Power Of The Parliament To Amend The Constitution

This Article is written by Raj Ranjan & this article disscuss the Power of the Parliament to Amend the Constitution.

Introduction
A nation’s Constitution serves as the foundational legal code, guiding the creation and
application of all other laws. Some have referred to it as a “superior or supreme law,” noting
that it has “perhaps greater efficiency and authority,” “higher sanctity,” and greater
permanence than regular laws. However, a sufficient provision of its amendment is thought to
be implied by a constitution’s very nature. Since a government based on the idea of popular
sovereignty “must make possible the fresh assertion of the popular will as that will change,” a
democratic constitution must be especially adaptable to shifting circumstances.
Rigid or Flexible Constitution
Constitutions are typically categorized as “rigid” or “flexible” based on the procedure for
amending them. According to Professor A.V. Dicey, there are two types of constitutions:
flexible and rigid. A flexible constitution allows for the legal modification of any law,
regardless of its nature, by the same body and with the same ease. Rigid constitutions, on the

other hand, prohibit the modification of some laws, which are commonly referred to as
fundamental or constitutional laws, in the same way that ordinary laws cannot.
Since there is no separation between the legislative and constituent powers in the United
Kingdom’s unwritten constitution, it is the best example of an incredibly flexible constitution.
The Constitution may be amended by the British Parliament through the regular legislative
process. Unlike the U.K. system, the U.S.A.’s written Constitution gives the constitutional
amendment significant weight. In cases where the system is federal, its significance grows.
The majority of written constitutions either give a body other than the regular legislature the
authority to amend them, or they give the regular legislature the authority to amend them only
under certain conditions. In a federal system, extra protections such as state legislature
participation are also included to make sure that changes to the federal structure are not solely
made by the federal legislature.

Need for Flexibility in Constitution
Pandit Jawaharlal Nehru made the following observation in the Constituent Assembly to
explain why it was necessary to include some flexibility in the Constitution:
Although we strive for this Constitution to be a strong and everlasting framework, nothing is
ever permanent in a constitution. There ought to be some room for flexibility. Anything that
is made inflexible and permanent stunts the development of a country and its citizens, who
are living, breathing, organic beings. It must therefore be adaptable. In any case, we shouldn’t
draft a constitution that is as inflexible as those of some other notable nations, as they are
difficult to modify in response to evolving circumstances. Particularly in this day and age,
when the world is in disarray and we are going through a rapid period of change, our actions
today might not have the same impact tomorrow. As a result, even as we draft a Constitution
that is as fundamental and sound as possible, it should also be flexible.
Constituent Assembly and the Constitution Amendment in India
The authors of the Indian Constitution did not support strict special procedures for
constitutional amendments or the traditional theory of federalism, which assigns
responsibility for amending the constitution to an authority other than the legislature. In a
similar vein, they were never in favor of a system similar to the British one, in which the
Parliament has absolute power and can do whatever it pleases. By combining the “theory of
parliamentary sovereignty” that exists in the United Kingdom with the “theory of
fundamental law,” which forms the basis of the written Constitution of the United States, the

Indian Constitution grants the Parliament constituent power, subject to the unique procedures
outlined therein.
Some members of the Constituent Assembly supported implementing a simpler amending
process for the first five to ten years during the debate on this topic. Dr. P.S. Deshmukh
believed that the Constitution should be easier to amend because some of its provisions were
contradictory, and these would become increasingly clear the more the provisions were
interpreted. The entire administration would be negatively impacted if the Constitutional
amendment was not made simple. A flexible Constitution is also something that Shri
Brajeshwar Prasad supported in order to ensure that it endures over time. He believed that
gradual innovation or progressive legislation is often impeded by rigidity.
However, Shri H.V. Kamath supported the establishment of procedural safeguards to prevent
the potential for a hasty amendment to the Constitution.
Speaking before the Constituent Assembly on November 4, 1948, Dr. B.R. Ambedkar made a
few remarks regarding the clauses pertaining to constitutional amendment. He said:
It is claimed that the provisions in the Draft make amending them challenging. It is suggested
that for a certain period of time, the Constitution may be changed with a simple majority. The
reasoning is clever and nuanced. It is claimed that although the future Parliament will be
chosen by adult voters, the Constituent Assembly will not be. Despite this, the former will
have the authority to enact laws by a simple majority, while the latter will not have that same
power. It is presented as one of the Draft Constitution’s inanities. I have to deny the
accusation because it is unfounded. All one needs to do is look at the amendment provisions
found in the US and Australian constitutions to see how straightforward the Draft
Constitution’s amendment provisions are. You’ll find that the ones in the Draft Constitution
are the most straightforward when compared to them. Conventions and referendums are two
complex and challenging processes that have been replaced by the Draft Constitution. The
ratification of State Legislatures is necessary only for certain amendments, and even then,
only in rare cases. The Parliament has the authority to amend any remaining articles of the
Constitution. The sole restriction is that a majority of each House’s total membership, or at
least two-thirds of the members present and voting, must accomplish this. It is hard to think
of a more straightforward process for changing the Constitution.
The argument that the amending provisions are absurd is based on a misinterpretation of the
roles and responsibilities of the Constituent Assembly and the future Parliament that will be

