This article is written by Nidhi Jaiswal, Geeta Institute of Law, BBA LLB (9th Semester), during her internship at LeDroit India.
ABSTRACT
The Constitutional amendment process in India plays a vital role in maintaining the dynamic nature of governance while
preserving the core principles of democracy. The Indian Constitution provides for a structured process of amendment to
address socio-political changes without altering the basic structure doctrine. The amendment procedures involve different
levels of complexity depending on the nature of the changes proposed. Amendments can be classified into three types:
simple majority amendments, special majority amendments, and ratification by states. The process of amendment has
been a subject of judicial scrutiny, especially in landmark cases like Kesavananda Bharati v. State of Kerala (1973) and
Minerva Mills v. Union of India (1980). This article explores the types of constitutional amendments and the procedures
governing them, supported by relevant case laws and illustrations.
INTRODUCTION
The Indian Constitution, drafted in 1950, was designed to be both rigid and flexible to ensure adaptability to changing
times. The framers incorporated an amendment procedure under Article 368, allowing modifications while ensuring the
fundamental ethos remains intact. The need for amendments arises from socio-political, economic, and technological
changes that demand legal restructuring.
The amendment process has witnessed several landmark changes, from curtailing fundamental rights (First Amendment,
1951) to restoring judicial independence (Ninth Amendment, 2003). While some amendments have strengthened
democratic values, others have sparked controversy. The judiciary plays a crucial role in reviewing amendments, ensuring
they adhere to the basic structure doctrine, which was established in the Kesavananda Bharati case.
TYPES OF CONSTITUTIONAL AMENDMENTS IN INDIA
The Indian Constitution provides for three types of amendments based on the method prescribed in Article 368 and other
provisions:
- Amendment by Simple Majority
Certain constitutional provisions can be amended by a simple majority in both Houses of Parliament, similar to passing an
ordinary law. These amendments are outside the scope of Article 368 and deal with non-fundamental issues.
Examples:
Admission or alteration of states (Article 3)
Salaries and allowances of MPs
Delimitation of constituencies
Fifth and Sixth Schedule amendments related to Scheduled Tribes and Autonomous Councils
Illustration
If Parliament decides to reorganize a state’s boundaries, such as the Telangana Reorganization Act, 2014, it can do so
through a simple majority, bypassing the stringent amendment process of Article 368.
- Amendment by Special Majority
Amendments that alter fundamental aspects of the Constitution require a special majority. This means:
A two-thirds majority of members present and voting in each House
At least 50% of the total strength of each House must vote in favor
This procedure applies to key provisions such as Fundamental Rights, Directive Principles of State Policy (DPSP), and
other significant structural changes.
Examples:
The 42nd Amendment, 1976 (added the words “Socialist,” “Secular,” and “Integrity” to the Preamble)
The 73rd and 74th Amendments, 1992 (strengthening local governance through Panchayati Raj and municipalities)
Case Law: Kesavananda Bharati v. State of Kerala (1973)
The Supreme Court ruled that Parliament could amend the Constitution but not alter its basic structure.
Fundamental Rights were placed beyond unrestricted parliamentary control.
- Amendment by Special Majority with Ratification by States
Some amendments require special majority approval along with ratification by at least half of the state legislatures. This
process ensures that federal features remain protected.
Provisions requiring ratification:
Election of the President (Article 54, 55)
Distribution of legislative powers between the Union and states (Seventh Schedule)
Supreme Court and High Court jurisdiction (Article 368(2) proviso)
Case Law: S.R. Bommai v. Union of India (1994)
The Supreme Court ruled that federalism is part of the basic structure, reinforcing the importance of state participation in
constitutional amendments affecting them.
CONSTITUTIONAL AMENDMENT PROCESS IN INDIA
The process for amending the Constitution is enshrined in Article 368, which provides two stages:
Step 1: Proposal and Approval by Parliament
An amendment bill can be introduced in either Lok Sabha or Rajya Sabha.
It must secure either a simple majority, special majority, or special majority with state ratification as per the type of
amendment.
Step 2: Presidential Assent
After parliamentary approval, the bill is presented to the President.
The President cannot refuse assent to constitutional amendment bills, unlike ordinary bills.
Judicial Review and Basic Structure Doctrine
The Basic Structure Doctrine, established in Kesavananda Bharati (1973), ensures that certain essential features of the
Constitution remain unchanged despite amendments.
Key Features Protected under Basic Structure Doctrine
Supremacy of the Constitution
Judicial Review
Separation of Powers
Federalism
Secularism
Case Law: Minerva Mills v. Union of India (1980)
Struck down parts of the 42nd Amendment that sought to curtail judicial review.
Reaffirmed that Parliament’s amending power is limited by the Constitution’s basic structure.
Recent Judgement: Janhit Abhiyan v. Union of India (2023)
The Supreme Court upheld the 103rd Amendment, which introduced 10% EWS reservation, ruling that economic criteria
do not violate the basic structure.
Challenges in the Amendment Process
- Political Influence
Amendments often reflect the ruling party’s agenda, potentially undermining constitutional neutrality. - Judicial Scrutiny
Frequent judicial interventions may slow down necessary reforms.
- Federal Tensions
State ratification requirements sometimes create conflicts between the Centre and states.
Conclusion
The constitutional amendment process in India strikes a balance between rigidity and flexibility, ensuring that governance
evolves while preserving the basic structure doctrine. The three types of amendments—simple majority, special majority,
and state ratification—define the extent to which constitutional provisions can be altered. The judiciary plays a pivotal
role in ensuring that amendments do not infringe upon fundamental rights or disturb the Constitution’s federal framework.
The Kesavananda Bharati case, Minerva Mills case, and recent EWS reservation verdict showcase the interplay between
constitutional amendments, judicial review, and democracy. As India progresses, the amendment process must remain
transparent, inclusive, and democratic to uphold the Constitution’s integrity and adaptability.
References
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (Manupatra Link)
- Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 (Indian Kanoon)
- S.R. Bommai v. Union of India, AIR 1994 SC 1918 (Manupatra)
- Janhit Abhiyan v. Union of India, 2023 SCC OnLine SC 1500 (LiveLaw)
