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Procedure for constitutional amendment

Procedure for a constitutional amendment

The amendment to Indian constitution is possible but not an easy one. The constitution cannot be amended as per the whims and fancy of the state. The procedure for amending the constitution is mentioned in Article 368.

An amendment to constitution may only be initiated by introducing an amendment bill for the purpose. The bill can be initiated in either house of the Parliament, ie, Upper house or lower house ( Rajya sabha or Lok Sabha). This need to be passed in both the house with conditions

  1. It should be passed in each house with majority in total membership, and

  2. Also a majority of not less than 2/3rd of members present in the house and vote.

For Example: If the house have total strength of 543 and 450 members present and vote

  1. First point is minimum 273 members should vote for the amendment - 51% of total strength. And then,

  2. 300 members from members present should vote for it. - 2/3rd of 450.

So if the amendment is to be passed this conditions need to be confirmed in both the houses.

Once the bill is passed by the houses, it should be forwarded to the President of India, who shall give assent to it.

Only the House of the People (Lok Sabha) or the Council of State (Rajya Sabha) has been given the right to initiate the amendment procedure. The process laid down in Article 368 shall be complemented by the rules defined by every House for governing its practice and the conduct of its business.

The Indian constitution is entirely different on amendment procedure from constitutions of United States, Switzerland and Australia. The constitutions of those countries provides an opportunity to their citizens to participate in the amendment process either at the incorporation point or ratification point, but Indian constitution clearly entrusted that responsibility and authority to Parliament and in some situations to State Legislatures. They must entrust the future of their Constitution to the members of Parliament and, in some cases, to those of their respective state legislatures.

The Constitution provides for the following four procedures for amendment:

  1. Amendments may be made by a simple majority of Parliament to certain provisions of the Constitution, in the same manner as the ordinary statute is adopted by Parliament.

  2. Modification of specific provisions of the Constitution may take place by a simple majority of the Legislature of the State in the same manner as the ordinary act.

  3. Amendments to certain provisions, sometimes referred to as enshrined provisions, may only be made by a special majority of Parliament. By a majority of the total membership of each House, and by a majority of not less than two-thirds of the members present and voting in each House. For amending the constitution there is no need for calling a joint sitting of both houses.

  4. Amendments to such laws require not less than half of the States, in addition to a special majority of legislative confirmation.

Simple majority

Constitution’s provisions may be amended by a simple vote, as this is necessary for the passing of common law. The Parliament of the state legislatures may amend these provisions by a simple majority since they do not affect or disturb the federal balance of power between the Union and the states. Since the entry and formation of new states would change the constitution’s federal character. Some of the provisions that can be amended are :

  1. Admission of a new state as provided under-Article 2

  2. Provisions concerning Indian Citizenship under Article 11

  3. Provisions governing the exercise of the executive authority or its agents on issues relating to which the Parliament authorized to legislate under Article 73

  4. Provisions concerning the membership of Legislative Councils under Article 172

Special majority

The Constitution’s provisions other than those discussed above may be amended by the procedure set out in Article 368. The method will be as follows:

  1. An amendment to the Constitution may only be initiated, to introduce a Bill, in either House of the Union Parliament.

  2. After the Bill is passed by a majority of that House’s total membership in each House of Parliament, and by a majority of not less than two-thirds of the House’s membership present and voting it shall be presented to the President for his assent. It must be remembered that the President is obligated to give his consent to an Alteration Bill, having been approved by either House of Parliament.

  3. The Constitution after having received the President’s assent stands amended following the rules of the Legislation.

Ratification by State

The special majority is not sufficient for some articles of the Constitution. When an amendment attempts to amend an article relating to the allocation of powers between states and the Central Government, or articles relating to the representation, it is appropriate to consult the states and to give their consent. The Constitution has maintained that by ensuring that half-state legislators must pass the amending bill before the provision enters into effect. At the same time, care is taken to keep this procedure somewhat flexible even in its more rigid format: it requires consent from only half the states and suffixes for a simple majority of the state legislature. Thus, even after taking into account this more stringent condition, the amending process is not impracticable.

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