The Constitution, considered to be the people’s ‘common will,’ is a foundational text that determines the state’s

status and control of its different institutions. It is not only the foundational law of the land but the living organic
stuff from which the other laws are to be produced according to the nation’s necessity. Instead of leaving this
important task entirely to the judiciary, the framers of the Indian Constitution inserted Article 368 as a formal
method to provide for a constitutional amendment. Articles 368 (Power to amend the Constitution and Procedure
thereof) – Notwithstanding anything contained in this Constitution, Parliament may, in the exercise of its
constituent power, amend any provision of this Constitution following the procedure laid down in this Article by way
of addition, variation or repeal. The Indian legislature is responsible for formulating new legislation, amending the
existing laws and squashing obsolete ones in certain situations. The Constitution will also be revised, being simply
a statute. The constitution’s amenability explicitly poses the issue of the likelihood of abuse of the powers granted
to the government to undermine the nation’s democratic principles. The rights of the government to change the
constitution have always been a matter of controversy and over the years there has been much disagreement. The
Constitution lays out the fundamental government system by which the people want to be regulated themselves. It
establishes the government’s main organs-executive, legislature and judiciary. Not only does the Constitution
describe the powers of each entity but it also points out its obligations. This governs the relationship between the
different bodies, and the government and the people.

Procedure for a constitutional amendment 

An amendment to the Constitution may only be initiated by introducing a Bill for that purpose in either House of
the Parliament and, when the Bill is passed in each House by a majority of the total membership of that House and
by a majority of not less than two-thirds of the members of that House present and vote, it shall be presented to
the President, who shall give his assent to the Bill. Only the House of the People (Lok Sabha) or the Council of
State (Rajya Sabha) has been given the right to initiate the amendment procedure. The process laid down in Article
368 shall be complemented by the rules defined by every House for governing its practice and the conduct of its
business. Like the Constitutions of the United States, Switzerland and Australia, no opportunity has been granted
to the citizens of India either at the incorporation point or at the ratification point to express themselves regarding
the constitutional change. They must entrust the future of their Constitution to the members of Parliament and, in
some cases, to those of their respective state legislatures. 
The Constitution provides for the following four procedures for amendment:

1. Amendments may be made by a simple majority of Parliament to certain provisions of the Constitution, in
the same manner as the ordinary statute is adopted by Parliament. These changes can be transferred in
the case of a government of a member, or the case of a government of the European Union.
2. Modification of specific provisions of the Constitution may take place by a simple majority of the
Legislature of the State in the same manner as the ordinary act.
3. Amendments to certain provisions, sometimes referred to as enshrined provisions, may only be made by a
special majority of Parliament. By a majority of the total membership of each House, and by a majority of
not less than two-thirds of the members present and voting in each House. For the intent of amending the
Constitution, no joint sitting of both houses may be held.
4. Amendments to such laws require not less than half of the States, in addition to a special majority of
legislative confirmation.

Simple majority 
Constitution’s provisions may be amended by a simple vote, as this is necessary for the passing of common law.
The Parliament of the state legislatures may amend these provisions by a simple majority since they do not affect
or disturb the federal balance of power between the Union and the states. Since the entry and formation of new
states would change the constitution’s federal character. Some of the provisions that can be amended are : 

1. Admission of a new state as provided under- Article 2

2. Provisions concerning 

The extent of laws made by Parliament and by the

legislatures of states
So far as the subjects of law are concerned, the Constitution uses the Government of India Act of 1935 as its basis
and subdivides authority into three lists between the Union and the States. These are:

(i)The Union list,

(ii) the State list, and 

(iii) the Concurrent list.

There are 98 subjects on the Union List, over which the Union has exclusive authority. The topics on the Union list,
for example, security and foreign relations, are of national significance, etc. There are 59 topics in the State List
over which countries have exclusive jurisdiction. The concerns listed on a State list, such as public order, police and
public safety, are of local or national importance. The Concurrent List contains 52 subjects like criminal and civil
cases, marriage and divorce, economic and special planning unions, money, media, magazines, employment,
management of the population and preparation of the families, etc. and both the Union and States can enact laws
on this list but the federal rule prevails over state law in the case of a dispute between the law of the Central and
the State law. The purpose of the constitutional inclusion of the list was to ensure continuity in key legal principles
across the country. Legislatures both in the parliament and in the State may make laws on matters mentioned
above, but a preliminary and ultimate right of the centre is to legislate on established matters. In the event of a
conflict between the law of the State and the law of the Union on a subject in the Concurrent List, the law of the
Parliament shall prevail.

