1. Introduction to Constitutional Amendment in India

  • Purpose: The Indian Constitution allows amendments to adapt to changing needs and circumstances. It strikes a balance between flexibility and rigidity.
  • Article 368: Grants Parliament the power to amend the Constitution through additions, changes, or repeals, provided the amendments do not alter the “basic structure” of the Constitution as upheld in the Kesavananda Bharati case (1973).

2. Procedure for Amendment

  • Initiation: An amendment bill must be introduced in either House of Parliament, not in state legislatures.
  • Passage Requirements:
    • Introduced by a minister or private member without needing prior presidential approval.
    • Requires a special majority in both Houses (a majority of total membership plus two-thirds of those present and voting).
    • Each House must pass the bill separately; joint sittings are not allowed for disagreement resolution.
  • Federal Provisions: Amendments affecting federal elements need ratification by at least half the states.
  • Presidential Assent: The President must approve an amendment bill, following which it becomes law.

3. Types of Amendments

  • Amendment by Simple Majority: Some provisions can be amended with a simple majority, outside the scope of Article 368. These include:
    • Admission of new states or changes in state boundaries.
    • Salaries and privileges of officials like the President and Governors.
    • Delimitation of constituencies, Union territories, and official languages.
  • Amendment by Special Majority: Core provisions like Fundamental Rights and Directive Principles require a special majority.
  • Amendment by Special Majority and State Ratification: Federal provisions, including the election of the President, Supreme Court jurisdiction, and distribution of powers, require special majorities and state ratification.

4. Criticisms of the Amendment Procedure

  • Lack of Special Constitutional Body: Unlike the U.S., where a Constitutional Convention can be called, India has no such provision. Amendments are the exclusive domain of Parliament.
  • Limited State Power: Indian states can’t initiate amendments, with rare exceptions.
  • Minimal State Ratification: Only a simple majority of half the states is needed, compared to three-fourths in the U.S.
  • Timeframe for State Ratification: No time limit for state ratification, leading to potential delays and ambiguity.
  • Absence of Joint Sitting: No provision for joint sittings if the two Houses disagree on an amendment.
  • Similarity to Legislative Process: Except for the special majority requirement, the process closely resembles ordinary legislative proceedings, which critics argue might dilute its significance.
  • Judicial Involvement: The brief wording leaves room for judicial interpretation, occasionally leading to litigation.

5. Views on the Amendment Flexibility

  • Supportive Arguments:
    • K.C. Wheare: Recognized the balanced flexibility and rigidity of the Indian amendment process.
    • Jawaharlal Nehru: Emphasized the need for a Constitution that evolves to meet the growth of the nation.
    • Dr. B.R. Ambedkar: Praised the facilitative approach that allowed changes without extensive restrictions.