AMENDMENT OF THE CONSTITUTION (UDAAN)

AMENDMENT OF THE CONSTITUTION

  • Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368)
  • The procedure for amending the Constitution is neither flexible (Britain) nor rigid (USA). It is synthesis of both. It states that Parliament may amend the Constitution but can’t amend those provisions which form basic structure of the Constitution (Kesavananda Bharti case, 1973)
  • Feature borrowed from South Africa.
  • Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively.

 

 

IMPORTANT JUDGEMENT:  Kesavananda Bharati Case 1973, Supreme Court ruled that Parliament cannot alter the ‘basic structure’ of the Constitution

 

 

PROCEDURE FOR THE AMENDMENT (Art. 368)

 

Introduction of bills Amendment bill can be introduced only in either house of parliament.
Who can introduce? Either by a minister or private member.
President’s role in introduction of bill Prior permission of President is not required to introduce the bill.
 

Type of Majority

Special Majority à Majority of the total membership of that house + by a majority of not less than 2/3 of the members of that house present and voting. (50% + 2/3 of P&V)
Bill in houses Both the houses need to pass the bill with special majority.
Joint seating (Art. 108) There is no provision for a joint sitting in case of disagreement between the two Houses.
Amending federal provisions Special majority + ratification by the legislatures of half of the states by a simple majority.
 

Role of President in assenting the bill

24th constitutional amendment — It also amended article 368 to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further made it obligatory for the President to give his assent, when a Constitution Amendment Bill was presented to him.
Role of state legislature in introducing bill State legislature cannot introduce such bill.

 

TYPES OF MAJORITY:

 

Simple Majority Special Majority Special Majority of parliament & Consent of States
  •         Majority of members of each house present and voting.
  •          This is similar like ordinary law-making process.
  •          Such amendments are not considered under Art 368.
  •          Example: Recently number of SC judges increased from 31 to 34.
  •          Majority of total (irrespective of vacancies/absentees) membership of each house (more than 50%) and majority of two-thirds of the members of each house present and voting.
  •          Example: 103rd amendment to provide 10% reservation to EWS.
  •          Special majority + Ratification of half of the state legislatures by a simple majority.
  •          Most of the Federal provisions amended by this method.
  •         Example: 101st amendment related to GST

 

VARIOUS PROVISIONS & TYPE OF MAJORITY REQUIRED:

 

 

 

 

 

 

 

 

 

 

Simple Majority

  •          Admission/ establishment of new states (Art.2)
  •         Formation of new states & alteration of area, boundaries or names of existing states (Art.3)
  •          Second Schedule (emoluments, allowances, privileges)
  •          Abolition/creation of legislative councils in states (Art.169)
  •         Quorum in parliament (Art.100)
  •          Salaries & allowances of members of the parliament (Art.106)
  •         Rules of procedure in parliament (Art.118)
  •         Use of English in parliament
  •          Number of puisne judges in SC
  •          Privileges of parliament, its members and committees (Art.105)
  •         Conferment of more jurisdiction to SC (Art.138)
  •         Use of official language (Art.343)
  •          Citizenship (Art. 5 – 11)
  •          Elections to parliament and state legislatures
  •          Delimitation of constituencies (Art.82)
  •          Six Schedule [Art. 244]
  •         UTs
  •          Fifth Schedule [Art. 244 (1)]
 

Special Majority

  •         Fundamental Rights
  •          DPSPs
  •         Any other provisions not covered under other 2 types
 

 

Special Majority + Ratification of States

  •          Election of the President and its manner (Art 54, 55)
  •          Extent of executive power of the Union and the states
  •          Supreme Court and High Courts (Art.124 & 214)
  •          Distribution of legislative powers between the Union & the states
  •          Seventh Schedule (3 lists) – Art. 246
  •          Representation of states in parliament
  •         Article 368

 

RECENT CONSTITUTIONAL AMENDMENTS:

 

99th Amendment 2014 Formation of a National Judicial Appointments Commission.
100th Amendment 2015

 

Related to the Land Boundary Agreement (LBA) between India and Bangladesh.
101th Amendment 2017 Introduced the Goods and Services Tax in the country since 1 July 2017.
102th Amendment 2018 Constitutional status to National Commission for Backward Classes.
103th Amendment 2019

 

Provided a maximum of 10% Reservation for Economically Weaker Sections (EWSs).
104th Amendment 2020

 

Extended the reservation of seats for SCs and STs in the Lok Sabha and states assemblies.

 

CRITICISM OF AMENDMENT PROCEDURE:

States cannot initiate the amendment (Only parliament can) + States have only one way to propose the amendment i.e. create the legislative council in the state + Constitution does not mention the time within which state legislatures ratify or reject the amendment + Constitution is also silent on whether the states can withdraw their approval once given + no provision for a special body + Only in few cases, the consent of the state legislatures is required + No provision for holding a joint sitting + wide scope for taking the matters to the judiciary due to vague provisions.

 

 

ajax-loader