Q. What is the procedure for amending the constitution? On what grounds an amendment may be held ultra vires by the Supreme Court?

A rigid constitution is a must in a federal system of governance. In case of Indian constitution, it has been argued that it is not rigid enough. That there have been 93 amendments in last 50 years proves this fact. As a comparison, there have been only 27 amendments in the constitution of USA in the past 200 years. This has been done deliberately to ensure that the constitution can be changed as per the needs of the times. However, to prevent excessive changes on the whims of the ruling party, sufficient safeguards have been put. 

The procedure of amending the constitution is given in Article 368. It says that the parliament can amend the constitution under its constituent power. A bill must be presented in either house of the parliament and must be approved by a majority of each houses and not less than 2/3 majority of each house present and voting. After such approval the bill is presented to the president for his assent, upon whose assent the constitution shall stand amended as per the provisions of this article. However, if the amendment seeks to make a change in 

  • Articles 54, 55, 73, 162, or 241
  • Chapter 4 of part 5, chapter 5 of chapter 6, or chapter 1 of part 11
  • any of the lists in the 7th schedule
  • representation of the states in the parliament
  • in this article itself

the bill must also be ratified by not less than half of the states before it is presented to the president for his assent.

For amending articles 5, 169, or 239-A, only a simple majority of both the houses of the parliament is required.

Power of the parliament to amend the constitution
There has been a lot of controversy on the power of the parliament to amend the constitution. Article 13 of the original constitution said that the state shall not make any law that takes away or abridges the rights given to the citizens in Part III and any such law made in contravention of this article shall be deemed void to the extent of contravention. Thus, it seemed that parliament cannot amend the constitution in a way that takes away the fundamental rights of the citizens.

This logic was first tested by the Supreme Court in the case of Shankari Prasad vs Union of India AIR 1951. In this case, an amendment to add art 31 A and 31 B to the constitution was challenged on the ground that they take away fundamental right of the citizens and therefore not allowed by article 13. It was argued that “State” includes parliament and “Law” includes Constitutional Amendments. However, SC rejected the arguments and held that power to amend the constitution including fundamental rights is given to the parliament by art 368 and that “Law” is art 13 refers only to ordinary law made under the legislative powers.

In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the judgement given in the case of Shankari Prasad and held that the words “amendment of the constitution” means amendment of all provisions of the constitution.

However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC reversed its previous judgement and held that parliament has no power from the date of this judgement to amend part III of the constitution so as to take away any fundamental right. It held that “amendment” is a law as meant under art 13 and so is limited by art 13(2).

To overcome the judgement in the case of Golak Nath, the parliament added another clause in art 13by the 24th amendment in 1971 It says that this article does not apply to the amendment of the constitution done under art 368. A similar clause was added in art 368 for clarity in the same amendment, which says that amendment done under art 368 shall not come under the purview of art 13.

This amendment itself was challenged in the case of Keshavanand Bharati vs State of Kerala AIR 1973. In this case, SC reversed its judgement again and held that “Law” in art 13 only means ordinary law made under legislative power, The 24th amendment is only clarifying that position and so it is valid. However, it further held that “amendment” means that the original spirit of the constitution must remain intact after the amendment. Thus, the basic structure or features of the constitution cannot be changed. According to C J Sikri, the basic structure of the constitution includes – Supremacy of the Judiciary, democratic republic, secularism, separation of powers among judiciary, legislative, and the executive, and the federal character of the constitution. 

This judgement was delivered by 7:6 majority and is one of the most important judgements in the history of independent India. The effect of this judgement can be seen in the case of Indra Sawhney vs Union of India 1993, where SC prevented the politicians from running amok in the matter of reservation. It this case it held that inclusion of creamy layer violates the fundamental right of equality, which is a basic feature of the constitution and so its inclusion cannot be permitted even by constitutional amendment.

During Constituent Assembly Discussions, it was noted that rigid constitutions such as that of USA cause a lot of problems and is undesirable. Dr. Ambedkar said that flexible federation is a distinguished feature of the constitution. In the hindsight, it can be said that the safeguards to prevent the spirit of the constitution were not enough. Politicians have time and again shown that they can modify it easily to serve their vote based politics.