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) of the Constitution of India. This procedure ensures the
sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament
of India.

However, there is another limitation imposed on the amending power of the constitution of
India, which developed during conflicts between the Supreme Court and Parliament, where
Parliament wants to exercise discretionary use of power to amend the constitution while the
Supreme Court wants to restrict that power. This has led to the laying down of various
doctrines or rules in regard to checking the validity/legality of an amendment, the most
famous among them is the Basic structure doctrine as laid down by the Supreme Court in the
case of Kesavananda Bharati v. State of Kerala.

The framers of the Constitution were neither in favour of the traditional theory of federalism,
which entrusts the task of constitutional amendment to a body other than the Legislature, nor
did they favour a rigid special procedure for such amendments. They also never wanted to
have a British-style system where Parliament is supreme. The framers, instead, adopted a
combination of the "theory of fundamental law", which underlies the written Constitution of
the United States with the "theory of parliamentary sovereignty" as existing in the United
Kingdom. The Constitution of India vests constituent power upon the Parliament subject to
the special procedure laid down therein.

During the discussion in the Constituent Assembly on this aspect, some members were in
favour of adopting an easier mode of amending procedure for the initial five to ten years.
Explaining why it was necessary to introduce an element of flexibility in the
Constitution, Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948,
"While we want this Constitution to be as solid and as permanent a structure as we can make
it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility.
If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living,
vital, organic people. Therefore, it has to be flexible ... while we, who are assembled in this
House, undoubtedly represent the people of India, nevertheless I think it can be said, and
truthfully, that when a new House, by whatever name it goes, is elected in terms of this
Constitution, and every adult in India has the right to vote - man and woman - the House that
emerges then will certainly be fully representative of every section of the Indian people. It is
right that House elected so - under this Constitution of course it will have the right to do
anything - should have an easy opportunity to make such changes as it wants to. But in any
event, we should not make a Constitution, such as some other great countries have, which are
so rigid that they do not and cannot be adapted easily to changing conditions. Today
especially, when the world is in turmoil and we are passing through a very swift period of
transition, what we may do today may not be wholly applicable tomorrow. Therefore, while
we make a Constitution which is sound and as basic as we can, it should also be flexible

Procedure

The Constitution of India provides for a distinctive amendment process when compared to
the Constitutions of other nations. It can be described as partly flexible and partly rigid. The
Constitution provides for a variety in the amending process. This feature has been
commended by Australian academic Sir Kenneth Wheare who felt that uniformity in the
amending process imposed "quite unnecessary restrictions" upon the amendment of parts of a
Constitution. An amendment of the Constitution can be initiated only by the introduction of
a Bill in either House of Parliament. The Bill must then be passed in each House by a
majority of the total membership of that House and by a majority of not less than two-thirds
of the members of that House present and voting. There is no provision for a joint sitting in
case of disagreement between the two Houses. The Bill, passed by the required majority, is
then presented to the President who shall give his assent to the Bill. If the amendment seeks
to make any change in any of the provisions mentioned in the proviso to article 368, it must
be ratified by the Legislatures of not less than one-half of the States. Although there is no
prescribed time limit for ratification, it must be completed before the amending Bill is
presented to the President for his assent.

Every constitutional amendment is formulated as a statute. The first amendment is called the
"Constitution (First Amendment) Act", the second, the "Constitution (Second Amendment)
Act", and so forth. Each usually has the long title "An Act further to amend the Constitution
of India".

Amendment procedure: - for the purposes of amendment the provisions of the constitution
the parliament has powers to amend the constitution enshrined in the Part XX of the
Constitution of India under Article 368. It states that “the parliament may, in exercise of its
constitutional power, amend by way of addition, variation or repeal any provision of the
constitution in accordance with the procedure laid down for the purpose”.

Two Special Methods of Amendment under Art 368

I. Amendment by 2/3rd Majority of Parliament:

Most parts of the Constitution (with exception of some specific provisions) can be amended
by this method. Under this method, the Constitution can be amended by the Union Parliament
alone. For this purpose an amendment bill can be passed by each of the two Houses of Union
Parliament by a majority of its total membership (i.e. absolute majority) and by a two-third
majority of members present and voting in each House. It is a rigid method in so far as it
prescribes a special majority for amending the constitution but it is considered to be a flexible
method because under it the Union Parliament alone can pass any amendment.

II. Amendment by 2/3rd Majority of the Parliament plus Ratification by at least half of
the several State Legislatures:

In respect of some specified provisions of the Constitution, a very rigid method of

amendment has been prescribed.