chosen in accordance with the Constitution. The Constituent Assembly does not have any
political agenda when creating a constitution. It has nothing against the Constitution other
than securing a strong and functional one. It considers the Articles of the Constitution without
regard to passing a specific legislation. Members of the future Parliament, if it were to
convene as a Constituent Assembly, would represent political parties and attempt to amend
the Constitution in order to support party policies that have been blocked in Parliament by
specific constitutional provisions. Unlike the Constituent Assembly, Parliament will have
something to complain about. That is how the future Parliament and the Constituent
Assembly differ from each other. This explains why, despite being elected with a limited
franchise, the Constituent Assembly can be trusted to pass the Constitution by a simple
majority, and why, despite being elected with adult suffrage, the Parliament cannot be trusted
to have the same authority to amend it.
Article 368 : Power of Parliament to amend the Constitution and procedure therefor
(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 and by a majority of not less than two-thirds
of the members of that House present and voting, 4 [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:
Provided that if such amendment seeks to make any change in—
(a) article 54, article 55, article 73, 5 [ article 162, article 241 or article 279A]; or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or
(c) any of the Lists in the Seventh Schedule; or
(d) the representation of States in Parliament; or
(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of
the States 1*** by resolutions to that effect passed by those Legislatures before the Bill
making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.
[(4) No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article [whether before or after the commencement
of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in
question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.]

Procedure of Constitution Amendment in India
The only way to start amending the constitution is to introduce a bill in the Lok Sabha or
Rajya Sabha, not in state legislatures. A special majority in each House is required to pass a
bill; this is defined as a majority (i.e., more than 50%) of the House’s total membership and a
majority of the two-thirds of members who are present and voting. Every House must pass
the bill separately.
If the two Houses disagree, there is no provision for calling a joint session of the two Houses
to consider and pass the bill. A simple majority, or the majority of House members present
and voting, is required for the legislatures of half of the states to ratify a bill that seeks to
amend the federal provisions of the Constitution. After the bill has been properly passed by
both Houses of Parliament and, if required, ratified by state legislatures, it is presented to the
president for assent. The president must sign the bill. After the president signs the bill, it
becomes an Act, and the terms of the Act amend the Constitution.
Ways of Amendment
 Amendment by simple majority of the parliament
This process is used to create new states and create or abolish legislative councils.
Amendments made by state legislatures or at the state’s request fall under this category.
 Amendment by special majority of the parliament and,

This procedure can only be used by the Union Parliament to amend the Constitution.
Although the constitution can only be changed with the approval of parliament, the
system is rigid in that it requires a special majority to be changed. Nevertheless, this
makes it a flexible technique.
The provisions that can be amended by this way include Fundamental Rights, Directive
Principles of State Policy (DPSP), and all other provisions which are not covered in 1 st
and 3 rd category.
 Amendment by special majority of the parliament and the ratification of half of the
state legislature
It is not enough to have a special majority for certain articles of the Constitution. When
an amendment seeks to alter an article pertaining to representation or the division of
powers between the states and the federal government, it is appropriate to consult with the
states and get their approval. First, a two-thirds majority of members present and voting
in each House, as well as a majority of the total membership, are required to pass the
amendment bill in both Houses of the Union Parliament.
It is dangerous, though, to give Parliament total authority over constitutional amendments.
Rather than serving as the foundation of our democracy, the constitution would be diminished
to a tool for establishing Parliament’s despotism. The administration plans to modify several
provisions in order to guarantee the unrestricted exercise of its powers. This is a scary idea,
but it’s not entirely off base. With a number of amendments, including the second clause of
the 25th Amendment and the 39th Amendment, the government has tried to create a state in
which the legislative branch is given the highest priority.
Because of this, the Indian judiciary developed the Basic Structure Doctrine of the Indian
Constitution through a number of notable cases.
Basic Structure Doctrine and its Genesis
The Indian Constitution does not contain the term “basic structure” anywhere. The notion that
the Parliament cannot enact laws that alter the fundamental principles of the Constitution has
changed over time and under different conditions. Protecting people’s rights and liberties
while upholding the essence of Indian democracy is the goal. The spirit of the constitution is
protected and preserved with the help of this doctrine.

