Amendment of the Constitution: Safeguarding Change and Stability

The Constitution of India, adopted in 1950, is both rigid and flexible. It allows for amendments to adapt to changing social, political, and economic needs while maintaining its core principles. The amendment process is enshrined in Article 368, which empowers the Parliament to amend the Constitution while providing checks to prevent misuse.

Constitutional Provisions

• Article 368: Grants Parliament the power to amend the Constitution by addition, variation, or repeal of any provision.
• The term “amendment” is not explicitly defined but is interpreted broadly, including structural, procedural, and substantive changes.

Types of Amendment Procedures under Article 368

The Constitution prescribes three types of amendments:

1. By Simple Majority (Outside Article 368)
   • Used for amendments not affecting federal structure (e.g., Article 11, Schedule 5).
   • Example: Admission or establishment of new states (Article 2).
2. By Special Majority of Parliament
   • Requires a majority of the total membership of each House and a two-thirds majority of members present and voting.
   • Used for most constitutional amendments.
3. By Special Majority + Ratification by Half of the States
   • Applies when the amendment affects federal structure, such as:
     • Election of President
     • Distribution of legislative powers
     • Representation of states in Parliament
     • Judiciary powers
   • Requires ratification by not less than half of the state legislatures.

Landmark Constitutional Amendments

• 1st Amendment (1951): Added restrictions on freedom of speech; inserted Ninth Schedule.
• 42nd Amendment (1976): Known as the Mini-Constitution; expanded central power and curtailed judicial review.
• 44th Amendment (1978): Restored civil liberties removed by the 42nd Amendment.
• 73rd & 74th Amendments (1992): Introduced Panchayati Raj and Municipalities.
• 86th Amendment (2002): Made education a fundamental right (Article 21A).
• 103rd Amendment (2019): Provided 10% reservation for EWS in education and employment.

Judicial Interpretation and Doctrines

Kesavananda Bharati v. State of Kerala (1973):

• The Supreme Court held that Parliament can amend any part of the Constitution, including Fundamental Rights, but cannot alter the “Basic Structure.”
• This gave birth to the Basic Structure Doctrine, which includes:
  • Supremacy of the Constitution
  • Rule of law
  • Separation of powers
  • Judicial review
  • Federalism
  • Secularism
  • Parliamentary system

Minerva Mills v. Union of India (1980):

• Reaffirmed that harmony and balance between Fundamental Rights and Directive Principles is part of the basic structure.

Golak Nath v. State of Punjab (1967):

• Initially held that Parliament had no power to amend Fundamental Rights; later overruled by Kesavananda Bharati.

Indira Nehru Gandhi v. Raj Narain (1975):

• Amendment curtailing judicial review of election disputes was struck down for violating the basic structure.

Procedure in Practice

• Amendment Bills can be introduced in either House of Parliament.
• No need for prior consent of the President.
• Cannot be introduced by private members.
• After passage by both Houses, it is presented to the President, who must give assent (no veto).

Comparative Insight

• USA: Rigid Constitution – amendment requires two-thirds in Congress and ratification by three-fourths of states.
• UK: No formal constitution – amendments made through ordinary laws.
• India: A mix – rigid for federal features, flexible otherwise.

Challenges and Debates

• Politicization of amendments during emergency (42nd Amendment).
• Tension between Parliament’s amending power and Judiciary’s review power.
• Need for judicial accountability and transparency in evolving doctrines like the basic structure.

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Conclusion

The amendment process under Article 368 reflects the vision of the framers—providing for change without compromising constitutional integrity. The Basic Structure Doctrine ensures that amendments do not dilute the Constitution’s soul. As India evolves, so must the Constitution—but within the framework of constitutionalism, democracy, and justice.