In respect of these the amendment-making involves two stages:

First, the amendment bill is to be passed by both the Houses of the Union Parliament by a
majority of total membership and a 2/3rd majority of members present and voting in each
House.

Secondly, after this the amendment bill has to secure ratification from at least half of the
several State Legislatures (now at least 14 state legislatures).Only then it gets finally passed
and incorporated as a part of the Constitution when the President puts his signatures on the
bill.

The following provisions of the constitution can be amended by this rigid method:

(i) Election of the President.

(ii) Scope of the executive power of the Union.

(iii) Scope of the executive power of a State.

(iv) Provisions regarding High Courts in Union Territories.

(v) Provisions regarding Supreme Court of India.

(vi) Provisions regarding High Courts in States.

(vii) Legislative Relations between the Union and States.

(viii) Any of the Lists in the Seventh Schedule. (Division of Powers between the Union and
States)

(ix) Representation of States in the Parliament.

(x) The Provisions of Article 368. (Method of Amendment)

III. Additional Amendment-making by A Simple Majority in the Two Houses of

Parliament:

In respect of some provisions of the Constitution the Parliament has been given the power to
make necessary changes by passing as a law in the normal way i.e. by simple majority of
members of both of its Houses. It is, indeed, an easy method of amendment.

It applies to the following provisions of the Constitution:

(i) A Admission/ formation of new States and alteration of areas, boundaries or names of
existing States.

(ii) Citizenship provision.

(iii) Provision regarding delimitation of constituencies.

(iv) Quorum of the two Houses of Parliament.

(v) Privileges and Salaries and allowances of the MPs.

(vi) Rules of procedure in each House of the Parliament.

(vii) English as a language of the Parliament.

(viii) Appointment of Judges and jurisdiction of Supreme Court.

(ix) Creation or abolition of Upper Houses in any state.

(x) Legislatures for Union Territories.

(xi) Elections in the country.

(xii) Official language of India.

(xiii) Second, fifth and sixth Schedules of the Constitution.

These methods of amendment reflect a mixture of rigidity and flexibility in the Indian
Constitution.

Main Features of the Amendment Method:

1. Part XX of the Constitution deals with Amendment of the Constitution. It has only one
Article i.e. Article 368.

2. The power to amend the constitution is mainly with the Union Parliament. No amendment
can be made without Parliament’s action and consent. Union Parliament alone has the power
to initiate bills for amending the constitution.

3. There are three basic ways in which amendments can be made:

(i) Most provisions can be amended by the Union Parliament by passing an amending act by
a majority of total membership, and a 2/3rd majority of members present and voting in each
House.

(ii) Ten provisions of the constitution can be amended,

(a) By passing of the amendment bill by 2/3rd majority of the members of each of the two
Houses of Parliament,

(b) It becomes finally passed when approved by at least half of the state Legislatures.
(iii) Some provisions can be amended by the Parliament by a law by a simple majority of its
two Houses.

4. Signature of the President is required as the final act which transforms a duly enacted
amendment bill into an Amendment Act.

5. State Legislatures have been denied the power to initiate amendments.

6. All amendments are subject to the Judicial Review power of the courts. (The Supreme
courts and State High Courts only) Any part of any amendment or any amendment as a whole
can be declared invalid by a court in case it is found to be unconstitutional.

7. The Parliament has the power to amend every part of the Constitution. However, the
Supreme Court has ruled that the Parliament has no power to change the ‘Basic Structure of
the Constitution’.1

Two Special Methods of Amendment under Art 368:

I. Amendment by 2/3rd Majority of Parliament:

Most parts of the Constitution (with exception of some specific provisions) can be amended
by this method. Under this method, the Constitution can be amended by the Union Parliament
alone. For this purpose an amendment bill can be passed by each of the two Houses of Union
Parliament by a majority of its total membership (i.e. absolute majority) and by a two-third
majority of members present and voting in each House. It is a rigid method in so far as it
prescribes a special majority for amending the constitution but it is considered to be a flexible
method because under it the Union Parliament alone can pass any amendment.

II. Amendment by 2/3rd Majority of the Parliament plus Ratification by at least half
of the several State Legislatures:

In respect of some specified provisions of the Constitution, a very rigid method of

amendment has been prescribed.
In respect of these the amendment-making involves two stages

First, the amendment bill is to be passed by both the Houses of the Union Parliament by a
majority of total membership and a 2/3rd majority of members present and voting in each
House.

