Constitutional forefathers were aware of the fact that an extremely rigid constitution would not fulfill the aspirations of future generations. They also believed that the Constitution should be a living document that would be shaped by the exigencies of the time. So, the constitution makers incorporated Part-XX (Article 368) to provide for a detailed procedure to amend the constitution.
Amendment Procedure
| Aspect | Exclusive Power of Parliament: Only Parliament can introduce a constitutional amendment bill, not state legislatures. |
|---|---|
| Introduced by: Any member of Parliament can introduce the bill. | |
| No Prior Approval: President’s recommendation is not required to introduce the bill. | |
| Legislative Procedure in Parliament | Majority: Passed by a special majority in each House (majority of total membership and two-thirds of members present and voting). |
| No Joint Sitting: Each House must pass the bill separately; no provision for a joint sitting. | |
| Ratification by State Legislatures | If amending federal provisions, the bill must be ratified by half of the state legislatures by a simple majority. |
| Presidential Assent | Assent Required: President must give assent once the bill is passed by Parliament and ratified by states, if necessary. (24th amendment) |
| Becomes an Act: The bill becomes a Constitutional Amendment Act after Presidential assent. |
Types of Amendments
| Type of Amendment | Details | Example |
|---|---|---|
| Amendment by Simple Majority | Not under Article 368: Done through a bill passed by each house with a simple majority. | Creation/abolition of legislative councils, quorum in Parliament, MP salaries, rules of procedure, privileges, use of English in Parliament, number of Supreme Court judges, more jurisdiction to Supreme Court, citizenship, elections. |
| Amendment by Special Majority of Parliament | Article 368: Bill passed by each house with a special majority. | Fundamental rights, DPSPs, and other non-specified provisions. |
| Required Majority: Majority of total members and two-thirds of members present and voting. | For 540 members in Lok Sabha, 273 total members and 354 (two-thirds of 531 present) must approve. | |
| Amendment by Special Majority and Ratification by States | Federal Structure Provisions: Special majority in Parliament and ratification by half of state legislatures. | Election process of President, Union and state executive powers, legislative functions distribution, High Courts, Supreme Court, seventh schedule lists, state representation in Parliament, Article 368, GST Council. |
Need for Amendment
| Reason for Amendment | Details | Specific Examples |
|---|---|---|
| Adapting to Social Change | Amendments often reflect evolving social norms, values, and requirements of the society. | – Constitutional (One Hundred and Third Amendment) Act, 2019: Provides for reservation in education and public employment for economically weaker sections. |
| Technological Advancements | Updates to accommodate technological progress and address new-age challenges. | 101st Amendment, 2016: Introduced the Goods and Services Tax (GST) |
| Correcting Oversights or Errors | Address ambiguities or outdated provisions in the constitution that may arise over time. | The 44th Amendment of the Indian Constitution, sought to undo several changes made by the controversial 42nd Amendment during the Emergency period |
| Judicial Directives | Amendments in response to judicial interpretations that necessitate legislative clarification. | The 24th Amendment of the Indian Constitution was a direct response to judicial challenges and debates about the extent and limitations of the Parliament’s amendment powers. |
| Decentralization of Power | Enhance governance by redistributing power and responsibilities, fostering local governance. | Constitutional (Seventy-third Amendment) Act, 1992 and Constitutional (Seventy-fourth Amendment) Act, 1992: Strengthened the Panchayati Raj institutions and introduced similar structures for urban local bodies. |
| Protecting Rights | Expand or recalibrate fundamental rights to reflect contemporary values and international standards. | – Constitutional (Eighty-sixth Amendment) Act, 2002: Made education a fundamental right for children aged 6 to 14 years under Article 21A. |
| Structural Reforms | Modify or streamline governmental and judicial structures to enhance efficiency and effectiveness. | – Constitutional (One Hundred and First Amendment) Act, 2016: Introduced the Goods and Services Tax (GST) for a uniform tax regime across the country. |
Criticism of Amendment Procedure
| Criticism | Details |
|---|---|
| Concentration of Power – Limited Role of States | Only Parliament can amend the Constitution; state legislatures cannot introduce amendments. |
