Procedure of Constitutional Amendment
PART 20, Art 368, deal with the procedure
of const. amendment.
- This is borrowed
from South Africa.
- Amendments
include inserting new articles, repealing old/existing, alter the
articles.
- Amending
procedure is inbuilt in the constitution, it is not left to the
parliament.
- All the articles of const. have been classified into 3 categories & were amended accordingly.
The procedures are with the following processes:
- Simple Majority
- Special Majority
- Special Majority
+ Ratification of half of the states.
1. Simple majority: The following articles
have been Amended.
- Part – 1, Art
(1-4)
- Part – 2, Art
(5-11)
- Contents of 1,
2, 3, 5, 6 schedules.
- Parliamentary
procedures.
- Quorum in the
parliament, under art 100 (1/10th of parliament).
- Article 169
creation / abolition of state upper house
- The above articles are amended by the parliament with simple
majority, like ordinary law amendment. ‘Simple Majority means more than half of
the members, present in voting’.
- Simple majority is mentioned in art 368. Hence any Amend. Made
to these articles are not deemed to be const. amend. (No number is given)
- These articles amendment will not have any impact on federal
structure of const.
- By this method Indian constitution is flexible.
2. Special Majority:
- 2/3rd members present & voting, that
majority not less than half of total members of the house.
-The articles amended are:
- Part-3, art
(12-35)
- Part-4, art
(36-51)
- Other articles /
parts, not amended by this procedure.
-By this method, Indian const. is partly rigid.
3. Special Majority + Ratification by not less than half of the
state legislatures.
- The state legislatures have to express their opinion within the
time period as decided by president.
-Articles amended are:
- 7th schedule:
division of powers between centre & state i.e. centre – state
relations. (Federal)
- Electoral
College, which elects the president of India.
- Extending /
expanding the jurisdiction of union & state Govt.
- Universal Adult
franchise / suffrage amend. (Art – 326)
- Article 368
itself. - This amending procedure mentioned in Art – 368, itself was
amended in 24 & 42 amend. acts.
- By this method, Indian constitution is manageably rigid.
Rules & Regulations of Amending procedure:
Rule 1: Bill may be initiated in any house of parliament.
The bill can be a pvt.
Member bill (bill by MP not a minister) or Govt. bill (by minister).
Rule 2: Prior President’s permission of const. Amendment bill is not
needed.
Rule 3: Both houses of parliament should approve the bill with required
majority.
Rule 4: If any one house rejects, the bill gets defeated.
‘Joint session is not possible because Art 368 has self contained procedure, no
relation to other bills’.
Rule 5: Const. Amend. Bills are open to judicial review.
Amendability of the constitution:
· Original
const. does not prescribe/mention limitations on the amendability of the const.
· But
SC in 1973, KB case imposed a judicial limitation on the grounds of ‘Basic
structure’.
· Parliament
can amend any part of the const. but not the basic structure. (Basic structure
is not defined).
· In
1980, Minerva mill case, SC codified / enumerates certain aspects which come
under basic structure.
They include:
1. Sovereign,
Democratic, Republic
2. Socialist,
Secular character
3. Parliamentary
system
4. Rule
of Law
5. Federal
system
6. Judicial
Review
7. Independent
impartial elections
8. Universal
Adult Franchise
9. Entire
philosophy of preamble
10. Spirit of
Fundamental Rights
11. Balance
between DPSP and Fundamental Rights
-However, this list is not exhaustive (new things may be added,
old may be divided).
Ex: Socialistic nature of the const. has been shadowed due to
Globalization.
-In 1994, S.R Bommal case (former KA CM), SC held that secularism
is a part of basic structure.
-The largest amendment was 42nd amend., known as
mini constitution / Revision of const. nearly 55 articles were affected.
-However by 44th amendment, 1978 things done in 42nd were
undone by the 44th amendment.
No comments:
Post a Comment