How and to what extent can the Constitution of India be amended? Discuss in the light of case law.

Question: How and to what extent can the Constitution of India be amended? Discuss in the light of case law. [MPJS 2015]

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Answer

The Constitution of India provides for its amendment in order to adjust itself to the changing conditions and needs. Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.

The procedure for the amendment of the Constitution as laid down under Article 368 is as follows:

1. An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
2. The bill can be introduced either by a minister or by a private member and does not require prior permission from the president.
3. The bill must be passed in each House by a special majority, that is, a majority of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
4. Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
5. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority.
6. After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the President for assent.
7. The President must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill to the Parliament for reconsideration.
8. After the President’s assent, the bill becomes an Act (i.e., a Constitutional Amendment Act) and the Constitution stands amended in accordance with the terms of the Act.

The Constitution can be amended any number of times by the Parliament, but only in the manner provided. There is no such limit provided in the constitution of India which allows it to enact only a certain number of amendments in a year. In other words, Parliament is free to enact any number of constitutional amendments in any given year. Although Parliament must preserve the basic framework of the Constitution, there is no other limitation placed upon the amending power, meaning that there is no provision of the Constitution that cannot be amended.

The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of I. C. Golak Nath and Ors. v. State of Punjab and Anr. [1967 AIR 1643] An amendment was struck down on the basis that it violated Article 13: “The State shall not make any law which takes away or abridges the rights conferred by Part III. The term “law” in this article was interpreted as including a constitutional amendment. Parliament responded by enacting the 24th Amendment of the Constitution of India which declared that “nothing in Article 13 shall apply to any amendment of this Constitution”.

The current limitation on amendments comes from Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], where the Supreme Court ruled that amendments of the constitution must respect the “basic structure” of the constitution, and certain fundamental features of the constitution cannot be altered by amendment. Parliament attempted to remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that “there shall be no limitation whatever on the constituent power of Parliament to amend this Constitution”.

The issue of whether an entire constitutional amendment is void for want of ratification or only an amended provision required to be ratified under proviso to clause (2) of Article 368 was debated before the Supreme Court in Kihota Hollohon v. Zachilhu (AIR 1993 SC 412), in which the constitutional validity of the Tenth Schedule of the Constitution inserted by the 52nd Amendment in 1985 was challenged.

The decisions of the Speakers/Chairmen on disqualification, which had been challenged in different High Courts through different petitions, were heard by a five-member Constitution Bench of the Supreme Court. The Constitution Bench in its majority judgment upheld the validity of the Tenth Schedule but declared Paragraph 7 of the Schedule invalid because it was not ratified by the required number of the Legislatures of the States as it brought about in terms and effect, a change in Articles 136, 226 and 227 of the Constitution.

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