Question

With reference to the scope and nature of amendments under the Indian Constitution, consider the following statements:

i. The process for amending the Constitution was borrowed from the South African Constitution.
ii. The power to initiate a constitutional amendment is vested exclusively in the Parliament.
iii. Amendments made by a simple majority of Parliament, such as the creation of new states, are not considered amendments under Article 368.

Which of the above statements is/are correct?

• A. i and ii
• B. ii and iii
• C. i and iii
• D. i, ii and iii

Answer 1

Answer:

D. i, ii and iii

Constitutional Amendments in India

• The Indian Constitution is unique in its amendment process, striking a balance between rigidity and flexibility. This mechanism allows the Constitution to adapt to changing times while maintaining its core principles.

Sources and Initiation of Amendments

• Borrowed Provisions: The procedure for amending the Indian Constitution, as laid down in Article 368, was notably inspired by the Constitution of South Africa. This reflects India's approach of drawing best practices from various world constitutions.

• Exclusive Parliamentary Power: The power to initiate a constitutional amendment rests exclusively with the Parliament. A Bill for this purpose can be introduced in either the Lok Sabha (House of the People) or the Rajya Sabha (Council of States), but not in state legislatures.

• No Presidential Assent Requirement: It's important to note that a constitutional amendment bill does not require prior recommendation of the President. Once passed by Parliament (and ratified by states where required), the President must give his assent, he cannot withhold it or return it for reconsideration (as per the 24th Constitutional Amendment Act, 1971).

Types of Amendments and Article 368

• The Indian Constitution provides for three types of amendments, but only two fall under the purview of Article 368.

• Amendments by Simple Majority: Certain provisions of the Constitution can be amended by a simple majority of the Parliament (i.e., a majority of the members present and voting). These changes, while modifying the Constitution, are explicitly kept outside the scope of Article 368.

  • Examples:

  • Formation of new states or alteration of existing state boundaries (as per Article 3 and 4).

  • Abolition or creation of Legislative Councils in states (Article 169).

  • Quorum in Parliament.

  • Citizenship rules.

  • Administration of Union Territories.

  • These amendments are considered ordinary legislative processes, despite their constitutional impact.

• Amendments by Special Majority (Article 368): Most provisions of the Constitution are amended by a special majority in Parliament. This requires:

  • A majority of the total membership of each House, and

  • A majority of not less than two-thirds of the members of that House present and voting.

• Amendments by Special Majority plus State Ratification (Article 368): For provisions related to the federal structure of the Constitution, a special majority in Parliament must be followed by ratification by at least half of the state legislatures by a simple majority.

  • Examples:

  • Election of the President.

  • Extent of the executive power of the Union and the States.

  • Provisions related to the Supreme Court and High Courts.

  • Distribution of legislative powers between the Union and the States.

  • Any of the lists in the Seventh Schedule.

  • Representation of states in Parliament.

  • The power of Parliament to amend the Constitution and the procedure (Article 368 itself).

Key Cases and Principles

• The Kesavananda Bharati case (1973) established the 'Basic Structure Doctrine', holding that Parliament cannot amend those provisions which form the 'basic structure' of the Constitution. This limits the amending power of Parliament under Article 368.

• The Minerva Mills case (1980) further reinforced the Basic Structure Doctrine, stating that the judicial review is a part of the basic structure itself.