Procedure for Amending the Constitution

⇒ The alteration of certain provisions of the Constitution are not considered amendment of the constitution. Such provisions can be altered by the Parliament by a simple majority.

⇒ Other provisions of the Constitution can be changed only by the process of ‘amendment’ prescribed in Art. 368.

⇒ In the case of provisions which affect the federal structure, a ratification by the Legislatures of at least half of the states, is required before the Bill is presented to the President for his assent. Such provisions are :

* The manner of election of the President. [Ref.: Arts. 54,55]

* Extent of the executive power of the Union and the States. [Ref.: Arts. 73, 162]

* The Supreme Court and the High Courts [Art. 241, Chap. IV of part V, Chap. Vof part VI]

* Distribution of legislative power between the Union and the States [Chap.I of Part XI];

* Any of the Lists in the 7th Schedule;

* Representation of the States in Parliament [Arts. 80-81, 4th Schedule];

* Provisions of Art. 368 itself,

⇒ There is no separate Constituent body provided for by our Constitution for the amending process.

⇒ An amendment of the Constitution can be initiated only by the introduction of a Bill for the purpose in either House of Parliament.

⇒ The Amendment Bill should be passed by each House by a special majority i.e., more than 50% of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.

⇒ Constitution stands amended in accordance with the terms of the Amendment Bill after President’s assent is accorded to it.

⇒ The procedure for amendment is ‘rigid’ in so far as it requires a special majority and a special procedure.

⇒ There is no separate body for amending the Constitution, as exists in some other countries (e.g., a Constitutional convention)

⇒ The State Legislatures cannot initiate any Bill or proposal for amendment of the Constitution.

⇒ Subject to the provisions of Art. 368, Constitution Amendment Bills are to be passed by the Parliament in the same way as Ordinary Bills.

⇒ The procedure for joint session is not applicable to Bills for amendment of the Constitution.

⇒ The previous sanction of the President is not required for introducing any Bill for amendment of the Constitution.

⇒ The requirement relating to ratification by which the state Legislatures is more liberal than the corresponding provisions in the American constitution. The latter requires ratification by three fourths of the states.

⇒ The amendment of Art. 368 in 1971 has made it obligatory for the President to give his assent to a Bill for amendment of the Constitution, when it is presented to him after its passage by the Legislature. [Ref.: 24th Amendment 1971]

⇒ Until the case of Golak Nath, Supreme Court held that no part of our Constitution was unamendable.

⇒ In Golak Nath’s case(1967) a majority of six judges, in a special bench of eleven, overruled the previous decisions and held that if any of such rights is to be amended, a new Constituent Assembly must be convened for making a new Constitution or radically changing it.

⇒ Constitution (24th Amendment) Act, 1971, held that an amendment of the Constitution passed in accordance with Art. 368, will not be law within the meaning of Art. 13 and the validity of a Constitution Amendment Act shall not be questioned on the ground that it takes away or affects a fundamental right. [Ref.: Art. 368(3)]

⇒ Validity of the 24th Constitution Amendment Act itself was challenged in the case of Keshavananda Bharati.

⇒ In the case of Keshvananda Bharati the Supreme court overruled its own decision given in the case of Golak Nath and held that the Parliament could amend any provision of the constitution including fundamental rights in accordance with.

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