Residuary powers of legislation

The Constitution also confers on the Union Parliament residual powers (subjects not mentioned on any of the three
lists). Article 248 notes that, concerning anything that is not listed in any of the three lists, the Parliament has the
exclusive authority to make legislation. It represents the constitutionalist inclinations to a strong core. Another
unique feature of the residual powers is that the final judgment on whether or not a particular matter falls within
the residual powers of the court. In comparison to the convention of other federations around the world, residual
powers have been granted to the Union, where the residual powers are assigned to the States. In the case of a
dispute, however, it is up to the court to determine whether a particular issue falls under the residual power or not.
The Parliament is therefore allowed to enact any legislation on any issue not mentioned in List II or III. This
authority shall include the authority to legislate, which does not include a tax on either of them (the Governor-
General, and not a federal legislature which exercised these powers, must be observed until independence).

Entry 97 of List I also provides for the exclusive powers of Parliament to make laws on all subjects not mentioned
in List II or III. The remaining powers of legislation shall be solely delegated to the Union Parliament under Article
248 and Entry 97 List I. The spectrum of residual powers, however, is limited as all the topics included in all three
lists and residual powers come under, or not, the Court’s view of a case. The reasoning for this power is that it
allows the House to legislate on any issue that has avoided the House’s oversight and on the subject that currently
can not be recognized. It requires Parliament, therefore, to enact legislation on topics that have taken society
forward. The constitutional framers intended, however, that the use of residual powers should be the final and not
the first step. 

In the case of Kartar Singh v. State of Punjab and UOI v. H.S. Dhillon’s case, the court held that parliament may
combine its power with the residual power under Article 248 under entry into the Union List or Competition List.
Also in the case of UOI v. H.S. Dhillon, it was held that Gift Tax Act, Inquiry Act Commissions, etc. are valid under
the parliamentary residuary power. In the case of State of A. P. v. National Thermal Power Corpn. Ltd. the
Supreme court held that unless an entry does not state an exclusion from the area of legislation that is evident at
the time of obvious reading, the absence of exclusion can not be read, if a particular clause in the Constitution that
forbids such legislation is valid, as allowing the legislative power not expressly excluded from it.

Parliament’s power to legislate on State List

Although the Central Government does not have the power in the common circumstances to legislate on matters
mentioned in that State, the Parliament of the Union may only make laws on such matters under some special
conditions. These special conditions are:

a) In the National Interest (Art.249)

Several Articles of the Indian Constitution defined the parliament’s predominance in the legislative area. Article
249 provided that, where Rajya Sabha has declared, by a resolution approved by not less than two-thirds of the
members present and voting, that it is required or reasonable, in the national interest for Parliament to lay down
laws in respect of any matter mentioned in the State List referred to in the resolution, it becomes lawful for
Parliament to lay down laws for the whole or any part of the proceedings. For the time in question, such a
resolution was in place not for more than one year. However, the Rajya Sabha could extend the term of such a
resolution for a further duration of one year from the date on which it would otherwise have ceased to operate. The
law of Parliament, which Parliament should have been responsible for passing such a resolution by Rajya Sabha,
ceased to have any effect on the expiry of a term of six months after the date on which the resolution ceased to be
in force, except in the case of things done or omitted to be done before the expiry of that time. This provision
allowed the Rajya Sabha, representing the States, to place any matter of local significance but national interest in
the concurrent list. The Rajya Sabha can do so at any moment, whether emergency or not.

b) Under Proclamation of National Emergency (Art. 250)

Article 250 notes that in the case of a declaration of emergency, Parliament shall have the power to make law on
any item on the State List. This legislation shall extend in the case of a national emergency (Article 352) and every
State in compliance with the Order of the President (Article 356) or the event of a financial emergency (Article
360). Under this time, the laws of the State or States shall remain inoperative to the degree that they are contrary
to the law of the centre (Art. 251). Thus, the Parliament as a whole will legislate on the subjects specified in the
State List while the National Emergency Declaration is in effect. However, the laws enacted by the Parliament
according to this clause shall cease to affect the expiration of a period of six months after the termination of the
Proclamation, except in the case of items done or omitted to be done before the expiration of that time.

