8.4. Constitution (Amendment) Bills

Article 368 of the Indian Constitution lays the procedure for the amendment of the Constitution. The Constitution does not provide for a separate Constituent Body to amend the constitution. This power has been vested in the Parliament itself. An amendment of the Constitution may be initiated in either House of the Parliament. This bill can be presented both by the Government or a Private Member. However, in case such a bill is brought by a Private Member, it has to be examined and recommended for introduction in the House by the Committee on Private Members’ Bills and Resolutions.

In context of the procedure involving their amendment, there are three categories of articles in the Constitution:

♤ Articles amendable by a Simple Majority

♤ Artciles that require special majority

♤ Articles that require Special Majority as well as ratification by legislatures of not less than half of the States of the Indian Union.

a. Amendment by Simple Majority: A bill that seeks to amend the following provisions of the Constitution require only simple majority and shall not be deemed to be a Constitution (Amendment) Bill under Article 368:

1. admission or establishment of new states, formation of new states and alteration of areas, boundaries or names of existing ones (Articles 2,3 & 4)

2. creation or abrogation of Legislative Councils in a State (article 169)

3. administration and control of Scheduled areas and Scheduled tribes (para 7 of the Fifth Schedule)

4. administration of Tribal areas in the states of Assam, Meghalaya and Mizoram (para 21 of the Sixth Schedule)

A bill providing for the formation of new states and alteration of areas, boundaries or names of existing ones, can be introduced in either House of the Parliament only on the recommendation of the President. Before making such recommendation, the President shall refer the bill to the concerned states for their views within such period as specified by him. However, the President is not bound by the views of the states.

For the Parliament to pass a law providing for the creation or abolition of a Legislative Council in a State, the legislative assembly of the State has to pass a resolution to that effect by a majority of not less than two thirds of the members of the assembly present and voting. The Parliament however may approve or disapprove of such resolution or may not take any action on it.

b. Amendment by Special Majority: A bill that seeks to amend any part of the Constitution has to be passed by a special majority i.e. 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. In the strictest sense, the special majority is required for voting at the third reading stage of the bill. However, exercising abundant caution, the requirement of special majority has been provided for all effective stages of the Bill in the Rules of the Houses.

c. Amendment by Special Majority and ratification by states: A bill seeking to amend the following provisions of the Constitution has to be passed by a special majority of both houses of the Parliament and has also to be ratified by the legisaltures of not less than half of the states by passing resolutions to that effect, before it is presented to the President for assent:

1. the election of the President (Article 54 & 55),

2. the extent of the executive power of the Union and the States (Art 73 & 162),

3. the Supreme Court and the High Courts (Article 341, Chapter IV of Part V and Chapter V of Part VI of the Constitution),

4. representation of states in the Parliament, or

5. the procedure for amendment of the Constitution itself (Article 368)

There is no time limit prescribed by the Constitution within which the States must signify their ratification of a Constitution (Amendment) Bill.