The Constitution of India is neither rigid nor flexible but a unique combination of both. A rigid Constitution is one, which requires a Special procedure for its amendments, for example, the American Constitution. On the other hand, a flexible Constitution can be amended in the same manner as the ordinary laws are made, for example, British Constitution.
Our Constitutional-makers were aware of the fact that socio-economic life is dynamic. The social, economic, and political conditions of the people kept on changing. With the growing state of society, its norms and regulations also needed to be amended timely. Therefore, the Constitution has to adapt itself to the ever-changing social, economic, and political aspirations of the people of India. So there should be space in the Constitution to accommodate new needs. That’s why our Constitution’s founder-fathers included Article 368 in the Constitution.
Hence, the Indian Constitution also provides for its amendment in order to adjust itself to the changing conditions and needs. The various amendments made so far highlight that the Constitution of India is an organic/dynamic entity.
Article 368 under Part XX of the Indian Constitution deals with the power of Parliament to amend the Constitution and its procedure. Article 368 laid out that the Parliament may, in the exercise of its constituent power, amend by way of addition, variation or repeal any provision in the Constitution in accordance with the procedure laid down for the purpose.
However, in the Kesavananda Bharati case (1973), the Supreme Court ruled that the Parliament cannot amend those provisions which constitute the “Basic Structure of the Constitution”.
The idea of amending the Constitution has been borrowed from the Constitution of South Africa.
Procedure for Amending the Constitution of India
The Indian Constitution provides for a distinctive amendment process when compared to the Constitutions of other countries. The procedure laid down for the amendment of the Constitution of India is neither as easy as in Britain nor as difficult as in the USA. In other words, the amending process of the Indian Constitution can be described as partly flexible and partly rigid.
Article 368 of the Indian Constitution laid down the procedure for the amendment of the Constitution, which is as follows:
- An amendment of the Indian Constitution can be initiated only by the introduction of an Amendment Bill in either House of Parliament. Such Amendment Bill should not be introduced in the State Legislatures.
- The bill can be introduced either by a Minister or by a Private Member and does not require prior permission from the President.
- The bill must be passed in each House of Parliament by a special majority, i.e., a majority of two-thirds of the members of the House present and voting supported by a majority of over 50% of the total strength of the House.
- Each House of Parliament must pass the bill separately. In case of a disagreement between the two Houses of Parliament, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
- If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the Legislatures of not less than one-half of the States.
- After the bill is duly passed by both Houses of Parliament (ratified by the State Legislatures, where necessary), the bill is presented to the President of India for his Assent.
- The President must give his Assent to the bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his Assent to a Constitutional Amendment Bill.
- The President can neither withhold his Assent to the Constitutional Amendment Bill nor return the bill for reconsideration of the Parliament.
- After the Assent of the President, the bill becomes a Constitutional Amendment Act, and the Constitution stands amended in accordance with the terms of the Act.
Types of Amendments
The provisions in the Constitution of India can be amended in three ways, which are:
- Under Article 368, some provisions can be amended by a Special Majority of the Parliament (a two-thirds majority of the members of each House present and voting, as well as a majority (more than 50%) of the total membership of each House).
- Some other provisions can be amended by a Special Majority of the Parliament and then ratified by not less than half of the total states. These amendments also come under Article 368.
- Some provisions can be amended by a Simple majority of the Parliament (similar to the Ordinary Legislative Process). Notably, these amendments are not deemed to be amendments to the Constitution for the purpose of Article 368.