Secondly, after this the amendment bill has to secure ratification from at least half of the
several State Legislatures (now at least 14 state legislatures).Only then it gets finally passed
and incorporated as a part of the Constitution when the President puts his signatures on the
bill.

The following provisions of the constitution can be amended by this rigid method:

(i) Election of the President.

(ii) Scope of the executive power of the Union.

(iii) Scope of the executive power of a State.

(iv) Provisions regarding High Courts in Union Territories.

(v) Provisions regarding Supreme Court of India.

(vi) Provisions regarding High Courts in States.

(vii) Legislative Relations between the Union and States.

(viii) Any of the Lists in the Seventh Schedule. (Division of Powers between the Union and
States)

(ix) Representation of States in the Parliament.

(x) The Provisions of Article 368. (Method of Amendment)

III. Additional Amendment-making by A Simple Majority in the Two Houses of

Parliament:
In respect of some provisions of the Constitution the Parliament has been given the power to
make necessary changes by passing as a law in the normal way i.e. by simple majority of
members of both of its Houses. It is, indeed, an easy method of amendment.

It applies to the following provisions of the Constitution:

(i) A Admission/ formation of new States and alteration of areas, boundaries or names of
existing States.

(ii) Citizenship provision.

(iii) Provision regarding delimitation of constituencies.

(iv) Quorum of the two Houses of Parliament.

(v) Privileges and Salaries and allowances of the MPs.

(vi) Rules of procedure in each House of the Parliament.

(vii) English as a language of the Parliament.

(viii) Appointment of Judges and jurisdiction of Supreme Court.

(ix) Creation or abolition of Upper Houses in any state.

(x) Legislatures for Union Territories.

(xi) Elections in the country.

(xii) Official language of India.

(xiii) Second, fifth and sixth Schedules of the Constitution.

These methods of amendment reflect a mixture of rigidity and flexibility in the Indian
Constitution.

Main Features of the Amendment Method:

1. Part XX of the Constitution deals with Amendment of the Constitution. It has only one
Article i.e. Article 368.
2. The power to amend the constitution is mainly with the Union Parliament. No amendment
can be made without Parliament’s action and consent. Union Parliament alone has the power
to initiate bills for amending the constitution.

3. There are three basic ways in which amendments can be made:

(i) Most provisions can be amended by the Union Parliament by passing an amending act by
a majority of total membership, and a 2/3rd majority of members present and voting in each
House.

(ii) Ten provisions of the constitution can be amended,

(a) By passing of the amendment bill by 2/3rd majority of the members of each of the two
Houses of Parliament,

(b) It becomes finally passed when approved by at least half of the state Legislatures.

(iii) Some provisions can be amended by the Parliament by an law by a simple majority of its
two Houses.

4. Signature of the President is required as the final act which transforms a duly enacted
amendment bill into an Amendment Act.

5. State Legislatures have been denied the power to initiate amendments.

6. All amendments are subject to the Judicial Review power of the courts. (The Supreme
courts and State High Courts only) Any part of any amendment or any amendment as a whole
can be declared invalid by a court in case it is found to be unconstitutional.

7. The Parliament has the power to amend every part of the Constitution. However, the
Supreme Court has ruled that the Parliament has no power to change the ‘Basic Structure of
the Constitution’.

These are the main features of the method of Amendment of the Constitution of India.
Method of Amendment: Critical Evaluation:
Main points of criticism:
1. Undemocratic:
The critics hold that since the process of amendment does not provide for a system of getting
consent or approval of the people of India, it is an undemocratic method.

2. Very Flexible:
The Parliament alone can amend most of the constitutional provisions. The flexibility of the
constitution is evident from the fact that during the past 60 years 94 constitutional
amendments have been made.

3. Very Rigid:
Some scholars feel that the Constitution of India is very rigid. It worked as a flexible
constitution during 1950-1989 only because of the presence of single party dominance in
Indian politics. In this era of coalition governments, it has become a very rigid constitution.

4. Lack of Procedure for resolving deadlocks over Amendment Bills:

The Constitution does not provide for any method of resolving deadlocks between the two
Houses of parliament over an amendment bill.

5. Less Importance to States:

Except for the ‘ten provisions’ listed by Article 368, all parts of the Constitution can be
amended by the Union Parliament alone without the consent of the State Legislatures. States
do not have even the right to propose amendments.

