Procedure for Amendment

 Nature of Amending Process:

Pandit Nehru:
“Reconciliation of written Constitution with Parliamentary
Sovereignty”

 The Constitution should not be so rigid that it cannot be

adapted to the changing needs of National Development
and Strength
Dr. Ambedkar:
“Those who are dissatisfied with the Constitution have only to
obtain 2/3 majority, and if they cannot obtain even 2/3
majority in the Parliament Elected on Adult Franchise in their
favour, their dissatisfaction with the Constitution cannot be
deemed to be shared by the General Public”

 To introduce flexibility

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 Procedure for Amendment
a) ‘Not deemed to be amendment’

 Ordinary process of Legislation

 By simple majority

b) Article 368 – Amendment

i) Initiated by introduction of Bill in Parliament

 Either House
 Passed in both Houses by simple majority (50%)
and by a Majority of not less than 2/3 members of
that House present and voting

 Assent of President

 Accordingly stand amended

ii) Ratification by the legislatures of not less than ½ of the

State in following cases:
a) Manner of election of President
b) Extent of executive power of Union and States
c) The Supreme Court and High Court
d) Distribution of Legislative Power of State and Union
e) Lists in schedule VII
f) Representation of States in Parliament
g) Article 368 itself

 General features of the Amending Procedure

 Rigid in Nature
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 a) Parliament is vested with power and not a separate
body
b) State Legislature cannot initiate a Bill for amendment
c) Ordinary and Special Majority

 No Joint Sitting to resolve deadlock

d) Previous sanction of President not required to introduce
Bill of Amendment
e) Ratification by only ½ the States
f) After passed by both Houses obligatory for President to
give his assent

A. Upto Golaknath’s Case

Supreme Court – All parts of Constitution Amendable
B. Golaknath’s Case
Fundamental rights to be amended by a Constitution
Assembly
C. Keshaananda Case
Upheld the validity of amending Article 368
Article 13 – Amendment not Law
Therefore Fundamental Rights are amendable
D. Basic features not amendable

 Sovereignty and Territorial Integrity of India

 Federal System

 Judicial Review

 Parliamentary Form of Government

 42nd Amendment

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  There shall be no limitation on the Constitutional Power of
Amendment
 This power shall not be called in question in any Court on
any ground – Precludes Judicial Review

Nullified by Supreme Court in Minerva Mills Cases as

Judicial Review abasic feature of Constitution cannot be
taken away by amendment
 Therefore as per Supreme Court:
1) Any part of Constitution may be amended after
complying with procedure under Article 368
2) No referendum to Constituent Assembly would be
required
3) Basic features cannot be amended (list in page 160)

 History of Amendments since 1950

 83 times till December 2000

A. 42nd Amendment

 Changes in Preamble

 Substantive changes to change vital principles

underlying Constitution
a) Judicial Review of Ordinary Laws

 Distinction between Central and State Law

 High Court cannot hold Central Law un-

constitutional
 Supreme Court under Article 36 cannot pronounce
state law unconstitutional unless Central Law
challenged

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  Artificial majority of Judges of Supreme Court and
is required to pronounce law unconstitutional and
invalid

b) Judicial Review of Constitutional Amendment Acts

A Constitution Amendment Act will be immune from
challenge in Court of Law procedurally and
substantively

c) Fundamental Duties to counteract Fundament Rights

d) Fundamental Rights devalued

B. 43rd and 44th Amendment

1) Repealed provisions curbing Judicial Review
2) More Extensive:
a) Omission and Restoration of certain articles
b) Additional change – removal of Right to Property
c) Biased Changes

C. 73rd and 74th Amendments

 Introduced electoral system for the composition of
Units of Local Government below states, that is,

 Panchayats in Rural Areas

 Municipalities in Urban Areas

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 Dangers of Frequent Amendments

 Used to achieve political purposes

 Get rid of Judicial decisions