Amendment Power and Procedure

Amendment Power and Procedure

 A Constitution should be dynamic in nature and should able to adapt itself to the changing needs of society. As due to the sudden change in the society, the Constitution and the pattern of government will require a major change. Article 368 of the Indian Constitution provides the procedure of Amendment. Indian Constitution is neither rigid nor flexible because, under Article 368, the Constitution can be amended by a simple majority or by the special majority and special majority of the Parliament and the ratification of at least half of the state legislatures.

Procedure for a constitutional amendment

An amendment to the Constitution may only be initiated by introducing a Bill for that purpose in either House of the 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 vote, then it shall be presented to the President, who shall give his assent to the Bill.

Simple Majority: For example in raj sabha there are total 250 members, but only 100 people are present so if only 51 people will passed the bill then it means it is passed by the raj sabha ( there must be more than 50% member present and voting)

• Admission or establishment of new states.
• Formation of new states and alteration of areas, boundaries or names of existing states.
• Abolition or creation of legislative councils in states.
• Second Schedule-emoluments,
• Allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
• Quorum in Parliament.
• Salaries and allowances of the members of Parliament.
• Rules of procedure in Parliament.
• Privileges of the Parliament, its members and its committees.
• Use of the English language in Parliament.
• Number of  judges in the Supreme Court.
• Conferment of more jurisdiction on the Supreme Court.
• Conferment of more jurisdiction on the Supreme Court.
• Citizenship-acquisition and termination.
• Elections to Parliament and state legislatures.
• Delimitation of constituencies.
• Union territories
• Fifth Schedule-administration of scheduled areas and scheduled tribes.
• Sixth Schedule-administration of tribal areas.

Special Majority:  There are 2 conditions, FIRST- 2/3 member present and voting example 450 are present out of 500, so what will be the 2/3 of 450 = 300 ….so if 301 people passed the bill then it will be considered passed by the lok sabha. Second Condition- So the number which will come in 2/3 that is 300, must be more than 50% of total number of member of house. How to calculate 2/3? = 2divided by three= 0.6666, then multiply the number with 0.6666. Example 2/3 of 450 will be 0.6666 x 450= 300.

• The provisions which can be amended by this way include (i) Fundamental Rights; (ii) Directive Principle of State Policy; and (iii) All other provisions which are not covered by the first and third categories.

Special Majority and Ratification by State: Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half (50%) of the state legislatures by a simple majority.

• Election of the President and its manner.
• Extent of the executive power of the Union and the states.
• Supreme Court and high courts.
• Distribution of legislative powers between
• The Union and the states.
• Any of the lists in the Seventh Schedule.
• Representation of states in Parliament.
• Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

Types of Bills in India

Ordinary Bills

As per Articles 107 and 108 of the Indian Constitution, an ordinary bill is concerned with any matter other than financial bill, money bill, and constitutional amendment bill. An ordinary bill is introduced in either House of the Parliament. This bill is introduced by Minister or a Private member (who is not the member of parliament). There is no recommendation of President in case of ordinary bill. Ordinary bill can be amended/rejected by Rajya Sabha and it can be detained by Rajya Sabha for a period of six months. After being passed by both the houses of Parliament, it is presented to the President for his approval or assent under Article 111 of the Indian Constitution. There is a provision of joint sitting in case of ordinary bill.
 

Money Bills

Money bills are those bills which are concerned with financial matters like taxation, public expenditure, etc. These are those bills that contain provisions that deal with all or any of the matters specified in Article 109 & 110 of the Indian Constitution. This bill is presented only in Lok Sabha. It is introduced only by the Minister. Money bill is introduced only after President’s recommendation. Speaker decides whether, a bill is money bill or not and his decisions is not questionable in any house and final itself. This bill cannot be amended or rejected by Rajya Sabha. It can be detained by Rajya Sabha for the maximum period of 14 days. Money bill is then sent to the President for his approval only after being passed Lok Sabha. There is no provision of joint sitting in case of money bill.

