Process of Constitutional Amendments UPSC NOTE

Process of Constitutional Amendments

Amendment by simple majority of the Parliament
Amendment by special majority of the Parliament
Amendment by special majority of the Parliament and the ratification of at least half of the state legislatures.

1. By Simple Majority of Parliament:

Through a simple majority of those present and voting in each House of Parliament.

That is, some provisions in the Constitution can be amended in the same way ordinary legislations are passed; it does not require a specific quorum.
Such provisions are excluded from the purview of Article 368, thereby creating a separate category.
Some examples include amendments contemplated in:

Article 368

For amending provisions not within the first category, Article 368 stipulates that they can be effected by a prescribed ‘special majority,’.
To define constitutional amendment process, Article 368 of Part XX of Constitution of India provides for two types of amendments.

2. By Special Majority of Parliament:

The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority (more than 50%) of the total membership of each House and a majority of two-thirds of the members of each House present and voting.

The expression ‘total membership’ means the total number of members comprising the House irrespective of the fact whether there are vacancies or absentees.
The special majority is required only for voting at the third reading stage of the bill but by way of abundant caution, the requirement for the special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.
The provisions which can be amended by this way include – Fundamental Rights; Directive Principles of State Policy etc.

3. By Special Majority of Parliament and Consent of States:

It requires both a ‘special majority’ and ratification by at least one-half of the State legislatures.
No specific time limit for ratification by the State legislatures has been specified but resolutions ratifying the proposed amendment should be passed before the Bill is presented to the President for his assent.
The constitutional provisions that require ratification in order to be amended are specifically listed in the proviso to Article 368(2) and pertain to the federal structure.

They are commonly referred to as ‘entrenched provisions’ and are as follows —
If there is a change in the provisions regarding elections to the post of the President of India (Article 54 and 55);
If there is a change in the extent of the executive power of the Union or the State governments (Article 73 and 162);
If there is any change in the provisions regarding the Union judiciary or the High Courts. (Articles 124–147 and 214–231);
If the distribution of legislative and administrative powers between the Union and the States is affected (Article 245 to 255);

If any of the Lists in the Seventh Schedule is affected;
If the representation of the States in Parliament is changed (Article 82); and
If Article 368 itself is amended.
For instance, the Constitution (One Hundred and First Amendment) Act, 2016, which introduced the Goods and Services Tax regime was ratified by more than half of the State legislatures before receiving the President’s assent on September 8, 2016.

Can a constitutional amendment be struck down if not ratified?

Kihoto Hollohan versus Zachillhu (1992):

In Kihoto Hollohan versus Zachillhu (1992) popularly known as the Anti-Defection case, the constitutional validity of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-second Amendment) Act, 1985 was challenged on the grounds that the amendment was not ratified by the States.
Though the Tenth Schedule was to deal with defection, it also purported to oust the jurisdiction of all courts by virtue of Paragraph 7.

The amendment brought about changes with respect to the jurisdiction of the Supreme Court and the High Courts — one of the provisions that require ratification by half of the States.
A Constitution Bench of the Supreme Court upheld the validity of the Tenth Schedule but declared Paragraph 7 of the Schedule invalid for want of ratification.

Union of India versus Rajendra N. Shah (2021):

On July 20, 2021, the Supreme Court struck down provisions of the Constitution (97th Amendment) Act, 2011 to the extent that it introduced Part IX B in the Constitution to deal with co-operative societies.

The Court unanimously held that the amendment required ratification by at least one-half of the State legislatures as per Article 368(2) of the Constitution, since it dealt with an exclusive State subject — per Entry 32 in List II of the Seventh Schedule.
The majority judgment invoked the doctrine of severability to make Part IXB operative only insofar as it concerns multi-State cooperative societies.

Can a State rescind its ratification?

There is no definite answer. There is no specific mention of it in the Constitution nor have courts in India dealt with this before.

Moreover, since the prevailing constitutional practice makes ratification by at least half of all the States sufficient for compliance without requiring all States to consent, such a situation is unlikely to arise.
Experts argue that permitting the rescinding of a ratification not only creates confusion but also makes the amending process more rigid.