indian polity book series 43

Chapter 17: Constitutional Amendment Procedure

(Process to Amend the Indian Constitution)

In democratic countries, the Constitution is the foundation and supreme law for governance.

The Constitution of any country is framed in accordance with the social, economic, and political conditions prevailing at the time of its drafting.

As socio-economic and political conditions change, there arises a need to amend the Constitution to address emerging social, economic, and political issues.

Recognizing this fact, our Constitution makers included the procedure for constitutional amendment in the Constitution itself.

The constitutional amendment procedure is borrowed from the Constitution of South Africa.

Amendment means insertion of new articles, partial repeal of an article, complete deletion (omission), substitution of one provision with another, etc., are all considered as constitutional amendments.

Article 368 in Part XX of the Constitution contains the constitutional amendment procedure.

Constitutional articles are classified into 3 types and three specific methods are prescribed. They are:

1. Amendment by Simple Majority of Parliament.
2. Amendment by Special Majority of Parliament.
3. Amendment by Special Majority of Parliament and ratification by more than half of the State Legislatures.

1. Amendment by Simple Majority:

Some articles are amended by Parliament by a simple majority.

Note: The method of simple majority is not mentioned in Article 368. Therefore, amendments made by simple majority are not considered as constitutional amendments. That is, the matters mentioned below do not come under the purview of constitutional amendment under Article 368.

Matters Amended by This Method:

• Formation of new states, alteration of state boundaries, changing the names of states (Articles 1-4).
• Changes in Indian citizenship (Articles 5-11).
• Constitutional posts mentioned in the Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186, 221).
• Re-adjustment of constituencies (Article 82).
• Quorum in Parliament (Article 100).
• Legislative procedures in Parliament, powers of legislators (Articles 105, 194).
• Language used in Parliament (Article 120).
• Establishment and abolition of the State Upper House (Legislative Council) (Article 169).
• Establishment of Legislative Council, Legislative Assembly in Union Territories (Article 239).

2. Amendment by Special Majority of Parliament:

Most parts of the Constitution are amended by this method.

It must be approved by a majority of 2/3rd of the members present and voting in both Houses of Parliament.

Matters Amended by This Method:

1. Fundamental Rights (Articles 12-35)
2. Directive Principles of State Policy (Articles 36-51)
3. Other matters not mentioned in the first and third methods.

3. Special Majority and Ratification by State Legislatures:

For matters mentioned in this method, after being passed by Parliament with a special majority, the Constitutional Amendment Bill must be ratified by not less than half of the State Legislatures by a simple majority.

There is no fixed time limit for ratification by states.

The State Legislature should express its opinion within the time limit fixed by the President. Matters amended by this method:

1. Procedure for election of President (Articles 54, 55)
2. Representation of States in Parliament (Articles 80, 81)
3. Extension of the executive power of the Union (Article 73)
4. Distribution of legislative powers between the Union and the States (Article 246)
5. Constitutional Amendment Procedure itself (Article 368)
6. Extension of the executive power of the State (Article 162)

Constitutional Amendment Procedure, Rules and Regulations:

1. A Constitutional Amendment Bill can be introduced in either House of Parliament. State Legislatures do not have the power to initiate a constitutional amendment.
2. Prior permission of the President is not required.
3. A Constitutional Amendment Bill can be introduced by a Minister or a private member.
4. The Constitutional Amendment Bill must be passed separately by both Houses by the prescribed majority. If one House passes and the other rejects it, there is no provision for a joint sitting to resolve the deadlock. Thus, the bill lapses.
5. For amending articles related to federal matters, ratification by more than half of the state legislatures is also required.
6. After Parliament and State Legislatures have passed the bill, the Constitutional Amendment Bill is sent to the President for assent.
7. The President must assent to the Constitutional Amendment Bill. There is no option to reject or return it for reconsideration.
8. After the President's assent, the Constitutional Amendment Bill becomes an Act.
9. Constitutional Amendment is subject to judicial review.