          

c) By Agreement between States (Art. 252)

Article 252 provides for regulation by invitation. If the Legislatures of two or more States adopt a resolution and
order the centre to make a law on a specific item of the State Register, it shall be legal for the Parliament to make
a law. In the first place, such law shall apply to the States which have made such a request, unless any other State
may subsequently follow it by passing such a resolution. Third, such laws can only be amended or repealed by
Parliament. The parliament may also make laws about a State subject if two or more states’ legislatures agree that
a parliament is allowed to make laws concerning any issue mentioned in the State List concerning that Matter.
Subsequently, any act passed by the Parliament shall extend to those States and to any other State which has
passed such a resolution. Parliament also has the power to amend or revoke any act of this kind.

d) To Implement Treaties (Art. 253)

To implement treaties or international conventions, Parliament shall have the power to legislate concerning any
subject. In other words, even about a state issue, the usual distribution of powers does not preclude Parliament
from passing legislation to satisfy its foreign obligations or through such legislation (Article 253). The Parliament
may pass any Treaty, international agreement or convention, with any other country or state, or any decision
taken during an international conference, association or other entity, within the whole and any part of the territory
of India. Any law enacted by this Parliament shall not, in that it covers the subject listed in the list of States, be
invalidated.

e) Under Proclamation of President’s Rule (Art. 356)

By Article 356 and Article 357 of the Indian Constitution, the prevalence of Parliament was further defined. Article

356 stipulated that if the President was satisfied that there existed a situation in which the government of the State

can not

2) The Legislature of a State may, by law, provide for the composition of the commission, the qualifications which shall be requisite for

appointment as members thereof and the manner in which they shall be selected.

(3) The Commission shall determine their procedure and shall have such powers in the performance of their functions as the Legislature

of the State may, by law, confer on them.

(4) The Governor shall cause every recommendation made by the Commission under this article together with an explanatory

memorandum as to the action taken thereon to be laid before the Legislature of the State.

243J. Audit of accounts of Panchayats.- The Legislature of a State may, by law, make provisions with respect to the maintenance of

accounts by the Panchayats and the auditing of such accounts.

243K. Elections to the Panchayats.-(1) The superintendence, direction and control of the preparation of electoral rolls for, and the

conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to

be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State

Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a

Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his

appointment.

(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election

Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).

(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters

relating to, or in connection with, elections to the Panchayats.

243L. Application to Union territories.-The provisions of this Part shall apply to the Union territories and shall, in their application to a

Union territory, have effect as if the references to the Governor of a State were references to the Administrator of the Union territory

appointed under article 239 and references to the Legislature or the Legislative Assembly of a State were references, in relation to a

Union territory having a Legislative Assembly, to that Legislative Assembly:

Provided that the President may, by public notification, direct that the provisions of this Part shall apply to any Union territory or part

thereof subject to such exceptions and modifications as he may specify in the notification.

243M. Part not to apply to certain areas.-(1) Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the

tribal areas referred to in clause (2), of article 244.

(2) Nothing in this Part shall apply to-

(a) the States of Nagaland, Meghalaya and Mizoram;

(b) the Hill Areas in the State of Manipur for which District Councils exist under any law for the time being in force.

(3) Nothing in this Part-

(a) relating to Panchayats at the district level shall apply to the hill areas of the District of Darjeeling in the State of West Bengal for

which Darjeeling Gorkha Hill Council exists under any law for the time being in force;

(b) shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under such law.

(4) Notwithstanding anything in this Constitution,-

(a) the Legislature of a State referred to in sub-clause (a) of clause (2) may, by law, extend this Part to that State, except the areas, if any,

referred to in clause (1), if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership

of that House and by a majority of not less than two-thirds of the members of that House present and voting;

(b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject

to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this

Constitution for the purposes of article 368.

243N. Continuance of existing laws and Panchayats.-Notwithstanding anything in this Part, any provision of any law relating to

Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992, which

is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other

competent authority or until the expiration of one year from such commencement, whichever is earlier:

Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration,

unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a

Legislative Council, by each House of the Legislature of that State.

243-O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution,-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or

purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner

as is provided for by or under any law made by the Legislature of a State.'.

Constitution, after sub-clause (b), the following sub-clause shall be inserted, namely:-
"(bb) the measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in the State on the

basis of the recommendations made by the Finance Commission of the State;".

Constitution, the following Schedule shall be added, namely:-

"ELEVENTH SCHEDULE

(Article 243G)

1. Agriculture, including agricultural extension.

2. Land improvement, implementation of land reforms, land consolidation and soil conservation.

3. Minor irrigation, water management and watershed development.

4. Animal husbandry, dairying and poultry.

5. Fisheries.

6. Social forestry and farm forestry.

7. Minor forest produce.

8. Small scale industries, including food processing industries.

9. Khadi, village and cottage industries.

10. Rural housing.

11. Drinking water.

12. Fuel and fodder.

13. Roads, culverts, bridges, ferries, waterways and other means of communication.

14. Rural electrification, including distribution of electricity.

15. Non-conventional energy sources.

16. Poverty alleviation programme.

17. Education, including primary and secondary schools.

18. Technical training and vocational education.

19. Adult and non-formal education.

20. Libraries.

21. Cultural activities.

22. Markets and fairs.

23. Health and sanitation, including hospitals, primary health centres and dispensaries.
24. Family welfare.

25. Women and child development.

26. Social welfare, including welfare of the handicapped and mentally retarded.

27. Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes.

