The document discusses the amendment process of the Constitution of India as outlined in Article 368. It provides that amendments can be initiated by introduction of a bill in either house of Parliament. The bill must be passed by a special majority in each house and receive presidential assent. Some provisions also require ratification by half the state legislatures. The Supreme Court has ruled that amendments cannot alter the basic structure of the constitution. The document outlines the different classes of amendments and criticisms of the current process. It examines the scope of amendability and summarizes some major constitutional amendments that have been passed.

1. CONSTITUTIONAL LAW
AMENDMENT PROCESS IN INDIA

2. INTRODUCTION
• DEFINITION: Amendment, in government and law, an addition or alteration made to a
constitution, statute, or legislative bill or resolution. Amendments can be made to existing
constitutions and statutes and are also commonly made to bills in the course of their passage
through a legislature. Since amendments to a national constitution can fundamentally
change a country’s political system or governing institutions, such amendments are usually
submitted to an exactly prescribed procedure.
• The Constitution of India also provides for its amendment in order to adjust itself according to the
changing conditions and needs.
• Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the
Constitution and its procedure. It states that the Parliament may amend the Constitution by way of
addition, variation or repeal any provision in accordance with the procedure laid down for the purpose.
• However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the
Constitution. This was ruled by the Supreme Court in the ‘Kesavananda Bharati case’ (1973).

3. Article 368 in The Constitution Of India 1949
Power of Parliament to amend the Constitution and procedure therefor
1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this
article
2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either
House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House
present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the
Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to
make any change in
a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
c) any of the Lists in the Seventh Schedule, or
d) the representation of States in Parliament, or
e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to
that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
3) Nothing in Article 13 shall apply to any amendment made under this article
4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made
under this article whether before or after the commencement of Section 55 of the Constitution (Forty second
Amendment) Act, 1976 shall be called in question in any court on any ground
5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power
of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article
PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS

4. Amendments of the Indian Constitution
To define constitutional amendment process, Article 368 of Part XX of Indian Constitution provides for
two types of amendments.
• By a special majority of Parliament
• By a special majority of the Parliament with the ratification by half of the total states
• But, some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of
Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process).
Notably, these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.
The procedure for the amendment of the Constitution as laid down under Article 368 is as follows:
• An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of
Parliament and not in the state legislatures.
• The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
• The bill must be passed in each House by a special majority, that is, a majority of the total membership of the House and a
majority of two-thirds of the members of the House present and voting.
• Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding
a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
• If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the
states by a simple majority.
• After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented
to the President for assent.
• The President must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill to the Parliament
for reconsideration.
• After the President’s assent, the bill becomes an Act (i.e., a Constitutional Amendment Act) and the Constitution stands
amended in accordance with the terms of the Act.

5. Amendment by simple majority of the Parliament
A number of provisions in the Constitution can be amended by a simple majority of the two houses of
Parliament outside the scope of Article 368.
• Admission or establishment of new states.
• Formation of new states and alteration of areas, boundaries or names of existing states.
• Abolition or creation of legislative councils in states.
• Second Schedule-emoluments,
• Allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
• Quorum in Parliament.
• Salaries and allowances of the members of Parliament.
• Rules of procedure in Parliament.
• Privileges of the Parliament, its members and its committees.
• Use of the English language in Parliament.
• Number of puisne judges in the Supreme Court.
• Conferment of more jurisdiction on the Supreme Court.
• Conferment of more jurisdiction on the Supreme Court.
• Citizenship-acquisition and termination.
• Elections to Parliament and state legislatures.
• Delimitation of constituencies.
• Union territories
• Fifth Schedule-administration of scheduled areas and scheduled tribes.
• Sixth Schedule-administration of tribal areas.

6. Amendment by special majority of the Parliament
• The majority of the provisions in the Constitution need to be amended by a special majority of the
Parliament, that is, a majority (that is, more than 50 percent) of the total membership of each
House and a majority of two-thirds of the members of each House present and voting. The
expression ‘total membership’ means the total number of members comprising the House
irrespective of the fact whether there are vacancies or absentees.
• The special majority is required only for voting at the third reading stage of the bill but by way of
abundant caution, the requirement for the special majority has been provided for in the rules of the
Houses in respect of all the effective stages of the bill.
• The provisions which can be amended by this way include
(i) Fundamental Rights;
(ii) Directive Principles of State Policy; and
(iii) All other provisions which are not covered by the first and third categories.

