Question

Consider the following statements about the types of constitutional amendments:

1. The procedure for amending Article 368 itself requires a special majority of the Parliament and ratification by at least half of the state legislatures.

2. The abolition or creation of legislative councils in states is considered an amendment under Article 368.

3. Amendments related to the formation of new states and the alteration of their boundaries do not fall under the purview of Article 368.

Which of the statements given above is/are correct?

• A. 1 only
• B. 1 and 3 only
• C. 2 and 3 only
• D. 1, 2 and 3

Answer 1

Answer:

B. 1 and 3 only

Constitutional Amendments in India

• The Indian Constitution is designed to be both rigid and flexible, allowing for amendments to adapt to changing times while safeguarding its basic structure.

• Article 368 of Part XX of the Constitution deals with the power of Parliament to amend the Constitution and its procedure.

• It specifies two main methods of amendment: (i) by a special majority of Parliament and (ii) by a special majority of Parliament along with the ratification of half of the state legislatures.

• A third type of amendment, requiring a simple majority of Parliament, is often considered outside the purview of Article 368, even though they effectively modify the Constitution.

Types of Amendments and Relevant Articles

• Statement 1: Amending Article 368 Itself

  • The procedure for amending Article 368 itself requires the most stringent method: a special majority of Parliament (a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting) and ratification by at least half of the state legislatures.

  • This method applies to amendments that affect the federal structure of the Constitution or the distribution of powers between the Centre and states, including the provisions of Article 368 itself, which defines the amending power.

  • This ensures that fundamental aspects of the Constitution and the federal system cannot be easily altered without broad consensus.

• Statement 2: Abolition or Creation of Legislative Councils (Incorrect Statement)

  • The abolition or creation of Legislative Councils (Vidhan Parishads) in states is governed by Article 169 of the Constitution.

  • This procedure requires a simple majority in Parliament (a majority of the members present and voting in each House), after a resolution is passed by the concerned state legislative assembly by a special majority.

  • Article 4(2) explicitly states that any law made under Article 169 is not deemed to be an amendment of the Constitution for the purposes of Article 368.

  • Therefore, such changes, despite modifying constitutional provisions, are handled through an ordinary legislative process and do not fall under the special procedures of Article 368.

• Statement 3: Formation of New States and Alteration of Boundaries (Correct Statement)

  • The formation of new states, alteration of areas, boundaries, or names of existing states are governed by Article 3 of the Constitution.

  • Similar to Article 169, these changes can be made by a simple majority of Parliament.

  • Article 4(2) clarifies that laws made under Article 2 (admission or establishment of new states) and Article 3 are not considered amendments to the Constitution under Article 368.

  • This means that the Parliament can make such changes through ordinary legislative procedures, without invoking the special majority requirements of Article 368, reflecting the flexible nature of India's federal structure regarding state reorganisation.

Key Takeaways for Competitive Exams

• Amendments are broadly categorised into three types: simple majority, special majority (Article 368), and special majority plus state ratification (Article 368).

• Provisions related to the creation/abolition of legislative councils (Article 169) and the formation/alteration of states (Articles 2 & 3) are not considered amendments under Article 368 and require only a simple majority.

• The Basic Structure Doctrine, established by the Kesavananda Bharati case (1973), limits Parliament's power to amend the Constitution, preventing it from altering the fundamental features.

• The 24th Constitutional Amendment Act, 1971, affirmed Parliament's power to amend any part of the Constitution, including Fundamental Rights, but this power is subject to the Basic Structure Doctrine.