28. Public distribution system.

29. Maintenance of community assets.".

amendment in the form of a joint resolution. Since the President does not have a constitutional role in the
amendment process, the joint resolution does not go to the White House for signature or approval. Thirty-three
amendments to the United States Constitution have been proposed by the United States Congress and sent to
the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of
these, having been ratified by the requisite number of states, are part of the Constitution. The first ten
amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six
amendments adopted by Congress and sent to the states have not been ratified by the required number of
states. Four of these amendments are still technically open and pending, one is closed and has failed by its
own terms, and one is closed and has failed by the terms of the resolution proposing it.

The Constitution of United Kingdom can be called to be a flexible one. A flexible constitution is one that may be
amended by a simple act of the legislature, in the same way as it passes ordinary laws. The ‘uncodified’
constitution of the United Kingdom consists partly of important statutes, and partly of certain unwritten
conventions. The statutes that make up the United Kingdom constitution can be amended by a simple act of
Parliament. United Kingdom constitutional conventions are held to evolve organically over time.

On comparison of the amending procedures in relation to the Constitutions of the three countries, it can clearly
be seen the United States’ procedure is the most time consuming and difficult based upon the sheer need for
every amendment needing states’ ratification. The Indian procedure is in between then other two countries in
terms of the difficulty involved as to the amending of Constitution as the Centre has all power to amend the
Constitution and the ratification of states is only needed on certain amendments involving the interests of the
state governments. This makes the procedure less time consuming than the one in United States. The
procedure in the United Kingdom is the least time consuming and easiest of the three. The Constitution of
United Kingdom is not a written document and the political set up of United Kingdom leads to there being no
need for state participation per se. The House of Commons and House of Lords can vote and make decisions
and thus there isn’t a case wherein a bill proposing the amendment may not be ratified. This comparison
clearly reflects upon the political character of the nations and the working of the government there.

EVOLUTION OF AMENDABILITY OF INDIAN CONSTITUTION

There isn’t a set limit as to the powers of the government in terms of the amending powers in relation to the
Constitution. This has led to a lot of disagreements since the adoption of the Constitution between the
legislature and the judiciary. The judiciary has acted as the custodian of the Constitution and protected it from
being destroyed by arbitrary amendments done by the legislature.
The question as to limitation on the powers of the government has been brought before the court and there
have been a series of overruled judgements until the landmark judgment of Kesavananda Bharati v. State of
Kerala[ii]. The interpretation used by the court herein considers the Constitution as a dynamic body and gives
the government powers to amend it whilst keeping the basic essence of the legislation alive and protecting the
values upon which it was drafted by the Constituent assembly.

In the cases of Shankari Prasad Singh Deo v. Union of India[iii]  and Sajjan Singh v. State of Rajasthan[iv],  the
Supreme court ruled in favour of government giving them unlimited powers to amend the Constitution. It was
further held that Constitutional amendments under Article 368 were said to be outside the definition of ‘law’
under Article 13 (2).

In the case of Golaknath v. State of Punjab[v],  Constitutional amendments under Article 368 were held to be
within the meaning of ‘law’ under Article 13 and the government had limited powers as to the amendability of
the Part III of the Constitution. This judgement overruled the previous judgements and put restrictions upon the
amendability of the Constitution.

BASIC STRUCTURE DOCTRINE

The Basic Structure Doctrine was propounded in the landmark judgement of Kesavananda Bharati v. State of
Kerala[vi],  wherein the largest constitutional bench of 13 judges went on to look into the powers of the
government as to the amendability of the Constitution and the extent to which the Constitution could be
amended. The judgement provided for procedure to adjudge upon the validity of a Constitutional amendments
based on them not going against certain features of the Constitution. The Supreme Court herein limited the
powers of the government to amend the Constitution by making certain features of the Constitution
unamendable. This doctrine was propounded but no the list has been non-exhaustive and the Courts have read
several new features as a part of the basic structure from time to time.

