INDIAN CONSTITUTION

Provisions concerning constitutional amendments are in the Constitution of India.

Part XX, art. 368: “Amendments of the Constitution” contains one provision frequently invoked. The text us
quite different from the original one following several amendments.
The Constitution sets out 3 amendments process for the different categories of constitutional provisions.
1. Those who are less significant and can be amended by an ordinary law enacted by Parliament. It
required a simple majority in the Parliament followed by assent by the President.
2. It includes all provisions that are viewed as being of vital significance (except those mentioned
before). It required that the Bill have to be introduced in either house of Parliament and a majority
of two-thirds of the members presents and voting + assent of the President.
3. Those considered as a high significance, bear upon the federal character of the Constitution so it
can also impact the interests of the States. It requires the supermajority requirement of those
present and voting in the Union Parliament + it must be ratified by at least half of the number of
the States (at least 15) before being presented to the Presidential assent.
Article 368 provides six sets of provisions:
1. The manner of presidential elections
2. The extent of executive power of the Union and the States
3. Supreme court and high courts
4. Distribution of legislative, taxing and administrative powers between the Union and the State.
5. Representation of the State in the upper house of Parliament
6. The text of art.368 itself
The debate over constitutionals amendments had created 3 eventually adopted models.
1. The Commonwealth India Bill (1925): power to amend would be vest with Parliament but with the
consent of the Provincial Legislatures. Alterations can be carried by out by following the procedure
for an ordinary law passed by Parliament.
2. Nehru Report (1928): the power to alter or repeal any of the provisions in the Constitution is solely
with the Parliament + joint sitting of Parliament and the concurrence of two-thirds of the total
members of both houses.
3. Sapru Committee(1945): only formal amendments can be pass as ordinary laws.
Some significant provisions were to be immune from amendment for the first 5 years.
Others significant provisions could be amended only after being publicity notified for 6 months and
following being passed by two-thirds majority in Parliament and a similar number of provincial
legislatures.
It was a very difficult process, it could guarantee Muslim and other minorities interest which are in
the Constitution.

In the Constituent Assembly ( 1947) there were two positions concerning the process of amendment:
1. To make it difficult involving not only the Parliament but also state legislatures and people with
referenda.
2. To make it relatively easy: Parliament can act on its own.
=finally, art.368 was a compromise between the two positions.

Views on amending powers:

1. Some members saw referenda, plebiscites and supermajority as a way of ensuring that the
contents of the Constitution were not totally changed by the future parliamentarians.
 2. Constituent assembly, indirectly elected, is not justified in placing its decisions beyond the
amending power of Parliament whose members are directly elected.
They wanted to make the Constitution easily amendable (for 5/10 years)through a simple majority.
Some members wanted to ensure special protections for the Fundamental Rights provisions and
sought to immunise them completely form the amending power.

Constituent assembly elected on limited electorate con be trusted to pass the Constitution by a simple
majority but Parliament, elected by adult suffrage cannot be trusted to amend it.

CONSTITUTIONAL PRACTICE IN RELATION TO THE AMENDING POWER IN INDIA(1950-2016)

The amounts of constitutional amendments per year is high. Some of those changes altered several
different provisions of the Constitution. There are:
 Minor amendments
 Major amendments:
 First amendment to the Constitution (1952) enacted by the Provisional Parliament.
 Seventh Amendment to the Constitution (1956): provide the reconstruction of India’s federal
units on the basis of language, resulting from changing multiple provisions of the
Constitution.
 42nd amendment (1967), introduced during Indira Ghandi Government , it wanted:
a. A centralising governance with the Union
b. the idea of secularism, socialism and integrity of the Nation in the Preamble (Fundamental
Duties)
c. Reduce the powers of the High Courts by giving more to the Parliament
 44th amendments (1978): it reserved most of the worst excess of the 42 nd amendments but it
fortify the Constitution form the abuse of emergency powers by strengthening constitutional
safeguard.

