INTRODUCTION

Our Constitution is 70 years old.

The rules and regulations that were framed 70
years ago still seem to be relevant in today's
time.
The question which arises is that, were our
constitution makers so wise that they had
foreseen the changes that will take place?
OR
Is our constitution so good that it requires no
changes.
Our Constitution is still a living document. The reasons
are :
Firstly, that our constitution accepts the required
changes which is needed by the society.

Secondly, there have been enough flexibility in our

interpretations.
This means that our judiciary has interpreted our
constitution according to changing circumstances.

For Example-the Keshavannada Bharati case.-Right to

property was a fundamental right but it was later
changed to accommodate the public interests.
So, Constitution is an instrument that may
require changes from time to time. Our
constitution is not a static document and it can
be altered.
But at the same time it is a sacred document.
our constitution is above ordinary law.
It provides the framework to the government
for democratic governance.
That is why it is said that our constitution is a
living document.
How to amend the constitution?
A Constitution is called 'flexible' if it is open to changes. and it is
called rigid if it is resistant to changes.
Since our constitution makers were aware of the changes which will
come in the course of time, so they included the process of
amendment.

There are 3 processes of amendment:

a. simple majority

b. special majority (Article 368)

c. special majority along with ratification by half of state

legislatures (Article368)
a. Simple Majority:
To bring a change in law or a new law, it requires a simple majority of
members present and voting in parliament, that is, of more than 50% .
if 120 members are present in parliament , then support of 120/2=60+1=61
members is required to pass the law.
These are not constitutional amendments. And these include formation of
new states, altering the area of states .
Simple majority or working majority refers to majority of more than 50% of
the members present and voting. Example:
Total strength of Lok Sabha: 545
Vacant Seats: 5
Members present: 500
Members present, but decide to abstain / not to vote: 50
Members present and voting: 500-50=450
Simple Majority in this case would be: 225+1=226
Most of the normal motions and bills in the house such as
No-confidence Motion, Motion of Confidence, Motion of
Thanks, Censure Motion, Adjournment Motion, Money
Bills, Ordinary Bills etc.
 SPECIAL MAJORITY

Special majority is of three types-

a. Special majority under Article 61

It is 2/3 of the total strength of the house.

b. Special majority under Article 249

It is 2/3 of present and voting.

c. Special majority under Article 368

The Bill should be 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 voting
SPECIAL MAJORITY (Article 368)

When constitution has to be amended, there is a need of

special majority. it is the majority of total membership of that
house and by a majority of not less than two-thirds of members
present and voting in the parliament. Both houses must pass
the bill in the same manner.
Lok Sabha has 545 members ,so it requires support of 545/2 =
273 members to support the bill.Criteria1 fulfilled.
And if 300 members were present at the time of voting and
2/3 voted in favour
200-gave the vote so it achieved 2/3 majority as well. Criteria2
fulfilled Both criteria fulfilled. Bill will be passed.
So the basic thing behind amendment is that it has to take
opposition parties into confidence.
It is defined as the Absolute majority of the house + majority
of 2/3rd of the members present and voting
As per this Special Majority, for a constitution amendment bill to pass two criteria
to be fullfilled,
•2/3 rd Members present and Voting
•More than 50% of total membership of the house.
Example of Citizenship Amendment Bill (CAB) passed in Dec’2019.
Lok Sabha - Total Membership - 545 members
On the Day Present and Voting - 391 members
Affirmative Votes to CAB - 311 members
Negative Votes to CAB - 80 members
Criteria 1 : 2/3rd members present and voting
391 * 2/3 = 261
Since Affirmative Votes is 311 which is greater than 261
Criteria 1 is OK
Criteria 2 : more than 50% of total membership of house
50% of Lok Sabha total membership is 273
Since affirmative votes is 311 which is greater than 273
Criteria 2 is also OK
Since both the criteria are OK, CAB bill is passed successfully in Lok Sabha as
per Special Majority.
Requirement of special majority- It is:
a) those voting in favour of the amendment bill should constitute at least
half of the total strength of that house (Lok Sabha/Rajya Sabha) ,and
b) the supporters of the amendment bill must also constitute 2/3 of those
who are actually taking part in voting.
Now in Lok Sabha, there are 545 members. Say, 300 members are present at
the time of voting.
Those supporting the bill are 273 in numbers. Then they qualify the first
option as those in favour of the amendment bill are constituting 50% of the
strength of Lok Sabha,
Also 2/3 of 300=200 hence they qualify option b also as they are 273> 200.
But had they been 300 in numbers and those supporting the bill were 272 in
numbers, they would have qualified option b i.e those supporting the bill
are 2/3 of the majority but they would have failed to qualify option a i.e
constituting 50% of the total strength and hence the constitutional
amendment bill would have not passed from that house.
Thus both a and b options are required to fulfill the requirement of the
special majority.
Cases where special majority as per article 368 is used:

