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Amendment Of Constitution

Amendment refers to the process of effecting desired change(s) in the Constitution. It may involve alteration, revision, addition, repeal, variation or deletion of any provision of the Constitution.

The framers of our Constitution did not want to make the Constitution a finite or infallible document. They favoured a flexible Constitution admitting of change and growth. If a Constitution is very rigid, it would not grow. And a Constitution which would not grow would be a bad Constitution. A Constitution has to keep pace with the changing times. Our founding fathers, therefore, produced a Constitution which is partly rigid and partly flexible. Our Constitution combines rigidity as well as flexibility. This becomes clear as we analyse the procedures of amending the Constitution.

Article 368 of the Constitution of India provides for three procedures of amendments.

First Procedure

Some provisions of the Constitution can be amended by simple majority in both Houses of the Parliament. The matters covered by such amendments are the followings:

  1. Articles 2,3 and 4 providing for admission or establishment of new states! Alteration of areas, names and boundaries of existing states;
  2. Articles 5, 6, 7, 9, 10 and II dealing with citizenship;
  3. Article 81 dealing with delimitation of constituencies;
  4. Article 100 dealing with quorum of Parliament; (e) Article 106 relating to the privileges of MPs;
    1. Article 124 (1) relating to the appointment of the Judges of the Supreme Court;
    2. Art. 164 dealing with the abolition and creation of Legislative Council of a state;
    3. Art. 240 concerning the legislatures of union territories;
    4. Art. 312 relating to the creation of All India Services;
    5. Art. 327 dealing with the election system of the country;
    6. II, V and VI schedules of the Constitution.

Second Procedure

The second category consists of constitutional amendments. The constitutional amendments require a special procedure and a special majority in each House of the Parliament. A bill for constitutional amendment can be introduced in either House of the Parliament. It has to be passed by a majority of the total membership of the House in which it is introduced.

Further, it has to be passed by not less than the two-thirds majority of the members present and voting. After it is passed in the House in which it was introduced, it has to be passed in the similar manner in the other House.

After the bill is passed in both Houses in the special procedure and with special majority, it is sent to the President for his assent and according to the 24th Amendment, the President is bound to give his assent to all such bills.

With the assent of the President accorded, the bill becomes a part of the Constitution and the Constitution thus gets amended. Majority of the provisions of the Constitution can be amended in this way. This amending procedure achieves a balance between flexibility and rigidity.

Third Procedure

The third category of amendment involves a rigid procedure. It has two stages. Firstly, the bill for amendment is to be passed in each House of Parliament in the special manner and with a special majority. It has to be passed B majority of the total membership of each House of the Parliament.

Further, it has to passed by a majority not less than two-thirds of all the members present and voting each House of the Parliament. Secondly, after the bill is passed by each House of the Parliament, it is to be ratified by the legislatures of at least one-half of the states. Thereafter it is sent to the President for his approval.

The matters which require this rigid procedure of amendment are election of President (Article 54 and Article 55), the extent of the executive power of the Union (Article 37), extent of executive power of the state (Article 162), High Courts for Union Territories (Ail

241), Union Judiciary (Chapter IV of Part V), High Courts in states (Chapter V of Part VI),

Legislative Relations between state and centre (Chapter I of Part XI), three lists of subjects in VII Schedule, representation of states in the Parliament, and procedure of Constitutional Amendments (Article 368).

’Basic Structure’ of Constitution, Not Amendable

In the Golaknath Case of 1967, the Supreme Court observed that the parliament had no right to amend any of the provisions or parts of the Constitution relating to the fundamental rights. However, in the Kesavananda Bharati Case of 1972, the Supreme Court took a different view. The Court said that the parliament had power to amend any provision of the Constitution except the ‘basic features’ of the Constitution.

The 42nd Amendment Act, 1976 said that the parliament had power to amend any provision of the Constitution and that such amendments could not be questioned in any Court of Law. But in the Minerva Mill Case of 1980 the Supreme Court again asserted that the parliament could not amend the ‘basic structure’ of the Constitution.