Amendment

Amendments to the Indian Constitution 

Introduction: 

• Amending the Indian Constitution is the process of changing the nation's fundamental law or supreme law.  
• The procedure for amending the constitution is outlined in Part XX (Article 368) of the Indian Constitution. This procedure ensures the sanctity of the Indian Constitution and checks the Parliament of India's arbitrary power. 
• The Constitution's drafters believed that it needed to reflect societal changes as well as the population's aspirations 
• They did not regard the constitution as a sacred and unchangeable law. As a result, they included provisions for incorporating changes on occasion. These modifications are known as constitutional amendments. 
• However, the procedure for amending the Indian constitution is neither as simple as in the United Kingdom nor as difficult as in the United States. 
• It was taken from South Africa's constitution. 

Power to Amend the Constitution 

• Part XX of the constitution contains Article 368, which deals with Parliament's powers to amend the constitution. 
• The Supreme Court stated in the Keshavananda Bharati decision that Parliament cannot amend those parts of the constitution that are part of the 'Basic Structure'. 
• Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the 'basic structure' of the Constitution". Article 368 of Part XX of the Indian Constitution allows for two types of amendments. 
• Parliamentary special majority 
• By a special majority of the Parliament and ratification by half of the total number of states. 

Amendment Types 

• Article 368 of the Indian Constitution provides for two types of amendments: amendments by a special majority of Parliament and amendments by a special majority of Parliament plus ratification by a simple majority of half of the state legislatures. 
• Certain provisions of the Constitution require amendment by a simple majority of each house, that is, a majority of members present and voting in each house (similar to ordinary legislation). Article 368 does not consider these amendments to be amendments. 
• It clearly means that the Indian Constitution can be amended in three ways: by a simple majority of the Parliament, by a special majority of the Parliament, or by a special majority of the Parliament and the ratification of half of the state legislatures. 

Types of Amendments: 

 Amendment Procedure Pursuant to Article 368 

• The procedure for amending the Indian Constitution in accordance with Article 368 is as follows: 
• A constitutional amendment may be initiated only by the introduction of a Bill in either House of Parliament, not in the state legislature. 
• The bill does not need the President's permission to be introduced in Parliament. 
• The bill must be introduced by a minister or a private member. 
• The bill must be passed by a special majority in each house, which is the majority of the total membership of the house plus the majority of two-thirds of the members present and voting. 
• The bill must be passed separately by each house, and there is no provision for a joint sitting if the two houses disagree. 
• If the bill seeks to amend a federal provision of the constitution, it must also be ratified by a simple majority of half of the state legislature. 
• The bill is presented to the president for his assent after being duly passed by both houses and ratified by the states (if required). 
• The President has no authority to withhold or return a bill to the legislature for reconsideration. As a result, the President must give his assent to the bill. 
• The bill will become an Act after the President's assent. 

Simple Majority 

• This refers to a majority of more than 50% of those present and voting, and it is not covered by Article 368. This is also known as the working majority or functional majority. In Parliamentary business, the simple majority is the most commonly used form of majority. When the constitution or laws do not specify the type of majority required, the simple majority is used. 
• Consider the Lok Sabha situation to better understand the simple majority. On a particular day, 45 of the 545 members were absent, and 100 abstained from voting on an issue. As a result, only 400 members were present and voting. The simple majority is then 50% of 400 plus 1, or 201. 

Cases where the simple majority is used: 

• Ordinary/Money/Financial bills must be passed. 
• Non-Confidence Motion/Adjournment Motion/Censure Motion/Confidence Motion must be passed. 
• The simple majority required in Lok Sabha to remove the Vice President is A67 (b). 
• Declare a financial crisis. 
• Declare a state of emergency (Presidential power). 
• Formation of new states and changes to existing states' areas, boundaries, or names 
• State legislative councils may be abolished or established. 
• Citizenship - acquisition and termination, Use of official language 
• Speaker and Deputy Speaker of Lok Sabha and state legislatures are elected. 
• Fifth Schedule: administration of scheduled areas and tribes; Sixth Schedule: administration of tribal areas. 

The special majority  

• The special majority refers to all types of majorities other than the absolute, effective, or simple majority. There are four types of special majority, each with its own set of clauses. 
• The Fundamental Rights and Directive Principles of State Policy (DPSP) are the two most important provisions that can be changed by a special majority; however, any changes must remain within the constraints of the Constitution's Basic Structure. 
• Type 1 – Special Majority as Per Article 249. 
• Type 2 – Special Majority as per Article 368. 
• Type 3 – Special Majority as per Article 368 + 50 per cent state ratification by a simple majority. 
• Type 4 – Special Majority as per Article 61. 

Article 249: Special Majority 

• Article 249 requires a special majority of two-thirds of those present and voting. For example, if only 150 of the Rajya Sabha's 245 members are present and voting, the special majority required under Article 249 is 101. 
• Cases in which the special majority of article 249 is used: 
• To pass a Rajya Sabha resolution authorising the legislature to make laws on the state list. (Valid for one year, but can be extended an unlimited number of times). 

Article 368: Special Majority 

• Article 368 specifies that a special majority of two-thirds of the members present and voting must be supported by more than half of the total strength of the house. Most constitutional amendment bills require this type of majority. To pass a constitution amendment bill in Rajya Sabha, the bill must be supported by more than two-thirds of the members present and voting, in addition to 123 members. 

Cases requiring a special majority under Article 368: 

• To pass a constitutional amendment bill that has no impact on federalism. 
• Judges of the Supreme Court and the High Court should be removed. 
• CEC/CAG removal. 
• Article 368 requires a special majority in both houses to declare a national emergency. 
• Resolution of the state legislature establishing/decreasing the Legislative Council (Article 169). 

