Amending the Constitution 

• Informally, the Constitution is amended through judicial interpretation and conventions established through usage. Take, for example, the process of appointment of judges to the higher judiciary.
• While the Constitution refers to a consultation between the President and the Chief Justice of India for appointment of judges, the Supreme Court has interpreted this to the effect that consultation means “concurrence.”
• This interpretation led to the evolution of the collegium system of appointment of judges, and virtually a change in the letter of the Constitution.
• The Constituent Assembly debated extensively on whether the Constitution should be flexible or rigid.
• The British constitution is considered flexible, as it can be amended by Parliament passing a law in the same manner in which it would pass any ordinary legislation.
• On the other hand, the United States Constitution cannot be amended without the ratification of at least three fourths of the individual states.
• In India, Article 368 of the Constitution deals with the power and process of amending the Constitution.
• The interpretation of this provision has been fraught, leading to tensions between Parliament and the judiciary since 1951.

The process of amendment 

The Constitution prescribes three different standards for amending different provisions.

Simple majority

• Several provisions of the Constitution can be amended by the simple legislative process adopted in passing any ordinary legislation in Parliament.
• This is done through a majority of those present and voting and does not require a quorum.
• Interestingly, Article 368 does not directly make a list of such ‘less significant’ provisions.
• However, throughout the Constitution, such provisions are excluded from the purview of Article 368, creating a separate category.
• Versions of the text “no such law shall be deemed to be an amendment of the Constitution for the purposes of Article 368” is found in several provisions, including in Article 4, which provides that Parliament can make changes relating to organisation of states.
• Changing of names of states, admitting new states to the Union, and re-drawing the boundaries of states fall under this category.

Special majority:

• For amending provisions that do not fall under the first category, Article 368 requires that the amendment Bill is passed in both Houses of Parliament by a majority of not less than two thirds of the members present and voting.
• Under Rule 158 of the Lok Sabha Rules, ‘total membership’ means the total number of members of the House, irrespective of any vacancies or absentees at the moment.

Ratification by states:

• A third category of provisions need not just a special majority to be amended, but also require ratification by the legislatures of at least half of the states.
• Only after the states’ ratification can such an amendment be presented to the President for assent.
• While the first two categories are not specifically listed under Article 368, the provisions that require ratification are listed out. These involve the federal character of the Constitution and are referred to as “entrenched provisions”.
  • For example, The Constitution (Ninety-ninth Amendment) Act, which established the National Judicial Appointments Commission (NJAC), was passed by both Houses of Parliament and ratified by 16 state legislatures before it received the President’s assent on December 31, 2014. (On October 16, 2015, a five-judge Bench of the Supreme Court, by a 4-1 majority, struck down both The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 — which had come into effect in April 2015 — as unconstitutional, and revived the collegium system of appointment of judges to the higher judiciary.)
  • Again, The Constitution (One hundred and first Amendment) Act, 2016, which introduced the Goods and Services Tax regime, was ratified by a large number of states and Union Territories before it received the President’s assent on September 8, 2016. (This Bill was first introduced in Lok Sabha as The Constitution (One hundred and twenty-second Amendment) Bill on December 19, 2014, and was referred to a Select Committee of Parliament before being finally passed by both Houses in August 2016. Several other states ratified the Act subsequently.)
• In Kihoto Hollohan v Zachillu, a 1992 decision of the Supreme Court, the question of ratification emerged as important.
• One of the grounds on which the constitutionality of the Tenth Schedule — which deals with disqualification of elected representatives — was challenged was that the amendment was not ratified by the states.
• The amendment, among other things, sought to bar jurisdiction of courts in any matter connected with the disqualification process.
• This tinkered with one of the six aspects that require ratification by half the states — jurisdiction of the Supreme Court and the High Courts.
• The Supreme Court struck down this part of the amendment while upholding the validity of the Tenth Schedule.

Entrenched provisions

• Article 368 lists six parts of the Constitution that have an additional safeguard for amending them. These are:
  • Article 54 and 55, dealing with the election of the President of India.
  • Article 73 and 162, dealing with the extent of executive power of the Union and states.
  • Articles 124–147 and 214–231, which deal with powers of the Supreme Court and the High Courts
  • Article 245 to 255, dealing with the scheme of distribution of legislative, taxing, and administrative powers between the Union and the states.
  • Article 82-82, dealing with the representation of states in Parliament.
  • Article 368 itself.

Source: IE

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