UNIT VI - Amendment of the Constitution

The Indian Constitution is a living document designed to adapt to changing times. Its amendment process allows the nation to evolve legally and politically without losing its core principles. Yet, this process raises important questions about how flexible the Constitution should be, especially concerning fundamental rights. This post explores why the Constitution includes provisions for amendment, how these amendments are made, and the ongoing debate about the amendability of fundamental rights and the basic structure theory.

The Constitution of India is more than just a legal document; it is a vital part of our national identity. It lays the groundwork for how our government operates while also safeguarding the fundamental rights of its citizens. As society evolves, so must the Constitution. Periodic amendments are essential to address contemporary issues and reflect the changing aspirations of the people. Grasping the significance of amendment provisions, the powers involved, and the connection between fundamental rights and the Constitution's basic structure is crucial for every Indian citizen.

UNIT VI:

Amendment of the Constitution:
• Need of provisions for Amendment of the Constitution
• Power and procedure of amendment of the Indian Constitution
• Amendability of Fundamental Rights & the Basic Structure Theory

Unit VI: Amendment of the Constitution

Feature	Key Details & Legal Provisions
Need for Provisions	To ensure the Constitution remains a "living document" that can adapt to changing social, political, and economic conditions without needing a total overhaul or violent revolution.
Source of Power	Article 368 of the Constitution gives Parliament the power to amend the Constitution and lays down the procedure.
Types of Amendments	1. Simple Majority: Similar to ordinary laws (e.g., formation of new states). Not deemed an amendment under Art. 368. 2. Special Majority: Majority of total membership + 2/3rd of members present and voting. 3. Special Majority + State Ratification: Required for "Federal" provisions (e.g., Election of President, High Courts). Requires consent from half of the State Legislatures.
Amendability of FRs	Initially, Fundamental Rights (FRs) were considered amendable (Shankari Prasad case). Later, the Supreme Court shifted views, ultimately deciding they can be amended but cannot be destroyed.
Basic Structure Theory	Established in Kesavananda Bharati (1973). While Parliament has wide powers to amend, it cannot alter the "Basic Structure" (e.g., Secularism, Judicial Review, Federalism, Democracy).

Need for Provisions for Amendment of the Constitution

The Indian Constitution covers various topics, from governance structures to individual liberties. The authors of the Constitution understood that to stay relevant, it must include a way for amendments. This foresight ensures adaptability in several key areas:

1. Evolving Societal Dynamics: As society changes, so too do the expectations of its citizens. For example, the inclusion of the Right to Education Act in 2009 demonstrates how amendments allow the Constitution to incorporate progressive values, ensuring that access to education becomes a fundamental right for children aged 6 to 14.
2. Legal and Judicial Developments: New laws and judicial rulings frequently alter the legal landscape. For instance, the Supreme Court's decision in 2018 to decriminalize consensual homosexual acts under Section 377 illustrates how legal interpretations can prompt constitutional adaptations.
3. Addressing Inadequacies: Over time, some provisions may become outdated or insufficient to tackle emerging issues. An example is the amendment to the Prevention of Corruption Act, which has evolved to enhance anti-corruption measures in response to changing political and social contexts.
4. Public Participation: Amendment provisions reflect the voice of the people. Recent amendments, such as those facilitating the Goods and Services Tax (GST), are a result of extensive public discourse and political negotiations, illustrating the importance of democratic processes in shaping our constitutional framework.

These factors make it clear that amendment provisions are essential for maintaining the Constitution as a vibrant, living document.

Need of Provisions for Amendment of the Constitution

Why is amendment necessary?The Constitution of a country is a living document, and as society evolves, its legal framework must also adapt. The provision for amendment ensures:

• Flexibility: To accommodate social, economic, and political changes.
• Growth and development: To introduce reforms aligned with modern needs.
• Correction of errors: To fix loopholes or outdated provisions.
• Democratic relevance: To reflect the will and aspirations of the people over time.

🔹 Example: Reservations in education and jobs have evolved through amendments to reflect the needs of different communities.

Power and Procedure of Amendment of the Indian Constitution

Article 368 lays out the amendment process, detailing different types of amendments and the corresponding procedures required.

Types of Amendments

Amendments are categorized based on the nature of the provision being amended:

1. Simple Majority Amendments: Certain provisions, like those related to parliamentary procedures, can be changed with a simple majority in both Houses of Parliament. For example, amending rules of the House of Commons significantly impacts legislative processes without altering the Constitution's core framework.
2. Special Majority Amendments: Major changes, such as altering the powers of the government, require a special majority in both Houses. This means approval by a majority of the total membership of each House and a majority of those present and voting. An example is the amendment to Article 368 in 1976, which expanded the scope of amendment powers.
3. Federal Amendment: Amendments that affect the distribution of powers between central and state governments require ratification from at least half of the state legislatures after passing Parliament. This ensures that state interests are adequately represented, safeguarding the federal structure.

Procedure for Amendment

The procedural steps vary depending on the amendment type, ensuring clarity and preventing arbitrary changes:

1. Simple Majority: The amendment is proposed in either House of Parliament and passed by a simple majority, which requires more votes in favor than against.
2. Special Majority: After introduction and debate, this amendment requires a special majority for approval in both Houses. Once passed, it must receive Presidential assent to become law.
3. Federal Amendments: Following approval from both Houses, the amendment is sent to the states for ratification. If more than half of the state legislatures approve, the amendment takes effect.

