Law and society regulate each other. Law changes if changes take place in society. The laws can’t be stagnant. With the growing state of society, its norms and regulations also need to be amended timely.
The Indian Constitution is neither flexible nor rigid, but a combination of both. Article 368 talks about the powers and procedure for Parliament to amend the Constitution.
- Procedure for Amendment in Constitution
- Modes of Amendment
- Types of Amendment
- Can Fundamental Rights be Amended?
Procedure for Amendment in Constitution
For the amendment to be made in the Constitution of India, it has to be initiated by the introduction of a bill in either House of Parliament – that is, Lok Sabha or Rajya Sabha. The bill does not require prior permission of the President. It can be introduced by any member or minister.
The bill presented before Parliament must be passed by each House with a simple majority that is more than 50 percent of present and voting or by a special majority that is the majority of the total members in the House and majority of two-third present and voting. If the bill doesn’t get passage in any of either House, then there is no provision of joint sitting.
Once the bill gets passed by both the Houses of Parliament, then it is presented before the President for his assent. And after receiving assent on the bill, the bill becomes Constitutional Amendment Act.
Modes of Amendment in Indian Constitution
The two modes of amending the Constitution are:
1. Informal Method
2. Formal Method
Informal Method of Amendment
In this method, the words in the law do not change. It remains the same. The change takes place in its meaning and interpretation. For example, in Article 21, many amendments take place. But it never changes the content of Article 21 but changes the context, scope, and ambit. The right to life includes free air, education, medical aid, dignity, speedy trial, fair trial, and many more.
Related: 14 Famous Cases Related to Article 21
Formal Method of Amendment
In this form of Amendment, the text or words are changed in the law. The provision is amended by way of addition, variation, or omission. For example, by the 42nd amendment 1976, the words Secular, Socialist, and Integrity were added in the Preamble. This amendment was done by way of adding in the Preamble. Likewise, the amendments are done by omission or variation.
Types of Amendment in the Constitution
There are three ways in which the Indian Constitution can be amended:
1. Amendment by a Simple Majority
2. Amendment by a Special Majority
3. Amendment by Special Majority and Ratification of Half of the States
By Simple Majority of Parliament
Several provisions in the Constitution of India that can be amended by a simple majority, that is, more than 50 percent present and voting. Provisions like Article 5 – Citizenship, Article 169 – the creation of the legislative council, Article 239A – the creation of local legislatures or council of ministers.
By Special Majority of Parliament
By special majority means more than 50 percent of the total members and two-third of the present and voting. The total members in each House are 545 in Lok Sabha and 245 in Rajya Sabha. The provisions which get amended by the special majority are Fundamental Rights, Directive Principles of State policy, and all other provisions which are not covered under the other two categories.
By Special Majority of Parliament and Ratification of States
All the provisions in the Constitution which are related to the federal structure of polity can be amended (changed) by a special majority of the Indian Parliament and ratification of half of the total states.
Provisions like Election of the President, Supreme Court and High Court, lists mentioned in the seventh schedule, executive and legislative powers of the Union and the State, Representation of State in Parliament, and Article 368 itself.
Can Fundamental Rights Be Amended?
Shankar Prasad vs. the Union of India, 1951
The court held that the word ‘law’ in Article 13 does not include the amendment of the Constitution. Therefore Fundamental Rights can be amended under Article 368. The same was approved in the case of Sajjan Singh vs. State of Rajasthan, 1965.
Golak Nath vs. State of Punjab, 1967
The Supreme Court, with the majority view, said that Fundamental Rights are out of the reach of the Parliament. The court emphasized that Article 368 does not give power to the Parliament but merely provides procedure as to how to amend. The Parliament’s power to amend the constitutional provisions is not under Article 368 but in Article 245. As we have read earlier that amending the Constitution is a legislative process whereas Article 368 provides only the procedure to amend. The court said that the amendment is a law within Article 13, and if in any case violates Fundamental Rights, then it shall be void or unconstitutional.
24th Amendment Act, 1971
This amendment was an answer to the decision made in Golak Nath’s case. It sought to reverse the ruling of Golak Nath’s case. It inserted clause 4 in Article 13, which stated that Article 13 would not apply to any amendment made under Article 368. This amended the text of Article 368. Before this amendment, Article 368 provided only for the procedure for amendment. Later it changed to “empower the Parliament to amend and procedure therefor.”
Keshavanand Bharati Case
The Supreme Court said that the Parliament has powers to amend the Constitution but not its basic structure. The basic features are those supporting pillars of the Constitution without which the Constitution cannot stand. The Parliament can under Article 368 amend any provision but not its basic features.
What is Basic structure can’t be listed, but the Supreme Court illustrated few features like the supremacy of the Constitution, separation of power, federal character, sovereignty, democratic character, and so on.
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