In Kesavananda Bharati v. State of Kerala[vii],  features like Supremacy of the Constitution, Republican and
Democratic form of governance, separation of powers, secular and sovereign character were found to be part
of the basic structure. In the cases of Indira Gandhi v. Rajnarian[viii]  and Kihoto Hollohan v. Zachillhu and ors.
[ix],  Rule of Law was considered to be a part of the basic structure. In the S.R. Bommai v. U.O. I[x], Federalism
was held to be an essential feature of the Constitution and hence part of the basic structure. The  Minerva Mills
v. U.O. I[xi]  case recognized judicial review as a part of the basic structure of the Constitution.  In Re: The
Berubari Union case[xii], the court found the preamble to not be a part of the Constitution, which was overruled
in the Kesavananda Bharati v. State of Kerala[xiii]  and the preamble could only be amended in terms of the
basic structure doctrine.

The basic structure doctrine has thus substantiated limitations as to the amount of amendability is allowed.
The government can amend any part of the Constitution but the amendment cannot be affecting any of the
features under the basic structure doctrine. Hence the Constitution can be kept updated and irrelevant things
can be removed but the essence or the soul of the Constitution cannot be fiddled with. This also makes the
Constitution indestructible and thus it neither be taken down completely at any point of time nor can it be
superseded to gain unsanctioned powers. There is hence no way to dismantle the Indian Constitutional setup
and to get away with the Constitution.

CONCLUSION
The Indian Constitution was made to be a dynamic legislation to hold validity over a number of years without
being outdated and still look after the interests of the varied groups in the Indian population. It can clearly be
seen to have been drafted by taking into consideration the best features from Constitutions around the world.
The Basic Structure doctrine propounded by the honourable Supreme Court is the guiding principle to
safeguard these values and keep the essence of the Constitution intact. Further the comparison with other
countries shows the clear balance in the amount of difficulty and procedural working required to amend the
Constitution in India, making it one of the best examples of its kind.

REFERENCES
[i] S.R. Bommai v. U.O.I,  AIR 1994 SC 1918.

[ii] AIR 1973 SC 1461.

[iii] AIR 1951 SC 458.

[iv] AIR 1965 SC 845.

[v] AIR 1967 SC 1643.

[vi] Id note 2.

[vii] Supra 2.

[viii] AIR 1975 SC 2299.

[ix] AIR 1993 SC 412.

[x] AIR 1994 SC 1918.

[xi] AIR 1980 SC 1789.

[xii] AIR 1960 SC 845

[xiii] Supra 2.

said that “Parliament has no authority to amend Part III of the Constitution to abolish or abridge the fundamental
freedoms.” based on the judgement of Kesavananda Bharati case, C.J. Sikri opined that the basic structure of the
Constitution shall consist of the following characteristics: 

 the supremacy of the Constitution, 

 the Republic and Democratic forms where the Governments,
 the secular nature of the Constitution,
 the separation of powers between the legislature, the executive and the judiciary, and
 the federal character of the Constitution.

It is true that, according to Article 368 of the Indian Constitution, Parliament has the power to amend the
Constitution, but it can not change the Constitution’s basic structure because India’s Constitution is a fundamental
law of the land.

Conclusion 
One point that stands out before us in the process set down in Article 368 is that the Parliament seems to have the
exclusive right in any direction to change the Constitution. But it is incorrect to say that the Parliament is
independent, so as long as there is a mechanism under Article 368. Parliament can not be the deciding authority of
the constitutional scheme since the procedure itself restricts the use of the power to amend the Constitution on the
Parliament. The Indian Constitution has been made as a dynamic statute that retains validity over years without
being obsolete and also takes care of the needs of the various classes within the Indian society. It can be seen to
have been drafted taking into account the best features of the Constitutions around the world. The doctrine of the
Basic Structure proposed by the honourable Supreme Court is the guiding principle for safeguarding those values
and keeping intact the essence of the Constitution. The contrast with other countries further demonstrates the
strong difference in the amount of complexity and bureaucratic effort needed to change the Constitution in India,
rendering it one of the strongest.

Reference 
 https://shodhganga.inflibnet.ac.in/bitstream/10603/128262/16/09_chapter%203.pdf
 http://www.legalserviceindia.com/article/l70-Article368.html
 http://ncert.nic.in/ncerts/l/keps209.pdf
 https://www.worldwidejournals.com/global-journal-for-research-analysis-
GJRA/recent_issues_pdf/2015/August/August_2015_1438858219__14.pdf
 http://thelawbrigade.com/constitutional-law/the-basic-structure-doctrine-and-the-power-to-amend-the-
constitution-in-india-a-comparative

The Constitution can be split into two – regulated and unregulated procedural. Where the Constitution is sovereign
and the government is a legislative entity with limitations on its authority, the statutes are liable to be stuck as
ultra vires if they break legislative law, it can be considered a ‘regulated State’. The authority of the legislature to
filter the Constitution of such a state is either limited or inexistent. On the other hand, in an ‘unregulated
constitution’ such as that of the United Kingdom, where the parliament is sovereign and has absolute authority, the
constitutional rule can be changed simply by enacting legislation following it. The Indian Constitution is managed,
the power to amend it requires a great deal of wisdom and minimal effort as the cases where the same is
concerned require a great deal of effort. 

