Faculty of Law
Topic – Methods of constitutional amendments and limitations
Subject: Constitutional law – 2
Date – 07-06-2022
Submitted to: Mr Keshva Nand Sir
Submitted by: Kartik kaushal
As Constitution is a living document, which keeps on changing as per the needs
of society and its people.
To evolve and change with all changes in the society and environment is a
necessity for every constitution. The makers of the Constitution of India were
fully aware of this need. As such, while writing the constitution, they also
provided for a method of its amendment. Further they of decided, to make the
constitution both rigid as well as flexible. They laid down a flexible amendment
method in respect of its some parts and for several others they provided for a
rigid method
Method of Amendment:
Part XX of The Constitution of India contains only one Article 368. It deals
with the power of the Parliament to amend the constitution. It lays down two
special methods for the amendment of various parts of the constitution. Along
with it the Union Parliament has the power to change some specified
features/parts of the Constitution by passing an ordinary law.
Main Features of the Amendment Method:
1. Chapter 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.
Two Special Methods of Amendment under Art 368
I. Amendment by 2/3rd Majority of Parliament:
Special majority as per article 368 requires a majority of 2/3rd members
present and voting supported by more than 50% of the total strength of the
house. This type of majority is used for most of the Constitutional amendment
bills. To pass a constitution amendment bill in Rajya Sabha, in addition to
getting the support of 123 members, the bill should be favoured by more than
2/3rd of the members present and voting.
Cases where special majority as per article 368 is used:
1.
2.
3.
4.
To pass a constitutional amendment bill which does not affect federalism.
Removal of judges of SC/HC.
Removal of CEC/CAG.
Approval of national emergency requires special majority as per Article 368
in both houses.
5. Resolution by the state legislature for the creation/abolition of Legislative
Council (Article 169)
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)
And there are some additional amendment making process by simple majority
which deals with some other subjects.
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) An 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.
Limitation
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 certain number of amendments in a year.
In other words, Parliament is free to enact any number of constitutional
amendment 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. In Abdul Rahiman Jamaluddin v. Vithal Arjun (AIR 1958
Bombay, 94, (1957)), the Bombay High Court held that any attempt to amend
the Constitution by a Legislature other than Parliament, and in a manner
different from that provided for, will be void and inoperative.[1]
The Supreme Court first struck down a constitutional amendment in 1967,
ruling in the case of I.C. Golak Nath and Ors. vs. State of Punjab and Anr. 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
[the charter of Fundamental Rights]". The term "law" in this article was
interpreted as including a constitutional amendment. Parliament responded by
enacting the twenty-fourth 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 vs.
The State of Kerala, 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". However, this change was itself later declared invalid by the
Supreme Court in Minerva Mills v. Union of India.
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 case, now popularly known as Anti-Defection case, was
decided in 1992. The Constitution Bench in its majority judgement 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. While doing so, the majority treated Paragraph 7 as a
severable part from the rest of the Schedule. However, in the dissenting opinion,
the minority of the Judges held that the entire Amendment is invalid for want of
ratification.