7. Amendment by special majority of the Parliament and the
ratification of at least half of the state legislatures.
Those provisions of the Constitution which are related to the federal structure of the polity can be
amended by a special majority of the Parliament and also with the consent of half of the state
legislatures by a simple majority. If one or some or all the remaining states take no action on the bill,
it does not matter; the moment half of the states give their consent, the formality is completed. There
is no time limit within which the states should give their consent to the bill. The following provisions
can be amended in this way:
• Election of the President and its manner.
• Extent of the executive power of the Union and the states.
• Supreme Court and high courts.
• Distribution of legislative powers between the Union and the states.
• Any of the lists in the Seventh Schedule.
• Representation of states in Parliament.
• Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

8. Criticism of the Amendment Procedure
1. There is no provision for a special body like Constitutional Convention (as in the USA) or
Constitutional Assembly for amending the Constitution.
2. The power to initiate an amendment to the Constitution lies with the Parliament. The state legislatures
cannot initiate any bill or proposal for amending the Constitution except in one case, that is, passing a
resolution requesting the Parliament for the creation or abolition of legislative councils in the states.
3. The major part of the Constitution can be amended by the Parliament alone either by a special
majority or by a simple majority. Only in a few cases, the consent of the state legislatures is required
and that too, only half of them.
4. The Constitution does not prescribe the time frame within which the state legislatures should ratify or
reject an amendment submitted to them. It is also silent on the issue, whether the states can withdraw
their approval after according the same.
5. There is no provision for holding a joint sitting of both the Houses of Parliament if there is a deadlock
over the passage of a constitutional amendment bill.
6. The process of amendment is similar to that of a legislative process. Except for the special majority,
the constitutional amendment bills are to be passed by the Parliament in the same way as ordinary
bills.

9. Scope of Amendability in Indian Constitution
The present position is that the Parliament under Article 368 can amend any part of the Constitution
including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. However,
the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.
• Supremacy of the Constitution
• Welfare state (socio-economic justice).
• Principle of equality
• Sovereign, democratic and republican nature of the Indian polity.
• Judicial review
• Free and fair elections
• The secular character of the Constitution.
• Freedom and dignity of the individual
• Independence of Judiciary
• Separation of powers between the legislature, the executive and the judiciary.
• Parliamentary system
• Limited power of Parliament to amend the Constitution
• Federal character of the Constitution
• Rule of law
• Effective access to justice
• Unity and integrity of the nation
• Harmony and balance between Fundamental Rights and Directive Principles
• Reasonableness

10. Major Constitutional Amendment
1st Amendment • The state was empowered to make special provisions for the advancement of
socially and backward classes
• The Ninth Schedule was added
• Three more grounds of restrictions on Article 19 (1) [Freedom of speech and
expression] were added:
Public order
Friendly relations with foreign states
Incitement to an offence
• Provided that state trading and nationalisation of any trade or business by the
state is not to be invalid on the ground of violation of the right to trade or
business.
9th Amendment Facilitated the cession of the Indian territory of Berubari Union (located in West
Bengal) to Pakistan as provided in the Indo-Pakistan Agreement (1958).
19th Amendment System of Election Tribunals was abolished and High Courts were given the power
to hear the election petitions.

11. CONSTITUTIONAL AMENDMENTS
24th Amendment • Affirmed the power of Parliament to amend any part of the Constitution including
fundamental rights by amending Article 13 and 368.
• Made it compulsory for the President to give his assent to a Constitutional
Amendment Bill.
33rd Amendment • Amended Articles 101 and 190 and provided that the resignation of the members of
Parliament and the state legislatures may be accepted by the Speaker/Chairman only
if he is satisfied that the resignation is voluntary or genuine
52nd Amendment • A new tenth Schedule was added providing for the anti-defection laws. Candidates
can read in detail about the Tenth Schedule in the linked article.
61st Amendment • The voting age was decreased from 21 to 18 for both Lok Sabha and Legislative
Assemblies elections
73rd and 74th
Amendments
• Panchayati Raj institutions were given constitutional status.
• A new Part-IX and 11th Schedule were added in the Indian Constitution to recognize
Panchayati Raj Institutions and provisions related to them
• Urban local bodies were granted constitutional status
• A new Part IX-A and 12th Schedule were added to the Indian Constitution