| Excessive Powers to Parliament | Parliament can change most of the Constitution with a special or simple majority. |
| Dual Role of Parliament | Parliament has both constituent and ordinary law-making powers; no separate constituent assembly. |
| No Provision for Joint Sitting | No joint sitting for resolving deadlocks over constitutional amendment bills. |
| Similar to Ordinary Law Making | The process of amending the Constitution is similar to making ordinary laws, except for the need for a special majority. |
Limitations of Amendment powers of Parliament
| Limitation | Details | Examples/Notes |
|---|---|---|
| Basic Structure Doctrine | Parliament cannot alter the fundamental framework of the Constitution. | Established in Kesavananda Bharati (1973); includes principles like secularism, democracy, and rule of law. |
| Procedural Limitations | Amendments must follow a strict procedure, requiring a special majority in Parliament and sometimes ratification by state legislatures. | Article 368 outlines these requirements; affects amendments involving federal relations and representation. |
| Judicial Review | The Supreme Court can review and invalidate amendments that breach the Constitution’s basic structure. | Minerva Mills case (1980) and I.R. Coelho case (2007). |
| Political and Social Consensus | Substantial political and social consensus is often necessary for passing amendments due to the requirements for a special majority. |
SC judgments on Amendment powers of Parliament
| Case Name | Summary of Judgment |
|---|---|
| Shankari Prasad vs. Union of India (1951) | Ruled that Parliament could amend any part of the Constitution, including fundamental rights. |
| Sajjan Singh vs. State of Rajasthan (1965) | Reaffirmed the ability of Parliament to amend the Constitution under Article 368, including fundamental rights. |
| Golaknath vs. State of Punjab (1967) | Overturned previous rulings, stating Parliament could not amend fundamental rights. |
| Kesavananda Bharati vs. State of Kerala (1973) | Introduced the “basic structure” doctrine, establishing that Parliament cannot alter the fundamental framework of the Constitution through amendments. |
| Indira Nehru Gandhi vs. Raj Narain (1975) | Struck down the 39th Amendment related to the election of the Prime Minister, asserting that amendments violating the “basic structure” of the Constitution are unconstitutional. |
| Minerva Mills vs. Union of India (1980) | Reinforced the “basic structure” doctrine. Held that clauses inserted by the 42nd Amendment, which declared that no amendment could be called in question in any court, were invalid. |
| Waman Rao vs. Union of India (1981) | Validated the constitutionality of all amendments made up to the Kesavananda Bharati judgment, applying the basic structure doctrine prospectively, not retrospectively. |
| I.R. Coelho (Dead) By LRs vs. State of Tamil Nadu (2007) | Reaffirmed the basic structure doctrine. Ruled that laws put in the Ninth Schedule after the Kesavananda Bharati case are subject to judicial review if they violate the basic structure. |
Important amendments
| Amendment | Key Provisions & Significance |
|---|---|
| 1st Amendment, 1951 | Empowered the state to make special provisions for the advancement of socially and economically backward classes. Provided for the saving of laws providing for acquisition of estates, etc. Added Ninth Schedule to protect the land reform and other laws included in it from the judicial review. Added three more grounds of restrictions on freedom of speech and expression, viz., public order, friendly relations with foreign states and incitement to an offence. Also, made the restrictions “reasonable” and thus, justiciable in nature. Provided that state trading and nationalisation of any trade or business by the state is not to be invalid on the ground of violation of the right to trade or business. |
| 24th Amendment, 1971 | Affirmed the power of Parliament to amend any part of the Constitution including fundamental rights. Made it compulsory for the president to give his assent to a Constitutional Amendment Bill. |
| 25th Amendment, 1971 | Provided that any law made to give effect to the Directive Principles contained in Article 39 (b) or (c) cannot be challenged on the ground of violation of the rights guaranteed by Articles 14, 19 and 31. |