It is listed under Article 110 (1) of the Constitution of India. Any bill is deemed to be money bill if it contains only provisions on all or any of the following:

• Imposition, abolition, remission, alteration or regulation of any tax
• Regulation of borrowing by the government
• Custody of the Consolidated Fund or Contingency Fund of India (payments and withdrawal)
• Appropriation of funds out of the Consolidated Fund of India
• Declaration of expenditure charged on the Consolidated Fund of India or in case the amount of any such expenditure is increased
• Receipt of money on account of the Consolidated Fund of India (CFI) or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State or
• Any matter incidental to any of the matters specified in the list above

Difference	Ordinary Bill	Money Bill
Introduction	In either Lok Sabha or Rajya Sabha	Only in Lok Sabha
Introduced By	Minister or a Private Member	Only a Minister
President’s Recommendation	Not Need	Only after he recommends
Rajya Sabha’s Role	Can be amended/rejected by Rajya Sabha	Cannot be amended/rejected by Rajya Sabha. (It has to return the bill with/without recommendations)
	Can be detained by the Rajya Sabha for a maximum period of six months.	Can be detained by the Rajya Sabha for a maximum period of 14 days only.
President’s Assent	Sent for his assent only after being approved by both the houses	Send for his assent only after Lok Sabha’s approval. (Rajya Sabha approval is not required)
	Can be rejected, approved, or returned for reconsideration by the President.	Can be rejected or approved but cannot be returned for reconsideration by the President.
Joint Sitting of Both Houses	In case of deadlock, there is a provision of a joint sitting	No chance of disagreement, hence, no provision of a joint sitting

Financial Bill

As per Article 117 of the Indian Constitution, financial bills are those bills which are concerned with financial matters but are different from money bills. When bill is related to matters given under art 110 (tax and consolidated funds) and matters related to non-monetary are known as financial bill. Financial bills are further classified as Financial bills Categories A and B. It includes imposition of new taxes, alteration in the existing tax structure or continuance of the older one, beyond the term assented by the Parliament. A financial bill of category-II is one which although has provisions involving expenditure from Consolidated Fund of India.

Money Bill	Financial Bill – I	Financial Bill – II
The recommendation of the President is required for this bill.	This bill requires the recommendation of the President.	To introduce this bill, recommendation of the President is not required.
Rajya Sabha has no power to amend or reject the Money Bill	Rajya Sabha is powerful enough to amend or reject Financial Bill – I	Rajya Sabha has the power to amend or reject Financial Bill – II
Speaker of Lok Sabha whether a bill is a money bill or not.	This Bill does not require any kind of approval from the Speaker for its classification	This Bill does not require any kind of approval from the Speaker
Money Bill can be introduced only in Lok Sabha	Financial Bill-I can be introduced only in Lok Sabha	Financial Bill-II can be introduced in Lok Sabha as well as Rajya Sabha
There is no provision for a joint sitting of Lok Sabha and Rajya Sabha to resolve issues in Money Bill.	The President can summon a joint sitting of both Lok Sabha and Rajya Sabha to resolve the deadlock on Financial Bill-I	The President can summon a joint sitting of both Lok Sabha and Rajya Sabha to resolve the deadlock on Financial Bill-II
Money Bill is listed in Article 110 of the Constitution	Finance Bill-I is detailed in Article 117(1) of the Constitution	Finance Bill-II is mentioned in Article 117(3) of the Constitution.
Money Bill only deals with provisions mentioned in Article 110	Finance Bill-I talks about the provisions of Article 110 but also other matters of general legislation	Finance Bill-II lists the expenditure from the Consolidated Fund of India. It is however not included in Article 110.
Money Bill is a Government Bill	Finance Bill -I is an ordinary Bill	Finance Bill-II is an ordinary Bill

Constitutional Amendment Bill

Article 368 of the Indian Constitution is concerned with the provisions of amendment of the Constitution itself.