To pass a constitutional amendment bill which does not affect

federalism.
Removal of judges of SC/HC.

Removal of CEC/CAG.

Approval of national emergency requires special majority as per

Article 368 in both houses.

Resolution by the state legislature for the creation/abolition of

Legislative Council (Article 169).
 Special majority + Ratification by half of state legislatures(article
368)
In some cases, even special majority by parliament is not sufficient. It
requires the assent of half of the state legislatures.
This is when the distribution of powers between state and centre is
concerned. So when, federal issues are concerned assent of state is
required.
Cases where special majority as per article 368 plus state ratification
is used:
States are not completely at the mercy of centre. To amend the
fundamental rights we require special majority plus ratification by half
of state legislatures.
in other areas also , third method of amendment is required
a. to amend election of president
b. to amend supreme court and high court powers , the position of
High Court Judge and many others.
In case of constitutional amendment(that is
second and third method), all bills go to the
president but here the president cannot send it
back for reconsideration.

And in this case an important principle has been

underlined that only elected representatives have
the authority to bring about amendment to the
constitution.

Therefore, sovereignty of elected representatives

is the basis of amendment procedure.
NATURE OF AMENDMENTS IN OUR CONSTITUTION (Will not come in
the exam)
a. TECHNICAL AMENDMENTS:
In the first group, there are amendments which are of technical or
administrative nature and require only clarifications, explanations
and minor modifications. they were amendment only in legal
sense. These amendments did not make much change to the
constitution. for example:
a. age of high court judges were increased from 60 to 62. this
amendment did not bring much change to the constitution,
b. original provisions of constitution had reservations for 10
years only. but since then , by continuous amendments it is
extended every ten years.
c. article 74(1) stated that president has to abide by the advice
of council of ministers. and can send the advice for
reconsideration. but this amendment did not make much
changes in the constitution. President was already a rubber
stamp.
Differing interpretations
Many amendments were made because the interpretations
of government and judiciary clashed.
for example: in Keshavananda case, to cancel the ruling of
judiciary that fundamental rights are unamendable,
government passed 24th amendment to overrule this
ruling.
It was a period of 1970-75 and our system was undergoing
a political turmoil, so different interpretations led to many
amendments.
24th amendment : Enables Parliament to dilute Fundamental Rights
through Amendments of the Constitution, and empowers it to amend any provision of
the Constitution. Also makes it obligatory for the President to give his assent, when a
Constitution Amendment Bill is presented to him.
c. AMENDMENTS THROUGH POLITICAL CONSENSUS
Many amendments came which reflected the political
consensus. it means that political parties wanted certain
amendments in the constitution. for example: in the period of
post 1984, political members were hopping from one party to
another in the greed of which party will give greater
incentives in terms of ministerial position or greater role in
government.
This also gave expression to common a expression aya ram
and gaya ram.
So the Constitution introduced an anti defection amendment,
that is, 52nd amendment & also 91st amendment which
strengthened the act by adding provisions for disqualification
of defectors and barring them from being appointed as
ministers for a period of time.
d. Controversial Amendments
Some amendments have not been without
controversy. During emergency, 42nd amendment
brought many changes in the Constitution.
It also overruled the Keshavananda ruling.
Lok Sabha duration was also extended from 5 to 6
years.
Many MPs also landed in jail when this amendment
was passed.
After emergency was removed, 43rd and 44th
amendments were passed to cancel the effects of
42nd amendment.
BASIC STRUCTURE AND EVOLUTION OF THE CONSTITUTION
KESHAVANANDA RULING -1973
Keshavananda ruling has set some parameters in our Constitution:
a. It has set specific limits to parliament's power to
amend the Constitution. it says that no
amendment can violate the basic structure of
the constitution.