India’s constitution lays out the basis on which Indian polity is ruled. The Constitution declares India to be an
independent, democratic socialist republic, promising order, dignity and freedom for its people. This was approved
on 26 November 1949 by India’s Constituent Assembly and came into force on 26 January 1950. India celebrates
Republic Day on 26 January each year. It is the longest written constitution in the history of any sovereign country,
with 395 articles and 12 schedules, as well as various revisions, for a total of 117,369 words in the English
language version.

The Indian Constitution 

The Constitution is a dynamic document. Although this Constitution is as strong and enduring as we want it to be,
there is no longevity. What we can do today might not be entirely applicable tomorrow. Government pattern must
change and the constitution must adapt itself to the economic and social development of the nation. The proposed
constitution abolished complex and daunting processes such as a convention or referendum decision. Amendment
powers are left to the central and provincial legislature. It is the approval of the state legislatures that are needed
for modifications to particular matters and there are very few. The other clauses of the Constitution are left to the
Parliament to amend. The main restriction is that it is made by a vote of not less than two-thirds of the members
present and voting in each House and by a vote of the overall membership of each house. The world is not static; it
goes on changing. The social, economic and political circumstances of the people go on changing and the
constitutional law of the nation must, therefore, adapt in order to the changing needs, changing the lives of the
people. If no arrangements were made for modification of the constitution, the people would have recourse to
extra-constitutional processes including insurrection to reform the constitution. The Indian constitution’s framers
were keen to create a text that could evolve with a rising population, adapting itself to a rising people’s shifting
circumstances. The Constitution needs to be updated in every period. No-one may say this is the finish.

Constitutional amendment in India 

The Constitution, considered to be the people’s ‘common will,’ is a foundational text that determines the state’s
status and control of its different institutions. It is not only the foundational law of the land but the living organic
stuff from which the other laws are to be produced according to the nation’s necessity. Instead of leaving this
important task entirely to the judiciary, the framers of the Indian Constitution inserted Article 368 as a formal
method to provide for a constitutional amendment. Articles 368 (Power to amend the Constitution and Procedure
thereof) – Notwithstanding anything contained in this Constitution, Parliament may, in the exercise of its
constituent power, amend any provision of this Constitution following the procedure laid down in this Article by way
of addition, variation or repeal. The Indian legislature is responsible for formulating new legislation, amending the
existing laws and squashing obsolete ones in certain situations. The Constitution will also be revised, being simply
a statute. The constitution’s amenability explicitly poses the issue of the likelihood of abuse of the powers granted
to the government to undermine the nation’s democratic principles. The rights of the government to change the
constitution have always been a matter of controversy and over the years there has been much disagreement. The
Constitution lays out the fundamental government system by which the people want to be regulated themselves. It
establishes the government’s main organs-executive, legislature and judiciary. Not only does the Constitution
describe the powers of each entity but it also points out its obligations. This governs the relationship between the
different bodies, and the government and the people.

Procedure for a constitutional amendment 

An amendment to the Constitution may only be initiated by introducing a Bill for that purpose in either House of
the Parliament and, when the Bill is passed in each House by a majority of the total membership of that House and
by a majority of not less than two-thirds of the members of that House present and vote, it shall be presented to
the President, who shall give his assent to the Bill. Only the House of the People (Lok Sabha) or the Council of
State (Rajya Sabha) has been given the right to initiate the amendment procedure. The process laid down in Article
368 shall be complemented by the rules defined by every House for governing its practice and the conduct of its
business. Like the Constitutions of the United States, Switzerland and Australia, no opportunity has been granted
to the citizens of India either at the incorporation point or at the ratification point to express themselves regarding
the constitutional change. They must entrust the future of their Constitution to the members of Parliament and, in
some cases, to those of their respective state legislatures. 

The Constitution provides for the following four procedures for amendment:

5. Amendments may be made by a simple majority of Parliament to certain provisions of the Constitution, in
the same manner as the ordinary statute is adopted by Parliament. These changes can be transferred in
the case of a government of a member, or the case of a government of the European Union.
6. Modification of specific provisions of the Constitution may take place by a simple majority of the
Legislature of the State in the same manner as the ordinary act.
7. Amendments to certain provisions, sometimes referred to as enshrined provisions, may only be made by a
special majority of Parliament. By a majority of the total membership of each House, and by a majority of
not less than two-thirds of the members present and voting in each House. For the intent of amending the
Constitution, no joint sitting of both houses may be held.
8. Amendments to such laws require not less than half of the States, in addition to a special majority of
legislative confirmation.

