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Constitutional amendments: A Glimpse of Article 368 Under the Indian Constitution

The final draft of the Constitution of India was accepted on 26 November 1949 and came into force on 26th January 1950. It is a very rigid and flexible document laying down a code of conduct for the citizens and aliens in the jurisdiction of India and sometimes outside the jurisdiction of India.

It is flexible in the sense that any part of the Constitution can be amended, including the preamble. At the same time, it is rigid in that the constitutional amendment can be affected by the procedure established by law without changing the basic structure of the constitution.

What is the constitutional amendment?

The ‘constitutional amendment’ is the term that signifies the act of making changes in the constitution’s provisions by the due procedure established by the law. These amendments will be in the form of insertion, omission, deletion, or change in the provisions.

Since 1951, the Indian Constitution also went through some major and minor amendments from time to time.

The first amendment in the Constitution of India was in the year 1951, and the most recent, i.e. 104th constitutional amendment, was in 2020.

Types of amendments in the Indian Constitution

There are numerous ways to make constitutional amendments, the basis of which gets categorised into various types:

Simple majority

The amendments in the Indian Constitution are made by the procedure prescribed by law under article 368 of the constitution. The voting by a simple majority of the two houses of the parliament can amend the constitution’s provisions. These provisions include:

  • Admission or establishment of new states,
  • Second Schedule-emoluments,
  • New States’ formation and alteration of areas, borderlines or names of existing states
  • Allowances, privileges, etc. of the President, the Governors, the Speakers, Judges, etc.,
  • Abolition or formation of legislative councils in states,
  • The members of Parliament’s salaries and allowances,
  • Parliament, its members and its committees’ privileges,
  • Rules of procedure in Parliament,
  • Conferring more jurisdictional powers on the apex Court,
  • Usage of the English language in Parliament,
  • Strength of judges in the Supreme Court,
  • Elections to Parliament and state legislatures,
  • Citizenship-acquisition and termination,
  • Union territories,
  • Sixth Schedule-administration of tribal areas
  • Scheduled areas and scheduled tribes’ administration in any state other than Assam, Meghalaya, Tripura and Mizoram

Special majority

A special majority of the Parliament can amend some provisions in the Constitution.

The special majority includes more than 50 per cent of the total membership of each House, supported by a majority of two-thirds of the members of each House present and vote.

The voting by a special majority is required only at the third stage of the bill. The requirement for the special majority is prescribed in the rules of the Houses concerning all the effective stages of the bill.

These provisions can be amended:-

  1. Fundamental Rights;
  2. Directive Principles of State Policy; and
  3. All other provisions not covered by the first and third categories.

Special majority of parliament and consent of states

A special majority supported by the consent of at least half of the state legislatures by a simple majority can amend the provisions of the Constitution related to the federal structure of the polity.

The consent of half of the states is just a requisite, notwithstanding the remaining states’ consent. There is no limitation period on the states for giving their consent to the bill.

In this way, the amendment can be made related to the following provisions:

  • Election of the President and its manner.
  • Distribution of legislative powers between
  • The Union and the states
  • The extent of the executive power of the Union and the states
  • Supreme Court and high courts.
  • Representation of states in Parliament.
  • Any of the lists in the Seventh Schedule
  • Parliament’s power to amend the Constitution and its procedure (Article 368)

Constitutional amendment process

  • The procedure for the amendment of any provision in the Constitution is as follows:
  • The introduction of the Bill in either House of Parliament (Lok Sabha & Rajya Sabha) and not in the state legislatures can bring an amendment to the constitution.
  • A minister or a private member can introduce a bill, and it does not require prior permission from the president.
  • The bill should be passed in each House by an extraordinary larger part. Each House must pass the bill separately. More than 50% of the members in the House present voting can cast a vote on the ballot.
  • When both the houses don’t agree on the bill, there is no provision for holding the two houses’ joint sitting for deliberation and passing the bill.
  • Suppose the bill seeks to amend the federal provisions of the Constitution. In that case, it must also get ratified by the legislatures of half of the states by a simple majority, i.e. a majority of the members of the House present and voting.
  • After both the Houses of Parliament pass the bill, it is presented to the state legislatures for ratification.
  • Once the state legislatures ratify the bill, it is presented to the president for acquiring his assent.
  • The president must give his assent to the bill and cannot withhold his assent to the bill nor return the bill for reconsideration by the Parliament.
  • After the president assent, the bill becomes an Act (i.e., a constitutional amendment act), and the terms of the Act amend the Constitution.

Scope of amendability in the Indian Constitution

As per Article 368 of the constitution, the Parliament can amend any part of the Constitution, including the Fundamental Rights, without affecting the ‘basic structure’.

Article 368(1) of the Constitution gives the parliament the power to insert, change or repeal any Constitution provision with the due procedure established by law. The sub-section (2) of Article 368 mentions this procedure.

The essential features of the Constitution are laid down after inferring it from the various supreme court rulings:

  • Supremacy of the Constitution
  • Sovereign and democratic republic nature
  • Principle of equality
  • Free and fair elections
  • Judicial review
  • Freedom and dignity of the individual
  • The secular character of the Constitution.
  • Separation of powers between the legislature, the executive and the judiciary
  • Independence of Judiciary
  • Federal character of the Constitution
  • Restricted power of Parliament to amend the Constitution
  • Unity and integrity of the nation
  • The rule of law
  • Effective and ease of access to justice
  • Conformity and balance between Fundamental Rights and Directive Principles

Significant amendments in the Constitution

1st Amendment Act, 1951

This first amendment was in 1951 to advance socially and educationally backward classes or the Scheduled Castes and Scheduled Tribes (SCs and STs).

