Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.
However, there is another limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power. This has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala.
Types of Majority
- Absolute majority: This means > 50% of total strength of the house (without subtracting vacancies).
- Functional majority: This is the simple majority. Censure motions, resolutions passed by HoP for discontinuation of a national emergency need simple majority.
- Effective majority: This means > 50% of (total strength of the house – vacancies). This is needed in the removal of speaker, deputy speaker, vice-chairman etc.
- 2/3 members present and voting (no minima requirement). Art 249: Counsel of State can pass a resolution authorizing the parliament to legislate on a state subject for ≤ 1 year. Art 312: CoS can pass a resolution authorizing the parliament to create a new all India service.
- 2/3 members present and voting + absolute majority. Art 368, removal of a judge of SC / HC / CAG / CEC, approval for continuing national emergency (in both houses), Art 169: in state assembly seeking to create / abolish vidhan parishad.
- 2/3 of total strength of the house. Impeachment of president.
Consent of 50% of states needed
- On a matter of distribution of executive or legislative powers between center and states.
- On a matter involving SC and HC.
- On a matter involving any list in 7th schedule.
- Representation of states in parliament.
- Election of president.
- Art 368 itself.
Is any part of Constitution unamendable?
- Until Golak Nath case, SC held that no part was unamendable. The word ‘law’ in Art 13 referred to ordinary laws made by parliament in its legislative capacity and not Constitution amendment acts made under its constituent capacity.
- In Golak Nath case, SC held that Constitution amending power was a legislative power conferred upon the parliament by Art 245. So a CA act is also a law under Art 13. This means that FRs can’t be amended by parliament as they have been given a transcendental position under the Constitution.
- After Golak Nath the parliament sought to supersede it via 24th CA Act, 1971 by putting in Art 368 that a CA act under Art 368 will not be a ‘law’ wrt Art 13.
- Validity of 24th CA Act was challenged in Kesavananda case where it was held valid. But the doctrine of basic features was propounded.
42nd Constitutional Amendment Act, 1976
- Judicial review of ordinary laws: For the first time a distinction was made between union laws and state laws for challenging their validity on grounds of unconstitutionality. It was provided that a HC can’t pass judgement on a central law and SC can’t pass judgement on a state law unless a central law had also been questioned in the same proceedings.
- Judicial review of CA acts: It was provided that a CA act will be completely immune from judicial review whether on substantive or procedural grounds. The procedural provision was absurd.
- It introduced fundamental duties.
- It devalued FRs by expanding the scope of Art 31C to include any law to implement any of the directive.