Procedure for Amendment of Indian Constitution

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  • Nature of the Amending Process:-
                   constitution should be adapted to changing needs of national development and strength.
                    And also should meet
                   
                    The popular demand for changing the political system.
  • Procedure of Amendment:-
                                 
                      There are are three ways of amending the constitution.
  1. Amendment by Simple majority of the Parl.
  2. Amendment by Special majority of the Parl.
  3. Amendment by Special majority of the Parl. And the ratification of half of the state legislatures.
                                I.            Amendment by simple majority of the parl.
                              II.            Bill must be passed by a simple majority of parl., that is, a majority of the members of each house present and voting (similar to the ordinary legislative process)
These amendments are not deemed to be amendments of the constitution for the purposes of Art 36B.
Such provisions include:-
  1. Admission or establishment of new states.
  2. Formation of new states and alteration of areas, boundaries or names of existing states.
  3. Abolition or creation of legislature councils in states.
  4. Second schedules – emoluments, allowances, privileges and so on of the president, government, speakers, judges, etc.,
  5. Quorum in Parliamentary.
  6. Salaries and allowances of the MP’s.
  7. Rules of Proceedure in Parl.
  8. Privilages of the Parl. Its members and its committees.
  9. Use of English Language in Parliamentary.
  10. Number of Puisue Judges in the SC.
  11. Conferment of more jurisdiction on the SC.
  12. Use of official language.
  13. Citizenship-acquisition & termination.
  14. Elections to Parliament and state legislatures.
  15. Delimitation of Constituencies.
  16. UT’s.
  17. V Schedule – admin. Of scheduled areas & scheduled tribes.
  18. VI Schedule – admin. Of tribal areas.
                                I.            Amendments by special majority of Parliamentary:-
  1. Bill for amendments of the constitution introduced in either house of parliamentary and not in the state legislature.
  2. Introduced by a minister or by a private member and does not require prior permission of the (p)..
  3. The bill must be passed in each house by a special majority, that is, a majority of the total membership of the House and a majority of 2/3nd of the member’s of the house present and voting.
  4. Each house must pass a bill-seperately. In case of a disagreement between the (2) houses, there is no provision for holding a it sitting of the (2) houses for the purpose of deliberation and passage of the bill.
  5. President’s consent. (cannot be sent back for reconsideration)
“Total Membership” means the total number of members comprising the house irrespective of fact whether there are vacancies or absentences.
Majority of the provisions in the constitution need to be amended by a special majority of the Parliamentary.
They include,
i.                        FR,
                                                        ii.            DPSP,
                                                      iii.            All other prov. Not covered by the I & III categories.
    1. By Special Majority of Parliament and Consent of States:-
(1)
(2)
(3)
as above, and
4.                   It must also be ratified by the legislatures of half of the states by a simple majority, that is a majority of the members of the house present and voting.
5.       President shall give his asset. Cannot be sent back for reconsideration. Which becomes an Act.
These are provisions related to the federal structure of the polity they are:-
  1. Election of the (p) and its manner (Art 54, 55)
  2. Extent of the executive power of the Union and the states. (Art 73 & 162).
  3. SC & HC’s. (Chap IV – Part V & Chap V – Part VI).
  4. Distribution of legislative powers between the Union and the states. (Part XI Chap I.)
  5. Any of the lists in the VII Schedule.
  6. Representation of states in Parl.
  7. Power of Parl. To amend the constitution and its procedure. (Art 36B itself).
  • Amendability of FR’s:-
                    The present position is that parl. Can amend any part of the constitution but should not affect the “basic structure” of the constitution.
From various judgement of the  “Basic features of the constitution” emerged are
    1. Supremacy of the constitution.
    2. Sovereign, democratic and republican nature of the Indian polity.
    3. Secular character of the constitution.
    4. Seperation of powers between the leg., the Exec., and the Judiciary.
    5. Federal character of the constitution.
    6. Unity and integrity of the nation.
    7. Welfare state (Socio-Economic Justice).
    8. Judicial Review.
    9. Freedom and dignity of the Individual.
    10. Parliamentary system.
    11. Rule of law.
    12. Harmany & balance b/t FR’s & DPSP’s.
    13. Principle of Equality.
    14. Free and Fair Elections.
    15. Independence of Judiciary.
    16. Limited power of Parliamentary to amendment the constitution.
  • Criticism of the Amendment Procedure:-
      1. No special body for amending the constitution.
      2. State legislature cannot initiate constitution’nal amendment bill.
      3. Major part is amended by either simple majority or special majority.
      4. No time frame for state leg. Ratification.
      5. No It sitting prov. In case of dead lock in amendment bill but it is there for an ordinary bill.
      6. Amendment process is similar to legislative process. Except special majority regarding bills.
      7. Procedure too sketchy, hence leave scope for judicial intervention.
        • Amendment process strike a good balance b/t “flexibility and rigidity”.
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