Special Majority as Per Article 368 Plus State Ratification 

• When a constitutional amendment bill attempts to change the federal structure, a special majority is required. A special majority, as defined in Article 368, plus state ratification requires a simple majority of more than 50% of the state legislatures present and voting. 
• Cases in which a special majority under Article 368 plus state ratification is used: To pass a constitutional amendment bill affecting federalism, such as the position of Supreme Court Justices. 

Article 61: Special Majority 

• Article 61 requires a special majority of two-thirds of the total strength of the house. The special majority required by article 61 in the Lok Sabha is 364; in the Rajya Sabha, the special majority required by article 61 is 164. 
• Cases in which a special majority is used under Article 61: Impeachment of the Indian President. 

Fundamental Rights Amendment and the Evolution of the Basic Structure 

• The evolution of the basic structure was motivated by the question of whether or not Fundamental Rights can be amended by Parliament under 368. Important incidents in this regard include 
• Case of Shankari Prashad, 1951: The Supreme Court ruled that Parliament's power to amend the Constitution under Article 368 includes the ability to amend the Fundamental Rights. 
• Case of Golakhnath, 1967: The Supreme Court overturned its previous decision. The Supreme Court ruled in this case that Fundamental Rights are given a "transcendental and immutable" status. As a result, the Parliament cannot limit or eliminate any of the Fundamental Rights. 
• The 24th Amendment Act, of 1971, was passed in response to the Court's decision in the Golakhnath Case in 1967. The act amended Articles 13 and 368, declaring that Parliament has the authority to limit or eliminate any of the Fundamental Rights under Article 368 and that such an act will not be considered a law under Article 13. 
• Kesavananda Bharati Case, 1973: Supreme Court overruled its judgement made in Golakhnath Case and stated that the Parliament is empowered to take away any of the Fundamental Rights but at the same time it introduced a new doctrine of the "Basic Structure". It ruled that Parliament's power under Article 368 does not allow it to change the Constitution's "Basic Structure/Feature," and declared Fundamental Rights to be a basic structure of the Constitution. 
• The 42nd Amendment Act of 1976 amended Article 368 and declared that there are no limitations on Parliament's constituent power and that no amendment can be challenged in any court. 
• Minerva Mills Case, 1980: The Supreme Court invalidated the provision in this case because it prohibits judicial review, which is a "basic feature" of the constitution. 
• Waman Rao Case, 1981: The Supreme Court clarified that the Basic Structure doctrine would apply to constitutional amendments enacted after April 24, 1973. (i.e., after the date of the judgement of the Keshwanand Bharti case). 

Recent Significant Amendments to the Constitution:  

Important Indian Constitutional Amendments 

• The First Amendment (1951) protected property owners' rights while making it more difficult for the government to enact land reform measures. It also included the Ninth Schedule, which shielded certain laws from legal challenge. 
• Fourth Amendment (1955): This amendment gave the government the authority to take over the management of "absentee landlord" estates, which were estates owned by landlords who did not live on or manage the land. 
• Seventh Amendment (1956): This amendment expanded the government's authority to acquire property for public purposes and compensate the owners. 
• Eleventh Amendment (1961): This amendment authorised the government to take over the management of "inam" lands, which were lands granted by the government to individuals or institutions. 
• The Sixteenth Amendment (1966) authorised the government to levy agricultural income taxes. 
• The Eighteenth Amendment (1971) made significant changes to the Indian Constitution, including the creation of a new state (Meghalaya), the addition of a new language (Santali) to the Eighth Schedule, and the abolition of the former rulers of the princely states' privy purses. 
• The Twenty-fifth Amendment (1971) established the right to property as a legal right rather than a fundamental right. 
• Thirty-ninth Amendment (1975): This amendment safeguarded Sikkim's constitutional position after it was merged with India. 
• The Forty-second Amendment (1976) made several changes to the Indian Constitution, including adding the words "secular" and "socialist" to the Preamble and inserting the Fundamental Duties of Citizens. 
• The Forty-fourth Amendment (1978) reversed many of the changes made by the Forty-second Amendment and restored citizens' rights and freedoms. 
• The Fifty-second Amendment (1985) established the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as a fundamental right. 
• The Sixty-first Amendment (1989) reduced the voting age from 21 to 18. 
• Sixty-ninth Amendment (1991): This amendment established Delhi as a Union Territory with a legislature. 
• The Seventy-third Amendment (1992) recognised the right to panchayats (local self-governments) as a fundamental right and provided for the reservation of seats in panchayats for Scheduled Castes and Scheduled Tribes. 
• The Seventy-fourth Amendment (1992) recognised the right to municipalities (local self-government) as a fundamental right and provided for the reservation of seats in municipalities for Scheduled Castes and Scheduled Tribes. 
• The 77th Amendment (1995) provided for the reservation of seats in cooperative societies for Scheduled Castes and Scheduled Tribes. 
• The 93rd Amendment (2006) provided for the reservation of seats in higher education institutions for Scheduled Castes and Scheduled Tribes. 
• The 95th Amendment (2009) provided for the reservation of seats for Scheduled Castes and Scheduled Tribes in government job promotions. 
• The 103rd amendment (2019) provided for the reservation of seats in higher education institutions for economically disadvantaged members of society. 

Conclusion:  

• We must recognise that the constitution is the foundation of this democracy. While it was revolutionary for our founding fathers to include amendment provisions, it is critical that such provisions are not abused. Misuse could result in excessive legislative or executive power, tearing the fabric of our democracy.