Amendment of Constitutional Powers and Procedure
1. Why Amendment Procedure Needed
Constitution must be rigid enough to protect fundamental principles (federalism, rights) but flexible enough to adapt to changing needs (social, economic). Article 368 lays down powers and procedure for amendment.
Power: Parliament has constituent power (distinct from ordinary legislative power) to amend Constitution (though State ratification needed for some, and basic structure limit per Kesavananda).
2. Types of Amendment Procedure (three categories — exam must-list)
| Type | Majority Required | Subjects | Example |
|---|---|---|---|
| 1. Simple majority (outside Art 368, ordinary law, not considered "amendment" under 368) | Majority of members present and voting (>50% of present) | Creation/abolition of Legislative Council (Art 169), admission of new States (Art 2,3), citizenship (Art 11), delimitation | Delete State Council (Art 169) |
| 2. Special majority (Art 368) | Majority of total membership + 2/3 of present and voting (in each House separately, no joint sitting) | Most provisions — FR (Art 19), DPSP, etc. | Change FR, add FD |
| 3. Special majority + State ratification (Art 368) | Special majority in Parliament + ratification by ≥1/2 State Legislatures (by simple majority in each) | Federal / basic structure provisions: election of President (Art 54,55), extent of executive power (73,162), judiciary (Ch IV-V of Part V, VI), distribution of legislative powers (7th Schedule), representation of States in Parliament, Art 368 itself | Amendment affecting federalism |
Note: No referendum required (unlike USA/Switzerland).
3. Procedure Steps (Art 368)
- Bill introduced in either House (Lok Sabha or Rajya Sabha) — no prior President recommendation needed (unlike Money Bill), private member can introduce.
- Must be passed by special majority (or simple as per category) in each House separately — no joint sitting (Art 108 not applicable).
- If federal subjects, send to States for ratification (≥1/2).
- Present to President for assent — President must assent (cannot withhold or return, unlike ordinary Bill after 24th Amendment) — then becomes Constitutional Amendment Act.
4. Limitations — Basic Structure Doctrine (judicial limit)
Kesavananda Bharati (1973): Parliament can amend any part including FR, but cannot destroy basic structure (e.g., supremacy of Constitution, republican/democratic form, secularism, judicial review, federalism). Minerva Mills (1980) reaffirmed.
5. Exam Points
- State Art 368 and three types of majority (simple, special, special+State) — 7-10 marks, almost certain (the most common amendment procedure question).
- Give subjects per type — 5-7 marks, very frequent.
- Steps: introduction in either House → special majority → State ratification (if needed) → President assent (must) — 5 marks, very frequent.
- Mention basic structure limit (Kesavananda) — 3-5 marks, frequent.