Constitutional Amendment Bill
Introduction	In either house of the parliament Note: Can’t be introduced in the state legislatures
Introduced by	Either by a minister or by a private member Note: It does not require prior permission of the president.
Majority Needed	Must be passed in each House by a special majority, that is, a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting
Joint Sitting	There is no provision for joint sitting in case of deadlock
Role of State Legislature	If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting
President’s Assent	He must give his assent Note: He can’t return the bill He can’t withhold the bill unlike in the case of ordinary bills

Ordinance Making Power of President

Article 123: An ordinance is a law that is promulgated by the President of India only when the Indian parliament is not in session. President promulgates an ordinance on the recommendation of the union cabinet. Similarly, the Governor of Indian states can also initiate ordinances only when a legislative assembly is not in session. For an ordinance to exist, it should be approved by the Parliament within six weeks of it being introduced. Parliament is required to sit within 6 weeks from when Ordinance was introduced. May be withdraw at any time by the president.

• Ordinances can be introduced only on those subjects on which the Indian Parliament can make laws.
• Ordinances cannot take away any rights of citizens that are guaranteed by the Fundamental Rights of the Indian Constitution.
• Ordinance ceases to exist if parliament takes no action within six weeks from its reassembly
• Ordinance also stands void if both the houses pass a resolution disapproving the ordinance

President Power in respect of Bills

Article 111:When a bill is introduced in the Parliament, Parliament can pass the bill and before the bill becomes an act, it has to be presented to the Indian President for his approval. It is up to the President of India to either reject the bill, return the bill or withhold his/her assent to the bill. The choice of the President over the bill is called the veto power.

There are three types of veto powers:

• Absolute Veto: The power of the President to withhold the assent to the bill is termed as his absolute veto. The bill then ends and does not become an act. Usually absolute veto is exercised in two cases (a) With respect to private member’s bill (that is bills introduced by any member of parliament who is not a minister and (b) with respect to the government bills, when the cabinet resigns (after passing of the bill but before the assent by the president) and the new cabinet advices the president not to give his assent to such bill.

 In India, the President has exercised his absolute veto before. In 1954, it was exercised by Dr. Rajendra Prasad as a President and later in 1991, it was used by the then President R Venkataraman.

• Suspension Veto: The power of the President to return the bill to the Parliament for reconsideration. However if the bill is passed again by the parliament with or without amendments and again presented to the president, it is obligatory for the president to give his assent to the bill. The President cannot exercise his suspensive veto in relation to Money Bill.
• Pocket Veto: The president neither ratifies nor reject or return the bill but simply keeps the bill pending for an indefinite period this power of president is not taking any action on the bill is known as pocket veto. The Constitution does not prescribe any time limit within which he has to take this decision with respect to a bill presented to him for his assent.

 The President has no veto power when it comes to the constitutional amendment bills. 

Types of Bills	President’s Actions
With regard to Ordinary Bills	President can: Ratify Return Reject
With regard to Money Bills	President can: Ratify Reject President cannot: Return
With regard to the Constitutional Amendment Bills (Know about the important amendments in the constitution here.)	President can: Ratify President cannot: Reject Return

                                                 Doctrine of Basic Structure

The framers of the Constitution were so intellect that they know that if they choose flexible Amendment procedure, the ruling party can use that procedure as their weapons so they adopted a middle course. They made the procedure neither too rigid nor too flexible. if the parliament wants to make any changes or amend the Constitution they have to propose the bill in the parliament and after the voting if the bill gets the majority, the bill will be sent to the president for his consent after the consent of the president the bill got passed and the Amendment completes, but this powers are not absolute.

The framers of the Constitution gave some powers to the judiciary as well. If the Amendment was passed by the parliament and if the judiciary feels to review it, the judiciary has the power and if the judiciary thinks that Amendment is unlawful or against any provision or against public morality or fundamental right, then they have the power to declare such amendment as invalid. (Judicial Review). Article 13(2) The State shall not make any law which takes away or abridges the rights any law made in contravention of Fundamental right will, be declared void. On the other hand under article 368 there is power of parliament to amend the constitution. But the question is to what extent they can amend?

The Doctrine of Basic structure is a doctrine to put limitation on the amending power of parliament so the basic structure cannot be amended. Parliament can change the whole Constitution but the basic structure cannot be amended.  These basic features is not exhaustive in future other elements can also be considered as basic feature.

