many crucial parts of the Constitution.
What was the 42nd Amendment?
It was an attempt to override the ruling of the Supreme Court given in the Kesavananda case. Even the duration of the Lok Sabha was extended from five to six years. The Fundamental Duties were added to the constitution by this amendment act.
The 42nd amendment also put restrictions on the review powers of the Judiciary. This amendment made changes to the Preamble, to the seventh schedule of the Constitution and to 53 articles of the Constitution.
The Kesavananda Bharati case
The Most popular Case filed “The Kesavananda Bharati case” has set specific limits to the Parliament‘s power to amend the Constitution. It says that no amendment can violate the basic structure of the Constitution; It allows the Parliament to amend any and all parts of the Constitution (within this limitation); and
It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.
The theory of basic structure
There is no mention of this theory in the Constitution.
It has emerged from judicial interpretation.
The Judiciary and its interpretation have practically amended the Constitution without a formal amendment.
Examples of how judicial interpretation changed our understanding of the Constitution;
Reservations in jobs and educational institutions cannot exceed fifty per cent of the total seats.
Reservations for other backward classes, the Supreme Court introduced the idea of a creamy layer and ruled that persons belonging to this category were not entitled to benefits under reservations.
The Judiciary has contributed to an informal amendment by interpreting various provisions concerning the right to education, the right to life and liberty and the right to form and manage minority educational institutions.
What was the Kesavananda Bharati case?
Kesavananda challenged the Kerala land reforms legislation in 1970, which imposed restrictions on the management of religious property. The case was challenged under Article 26, concerning the right to manage religiously owned property without government interference.
One of the biggest bench of judges comprising 13- judges was set up by the Supreme Court, to hear the case.
What is the operational procedure in a parliamentary democracy?
In a parliamentary democracy, the Parliament represents the people and therefore, it is expected to have an upper hand over both the Executive and Judiciary.
At the same time, there is the text of the Constitution and it has given powers to other organs of the government. Therefore, the supremacy of the Parliament has to operate within this framework. Democracy is not only about votes and people‘s representation.
It is also about the principle of rule of law.
Democracy is also about developing institutions and working through these institutions. All the political institutions must be responsible to the people and maintain a balance with each other.