AMENDMENT
PROCEDURE: INDIA
V. USA
PROCEDURE OF AMENDMENT: NATURE AND
SCOPE
• 1. De jure or formal modification – this is made through amending process provided in
the constitution itself, and
• 2. De facto or informal modification it can be made through judicial interpretation for
the purpose of amendment.
AMENDMENT PROCEDURE IN INDIA
• Article 368- The procedure for amendment under Article 368- a bill to amend the constitution may be introduced in the house of the Parliament it
must be passed by each house by a majority of the total membership to the at house and by a majority of not less than two third of the member of
the at house present and voting. When a bill is passed by both houses it is presented to the president for his assent, who will give access to the bill
and the constitution shall stand amended.
• Basic Structure Doctrine (Shankari Prasad –Keshavnanda Bharti)
• The Provisions related to amendment in the constitution are as follows:-
• 1. Many articles that can be amended by the Parliament by simple majority are article 4 article 189 and article 243 are the article that do not come
under the purview of procedure prescribed in Article 368 in the constitution.
• 2. Articles of the constitution that can be amended by special majority such as FRs, dpsps
• 3. Articles which required in addition to the special majority mentioned above, ratification by not less than ½ of the state legislatures, are as
follows –
Election of the president ( Art. 54 and 55)
Extent of the executive powers of the Union and the states ( Art. 73 and 162)
Articles dealing with judiciary in union and high courts in the state ( Art.214-231, Art. 133-147) 4) Legislative relation between power and state (Art.
245 – 255) 5) Representation of state in parliament (IV schedule)
AMENDMENT PROCEDURE IN USA
• The Article V of the US Constitution provides for changing (amending) the Constitution. Article V11: "The Congress, whenever
2/3rd of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of 2/3rd of the several States, shall call Convention for proposing Amendments.
• The Article provides that the Constitution can be amended either through:
a) an act of Congress (US Parliament)
b) a national constitutional convention.
c) It requires a 2/3 vote in each chamber. And once passed, the proposed amendment is not sent to the President like it is done in
India or like in UK send to the Royal head of the UK. Instead, it is sent to the states.
d) There has only been one constitutional convention to date the original 1787 Constitutional Convention, which produced the
U.S. Constitution. For amending the constitution in US, state legislatures have a major role to play and it's not the absolute
power of the US Congress.
JUDICIAL REVIEW CASES: US v. Sprague, Marbury v. Madison
COMPARISON
• In US President does not have major role to play in Constitutional amendments except in voting as the Congressman.
Whereas in India, any amendment passed by the Parliament with due procedure as provided by under their constitution is
sent to the President for their assent. The amendment becomes the part of constitution only after the assent has been given
but in US any amendment becomes part of constitution only after it is ratified by the requisite no. of states.
• USA amendment procedure is rigid. It requires 3/4 th states ratification.
• In US, there is no separate constituent body for the purpose of amendment of constitution unlike Parliament in India.
• The role of the state in Constitutional amendment is limited in India but in US, states have major role to play and states in US
can even initiate any proposal for amendment of the Constitution. But in India, states cannot initiate the proposal for
amending the Constitution.
• Article 368 gives Indian Parliament supremacy in some matters to amend the constitution but then in some matters it requires
ratification by not less than one-half of the states.The notable point is that both in Indian Constitution and US Constitution no
time limit has been for ratification has been prescribed. Indian Constitution is more flexible than rigid.
THANKS