Basic Structure Such as:

• Supremacy of the Constitution
• Unity and sovereignty of India
• Democratic and republican form of government
• Federal character of the Constitution
• Secular character of the Constitution
• Separation of power
• Individual freedom  (Over the time many other features also added such as) –
• Rule of law
• Judicial review
• Parliamentary system
• Rule of equality
• Harmony and balance between the Fundamental Rights and DPSP
• Free and fair elections
• Limited power of the parliament to amend the Constitution
• Power of the Supreme Court under Articles 32, 136, 142 and 147
• Power of the High Court under Articles 226 and 227

Evolution of Basic Structure

1.  Shankar Prasad vs. the Union of India, 1951:-

1^st Constitutional amendment act which deals with article 31 (Right to property), initially we were provided 7 fundamental rights but in 44^th amendment act they removed article 31. Now let’s understand the story behind 1^st amendment act. When India became independent, at that time there was inequality in landownership, farmers were not having any securities. So abolition of zamindari system was a revolutionary policy of independent India so for this reform, after independence Indian national congress setup a committee known as “Agrarian Reform Committee” so objective of this land reform policy was to “fix ceiling limit on land holding” and then in 1951 1^st constitutional amendment was passed in which article 31A & 31B  was inserted. Article 31A&B talks about that state has power to take property from any person by legal procedure and provide compensation to such person.  Article 19(1) (g) was also inserted in which some restriction was introduced, state were given power to acquire any business partially or completely. So these new article were affecting the fundamental right and people were looking at these articles as an attack to right to property.

So this 1^st constitutional amendment act was challenged in Shankari Prasad case. The court said all these changed are valid and said that parliament has power to amend even the fundamental right. Court also said that article 13 only applies to ordinary laws not on constitutional amendment act.

Its means parliament is more powerful and can even amend the fundamental rights.

2. Sajjan Singh vs. State of Rajasthan:-

In this case 17^th Constitutional Amendment act was challenged because it was restricting the power of High Court, judicial review power was curtailed. It introduced a major change in which state governments put here land reform acts in 9^th schedule. Generally if any law made which is violative of fundamental right will be declared void but if you put any law in 9^th schedule then those laws will be given immunity aging article 13 even if those law are violative of fundamental right.

So this 17^th Constitutional Amendment act was challenged in Sajjan Singh case. In this case five judges bench was there and judgment ratio was 3:2 The majority of judges in this case is on the same logic as held in shankari prasand case, that parliament has enough power to amend the fundamental right and is not subject to article 13. Judges were not satisfied so they refer this case to larger bench (it should be more than 5 judges).  

3. Golaknath vs. State of Punjab:- 

Again 17^th Constitutional Amendment act was challenged and 11 Judges Bench was constituted. The court said the power to amend constitution (368) is not absolute power of parliament, Parliament power is subjected to restrictions & limitation and even subjected to judicial review under article 13. The court further said that parliament does not have power to amend or violate the fundamental right and if any law made by parliament which will violate the fundamental right it will be declared void under article 13. So basically Golaknath case reversed the judgment of shankari prasad case and sajjan singh case. But this case was given prospective ruling.

4. 24^th Constitutional Amendment Act:-

Because of golaknath judgment parliament power was reduced, so to regain power back the parliament reverse the judgment of golaknath. So parliament came up with 24^th Constitutional Amendment Act and make some changes in article 13 and article 368.

• In article 13 they included clause(4) which said that nothing in this article would apply to article 368, which means anything can be done under article 368 and it would not attract the attention of judicial review.
• Under article 368 they change the marginal heading of 368 from “Procedure for amending the Constitution” to “Power of Parliament to amend the Constitution and procedure therefore”.
• Parliament also added clause (3) in article 368 which says that if parliament bring any constitutional amendment then it will not be covered under article 13.
• 24^th Amendment also says that it has power to amend any part of the constitution even fundamental rights

After that many Constitutional Amendments Acts were introduced:

• 25^th CAA: which reduce “Property Rights”
• 29^th CAA: which brought land reforms

5. Kesavananda Bharti vs. State of Kerala:-

This case is also known as Fundamental Rights Case It was one of the largest bench of 13 Judges, heard for 68 days. In this case the validity of 24^th 25^th, 29^th amendment was challenged.

