Amendability of Indian

Constitution
• Two ways of amendment of Constitutions
• Nature of amenability in Indian Constitution
• Flexibility of Indian Constitution
• Power of Parliament to Amend the constitution and it’s Procedure (Article 368)
• Amendment of the Fundamental Rights
 Introduction
“The duty of man is the same in respect to his own nature as in respect to the nature of all other
things, namely not to follow it but to amend it”- John Stuart Mill

The constitution of a country, like any other pragmatic instrument, must keep changing with the
changes in need of society. Law is dynamic; it evolves with the changing needs and circumstances of
the people of nation.

Pandit Nehru observed that “there was no permanence in the constitution, as it would stop the
nation’s growth.”

The amendment of constitution should only be resorted to in cases of serious repercussions or

emergent circumstances or a special contingency.
 Two ways of amendment of Constitutions
These changes in the constitutions on which countries base their whole governance and political
institution are bought in two different ways which is named as
(a) De jure (Formal modification)
• modification or amendment in constitution made by using the amending process provided in the constitution
itself, which may be either participation for people directly or indirectly by their chosen representative
whatever is given in the constitution.
(b) De facto (Informal modification)
• informal modification when the constitution is amended or modified through (a)Judicial process (b) executive
actions; (c)Desuetude.
What us amendment by Desuetude ?
• Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding
force upon political actors as a result of its conscious sustained nonuse and public repudiation by political
actors.
• India doesn’t' have a system of desuetude. Therefore, statutes are open-ended. They continue to remain on
statute books, unless they are specifically identified for repeal
 Nature of amenability in Indian
Constitution
In a federal constitution, the procedure of amendment is complicated, so that the provisions do not get
tampered too often.

However, the forefathers and framers of our constitution were keen to avoid excessive rigidity.

Thus, avoiding both extremes, Indian constitution has adopted a middle path.

It is neither too rigid to prevent important amendments nor too flexible to admit frivolous changes.

However, the amendment of constitution often been used to achieve political purpose or to override
judicial verdicts.

Moreover, multiple and multifarious amendments undermines the sanctity of constitution as an organic
instrument and creates confusion.
 Flexibility of Indian Constitution
For Example, the 42nd Amendment Act, 1976 (‘Act of Revision’) effected vital changes e.g.
fundamental rights devalued vis-à-vis directive principles.

The 43rd and 44th amendments wiped out many of the provisions of 42nd Amendment.

The Procedure for amendment, instead of being rigid, has rather proved too flexible.

There is no separate constituent body for amendment and the parliament, the ordinary legislative
organ of union , performs the function.

The constitution can be amended under Article 368 as well as ordinary legislations of the Parliament
under Arts 2,3 and 4.

Beside these formal procedures, the constitution gets amended through constitutional practices,
conventions and by judicial interpretations
 Power of Parliament to Amend the
constitution and it’s Procedure (Article 368)
Article 368, due to this our constitution is a living document and therefore, it can neither be called rigid
nor flexible but partly rigid and flexible. It states that-
• (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.

Note:
• The state legislature cannot initiate any bill/proposal for Amendment of the constitution.
• Previous sanction of the President is not required for introducing in parliament any bill for
amendment of the constitution.
 A. Amendment by Simple Majority
By simple majority of each house of Parliament.

It is like an ordinary bill. Formation of new states, creation or

abolition of legislative councils is made by such procedure.

Thus, amendment at the instance of the states, or amendment by

state legislature, is included in such category.

Amendments under this category are expressly excluded from the

purview of Article 368.
Some of the articles that can be amended by Parliament by simple majority are listed
below:
• Admission or establishment of new states.
• Formation of new sates 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.
• Quorum in Parliament.
• Salaries and allowances of MPs.
• Rules of procedure in parliament
• Privileges of Parliament,, its members and its committees.
• Use of official language.
• Citizenship: acquisition and termination
• Election to Parliament and state legislature.
• Delimitation of constituencies.
• Union Territories
• 5th Schedule (Provision as to administration and control of schedule area and schedule tribes
• .6th Schedule (Provision for administration of tribal areas in state of Assam, Meghalaya, Tripura,
Mizoram and Arunachal Pradesh .
B. Amendment by Special Majority

By special majority we means the majority of ‘total members of each House’

and by majority of at least 2/3rd ‘present and voting’.

All amendments, other than those referred to above, come within this category
e.g. Powers of election commission (It is a constitutional body under Article
342(2) )Provisions which can be amended by special majority are listed below:

1.Fundamental Rights. (FRs)

2.Directive Principles of State Policy. (DPSPs) .
3.All the provisions which are not covered by 1st and 3rd categories.
 Amendment by special majority and
ratification by states
The States are given an important voice in the amendment of these matters (required to be
ratified by the legislature of not less than one-half of the states):

There are provisions which relate to the federal structure of the constitution and the powers
position and authority of the constituent states. The following provisions require such
ratification by the states:
1.Election of President : Article 54 and Article 55.
2.Executive Power of Centre and state- Article 73 and Article 162.
3. Supreme court: Article 124 and 227 , High courts: Article 214 to Article 231, Judiciary for UT: Article 241.
4.Distribution of Legislative Power: Article 245 and 255.
5.Part XI, Chapter 1.
6.Lists of 7th Schedule.
7. Representation of state in council of states: 4th Schedule.
8. Article 368 itself.
 Amendment of the Fundamental Rights
Shankari Prasad v UOI case where the supreme court held that they could be amended.

However in Golaknath v. state of Punjab case the supreme court overruled the decision in Shankari
Prasad and held that fundamental rights cannot be amended by a constitutional amendment.

In order to remove difficulties created by the above decision of Apex court i.e.SC, the parliament enacted
24th amendment empowering the parliament to amendment empowering the parliament to amend the
fundamental rights, which was challenged in the Keshvananda Bharti v. State of Kerala case wherein the
court upheld the 24th amendment but negated the claim that parliament had unlimited amending power
and also held that Parliament cannot amend the Basic structure of Indian Constitution.

Then came the 42nd Amendment which empowered parliament to amend even the basic structure and
such amendment could not be questioned in any court or any ground.

Finally un the Minerva Mills case the Apex court stuck down these clauses.