6. The provision for Judicial Review over Amendments:

Some critics also object to the system of judicial review which permits the Supreme Court
and every High Court to judge the constitutional validity of the amendments passed by the
Parliament. This makes the Supreme Court of India a super legislature with the negative
power of the rejecting duly passed amendments. On all these grounds, the critics strongly
criticise the method of amendment of the Constitution of India.

Justification:
In defence of the amendment method, it can be said that:
(1) It is the best possible method of amendment. It has both the quality of being rigid as well
as flexible. It strikes a good balances.

(2) In a developing country like India, the constitution is an instrument of social change and
that is why it has undergone frequent amendments.

(3) The detailed and lengthy size of the constitution and its character as a common
constitution of both the Union and States, have also been responsible for the incorporation of
several and frequent amendments.

(4) The existing method of Amendment stands justified as a natural necessity of India’s
pluralist society and developing polity.

The amendment method has helped the Constitution to change in response to the changes in
Indian society and polity.

Constitutional Amendments that changed the course of India

1. Abolition of states according to classes and the introduction of Union Territories and
reorganisation of states by language (1956):

This was one of the first significant reforms of the boundaries of Indian states and territories,
organising them by the language spoken in those areas. This systematically arranged the
states and lowered the complexity of state boundaries. Apart from this, it also abolished the
classification of states by progress and per-capita income of the states.

2. The mini-constitution (42nd amendment) inserted Socialism and Secularism in the

preamble, a provision on fundamental (1976):

Secularism and socialism were inserted to restore the faith of the nation that minorities would
be safe and not be exploited by the rich strata. Also, the rich would not be allowed to
dominate the country’s economy. The main reason to add socialism was to promote social as
well as economic equality in the country. Similarly, the main reason to add secularism was to
imply that there was no official state religion of the country.

3. Right to Property deleted from the list of fundamental rights (1978):

The fundamental right to property in India was removed to permit the reorganisation of land
and to facilitate land acquisition for developmental projects. This was carried out by the
Indian government at that time since it was not affluent enough to pay people whatever they
demanded their land.

4. Lawmakers may be disqualified on the grounds of defection (Law of Defection) (1985):

This was quite a controversial amendment in itself since it was felt that this law would invade
on the right of free speech of lawmakers. Under the amendment, a Member of Parliament or
state legislature was considered to have defected if they either on their own resigned from
their party or violated the directions of the party leadership on a vote. That is, they may not
vote on any issue in violation to the party’s decision. Independent members would be
disqualified if they joined a political party. Nominated members who were not members of a
party could choose to join a party within six months; after that period, they were treated as a
party member or independent member.

5. Voting age reduced from 21 to 18 (1989):

The then Prime Minister Rajiv Gandhi explained it as an expression of the government’s full
faith in the youth of the country. The youth are aware and informed and thus, lowering of the
voting age would provide an opportunity to the unrepresented youth of the nation to vent out
their feelings and motivate them to become a part of the political process eventually.

6. Introduction of Nagarpalikas and Municipalities (1993):

During the early 90s local bodies in states had become ineffective in holding regular
elections or the maintenance of public infrastructure, electricity and water supply.
Thus, an immediate need to introduce effective authorities to execute the numerous
plans and programs was felt by the government.

7. Free and compulsory education to children between 6 to 14 years (2002):

One of the most important amendments, the government directed private schools to take 25%
of their class strength from economically weaker or disadvantaged groups of society through
a random selection process with the help of the government funding. This initiative was taken
to try and provide elementary education to all. Moreover, the local and state governments
were made to ensure its proper implementation.

8. Allowed the government to pass laws relating to reservations to socially, economically

backward classes, scheduled castes and scheduled tribes in public and private higher
educational institutions (2014):

Scheduled castes and scheduled tribes have been the most neglected and exploited
people in India. The curse of untouchability has always been a dark spot on Indian
civilisation and culture. Despite the constitutional declaration of its abolition under
Article 17, it was still quite prevalent in many subtle and not so subtle ways. Therefore,
for the very integrity, survival and the nation’s unity the amendment to pass laws
relating to such reservations were quite a need of the hour.

9. Introduction of the Goods and Services Tax (GST), to present the idea of One Nation, One
Tax (2016):

The most recent important amendment came with the implementation of the GST, where
consumers would not be subjected to double/ multiple taxations. All taxes that are imposed
while purchasing goods will include both the central government’s taxes as well as the state
government’s taxes. The introduction of GST has deterred the state governments from
randomly increasing taxes.