The question was related to the scope of amending power of the parliament?

The Supreme Court said that there is enough power to amend the constitution which was already in constitution and 24^th amendment act just made it explicit and clear. Court said that the Basic Structure cannot be amended. It means you can change the old constitution into new constitution and can even amend the fundamental right but the basic feature must not be changed. The list of basic features is not exhaustive in future other elements can also be considered as basic feature. If in future date if question arise that whether any particular feature will be the part of basic structure or not, then judges have to give attention on the framer of the constitution that at what intention that particular act was made, then you will understand weather that is a basic structure or not.

6. Indira Gandhi vs. Raj Narain

Background – On 12^th June 1975 Allahabad High Court pronounced a historic judgment, the court quashed the Indira Gandhi election because of electoral mal practice and disbarred Indira Gandhi to hold any elective office for 6 years and because of this judgment Indira Gandhi was very much dissatisfied by the court.

So Indira Gandhi passed 39^th Constitutional Amendment Act, then filed an appeal just next day in Supreme Court against Allahabad High Court and after few days she declared National Emergency. In 39^th Amendment act added article 329A (which talks about that Supreme Court will not have power to hear electoral disputes of President, Vice President, PM, Speaker of Lok Sabha, it will be tried by separate body not by SC) and article 71 was removed. The case pending in SC was not able to trail after 39^th amendment act.

The objective of amendment was very clear that Indira keeps on continuing as a PM. But after election result Janta party wins the election with majority and Morarji Desai became the next PM. After coming into power janta party removed article 329A and added again article 71 which was previously removed by Indira Gandhi.  After doing such changes by Janta Party SC again regained power to trail electoral disputes cases.

7.  Minerva Mills vs. Union of India

42^nd Amendment Act was challenged, this amendment made so many changes in the constitution that it’s known as “Mini Constitution of India”.  In this amendment Article 31C (Right to Property) inserted section (4) and in Article 368 it inserted clause (4) & (5).

• Article 31C Section 4 talks about that if parliament add any provisions in Part (IV DPSP) which is violative of Part (III Fundamental Right), then also it will be valid and cannot be challenged in court (No Judicial Review).
• Clause (4) of article 368 talks about the parliament has power to amend any part of Part (III) and even if they remove or insert any provision it cannot be challenged in court (No Judicial Review).
• Clause (5) of article 368 talks about that there should be no limitation on amending power of parliament. Parliament has been given absolute power.

The purpose of this amendment was to nullify the effect of Kesavananda Bharti case, to remove the basic structure doctrine and remove the judicial review power and remove the limitation on parliament to amend.

42^nd Amendment Act was challenged in Minerva Mills Case, the petitioner of the case were the owner of the Minerva mills, this mill was taken by the government because of nationalization, so In this case 42^nd amendment act was declared invalid and was an attack on basic structure and held unconstitutional. The Court said that the constitution is supreme and you cannot destroy its identity and the parliament cannot exercised unlimited amending power.

In this case SC gave three new Basic Feature

• Judicial Review – cannot be suppressed by parliament
• Limited amending power of the parliament – it cannot expand its amending power
• Harmony between Part III & IV – there must be balance between fundamental right and directive principle of state policy, there must not be conflict between them

8. Waman Rao vs. Union of India 1981:-

After coming of Doctrine of Basic Structure all the previous Constitutional Amendment were been challenged in Court on the grounds of whether those constitutional amendments fulfill Doctrine of Basic Structure or not.

So in this case declared that the doctrine of basic structure which was introduced in kesavanada bharti case on 24^th April 1973, will be given prospective ruling from this date not retrospective.

Contribution to Basic Structure:

Chief Justice Sikri indicated that Basic structure is:

1. The supremacy of Constitution
2. The republican and democratic forms of government
3. The secular character of Constitution
4. Maintenance of separation of power
5. The federal character of the Constitution

Justices Shelat and Grover added another three:

1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country’

Justices Hegde and Mukherjea listed the following:

1. The Sovereignty of India
2. The unity of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare state

Justice Jaganmohan Reddy referred the Preamble only:

1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship
4. Equality of status and opportunity