The amendment of the Constitution of India is neither as easy as in Britain nor as difficult as in USA. In simple words, the Indian is neither flexible nor rigid but a synthesis of both.
Constitutional amendment by Two Types :
1. Amendment by Simple Majority of the Parliament
2. Amendment by Article 368 (in Part XX of the Constitution) in two ways -
a. By a Special Majority of Parliament
b. By Special Majority of Parliament and Consent of States
1. Amendment by Simple Majority of the Parliament :
A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament without use of Article 368. These provisions include :
• Admission or establishment of new States
• Formation of new States and alteration of areas, boundaries or names of existing States.
• Abolition or creation of legislative council in States
• Second Schedule - emoluments, allowances, privileges and so on the president, the governors, the speakers, judges, etc.
• Quorum in Parliament
• Salaries and allowances of the members of Parliament
• Rule of Procedure in Parliament
• Privileges of the Parliament, its members and its Committees
• Use of English language in Parliament
• Number of puisne judges in the Supreme Court
• Use of Official Language
• Citizenship - acquisition and termination.
• Elections to Parliament and State legislatures
• Delimitation of Constituencies
• Union Territories
• Fifth Schedule - administration of scheduled areas and scheduled Tribes.
2. Amendment by Article 368 :
a. By Special Majority of Parliament :
• The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority (that is, more than 50 percent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. The expression ‘total membership’ means the total number of members comprising the House irrespective of the fact whether there are vacancies or absentees.
• The special majority is required only for voting at the third reading stage of the bill but by way of abundant caution, the requirement for the 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 include: (i) Fundamental Rights; (ii) Directive Principles of State Policy; and (iii) All other provisions which are not covered by the first and third categories.
b. By Special Majority of the Parliament and the ratification of half of the State Legislature :
The amendment related to the Federal Structure of the polity can be amended by a Special Majority of the Parliament and also with the consent of half of the State legislatures by a simple majority. (Consent of the states is the formality to maintain federal structure).
The following provisions can be amended in this way -
• 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.
• Power of Parliament to amend the Constitution and its procedure (Article 368 itself).
Procedure for Amendment under Article 368 :
• An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either in Rajya Sabha or in Lok Sabha (either House of Parliament) & and not in the state legislatures.
• The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
• The bill must be passed in each House by a special majority, that is, a 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.
• Each House must pass the bill separately.
• In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
• If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
• 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 must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament
• After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.
Dr. B R Ambedkar observed in the Constituent Assembly that, 'The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfillment of extraordinary terms and conditions as in America and in Australia, but has provided for a facile procedure for amending the Constitution'.
Prelims Basis Facts related to Amendment of the Constitution :• The Constitutional Amendment Bill (CAB) can be introduced only in either House of Parliament.• The bill can be introduced either by a minister or by a private member.• For CAB introduction, there is not require prior permission of the President.• There is no provision for holding a joint sitting of the two houses of the Parliament.• The President must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.• Article 368 in Part XX of the Constitution.• The Parliament cannot amend the 'basic structures' of the Constitution.
For 'Basic Structures' of the Constitution 👉 CLICK HERE
References
GoI
Indian Polity by M Laxmikant
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