4. Constituent Powers and Functions

The Parliament is vested with the powers to amend the Constitution by way of addition, variation or repeal of any provision. The major part of the Constitution can be amended by the Parliament with special majority, that is, a majority of the total membership of each House and a majority of not less than two- thirds of the members present and voting in each House. Some other provisions of the Constitution can be amended by the Parliament with simple majority, that is, a majority of the members present and voting in each House of Parliament. Only a few provisions of the Constitution can be amended by the Parliament (by special majority) and with the consent of at least half of the state Legislatures (by simple majority). However, the power to initiate the process of the amendment of the Constitution (in all the three cases) lies exclusively in the hands of the Parliament and not the state legislature. There is only one exception, that is, the state legislature can pass a resolution requesting the Parliament for the creation or abolition of the legislative council in the state. Based on the resolution, the Parliament makes an act for amending the Constitution to that effect. To sum up, the Parliament can amend the Constitution in three ways:

(a) By simple majority;

(b) By special majority; and

(c) By special majority but with the consent of half of all the state legislatures.

The constituent power of the Parliament is not unlimited; it is subject to the 'basic structure’ of the Constitution. In others words, the Parliament can amend any provision of the Constitution except the 'basic features’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case (1973) and reaffirmed in the Minerva Mills case (1980)24 .