Important Constitutional Amendments:

1. 1st Amendment (1951):
   1. Restrictions were imposed on the rights to freedom, equality, and property in public interest. (18-6-1951)
   2. Land reforms related amendments were added to the 9th Schedule. Matters included in the 9th Schedule are beyond the purview of court judicial review.
   3. Assembly meeting times, appointment of magistrates.
2. 2nd Amendment (1953): Related to changes in the allocation of seats to states in Parliament.
3. 3rd Amendment (1955): Raw cotton, food grains production, and matters related to livestock were moved to the Concurrent List.
4. 4th Amendment (1955): Compensation for property acquired by the Indian or State government was kept outside the jurisdiction of courts.
5. 5th Amendment (1955): The President is required to send bills related to changing the geographical boundaries or names of states to the states for their opinion before introducing them in Parliament.
6. 6th Amendment (1956): Parliament was empowered to levy taxes on inter-state trade.
7. 7th Amendment (1956):
   1. Reorganization of states created 14 states and 6 Union Territories.
   2. Changes in Lok Sabha, Rajya Sabha, and State Legislative Assembly seats.
   3. Provision for appointment of temporary, additional judges in High Courts.
   4. Amendments related to Union Territories.
   5. Special provisions related to Andhra Pradesh, Punjab, Bombay states.
   6. A person can be appointed as Governor for one or more states.
8. 8th Amendment (1959): Extended the reservation of seats for Scheduled Castes, Scheduled Tribes, and Anglo-Indian community in legislatures until 1970.
9. 9th Amendment (1960): Transfer of Berubari region to Pakistan.
10. 10th Amendment (1961): Dadra & Nagar Haveli was merged as a Union Territory.
11. 11th Amendment (1961): Related to Presidential and Vice-Presidential elections, Presidential elections cannot be postponed on the pretext of vacancies in the Electoral College.
12. 12th Amendment (1962): Merger of Goa, Daman, and Diu.
13. 13th Amendment (1962): Granted statehood to Nagaland and made special provisions for Nagaland.
14. 14th Amendment (1962): Pondicherry (Puducherry) region was incorporated into India as a Union Territory. Special Legislative Assembly and Council of Ministers were established for Pondicherry.
15. 15th Amendment (1963):
    1. Increased the retirement age of High Court judges from 60 years to 62 years.
    2. Appointment of retired High Court judges as temporary judges in High Courts.
    3. Extended the jurisdiction of High Courts.
16. 16th Amendment (1963): Empowered to impose restrictions on freedom of speech and expression, for sovereignty and integrity of India.
17. 17th Amendment (1964): Added 44 Acts related to land reforms to the 9th Schedule.
18. 18th Amendment (1966): Re-defined the term 'State' in Article 3.
19. 19th Amendment (1966): Abolition of Election Tribunals.
20. 20th Amendment (1966): Basis for appointment of District Judges was included in the Constitution.
21. 21st Amendment (1967): Sindhi language was added to the 8th Schedule. The number of official languages increased to 15.
22. 22nd Amendment (1969):
    1. Meghalaya was created as a Union Territory.
    2. Special preferences to Assam.
23. 23rd Amendment (1969): Extended reservations for Scheduled Castes, Tribes, and Anglo-Indian community in Parliament and State Legislatures until 1980.
24. 24th Amendment (1971): Parliament was empowered to amend any part of the Constitution including Fundamental Rights.
25. 25th Amendment (1971): The word 'amount' was substituted for 'compensation'.
26. 26th Amendment (1971): Abolition of privy purses of princely rulers and their special privileges.
27. 27th Amendment (1971): Reorganization of North-Eastern states.
28. 28th Amendment (1972): Abolition of special privileges and positions of former Indian Civil Service employees.
29. 29th Amendment (1972): Kerala State Land Reforms Act enacted by law was added to the 9th Schedule.
30. 30th Amendment (1972): Abolished the limit of 20 thousand rupees to appeal to the Supreme Court.
31. 31st Amendment (1973): Increased Lok Sabha seats from 525 to 545.
32. 32nd Amendment (1973): Added Six-Point Formula for Andhra Pradesh and Telangana.
33. 33rd Amendment (1974): Abolished the provision that the resignation letter of a Member of Parliament must be compulsorily accepted by the Speaker. The Speaker may accept the resignation only if he is satisfied that the member is resigning voluntarily and willingly.
34. 34th Amendment (1974): Expansion of the scope of the 9th Schedule.
35. 35th Amendment (1974): Sikkim was given the status of Associate State (Act in 1974, implemented in 1975).
36. 36th Amendment (1975): Sikkim was granted full statehood (22nd state).