One element that has long influenced the evolution of the Indian Constitution is the notion of
the fundamental framework. The constitutional framework was shaped by the historic
Kesavananda Bharati case, which placed stringent limitations on Parliament’s authority to
amend the document. It declares that the fundamental structure of the Constitution cannot be
violated by any amendment, permits Parliament to amend any provision of the document
(within these bounds), and designates the judiciary as the ultimate arbiter of whether an
amendment breaches the fundamental structure and what constitutes the fundamental
structure.
 Shankari Prasad vs. Union of India (1951) 1
The Supreme Court ruled that the Parliament can change any provision of the
constitution, including fundamental rights, in accordance with Article 368.
 Sajjan Singh vs. State of Rajasthan (1965) 2
In accordance with its ruling in the 1951 Shankari Prasad case, the Supreme Court held
that Parliament had the authority to amend any section of the constitution under Article
368.
The concurring opinions of Justices Hidyatullah and Mudholkar, however, cast doubt on
the Parliament’s unbridled authority to alter the Constitution and restrict citizens’
fundamental rights.
 Golak Nath vs. State Of Punjab Case (1967) 3
The Golaknath case (1967) resulted in the Supreme Court overturning the Shankari
Prasad ruling, holding that Article 368 merely establishes the process for amending the
constitution and does not grant the Parliament complete authority to change any part of it.
 24 th Constitution Amendment Act (1971)
In order to circumvent the limitations imposed by the Golaknath judgment, the
government passed the 24th Amendment Act, which added a clause to Article 368 of the
Constitution stating that the Parliament has the authority to revoke any of the fundamental
rights.
Additionally, it mandated that the President ratify every bill pertaining to a constitutional
amendment that was submitted to him.
 Kesavananda Bharati vs. State of Kerala (1973) 4
In this case, the Supreme Court reviewed its ruling in the Golaknath case and upheld the
constitutionality of the 24th Amendment Act.

Nonetheless, the Supreme Court ruled that while the Parliament may change any clause in
the constitution, the Basic Structure of the document must be upheld.
The Court established the “Basic Structure of the Constitution,” as it has come to be
known.
Because of this historic ruling, any provision of the Constitution could be changed, but
any changes would still need to pass judicial muster in order to maintain the integrity of
the Basic Structure of the document.
 42nd Amendment Act (1976)
In 1976, the government passed the 42nd Amendment Act, which stated that Article 368
of the Constitution did not limit the constituent power of Parliament.
Due to its extensive constitutional changes, the amendment—also known as the “Mini-
constitution”—forbade the courts from challenging constitutional amendments.
 Minerva Mills vs. Union of India (1980) 5
The 42nd CAA’s provisions were declared invalid by the Supreme Court in this case,
holding that because “judicial review” is an integral part of the “Basic Structure,”
Parliament cannot abolish it.
 Indra Sawhney & Others vs. Union of India(1992) 6
The Supreme Court ruled that the Rule of Law is a Basic Structure of the Constitution in
the Mandal case, as it is also known.
 Kihoto Hollohan Case (1993)
The Supreme Court amended the Basic Structure of the Constitution to include free and
fair elections, sovereign power, and a democratic and republican structure. This case is
widely referred to as the Defection case.
 S.R. Bommai vs. Union of India (1994)
Federalism, Secularism, and Democracy were proclaimed by the Supreme Court to be the
fundamental components of the Constitution.
Conclusion
The Indian Constitution’s Article 368 outlines the amendment process. The Indian
Constitution is neither inflexible nor flexible since it can be amended by a simple majority,
special majority, or by the majority of at least two-thirds of the members in each house, as
stated in Article 368. The Indian Constitution is both practically flexible and extremely rigid,

meaning that it is challenging to amend. According to Article 368 of the Indian Constitution,
an amendment may be proposed in either house and then approved by a simple majority or a
special majority. The bill will be sent to the president for his assent if it is later passed by the
majority.
There have already been 103 Amendments to the Constitution in its 69 years. The terms
socialist, secular, and integrity were introduced through the 42nd Amendment, which is
regarded as a miniature Constitution. 1950 saw the enactment of the First Amendment.
But in my opinion, the court is attempting to expand its authority and impose clear
restrictions on the parliament by issuing these rulings. Although Article 368 remains silent on
the question of whether the parliament has the authority to amend the basic structure, this
does not imply that Article 368 places restrictions on the amendment of Part III of the
Constitution in addition to the basic structure.

References