10 - Procedure For Amendment

Procedure for Amendment



Nature of Amending Process: Pandit Nehru: “Reconciliation Sovereignty” 

of

written

Constitution

with

Parliamentary

The Constitution should not be so rigid that it cannot be adapted to the changing needs of National Development and Strength

Dr. Ambedkar: “Those who are dissatisfied with the Constitution have only to obtain 2/3 majority, and if they cannot obtain even 2/3 majority in the Parliament Elected on Adult Franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the General Public” 

To introduce flexibility

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

Procedure for Amendment a)

b)

‘Not deemed to be amendment’ 

Ordinary process of Legislation



By simple majority

Article 368 – Amendment i)

ii)



Initiated by introduction of Bill in Parliament 

Either House



Passed in both Houses by simple majority (50%) and by a Majority of not less than 2/3 members of that House present and voting



Assent of President



Accordingly stand amended

Ratification by the legislatures of not less than ½ of the State in following cases: a)

Manner of election of President

b)

Extent of executive power of Union and States

c)

The Supreme Court and High Court

d)

Distribution of Legislative Power of State and Union

e)

Lists in schedule VII

f)

Representation of States in Parliament

g)

Article 368 itself

General features of the Amending Procedure 

Rigid in Nature 2



A.

a)

Parliament is vested with power and not a separate body

b)

State Legislature cannot initiate a Bill for amendment

c)

Ordinary and Special Majority

No Joint Sitting to resolve deadlock d)

Previous sanction of President not required to introduce Bill of Amendment

e)

Ratification by only ½ the States

f)

After passed by both Houses obligatory for President to give his assent

Upto Golaknath’s Case Supreme Court – All parts of Constitution Amendable

B.

Golaknath’s Case Fundamental rights to be amended by a Constitution Assembly

C.

Keshaananda Case Upheld the validity of amending Article 368 Article 13 – Amendment not Law Therefore Fundamental Rights are amendable

D.



Basic features not amendable 

Sovereignty and Territorial Integrity of India



Federal System



Judicial Review



Parliamentary Form of Government

42nd Amendment 3



There shall be no limitation on the Constitutional Power of Amendment



This power shall not be called in question in any Court on any ground – Precludes Judicial Review

Nullified by Supreme Court in Minerva Mills Cases as Judicial Review abasic feature of Constitution cannot be taken away by amendment 



Therefore as per Supreme Court: 1)

Any part of Constitution may be amended after complying with procedure under Article 368

2)

No referendum to Constituent Assembly would be required

3)

Basic features cannot be amended (list in page 160)

History of Amendments since 1950 

83 times till December 2000

A.

42nd Amendment 

Changes in Preamble



Substantive changes to underlying Constitution

a)

Judicial Review of Ordinary Laws

change

vital

principles



Distinction between Central and State Law



High Court constitutional



Supreme Court under Article 36 cannot pronounce state law unconstitutional unless Central Law challenged

cannot

hold

Central

Law

un-

4



b)

Artificial majority of Judges of Supreme Court and is required to pronounce law unconstitutional and invalid

Judicial Review of Constitutional Amendment Acts A Constitution Amendment Act will be immune from challenge in Court of Law procedurally and substantively

B.

C.

c)

Fundamental Duties to counteract Fundament Rights

d)

Fundamental Rights devalued

43rd and 44th Amendment 1)

Repealed provisions curbing Judicial Review

2)

More Extensive: a)

Omission and Restoration of certain articles

b)

Additional change – removal of Right to Property

c)

Biased Changes

73rd and 74th Amendments 

Introduced electoral system for the composition of Units of Local Government below states, that is, 

Panchayats in Rural Areas



Municipalities in Urban Areas

5



Dangers of Frequent Amendments 

Used to achieve political purposes



Get rid of Judicial decisions

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