Certain provisions of the Constitution can be amended by a simple majority of both Houses of Parliament (Lok Sabha and Rajya Sabha). This means more than half of the members present and voting in each House must approve the amendment. This process does not follow the detailed procedures outlined in Article 368.

o Scope of Amendments:

• Formation and Alteration of States: Covers admission of new states and changes to the boundaries, areas, or names of existing states.

• Legislative Councils: Deals with the creation or abolition of legislative councils within states.

• Official Language: Involves regulations related to the use of official languages.

• Citizenship: Includes provisions regarding the acquisition and termination of citizenship.

• Elections: Pertains to amendments in the electoral processes for Parliament and state legislatures.

• Administrative Areas: Addresses the administration of scheduled and tribal areas under the Fifth and Sixth Schedules.

These amendments are generally administrative in nature and do not alter the Constitution’s fundamental structure.

2. Amendment by Special Majority of Parliament

Amendments that affect more significant aspects of the Constitution require a special majority, defined as:

o A majority of more than 50% of the total membership of each House.

o A majority of at least two-thirds of the members present and voting.

o Scope of Amendments:

 Fundamental Rights: Involves changes that affect Fundamental Rights, which guarantee essential freedoms and liberties.

 Directive Principles of State Policy (DPSP): Relates to amendments affecting DPSP, which guide state policy toward achieving socio-economic justice.

 Other Provisions: Covers any provisions not included under the simple majority or federal amendment categories.

This type of amendment addresses significant elements of the Constitution but does not require ratification by state legislatures.

3. Amendment by Special Majority of Parliament and Ratification by States

For amendments that affect the federal structure of the Constitution, a special majority in Parliament is required, along with ratification by at least half of the state legislatures.

o Scope of Amendments:

 Federal Structure: Includes provisions related to the election of the President, distribution of legislative powers, extent of executive powers, and state representation in Parliament.

 Article 368: Involves amendments to the procedure for constitutional amendments themselves.

o Procedure:

 The bill must pass both Houses of Parliament with a special majority.

 It must then be ratified by at least half of the state legislatures by a simple majority of members present and voting.

This ensures that amendments affecting the federal balance and key constitutional principles have broad-based support and are not enacted unilaterally.

Procedure for Constitutional Amendments

Article 368 details the amendment process, which includes several key stages:

1. Initiation:

o An amendment bill can be introduced in either House of Parliament by a minister or a private member, without requiring prior permission from the President.

2. Passage:

o The bill must be passed by both Houses of Parliament with the necessary majority. If there is disagreement between the Houses, there is no provision for a joint sitting; each House must pass the bill independently.

3. Ratification (for federal amendments):

o If the amendment involves federal provisions, it must be ratified by at least half of the state legislatures, by a simple majority of members present and voting. There is no set deadline for this ratification.

4. Presidential Assent:

o After passing both Houses and obtaining ratification (if required), the bill is sent to the President for assent. The President must grant assent; the bill cannot be withheld or returned for reconsideration.

5. Effect:

o Once the President grants assent, the bill becomes a Constitutional Amendment Act, and the Constitution is amended according to the new provisions.

Judicial Interpretations: Golaknath and Kesavananda Bharati Cases

Key judicial decisions have significantly influenced the scope of Parliament's power to amend the Constitution, particularly through the Golaknath and Kesavananda Bharati cases.

1. Golaknath v. State of Punjab (1967)

The Supreme Court ruled in the Golaknath case that Parliament could not amend the Fundamental Rights enshrined in the Constitution. The Court held that Fundamental Rights were immutable and could not be altered or abridged by any constitutional amendment. This decision set a precedent that Parliament's amending power did not extend to diminishing Fundamental Rights.

o Key Ruling: The Court determined that Fundamental Rights were part of the Constitution’s basic structure and could not be changed by amendments. This ruling underscored the importance of Fundamental Rights and placed limits on Parliament’s amending authority.

2. Kesavananda Bharati v. State of Kerala (1973)

The Kesavananda Bharati case marked a pivotal moment in constitutional law with the introduction of the "basic structure" doctrine. The Supreme Court ruled that while Parliament could amend any part of the Constitution, it could not alter its "basic structure." This doctrine was intended to safeguard the fundamental principles of the Constitution from being undermined by amendments.

o Basic Structure Doctrine: The Court identified several elements as part of the Constitution’s basic structure, including:  Supremacy of the Constitution.
 Welfare state principles (socio-economic justice).
 Principle of equality.
 Sovereign, democratic, and republican nature of the Indian polity.
 Judicial review.
 Free and fair elections.
 Secular character of the Constitution.
 Freedom and dignity of the individual.
 Independence of the Judiciary.
 Separation of powers among the legislature, executive, and judiciary.
 Parliamentary system.
 Federal character of the Constitution.
 Rule of law.
 Unity and integrity of the nation.
 Harmony between Fundamental Rights and Directive Principles.
 Effective access to justice.

This ruling ensured that while the Constitution could be amended to address changing needs, its fundamental principles and structure were protected from radical alterations.

The 42nd Amendment Act of 1976

The 42nd Amendment Act, enacted during the Emergency period, represents one of the most significant and controversial changes to the Indian Constitution. It introduced extensive changes aimed at strengthening central authority and limiting state powers.

• Key Provisions:

o Strengthening Central Authority: Enhanced the powers of the central government, reducing the autonomy of state governments.

o Fundamental Duties: Introduced Fundamental Duties for Indian citizens, emphasizing the responsibilities of citizens alongside their rights.

o Directive Principles: Elevated the Directive Principles of State Policy, making them justiciable.

o Judicial Review: Attempted to limit the scope of judicial review by modifying provisions related to the judiciary’s powers.

• Supreme Court's Interpretation: Following the Kesavananda Bharati case, the Supreme Court held that while Parliament had the power to amend the Constitution, it could not alter or destroy its "basic structure." As a result, many provisions of the 42nd Amendment that were found to violate the basic structure doctrine were nullified. This reaffirmed the inviolability of the Constitution’s basic structure, ensuring its integrity against excessive changes.

Amendability of Different Parts of the Constitution

The Indian Constitution allows for amendments to various parts, with specific considerations:

1. Part III – Fundamental Rights

The Golaknath case established that Fundamental Rights could not be altered by constitutional amendments. The Kesavananda Bharati case clarified that while Fundamental Rights are essential to the Constitution's basic structure, amendments affecting these rights are allowed as long as they do not breach the basic structure doctrine.

2. Part IV – Directive Principles of State Policy

Directive Principles of State Policy (DPSP) can be amended through a special majority of Parliament. Amendments can modify these principles to meet socio-economic objectives, provided they do not violate the Constitution’s basic structure.

3. Federal Structure and Other Provisions

Amendments affecting the federal structure, such as the distribution of powers between the Union and the states, the election of the President, and state representation in Parliament, require both a special majority of Parliament and ratification by at least half of the state legislatures. This ensures that changes to the federal balance receive broad support.

4. Article 368 – Amendment Procedure

The procedure for amending the Constitution itself, as detailed in Article 368, can be changed by a special majority of Parliament and, when necessary, ratified by the states. This ensures the amendment process remains flexible and responsive to changes.

Conclusion

The procedure for amending the Indian Constitution, as outlined in Article 368, represents a balanced approach to allow for necessary changes while preserving the Constitution’s core values. Through a structured process involving various types of amendments, procedural requirements, and stringent limitations, the Constitution remains a dynamic yet stable framework. Judicial interpretations from landmark cases like Golaknath and Kesavananda Bharati, along with the historical context of the 42nd Amendment Act, have shaped the current understanding and application of constitutional amendments.