There are three
types of bills that seek to amend the Constitution:
1. Bills
that are passed by Parliament by Simple Majority.
2. Bills
that have to be passed by Parliament by Special Majority.
3. Bills
that have to be passed by Special Majority and also to be ratified by not less
than one-half of the State Legislatures.
Bills that
are passed by Parliament by Simple Majority
Such Bills
are not deemed as ‘Constitution Amendment Bills’ within the meaning of Article
368[1].
These bills are passed by both Houses of Parliament by a simple majority of
members present and voting. It consists of:
a.
Admission or establishment of new States, formation of new States, and
alteration of areas, boundaries or names of existing States. Bills relating to
such matters require the recommendation of the President for introduction.
b.
Creation or abolition of Legislative Councils in the States. Bills relating to such matters require the
prior adoption of necessary resolution by the State Legislative Assembly
concerned.
c.
Administration and control of Scheduled Areas and Scheduled Tribes.
d.
Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and
Mizoram.
Bills that
have to be passed by Parliament by Special Majority
The procedure
for such bills is prescribed under Article 368 (2) of the Constitution. These
can be introduced in either House of Parliament. Also, such bills can never be
treated as Money Bills or Financial Bills. Thus, no recommendation of President
is needed for introducing these bills.
These bills have
to be passed by 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’.
I. “Total
membership” means the total number of members comprising the House
irrespective of whether there are vacancies or absentees on any account.
II. “Present
and voting”, means members who vote for “ayes” or for “noes”. Members who
are present in the House and vote “abstention” either through the electronic
vote recorder or on a voting slip or in any other manner, are not treated as “present
and voting.”
Bills that
have to be passed by Special Majority and also to be ratified by not less than
one-half of the State Legislatures
This comprises
of Constitutional Amendment Bills which seek to make any change in articles
relating to:
a. The
Election of the President.
b. The
extent of the Executive Power of the Union and the States.
c. The
Supreme Court and the High Courts.
d. Any
of the Lists in the Seventh Schedule.
e. The
representation of States in Parliament.
f. The
provisions of Article 368 itself.
The ratification
by the State Legislatures has to be made by resolutions to that effect. And
such resolutions must be passed before the Constitution Amendment Bill is
presented to the President for Assent.
Some Basic
Points Relating to Article 368
1. There is
no provision for Joint Sitting of the Houses of Parliament for the Constitution
Amendment Bills under Article 368 of the Constitution as Article 368
specifically requires each house to pass the Bill by a Special Majority.
2. An amendment
can be initiated only by the introduction of a Bill in either House of
Parliament.
3. When the Bill
is so passed, it must be presented to the President who shall give his assent
to the Bill.
4. No specific
time limit for the ratification of an amending Bill by the State Legislatures
is laid down. However it should be passed before the amending Bill is presented
to the President for his assent.
Special
Points of Interest
1. There is no
separate constituent body for the purposes of amendment of the Constitution.
The constituent power is being vested in the Parliament (legislature).
2. In Indira
Nehru Gandhi v. Raj Naraian[2]
and also in Minerva Mills Case[3],
it has been observed that the claim of any particular feature of the
Constitution to be a ‘basic’ feature would be determined by the Court in each
case that comes before it.
3. Although
Parliament must preserve the basic framework of the Constitution, there is
no other limitation placed upon the amending power, that is to say, there is no
provision of the Constitution that cannot be amended. E.g. in Indra
Sawhney’s Case[4], the Supreme
Court prevented 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.
4. The role of
the States in Constitution amendment is limited. The State Legislatures cannot
initiate any Bill or proposal for amendment of the Constitution except for
creating or abolishing Legislative Councils and to give their views on Bills
which seek to affect the area, boundaries or name of any state.
Previous: Legislative Process - Types of Bills introduced in the Parliament of India
[1] Article
368 – Amendment of the Constitution
(1) Notwithstanding anything in this Constitution,
Parliament may in exercise of its constituent power amend by way of addition,
variation or repeal any provision of this Constitution in accordance with the
procedure laid down in this article.
(2) An amendment of this Constitution may be initiated
only by the introduction of a Bill for the purpose in either House of
Parliament, and when the Bill is passed in each House by 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, it shall be presented to the
President who shall give his assent to the Bill and thereupon the Constitution
shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any
change in:
(a) article 54, article 55, article 73, article 162 or
article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or
Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the
Legislatures of not less than one-half of the States by resolutions to that
effect passed by those Legislatures before the Bill making provision for such
amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment
made under this article.
(4) No amendment of this Constitution (including the
provisions of Part III) made or purporting to have been made under this article
[whether before or after the commencement of section 55 of the Constitution
(Forty second Amendment) Act, 1976] shall be called in question in any court on
any ground.
(5) For the removal of doubts, it is hereby declared
that there shall be no limitation whatever on the constituent power of
Parliament to amend by way of addition, variation or repeal the provisions of
this Constitution under this article.
[2] AIR
1975 SC 2299.
[3] AIR
1980 SC 1789.
[4] AIR
1993 SC 477.
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