b. It allows the parliament to amend any and all

parts of the Constitution.

c. It places final authority on the judiciary in

deciding whether the amendment violates the
basic structure of the constitution.
➢The decision of Keshavnand Bharti Case has
governed all interpretations of the Constitution
and all institutions in the country have accepted
the theory of basic structure.
➢The theory of basic structure is itself an
example of a living constitution. There is no
mention of this theory in the Constitution. It has
emerged from judicial interpretation.
➢ Thus, the Judiciary and its interpretation have
practically amended the Constitution without a
formal amendment.
➢ All living documents evolve in this manner
through debates, arguments, competition and
practical politics
 Examples of how judicial interpretation changed our
understanding of the Constitution
▪The Supreme Court held in the case of reservations, which cannot exceed
50% of total seats in jobs and educational institutions.
▪This was the only decision of the Supreme Court to emerge creamy layer
who were not entitled to be benefited under reservations.
▪The supreme court even gave the Keshavanand ruling in 1973.
▪ The Judiciary has also contributed to an informal amendment by
interpreting various provisions concerning right to education, right to life
and liberty and the right to form and manage minority educational
institutions.
In the past three decades, this ruling has governed all interpretations of
the constitution and all institutions in the country have accepted the
theory of the basic structure.
On 26 January the constitution of India completed 70 years and it has
been amended a number of times, but its basic structure has not been
changed, only explanations took place.
The Court has thus contributed to the evolution of the Constitution.
Constitution as a Living Document
Our constitution is called a living document because it keeps responding to situations
and circumstances arising from time to time. like a living being, constitution responds
to experience. so even after so many decades, constitution continues to work
effectively because of its ability to be dynamic , to be open to interpretations and its
ability to respond to changes. this is vital for democracy of the country.
Our constitution has protected the democracy but at the same time allowed it to be
open to new practices. this has allowed our constitution to earn the respect of the
people.
Our parliament has also worked in such a way to allow the supremacy of constitution.
democratic institutions have developed and worked within the framework of the
constitution.
Our judiciary has maintained the letter and spirit of the constitution. it has insisted
that all work has to be within the framework of the constitution. Pro-people measures
should be taken but it should not bypass the legal procedures. because if the legal
procedures are ignored in the name of public interest , then executive will have
arbitrary use of power.
And our political leaders, political parties, government and parliament has accepted its
functioning within the 'basic structure of constitution'.
 Maturity of the Political Leadership

Political parties, political leaders, the government, and the Parliament, accepted
the idea of inviolable basic structure. Even when there was talk about ‘review’ of
the Constitution, that exercise could not cross the limits set by the theory of the
basic structure.
❖When the Constitution was made, leaders and people of our country
shared a common vision of India.
❖In the Constituent Assembly, all the leaders mentioned this vision:
dignity and freedom of the individual, social and economic equality, well-
being of all people, unity based on national integrity. This vision has not
disappeared. People and leaders alike hold to the vision and hope to
realize it.
❖Therefore, the Constitution, based on this vision, has remained an object
of respect and authority even after half a century. The basic values
governing our public imagination remain intact.