Model Answer
0 min readIntroduction
The Indian Constitution, a living document, provides for its own amendment to adapt to changing societal needs and values. Article 368 deals specifically with the procedure for amending the Constitution, outlining varying degrees of majority required depending on the nature of the amendment. This flexibility is essential for a dynamic democracy but also necessitates safeguards against arbitrary changes. The constitutional amendment process has been shaped significantly by judicial interpretations, particularly through landmark Supreme Court judgments that have defined its scope and limitations, balancing parliamentary sovereignty with fundamental rights protection.
The Amendment Procedure: A Detailed Overview
Types of Amendments & Required Majorities
The Constitution provides for three types of amendments based on the majority required:- Simple Majority (Art. 368(2)): This requires a vote by a majority of members present and voting in each House of Parliament. This is used for procedural matters and some minor changes.
- Special Majority (Art. 368(3)): This involves a majority of not less than two-thirds of the members present and voting in each House, along with an absolute majority (more than half) of the total membership of that House. This is applied to amendments concerning the procedure outlined in Article 368 itself, as well as other significant changes.
- Absolute Majority & Ratification by States (Art. 368(4)): This requires a majority of not less than two-thirds of the total membership of each House and ratification by at least half of the state legislatures. This is mandated for amendments affecting the federal structure, the representation of states in Parliament, or any provision relating to fundamental rights.
The Process Step-by-Step
- Initiation: An amendment can be introduced in either House of Parliament.
- Motion & Passage: A motion for the amendment is moved and debated. It must be passed by the required majority, as per the type of amendment proposed.
- Presidential Assent: Once passed by both Houses, the bill is presented to the President for assent. The President must give his/her assent for the amendment to become law. The President can withhold assent only in exceptional circumstances (though this has rarely occurred).
- Ratification (where required): For amendments under Article 368(4), ratification by at least half of the state legislatures is mandatory. This involves passing a resolution supporting the amendment in each state legislature.
Restrictions on the Amendment Power
Constitutional Limits and Judicial Interpretations
While Parliament has the power to amend the Constitution, this power isn't absolute. Several restrictions exist:- Basic Structure Doctrine (Kesavananda Bharati v. State of Kerala, 1973): This is arguably the most significant restriction. The Supreme Court held that while Parliament can amend any part of the Constitution, it cannot alter its "basic structure." This includes features like secularism, democracy, judicial review, federalism, and fundamental rights. Defining the exact contours of the basic structure remains a complex task subject to ongoing judicial interpretation.
- Article 368 Itself Cannot Be Amended: The Supreme Court has ruled that Article 368 itself cannot be amended by the same procedure outlined within it. This prevents Parliament from unilaterally altering the amendment process.
- Limitations on Fundamental Rights Amendments (Golaknath v. State of Punjab, 1970): Initially, this judgment stated that amendments impacting fundamental rights could only be made under Article 368(4) requiring ratification by states. This was later overturned by the 24th Amendment Act.
- Judicial Review (Minerva Mills v. Union of India, 1980): The Supreme Court reaffirmed that judicial review is part of the basic structure and cannot be amended away. It struck down clauses in the 42nd Amendment Act that sought to curtail judicial scrutiny.
Recent Developments & Challenges
The constitutional amendment process has been used extensively since independence, with over 100 amendments made so far. However, debates continue regarding the appropriate use of this power and whether some amendments have unduly altered the original intent of the Constitution. The increasing trend towards using the 'special majority' procedure raises questions about consensus-building and potential marginalization of certain viewpoints.
Table: Summary of Amendment Procedures
| Amendment Type | Majority Required in Parliament | Ratification by States? | Applicable Provisions |
|---|---|---|---|
| Simple Majority | More than 50% of members present and voting | No | Procedural matters, some minor changes |
| Special Majority | Two-thirds of members present & voting in each House; Absolute majority of total membership | No | Amendments to Article 368 itself and other significant changes |
| Absolute Majority & Ratification | Two-thirds of total membership in each House | Yes, by at least half the state legislatures | Federal structure, representation of states, fundamental rights |
Conclusion
The amendment procedure enshrined in Article 368 provides a framework for adapting the Indian Constitution to evolving societal needs. While Parliament possesses considerable power to amend, this power is constrained by judicial interpretations, particularly the doctrine of basic structure. The balance between parliamentary sovereignty and fundamental rights remains a crucial aspect of constitutional governance, requiring careful consideration and adherence to established legal principles. Future amendments should prioritize consensus-building and uphold the core values of the Constitution.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.