A ROUGH TYPOLOGY OF CONSTITUTIONAL AMENDEMENTS

The large number of constitutional amendments are difficult to classify into coherent categories as several
of them responses to very particular situations. But there’s a broad classification:
1. Amendments in relation to Fundamental Rights (especially concerning the right of property)
2. Number of amendments that became necessary because of the limits specified in the Constitution.
3. Those amendments driven by the need of the Union to extend the period of emergency rule to
address the “troubles” (following a secessionist movement in the State of Punjab).
There is a co-relation between the existence of a strong national party holding power in the centre
and in several States and the rate of constitutional amendments.
4./5. Amendments relating to the changing and growing number of States in India (frequently).

A ROUGH QUANTITATIVE ANALYSIS OF THE PRACTICE OF CONSTITUTIONAL AMENDMENTS

There’s no a direct co-relation between the nature of the political executive and the rate of constitutional
amendments. So an elected government with a strong majority in Parliament could easily have moved
constitutional amendments since it possessed the requisite two-thirds majority but alone has not
determined which governments moved constitutional amendments at grater rates.
(Ex. Prime minister Rao’s minority government has successfully moved more amendments that the majority
government thanks to negotiation with other political party).
COSTITUTIONAL INTERPRETATION AS A SOURCE OF COSTITUTIONAL CHANGE
Indian judiciary shaped the way constitutional amendments have occurred in India and its role in changing
the conception of amending power within the Indian and the global constitutional imagination. This is
related to the evolution of the doctrine of “basic structure”.
Battle between the judiciary and Parliament on the issue of constitutional amendments: the judiciary slowly
began asserting its interpretative authority.
The basic structure doctrine is a result of the evolution of the law on constitutional amendments across
four successive cases relating to amendments made to the right of property.
1. Shankari Prasad Singh vs Union of India (1952): it was a direct consequence of the First Amendment
to the Constitution and challenged the capacity of Parliament to violate the rights of freedom,
speech and property of citizens through its provisions.
Supreme court accepted the power of Parliament to amend the Constitution and to abrogate
fundamentals rights, it relied on the difference between constitutional law and ordinary legislation.
2. Bb
3. Nnn
4. Nnn

CONSTITUTIONAL CHANGE TROUGH CONSTITUTIONAL MOMENTS

INDIAN PARLIAMENT IS BICAMERCAL AND COMPOSED BY 3 ORGANS:

 The president: The president is the Head of the Executive. There are “consultative” bodies, the
Prime Minister and the Council of Ministers.
The Cabinet is usually composed by no more than 20 ministers and meets very frequently, the
Council of Ministers is a plethoric body (currently, 79 members)and is convened quite rarely.
Cabinet ministers have a higher position within the administrative hierarchy than the State
Ministers (normally are members of the Council of Ministers).
The Cabinet, as the government's select committee, makes the most important policy decisions:
 Decides the national political direction
 Sets the parliamentary agenda
 Draws state economic policy(including the budget)
 Chooses the higher public officers (only appointed by the President)
 The Lok Sabha: the house of people-> flexible composition.
maximum of 530 seats to be elected in the States and 20 seats in the Union Territories (the
President of the Union can also appoint two members of the Anglo-Indian community, for a
maximum of 552 members).
elected by universal suffrage with a single round majority system and has a five-year term (the
elected candidate is the one that obtains a relative majority in the individual constituency).
 The Rajya Sabha: the house of the State in the Federal Parliament. It’s a permanent body
Its members are therefore not an expression of the Indian people as a whole, but they bring the
interests of individual States (and Territories) to the "centre" level of the Union.
It greatly differs from the House of the People: in its composition, the way of election and the
length of the office.

The House of States is not involved in the vote of confidence (House of the People = Government).
However, the two Houses have the same legislative powers and functions with one exception:
Money bills can be introduced and discussed only in the House of People.