Law and You > Constitutional Law > Amendment of Constitution (Article 368)
James Wilford Garner, in his book, ‘Political science and Government’ says “No Written Constitution is complete without amending provisions, in some respects, the amending provision is the most important part of the Constitution”. Dr.Ashok Dhamija in his book ‘Need to Amend a Constitution” quotes Mulford who says in his book the nation “An unamendable Constitution is the worst tyranny of time or rather the very tyranny of time”.
A Constitution is a system of fundamental laws or principles for the governance of a nation. This Constitution usually states the general principles and framework of the law and government. With the constant change in political, social and financial spheres, Constitution also require amendments to change political society. The amending provision in written Constitution assumes great importance because it gives chance to successive generation to grow it as per their needs. In fact the essence of a written Constitution lies in its mode of amendment. The amendment process is an opportunity to express democratic conceptions of basic constitutional values without derogating from the fundamental constitutional principles.
View of Framers of the Constitution on Amendment of Constitution:
Framers of the Indian Constitution were anxious to have a document which could grow with a growing nation and adapt itself to the changing need and
circumstances of growing people and changing society with time. So they add flexibility to the Constitution, at the same time they were also aware that it should not be so flexible that it would be a playing of the whims and caprices of the ruling party. So a balance was kept between the flexibility and the rigidity. The process of amendment of Constitution has not been made too rigid nor too flexible. Article 368 of the Constitution of India provides the method of amendment.
Example of Need of Amendment (First):
In order to implement the agrarian reforms in the country and to wipe out Zamindari, Parliament brought First Amendment (Articles 31-A and 31-B read with Ninth Schedule added in First Amendment, 1951) to the Constitution in the very next year from the date of commencement of the Constitution and thereby it also excludes judicial review from questioning the laws placed in the Ninth Schedule. This kind of action by the Parliament might be against to the constitutional spirit, yet it was done in the best interest of justice and equity. The exclusion of judicial review by the Parliament leads to the fact that the supremacy of the Constitution is affected, because, since judicial review is considered as a part and parcel of the principle of Constitutionalism and protector of the Fundamental Rights. This principle limits the powers of three organs of the government. No organ of the government is above the Constitution. It is the Constitution which declares certain principles to govern the operation of those organs. In spite of this, Constitution has permitted Parliament to bring an amendment to the Fundamental Rights in order to uphold the social justice. This action of the Parliament was really justifiable one, though it was violating some of the Fundamental Rights of the Constitution.
Article 368:
Power of Parliament to amend the Constitution and procedure therefor:
- Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article;
- An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
- Nothing in Article 13 shall apply to any amendment made under this article
- No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground
- For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS
Procedure of Amendment of Constitution:
Different degrees of rigidity attach to different portions of the Constitution, depending on their importance and significance. For the purpose of amendment, various articles of Constitution
can be divided into three categories:-
Amendment by Simple Majority:
Constitutional provisions of comparatively less significance can be amended by simple majority as is adopted for passing any ordinary law in the Parliament. Several Articles of the Constitution make provisions of a tentative nature, and the Parliament has been given power to make laws making provisions different from what these Articles provide for. Such a law can be made by the ordinary legislative process, and is not to be regarded as an amendment of the Constitution and is not subject to the special procedure prescribed in Article 368. The amendments contemplated in Articles 5, 169 and 239-a can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed in Article 368.
Amendment by Special Majority:
Those constitutional provisions which are material and vital are made relatively stable as these can be amended only by following the rule of special majority as laid down in Articles 368. Articles of the constitution which can be amended by special majority as laid down in Article 368. All constitutional amendments (other than those referred to above) come within this category. The amendment must be effected by a majority of the total membership of each House of Parliament as well as by a majority of not less than 2/3 of the members of that House present and voting.
Procedure for Amendment:
A Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by a majority of the total membership to that House and by a majority of not less than 2/3 of the members of that House present and voting. When a Bill is passed by both Houses it shall be presented to the President for his assent who shall give his assent to Bill and thereupon the Constitution shall stand amended.
Amendment By Special Majority and Ratification by States:
If amendment under Article 368 (2) seeks to make any change in (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions under Article 368 itself, then in such circumstances the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
Procedure for Amendment:
A Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by a majority of the total membership to that House and by a majority of not less than 2/3 of the members of that House present and voting.
Then the Bill is sent to all states for their approval. As per Article 368, not less than half of the States should ratify it. After getting required ratification the Bill shall be presented to the President for his assent who shall give his assent to Bill and thereupon the Constitution shall stand amended.