Simple majority 
Constitution’s provisions may be amended by a simple vote, as this is necessary for the passing of common law.
The Parliament of the state legislatures may amend these provisions by a simple majority since they do not affect
or disturb the federal balance of power between the Union and the states. Since the entry and formation of new
states would change the constitution’s federal character. Some of the provisions that can be amended are : 

3. Admission of a new state as provided under- Article 2

4. Provisions concerning 

The extent of laws made by Parliament and by the

legislatures of states
So far as the subjects of law are concerned, the Constitution uses the Government of India Act of 1935 as its basis
and subdivides authority into three lists between the Union and the States. These are:

(i)The Union list,

(ii) the State list, and 

(iii) the Concurrent list.

There are 98 subjects on the Union List, over which the Union has exclusive authority. The topics on the Union list,
for example, security and foreign relations, are of national significance, etc. There are 59 topics in the State List
over which countries have exclusive jurisdiction. The concerns listed on a State list, such as public order, police and
public safety, are of local or national importance. The Concurrent List contains 52 subjects like criminal and civil
cases, marriage and divorce, economic and special planning unions, money, media, magazines, employment,
management of the population and preparation of the families, etc. and both the Union and States can enact laws
on this list but the federal rule prevails over state law in the case of a dispute between the law of the Central and
the State law. The purpose of the constitutional inclusion of the list was to ensure continuity in key legal principles
across the country. Legislatures both in the parliament and in the State may make laws on matters mentioned
above, but a preliminary and ultimate right of the centre is to legislate on established matters. In the event of a
conflict between the law of the State and the law of the Union on a subject in the Concurrent List, the law of the
Parliament shall prevail.

Residuary powers of legislation

The Constitution also confers on the Union Parliament residual powers (subjects not mentioned on any of the three
lists). Article 248 notes that, concerning anything that is not listed in any of the three lists, the Parliament has the
exclusive authority to make legislation. It represents the constitutionalist inclinations to a strong core. Another
unique feature of the residual powers is that the final judgment on whether or not a particular matter falls within
the residual powers of the court. In comparison to the convention of other federations around the world, residual
powers have been granted to the Union, where the residual powers are assigned to the States. In the case of a
dispute, however, it is up to the court to determine whether a particular issue falls under the residual power or not.
The Parliament is therefore allowed to enact any legislation on any issue not mentioned in List II or III. This
authority shall include the authority to legislate, which does not include a tax on either of them (the Governor-
General, and not a federal legislature which exercised these powers, must be observed until independence).

Entry 97 of List I also provides for the exclusive powers of Parliament to make laws on all subjects not mentioned
in List II or III. The remaining powers of legislation shall be solely delegated to the Union Parliament under Article
248 and Entry 97 List I. The spectrum of residual powers, however, is limited as all the topics included in all three
lists and residual powers come under, or not, the Court’s view of a case. The reasoning for this power is that it
allows the House to legislate on any issue that has avoided the House’s oversight and on the subject that currently
can not be recognized. It requires Parliament, therefore, to enact legislation on topics that have taken society
forward. The constitutional framers intended, however, that the use of residual powers should be the final and not
the first step. 

In the case of Kartar Singh v. State of Punjab and UOI v. H.S. Dhillon’s case, the court held that parliament may
combine its power with the residual power under Article 248 under entry into the Union List or Competition List.
Also in the case of UOI v. H.S. Dhillon, it was held that Gift Tax Act, Inquiry Act Commissions, etc. are valid under
the parliamentary residuary power. In the case of State of A. P. v. National Thermal Power Corpn. Ltd. the
Supreme court held that unless an entry does not state an exclusion from the area of legislation that is evident at
the time of obvious reading, the absence of exclusion can not be read, if a particular clause in the Constitution that
forbids such legislation is valid, as allowing the legislative power not expressly excluded from it.
Parliament’s power to legislate on State List
Although the Central Government does not have the power in the common circumstances to legislate on matters
mentioned in that State, the Parliament of the Union may only make laws on such matters under some special
conditions. These special conditions are:

a) In the National Interest (Art.249)

