As has been aptly put forward by Mulford, ‘An unamendable constitution is the worst tyranny of time.’ One of the most remarkable features of the Indian Constitution is that it is a dynamic document. It is living, adapting, grows as the society around it grows and is also flexible.
The procedure for the amendment of the Constitution was laid down to make changes to overcome any difficulties that might arise in the future with respect to any provision of the Constitution. The society is ever growing and ever evolving; the Constitution cannot as a barrier in its development which is why the makers of the Constitution added the amendment process in Article 368.
There are three procedures adopted for the amendment of the Constitution.
1.Amendment by simple majority- It simply implies the majority of members present and voting. There are quite a number of articles in the Constitution which can be amended by a simple majority of the Parliament. This simple majority is required for passing of any law.
2. Amendment by special majority- Article 368 contains a list of articles which can be amended by a special majority of the Parliament. The Constitutional amendments which fall under this particular category are effected by a majority of not less than two-thirds of the members of the House, present and voting and a majority of the total membership of the House.
3. Amendment by special majority and ratification by States- There are certain Articles, which in addition to the special majority as mentioned above, require ratification by not less than half States where these States are provided with a special say in the matter at hand. The matters falling under this category require a say of the States since a unilateral decision by the Parliament could result in the basic or the fundamental structure being compromised.
The bill for amendment of any provision of the Constitution can be introduced in either the Lower House or the Upper House of the Parliament. It is necessary that the bill be cleared by each of the house by a majority of not less than two-thirds of the members of the house present and voting and by a majority of the total membership to that House. This is not applicable to those amendments which can be made by simple majority.
When the bill in question is passed by both the Houses, it is then sent to the President of India to gain his assent on the bill, after which that particular provision stands amended.
There are certain provision mentioned under Article 386, which in addition to the aforementioned majority of the Parliament, also demand a special majority mentioned above the ratification by the half of the States.
The mechanism of Constitutional amendment can be termed as a legislative process which is administered and commanded by the rules and regulations laid down by that process. In a nutshell, most of the constitutional provisions are amended by conventional legislative procedure and there are only a few selected provisions which require a special majority plus ratification by the States. These provisions deal with the federal principle.
A major question of law which was faced by the Supreme Court was the amendment of fundamental rights being included within the ambit of Article 368. Even though Article 368 lays down the amendment procedure but Article 13(2) states that the State is barred from creating any laws which would result in the violation of the fundamental rights.
In Golak Nath v. State of Punjab AIR 1971 SC 1643, the validity of the 1st, 4th and the 17th constitutional amendment was questioned. It was held that the Parliament possesses no power from the date of decision of the case in question to amend Part III of the Constitution to abridge the fundamental rights guaranteed.
It is imperative to mention here that 24th Amendment Act was constituted to reinforce the amending power of the Parliament. When it comes to the amendment of the Constitution, a mention of Kesavnanda Bharti v. State of Kerala AIR 1973 SC 1461 is necessary. The doctrine of basic structure of the Constitution was shaped by this case. It states that any law passed by the Parliament will be declared void which is not in accordance with the basic structure of the Constitution or destroys it. The Apex Court has expanded upon the doctrine in various cases including Raj Narain v. Indira Gandhi and also in Minerva Mills case.
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