37. 37th Amendment (1975): Provision to establish Legislative Assembly and Council of Ministers for Arunachal Pradesh, which had the status of Union Territory.
38. 38th Amendment (1975):
    1. Ordinances issued by the President, Governor, Lieutenant Governors were decided to be outside the jurisdiction of courts.
    2. President's declaration of emergency was excluded from the jurisdiction of courts.
39. 39th Amendment (1975): Matters related to the elections of the President, Vice-President, Prime Minister, and Speaker of Lok Sabha were excluded from judicial review.
40. 40th Amendment (1975):
    1. It was resolved that India has full rights over the waters extending to the territorial waters of India and Parliament has the power to make laws on them.
    2. New Acts were added to the 9th Schedule.
41. 41st Amendment (1976): Increased the retirement age of Chairman and members of State Public Service Commission, Joint Public Service Commission from 60 to 62 years.
42. 42nd Amendment (1976):
    1. Added the words Secular, Socialist, Integrity in the Preamble.
    2. Directive Principles were given precedence over Fundamental Rights.
    3. New Directive Principles were introduced:
       • Equal Justice and Free Legal Aid (39A)
       • Participation of Workers in Management of Industries (43A)
       • Protection of Environment and Wildlife (48A)
       • State's constructive role in child development
    4. Fundamental Duties were made Part IVA as Article 51A.
    5. Articles 323A, 323B were added to establish Tribunals.
    6. Amended Article 74(1) to state that the President must act on the advice of the Cabinet.
    7. Extended President's rule from 6 months to one year.
    8. Quorum system was abolished.
    9. Lok Sabha and Assembly seats were frozen until 2001.
    10. Amended Article 352 on emergency provisions to apply to any part of the territory.
    11. Article 312 was amended to provide for the appointment of All India Judicial Service Commission.
    12. Constitutional amendments made by Parliament under Article 368 cannot be questioned in any court.
43. 43rd Amendment (1977):
    1. Restored the power of judicial review to the courts.
    2. The power of Parliament to decide any organization as an anti-national organization was taken back.
44. 44th Amendment (1978):
    1. Right to Property was removed from the list of Fundamental Rights.
    2. Reduced the term of Lok Sabha and State Assemblies from 6 years to 5 years.
    3. Quorum was restored.
    4. Supreme Court decides the procedures for Presidential and Vice-Presidential elections.
    5. High Court decides disputes related to elections of Parliament and Legislature members.
    6. National Emergency cannot be declared unless the Union Cabinet gives written advice.
    7. Press freedom was restored.
    8. President can send back the recommendation given by the Union Cabinet for reconsideration.
    9. President and Governors' decision on disqualification of Member of Parliament and Legislature member is final.
    10. In Article 352, the term 'armed rebellion' was substituted for 'internal disturbance'.
    11. Article 20, 21 cannot be suspended even during a national emergency.
45. 45th Amendment (1980): Extended reservations for SCs, STs, and Anglo-Indians in Parliament & Legislatures for another 10 years.
46. 46th Amendment (1982): Reorganized sales tax levied by states.
47. 47th Amendment (1984): Added 14 new laws related to land reforms to Schedule 9.
48. 48th Amendment (1984): Extended President's rule in Punjab for another two years.
49. 49th Amendment (1984): Parliament, Tripura State Legislature have power to make laws on administration of tribal areas in Tripura.
50. 50th Amendment (1984): Parliament has power to impose restrictions on Fundamental Rights of armed forces.
51. 51st Amendment (1984): Reservation of seats for SCs, STs in Parliament and State Assemblies.
52. 52nd Amendment (1985): Introduced Anti-Defection Law in the Constitution.
53. 53rd Amendment (1986): Mizoram became the 23rd state.
54. 54th Amendment (1986): Increased salaries of Supreme Court and High Court Chief Justices.
55. 55th Amendment (1986): Arunachal Pradesh became the 24th state.
56. 56th Amendment (1987): Goa became the 25th state.
57. 57th Amendment (1987): Reservation of seats for SCs, STs in Lok Sabha and Legislative Assemblies of Mizoram, Nagaland, Meghalaya, Arunachal Pradesh.
58. 58th Amendment (1987): Gave more importance to Hindi language in the Constitution.
59. 59th Amendment (1988):
    1. Extended President's rule in Punjab to 3 years.
    2. National Emergency was imposed in Punjab in view of internal disturbances.
60. 60th Amendment (1988): Increased the limit of profession tax levied by local bodies from ₹250 to ₹2500.
61. 61st Amendment (1988): Reduced the minimum age for adult suffrage from 21 years to 18 years (implemented from March 28, 1989).