12. CONSTITUTIONAL AMENDMENTS :
86th Amendment • Elementary Education was made a fundamental right – Free and compulsory education
to children between 6 and 14 years
• A new Fundamental Duty under Article 51 A was added – “It shall be the duty of every
citizen of India who is a parent or guardian to provide opportunities for education to his
child or ward between the age of six and fourteen years”
97th Amendment Co-operative Societies were granted constitutional status:
• Right to form cooperative societies made a fundamental right (Article 19)
• A new Directive Principle of State Policy ( Article 43-B) to promote cooperative
societies
• A new part IX-B was added in the constitution for cooperative societies
100th Amendment • To pursue land boundary agreement 1974 between India and Bangladesh, exchange of
some enclave territories with Bangladesh mentioned.
101st Amendment • Goods and Service Tax (GST) was introduced.
102nd Amendment • Constitutional Status was granted to National Commission for Backward Classes.
103rd Amendment • A maximum of 10% Reservation for Economically Weaker Sections of citizens of
classes other than the classes mentioned in clauses (4) and (5) of Article 15, i.e. Classes
other than socially and educationally backward classes of citizens or the Scheduled
Castes and the Scheduled Tribes.

13. 42nd Amendment
• In Preamble -Words ‘Socialist’, ‘Secular’ and ‘Integrity’ added.
• In 7th Schedule - Transferred five subjects from the state list to the concurrent list:
• Education
• Forests
• Weights & Measures
• Protection of Wild Animals and Birds
• Administration of Justice
• Article 51A-10 Fundamental Duties added for the citizens. (The Fundamental Duties of citizens were added upon
the recommendations of the Swaran Singh Committee that was constituted by the government in 1976).
• Parliament:-
• Made President bound to the advice of the cabinet
• Allowed Centre to deploy central forces in State to deal with the conflicting situations of law and order (Article 257A)
• Gave special discriminatory powers to the speaker of Lok Sabha and Prime Minister (Article 329A)
• Directive Principles were given precedence over Fundamental Rights and any law made to this effect by the Parliament was kept
beyond the scope of judicial review by the Court
• Judicial Powers of HC - Curtailed the judicial review power of the High Courts.
• Articles 323A and 323B, Part XIV-A -- Part XIV-A added entitled as ‘Tribunals dealing with Administrative matters’
and ‘Tribunals for other matters’.
• DPSPs-Four new DPSPs (Directive Principles of State Policy) were added to the existing list of DPSPs:
• To secure opportunities for the healthy development of children (Article 39)
• To promote equal justice and to provide free legal aid to the poor (Article 39 A)
• To take steps to secure the participation of workers in the management of industries (Article 43 A)
• To protect and improve the environment and to safeguard forests and wildlife (Article 48 A)

14. 44th Amendment
• Any changes in the basic structure of the constitution can be made only if they are approved by the people of India
by a majority of votes at a referendum in which at least fifty-one per cent of the electorate participated. Article 368 is
being amended to ensure this.
• The 44th Amendment Act of 1978 reversed the provision made by the 42nd amendment act that allowed the
government to amend the constitution on its wish by Article 368. 44th Amendment Act nullified this unjustified
power to the government.
• Right to Property was removed from the list of fundamental rights (Article 31) and was made a legal right under
Article 300A.
• Proclamation of Emergency can be issued only when the security of India or any part of its territory is threatened by
war or external aggression or by armed rebellion. Internal disturbance not amounting to armed rebellion would not
be a ground for the issue of a Proclamation.
• An emergency can be proclaimed only on the basis of written advice tendered to the President by the Cabinet.
• The right to liberty is further strengthened by the provision that law for preventive detention cannot authorise, in any
case, detention for a longer period than three months, unless an Advisory Board has reported that there is sufficient
cause for such detention.
• Right of the media to report freely and without censorship the proceedings in Parliament and the State Legislature

15. Thanks & Regards
RAHUL YADAV
MDU, ROHTAK