Q. How the constitution of amendment indicates of features of the amending process?
Introduction:
The provision for amendment of the Constitution is made with a view to overcome the difficulties
which may encounter in future in the working of the Constitution. No generation has monopoly
of wisdom nor has it a right to place fetters on future generations to mould the machinery of
government according to their requirements. If no provisions were made for the amendment of
the Constitution, the people would have recourse to extra constitutional method like revolution to
change the Constitution.
The framers of the Indian Constitution, were keen to avoid excessive rigidity. They were anxious
to have a document which could grow with a growing nation, adapt itself to the changing need
and circumstances of a growing people. The nature of the 'amending process' envisaged by the
framers of our Constitution can best be understood by referring the following observation of the
late Prime Minister Pt. Nehru, "While we want this Constitution be as solid and permanent as we
can make it, there is no permanence in the Constitution. There should be a certain flexibility. If
you make anything rigid and permanent you stop the nation's growth.
But the framers of Indian Constitution were also aware of the fact that if the Constitution was so
flexible it would be a playing of the whims and caprices of the ruling party. They were, therefore,
anxious to avoid flexibility of the extreme type. Hence, they adopted a middle course. It is
neither too rigid to admit necessary amendments, nor flexible for undesirable changes. Willis in
his book on the Constitutional Law of the United States says, "If no provisions for amendment
were provided, there would be constant danger of revolution. If the method of amendment were
too easy, there would be the danger of too hastly action all the time.
Procedure for amendment:
(1) Amendment by Simple Majority:- Articles that can be amended by Parliament by
simple majority as that required for passing of any ordinary law. The amendments
contemplated in Articles 4, 169 and 239-A, can be made by simple majority. These
Articles are specifically excluded from the purview of the procedure prescribed in Article
368.
(2) Amendment by Special Majority:- Articles of the Constitution which can be amended
by special majority as laid down in Article 368. All constitutional amendments, other than
those referred to above, come within this category and must be effected by a majority of
the total membership of each House of Parliament as well as by a majority of not less
than 2/3 of the members of that House present and voting.
(3) By Special Majority and Ratification by States:- Article which require, in addition to
the special majority mentioned above, ratification by not less than 1/2 of the State
Legislatures. The States are given an important voice in the amendment of these
matters.
The following provisions require such ratification by the States:
(1) Election of the President-Articles 54 and 55.
(2) Extent of the Executive powers of the Union and States-Articles 73 and 162, Article 241 or
279A.
(3) Articles dealing with judiciary. Supreme Court, High Court in the States and Union
territories-Articles 124 to 147, 214 to 231, 241.
(4) Distribution of Legislative powers between the Centre and the State- Articles 245 to 255.
(5) Goods and Service Tax Council-Article 279A.
(6) Any of the Lists of the VIIth Schedule..
(7) Representation of States in Parliament IVth Schedule.
(8) Article 368 itself.
A Bill to amend the Constitution may be introduced in either House of Parliament. It must be
passed by each House by a majority of the total membership to that House and by a majority of
not less than 2/3 of the members of that House present and voting. When a Bill is passed by
both Houses it shall be presented to the President for his assent who shall give his assent to Bill
and thereupon the Constitution shall stand amended. But a Bill which seeks to amend the
provisions mentioned in Article 368 requires in addition to the special majority mentioned above
the ratification by the 1/2 of the States.
Thus, it is clear that most of the provisions of Constitution can be amended by an ordinary
legislative process. Only a few provisions which deal with the federal principle require a special
majority plus ratification by the States. The procedure to amend these provisions is in conformity
with the federal principle.
Thus, it may be said that the Indian Constitution-makers have sought to find a via media,
between the two extremes-extreme flexibility and extreme rigidity, as this, it is hoped, will duly
meet the needs of a growing society.
Conclusion:
"It has been the nature of the amending process itself in federation which has led political
scientist to classify federal Constitution as rigid. federal Constitution is generally rigid in
character as the procedure of amendment is unduly complicated. The procedure of amendment
in American Const, ution is very difficult. So is the case with Australia, Canada and Switzerland.
It is a common criticism of federal Constitution that is too conservative, too difficult to alter and
that it is consequently behind the times."
