False
Download Learnerz IAS app from the Play Store now! Download

$show=search/label/May%202022

 


Process of Constitutional Amendments UPSC NOTE

SHARE:

  Process of Constitutional Amendments Constitutional amendments can take place through three different procedures. Amendment by simple majo...

 Process of Constitutional Amendments

  • Constitutional amendments can take place through three different procedures.

  1. Amendment by simple majority of the Parliament

  2. Amendment by special majority of the Parliament

  3. 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 4 (changes related to the organisation of States), 

    • Article 169 (abolition or creation of Legislative Councils in States), and 

    • Para 21(2)13 of Schedule VI.

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.

COMMENTS

Name

Amritsar,1,April 2024,301,Art & Culture,11,August 2023,251,August 2024,400,Courses,7,Daily Current Affairs,51,December 2023,189,Disaster Management,2,Environment and Ecology,285,February 2024,228,Foundation Course,1,Free Class,1,GDP,1,GEMS Club,1,GEMS Plus,1,Geography,299,Govt Schemes,2,GS 2,1,GS1,29,GS2,273,GS3,122,GST,1,History,11,Home,3,IAS Booklist,1,Important News,71,Indian Economy,283,Indian History,20,Indian Polity,316,International Organisation,12,International Relations,231,Invasive Plant,1,January 2024,240,July 2023,281,July 2024,375,June 2022,6,June 2023,268,June 2024,324,March 2024,238,May 2022,17,May 2024,330,Mentorship,2,November 2023,169,October 2023,203,October 2024,159,Places in News,2,Science & Technology,262,Science and Technology,118,September 2023,205,September 2024,336,UPSC CSE,115,UPSC Tips,4,
ltr
item
Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Process of Constitutional Amendments UPSC NOTE
Process of Constitutional Amendments UPSC NOTE
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
https://www.learnerz.in/2023/09/process-of-constitutional-amendments.html
https://www.learnerz.in/
https://www.learnerz.in/
https://www.learnerz.in/2023/09/process-of-constitutional-amendments.html
true
4761292069385420868
UTF-8
Loaded All Posts Not found any posts VIEW ALL Readmore Reply Cancel reply Delete By Home PAGES POSTS View All RECOMMENDED FOR YOU LABEL ARCHIVE SEARCH ALL POSTS Not found any post match with your request Back Home Sunday Monday Tuesday Wednesday Thursday Friday Saturday Sun Mon Tue Wed Thu Fri Sat January February March April May June July August September October November December Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec just now 1 minute ago $$1$$ minutes ago 1 hour ago $$1$$ hours ago Yesterday $$1$$ days ago $$1$$ weeks ago more than 5 weeks ago Followers Follow THIS PREMIUM CONTENT IS LOCKED STEP 1: Share to a social network STEP 2: Click the link on your social network Copy All Code Select All Code All codes were copied to your clipboard Can not copy the codes / texts, please press [CTRL]+[C] (or CMD+C with Mac) to copy Table of Content