It also abolished the zamindari system and laid down reasonable restrictions on freedom of speech.

The Constitution was introduced with Schedule 9 to protect against laws contrary to the constitutionally guaranteed fundamental rights.

15th Amendment Act, 1963

This constitutional amendment increased the age of the High court judge from 60 to 62 years.

21st Amendment Act, 1967

The Sindhi language got inserted as the regional language in the Eighth Schedule of the Constitution by this amendment.

24th Amendment Act, 1971

This amendment came to reverse the decision of IC Golaknath’s case. This amendment proposed that parliament has the power to amend fundamental rights or any part of the Constitution. The Parliament alter or amend any provision under article 368 of the constitution.

42nd Amendment Act, 1976

The 42nd amendment is also known as the mini-constitution. This amendment inserted the words ‘SOCIALIST’, ‘SECULAR’, and ‘INTEGRITY’ in the constitution’s preamble.

This amendment mandated that the president has to work on the aid and advice of the council of ministers.

The amendment also inserted Part IVA in the Constitution, which contains the Fundamental duties.

44th Amendment Act, 1978

The introduction of the 44th constitutional amendment led to the removal of the right to property from part III containing fundamental rights and inserted the right to property as a legal right under Article 300A.

It also amended Article 352 of the Constitution and substituted the word “internal disturbance” with “armed rebellion”.

The emergency is proclaimed under article 352 of the Constitution and comes under the ambit of judicial review by the apex court.

58th Amendment Act, 1987

Under this amendment, the people of India were given the Hindi version of an authoritative text of the Constitution.

61st Amendment Act, 1988

The enactment of the 61st amendment act reduced the age limit in voting, i.e. 18 years from the previous 21 years.

73rd Amendment Act, 1992

This amendment added Part XI containing the provisions to deal with the Panchayati Raj System in India.

74th Amendment Act, 1992

This amendment inserted Part IXA in the Constitution for municipalities.

77th Amendment Act, 1995

This amendment inserted clause 4A in Article 16 of the Constitution for uplifting the Scheduled Castes and Scheduled Tribes in government jobs.

81st Amendment Act, 2000

This amendment inserted 4B in Article 16 of the Constitution by ending the 50% ceiling for reservation of SCs and STs.

86th Amendment Act, 2002

This amendment inserted Article 21A in the Constitution, which provides the right to education for children of age group 6 to 14 years as a fundamental right.

92nd Amendment Act, 2003

This amendment inserted four more languages in the Eighth Schedule of the Constitution, i.e. Bodo, Dogri, Santhali, and Maithili.

99th amendment Act, 2014

This amendment led to the establishment of the National Judicial Appointment Commission to appoint judges.

101st Amendment Act, 2017

This amendment introduced Goods and Services Tax as a comprehensive and multi-stage indirect taxation. The introduction of GST led to the abolition of various indirect taxes and brought a uniform taxation system applicable throughout the country.

103rd Amendment Act, 2019

This amendment introduced 10% of reservations for the economically weaker section (EWS), which lies under the unreserved categories for access to government jobs and admissions.

104th Amendment Act, 2020

This amendment extended the termination period of reserving seats for Scheduled Castes and Scheduled Tribes from 70 to 80 years in the Lok Sabha and state assemblies.

Conclusion

The parliament of India can make the amendments to the Constitution of India, but it couldn’t act outside the scope of article 368 of the constitution. The parliament is also empowered to amend the preamble of India, including the fundamental rights, but it cannot alter the basic features of the Constitution.

The power to make constitutional amendments are also a basic feature of the Constitution that cannot be taken away by the parliament.

The judiciary is also assigned the power of judicial review on these constitutional amendments. If the amendments are against the constitution’s basic features, the judiciary has the power to scrap out those provisions from the Constitution.

FAQs

Which was the most recent amendment to the Indian constitution?

The most recent amendment in the Indian Constitution was the 105th amendment allowing the states to prepare their OBSs list.

Which constitutional amendment introduced the Goods and Services Tax Act 2007?

101st Constitution amendment act 2017

Is the parliament empowered to amend any part of the constitution, including fundamental rights?

According to the supreme court ruling in the case of Keshavnanda Bharti v. State of Kerala 1973, the parliament can amend any part of the constitution, including part III of the constitution, without altering its basic structure.

Can the parliament amend the preamble, considering it a part of the constitution?

Parliament can amend the preamble considering it a vital part of the constitution, without altering its basic feature; the same was laid in Berubari Union & Ors. V. Unknown AIR 1960 SC 845.

About Author

Ayush Ranjan Jha is a 4th-year law student of Vivekananda Institute of Professional Studies (VIPS), IP University, Delhi.

He is inquisitive towards Corporate law, International law & Constitutional law.

He is very keen on research work and got published a number of Research papers and articles related to legal topics during his previous academic years.

Currently, he is preparing for Judicial services examinations.

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