Several Articles of the Indian Constitution defined the parliament’s predominance in the legislative area. Article
249 provided that, where Rajya Sabha has declared, by a resolution approved by not less than two-thirds of the
members present and voting, that it is required or reasonable, in the national interest for Parliament to lay down
laws in respect of any matter mentioned in the State List referred to in the resolution, it becomes lawful for
Parliament to lay down laws for the whole or any part of the proceedings. For the time in question, such a
resolution was in place not for more than one year. However, the Rajya Sabha could extend the term of such a
resolution for a further duration of one year from the date on which it would otherwise have ceased to operate. The
law of Parliament, which Parliament should have been responsible for passing such a resolution by Rajya Sabha,
ceased to have any effect on the expiry of a term of six months after the date on which the resolution ceased to be
in force, except in the case of things done or omitted to be done before the expiry of that time. This provision
allowed the Rajya Sabha, representing the States, to place any matter of local significance but national interest in
the concurrent list. The Rajya Sabha can do so at any moment, whether emergency or not.

b) Under Proclamation of National Emergency (Art. 250)

Article 250 notes that in the case of a declaration of emergency, Parliament shall have the power to make law on
any item on the State List. This legislation shall extend in the case of a national emergency (Article 352) and every
State in compliance with the Order of the President (Article 356) or the event of a financial emergency (Article
360). Under this time, the laws of the State or States shall remain inoperative to the degree that they are contrary
to the law of the centre (Art. 251). Thus, the Parliament as a whole will legislate on the subjects specified in the
State List while the National Emergency Declaration is in effect. However, the laws enacted by the Parliament
according to this clause shall cease to affect the expiration of a period of six months after the termination of the
Proclamation, except in the case of items done or omitted to be done before the expiration of that time.

          

c) By Agreement between States (Art. 252)

Article 252 provides for regulation by invitation. If the Legislatures of two or more States adopt a resolution and
order the centre to make a law on a specific item of the State Register, it shall be legal for the Parliament to make
a law. In the first place, such law shall apply to the States which have made such a request, unless any other State
may subsequently follow it by passing such a resolution. Third, such laws can only be amended or repealed by
Parliament. The parliament may also make laws about a State subject if two or more states’ legislatures agree that
a parliament is allowed to make laws concerning any issue mentioned in the State List concerning that Matter.
Subsequently, any act passed by the Parliament shall extend to those States and to any other State which has
passed such a resolution. Parliament also has the power to amend or revoke any act of this kind.
d) To Implement Treaties (Art. 253)
To implement treaties or international conventions, Parliament shall have the power to legislate concerning any
subject. In other words, even about a state issue, the usual distribution of powers does not preclude Parliament
from passing legislation to satisfy its foreign obligations or through such legislation (Article 253). The Parliament
may pass any Treaty, international agreement or convention, with any other country or state, or any decision
taken during an international conference, association or other entity, within the whole and any part of the territory
of India. Any law enacted by this Parliament shall not, in that it covers the subject listed in the list of States, be
invalidated.

e) Under Proclamation of President’s Rule (Art. 356)

By Article 356 and Article 357 of the Indian Constitution, the prevalence of Parliament was further defined. Article
356 stipulated that if the President was satisfied that there existed a situation in which the government of the State
can not be enforced according to the provisions of the Constitution, he may declare exercisable by or under the
competence of the Parliament the powers of the Legislature of that State. Parliament must delegate the legislative
power to the President, as provided for in Article 357. The President may also allow the Parliament to exercise the
powers of the State legislature during the Declaration of the Rule of the President as a result of the collapse of
constitutional machinery in the State. Nevertheless, all such regulations passed by Parliament cease functioning six
months after the declaration of the rule of the President is over.

Conclusion
The Constitution authorizes the centre in the following ways to have control over the state legislature:

1. The Governor can withhold for President’s consideration those forms of bills approved by the State
legislature. The President has an absolute veto on them.
2. In the State legislature, even with the prior approval of the President as imposing limitations on free
trade and commerce can bill are made on such matters enumerated in the State list.
3. It is necessary for the President for the States to withhold the bills of funds and other budgetary
measures approved during national crises by the State legislature.

As a result, it is very clear from the scheme of allocation of legislative powers between the Union and the States
that framers have bestowed more authority on the Parliament than against the States. The States do not have sole
authority over the topics given to the States by the Constitution and therefore rendering the States, to that degree,
subordinate to the Centre. The centralization pattern is contradictory with the fundamental values but, rather than
adopting conventional provisions of a federal constitution, the legislative system is more concerned with country
unity. All these provisions of the constitution are therefore justified as they offer clarification and eradicate the
confusion between the powers of the centre and state. Unless this theory of legislative supremacy were to be
removed, there would be a risk of two similarly dominant pieces of government giving rise to a dispute, agitation,
confrontation, and confusion as a result of competing legislation. These provisions guarantee that there is an
overarching regulatory framework and that there is continuity in the basic laws.

Reference