This procedural structure is essential to safeguard against hasty changes and ensure that amendments genuinely represent the national will.

Power and Procedure of Amendment of the Indian Constitution

Article 368 of the Indian Constitution lays down the procedure for amendment. There are three types of amendments:

a) By Simple Majority of the Parliament

• Not considered under Article 368.
• Used for matters like creation of new states, changing names or boundaries of states.

b) By Special Majority of the Parliament

• Majority of the total membership of each House + 2/3rd of the members present and voting.
• Used for most constitutional amendments (e.g., changes in Fundamental Rights, DPSPs).

c) By Special Majority + Ratification by Half of the States

• Required for matters affecting federal structure:

• Election of President
• Extent of executive power of the Union and the states
• Judiciary powers
• Distribution of legislative powers

Initiation: Only Parliament can initiate an amendment bill; states cannot.

Amendability of Fundamental Rights & the Basic Structure Theory

The possibility of amending fundamental rights has sparked significant debate. The critical Supreme Court case, Kesavananda Bharati v. State of Kerala (1973), introduced the "basic structure" doctrine, which has lasting implications for constitutional amendments in India.

Understanding Fundamental Rights

Fundamental rights are crucial as they protect individual freedoms and guard against arbitrary government actions. The amendment of these rights could significantly alter the balance of power between the government and its citizens.

The Basic Structure Doctrine

The basic structure doctrine asserts that while the Constitution can be amended, core principles must remain intact. Established to protect essential democratic values, these principles include:

1. Separation of Powers: The balance among the legislative, executive, and judicial branches must always be upheld. This ensures no branch oversteps its bounds.
2. Federalism: The distribution of powers between the Center and states must be respected. For instance, modifications affecting state jurisdiction require careful consideration to avoid central overreach.
3. Judicial Review: This authority allows courts to evaluate laws and government actions, preserving constitutional integrity.
4. Protection of Fundamental Rights: Any amendment curtailing or eliminating fundamental rights challenges the Constitution's basic structure.

Thus, attempts to amend fundamental rights are scrutinized by the judiciary, which ensures that Parliament cannot erode these rights through amendments.

Amendability of Fundamental Rights & the Basic Structure Theory

a) Initial Stand (Before Kesavananda Bharati Case)

• In Shankari Prasad (1951) and Sajjan Singh (1965), the Supreme Court held that Fundamental Rights can be amended using Article 368.

b) Golaknath Case (1967)

This case marked a turning point. The Supreme Court ruled that Parliament could not amend fundamental rights, as they are transcendental and beyond the reach of amendment. This decision limited Parliament’s power and protected citizens’ rights.

• Supreme Court ruled that Parliament cannot amend Fundamental Rights.
• Stated that amendment is a "law" under Article 13, and any law violating FRs is void.

c) Kesavananda Bharati Case (1973) – Landmark Judgment

The Supreme Court revisited the issue in this landmark case. It held that Parliament could amend any part of the Constitution, including fundamental rights, but not the basic structure of the Constitution. The basic structure includes:

• Supremacy of the Constitution
• Rule of law
• Separation of powers
• Fundamental rights
• Judicial review
• Federalism

• Supreme Court upheld Parliament’s power to amend the Constitution, including Fundamental Rights.
• But introduced the Basic Structure Doctrine:
• Parliament cannot alter the 'Basic Structure' of the Constitution.
• Elements like Supremacy of Constitution, Rule of Law, Judicial Review, Separation of Powers, Federalism, etc., are part of this.

d) Minerva Mills Case (1980) confirmed this view.

Balancing Amendment Power and Protecting Rights

Striking a balance between the power to amend and the need to protect fundamental rights is key in a democracy. The Constitution's framers were aware of the risks that could arise from granting amendment powers to the legislature.

While amendments can facilitate societal growth, they must be approached with care. Existing safeguards help prevent this power from undermining democratic values. The judiciary plays a vital role in maintaining this balance, acting as a watchdog against legislative overreach.

Reflection on Constitutional Adaptation

The ability to amend the Constitution is a powerful tool that reflects democracy's dynamic nature. It allows the legal framework to adapt in response to societal needs. However, this power must be used judiciously to protect the fundamental rights that uphold a fair and just society.

Understanding the procedures for amendments, the significance of fundamental rights, and the basic structure doctrine is vital for shaping India’s constitutional landscape. A well-informed citizenry can engage meaningfully in discussions about governance.

As we navigate this evolving framework of constitutionalism, vigilance remains key. Embracing amendments while respecting the basic structure and fundamental rights keeps the Constitution relevant and robust in addressing both current and future challenges.

Janata, or the people, has the power to shape their governance. As citizens actively participate in this constitutional journey, they ensure that the Constitution not only serves as a historical document but also as a living testament to the aspirations of the Indian populace.

With thoughtful engagement, the Constitution can continue to safeguard the rights and liberties of all citizens while evolving to meet the demands of a changing society.