| 42nd Amendment, 1976 | Added three new words (i.e., socialist, secular and integrity) in the Preamble. Added Fundamental Duties by the citizens (new Part IV A). Made the president bound by the advise of the cabinet. Provided for administrative tribunals and tribunals for other matters (Added Part XIV A). Froze the seats in the Lok Sabha and state legislative assemblies on the basis of 1971 census till 2001. Made the constitutional amendments beyond judicial scrutiny. Raised the tenure of Lok Sabha and state legislative assemblies from 5 to 6 years. Provided that the laws made for the implementation of Directive Principles cannot be declared invalid by the courts on the ground of violation of some Fundamental Rights. Added three new Directive Principles viz., equal justice and free-legal aid, participation of workers in the management of industries and protection of environment, forests and wildlife. Extended the one-time duration of the President’s rule in a state from 6 months to one year. Shifted five subjects from the state list to the concurrent list, viz, education, forests, protection of wild animals and birds, weights and measures and administration of justice, constitution and organisation of all courts except the Supreme Court and the high courts. Empowered the Parliament to decide from time to time the rights and privileges of its members and committees. Provided for the creation of the All-India Judicial Service. |
| 44th Amendment, 1978 | Restored the original term of the Lok Sabha and the state legislative assemblies (i.e., 5 years). Omitted the reference to the British House of Commons in the provisions pertaining to parliamentary privileges. Gave constitutional protection to publication in newspapers of true reports of the proceedings of the Parliament and the state legislatures. Empowered the president to send back once the advice of the cabinet for reconsideration. But, the reconsidered advice is to be binding on the president. Replaced the term “internal disturbance” by “armed rebellion” in respect of national emergency. Made the President to declare a national emergency only on the written recommendation of the cabinet. Deleted the right to property from the list of Fundamental Rights and made it only a legal right. Provided that the fundamental rights guaranteed by Articles 20 and 21 cannot be suspended during a national emergency. Omitted the provisions which took away the power of the court to decide the election disputes of the president, the vice-president, the prime minister and the Speaker of the Lok Sabha. |
| 52nd Amendment, 1985 | Provided for disqualification of members of Parliament and state legislatures on the ground of defection and added a new Tenth Schedule containing the details in this regard. |
| 61st Amendment, 1989 | Reduced the voting age from 21 to 18 years, broadening democratic participation. |
| 73rd Amendment, 1992 | Granted constitutional status and protection to the panchayati raj institutions. For this purpose, the Amendment has added a new Part-IX entitled as “the panchayats” and a new Eleventh Schedule containing 29 functional items of the panchayats. |
| 74th Amendment, 1992 | Granted constitutional status and protection to the urban local bodies. For this purpose, the Amendment has added a new Part IX-A entitled as “the municipalities” and a new Twelfth Schedule containing 18 functional items of the municipalities. |
| 86th Amendment, 2002 | Made elementary education a fundamental right. The newly-added Article 21-A declares that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may determine”. Changed the subject matter of Article 45 in Directive Principles. It now reads—“The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”. Added a new fundamental duty under Article 51-A which reads—“It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years”. |
| 99th Amendment Act, 2014 | Replaced the collegium system of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC). However, in 2015, the Supreme Court declared this amendment act as unconstitutional and void. Consequently, the earlier collegium system became operative again. |
| 101st Amendment, 2016 | aved the way for the introduction of the goods and services tax (GST) regime in the country. The GST shall replace a number of indirect taxes being levied by the Union and the State Government. It is intended to remove the cascading effect of taxes and provide for a common national market for goods and services. Provided for the establishment of a Goods and Services Tax Council by a presidential order. Made the provision of compensation to the states for loss of revenue arising on account of introduction of GST for a period of five years. |
| 102nd Amendment Act, 2018 | Conferred a constitutional status on the National Commission for Backward Classes which was set-up in 1993 by an Act of the Parliament. Relieved the National Commission for Scheduled Castes from its functions with regard to the backward classes. Empowered the President to specify the socially and educationally backward classes in relation to a state or union territory. |
| 103rd Amendment Act, 2019 | Allowed the state to make a provision for the reservation of upto 10% of seats for economically weaker sections in admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions. |
