The Kesavananda Bharati vs. State of Kerala (1973) case provided the best explanation as to the scope and definition of the word ‘amendment’. The court gave a broad definition, where by the word ‘amendment’ will include any alteration or change.

“The word ‘amendment’ when used in connection with the Constitution may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular article or clause”.

Provision for Amendment

Why is it needed?

It has been provided in line with the basic philosophy that the Constitution needs to be alive to the necessity of adapting itself to realities of contemporary changes. The scope for amendments is a must to allow the Constitution to adjust itself to the changing conditions and needs.

Types of Amendment

The procedure of amendment makes the Constitution of India neither totally rigid nor totally flexible, rather a curious mixture of both. Some provisions can be easily changed and for some others, special procedures are to be followed. Despite the fact that India is a federal state, the proposal for amending the Constitution can be initiated only in either of the Houses of Parliament, and the state legislatures have no such power.

In case of ordinary legislation, if both the houses of Parliament disagree, a joint session is  convened. But, in case of amendment of constitutional articles, unless both the houses separately agree, it cannot materialize, as in such cases there is no provision for convening the joint session of both the Houses of Parliament.

In fact, there are three methods of amending the Constitution. But, Article 368 of the Constitution, which lays down the procedure for amendment, mentions two methods.

However, the Constitution can be amended in the following three ways:

Majorities in Indian Parliament

Majority - It is a functional instrument used in Parliament to carry out several businesses like amendment to the Constitution appointment & removal of officials and working of Parliament.

Types of Majorities in Indian Parliament

Although the Constitution of India does not provide an explicit classification for the kinds of majorities needed for passing various kinds of bills, a careful interpretation of the Constitution provides four major types of majorities.

They are as follows:

1. Simple
2. Absolute
3. Effective
4. Special

1. Simple Majority

• This refers to a majority of more than 50% of the members present and voting in the House also known as Functional or Working majority. This is the most commonly used type of majority.
• When the law does not specify the kind of majority needed, a simple majority is used for passing bills or motions.
• Ordinary bills require only a simple majority. For example, in the Lok Sabha, out of the total strength of 545, suppose 45 were absent and 100 abstained from voting. This means, only 400 members were present and voting. In this case, the simple majority needed is 201 (50% + 1).

Instances where a simple majority is needed:

• To pass money bill/financial/ordinary bills
• To pass Adjournment Motion/Non-Confidence Motion/Censure Motion/Confidence Motion 
• To declare a financial emergency
• To declare President’s Rule (state emergency)
• To elect the Speaker and Deputy Speaker of the Lok Sabha
• Constitution Amendment Bill under Article 368 which needs to be ratified by the states needs only a simple majority at the State Legislatures; etc.

2. Absolute Majority

• This refers to a majority of more than 50% of the House’s total membership. This means that in the Lok Sabha, the absolute majority is 273. (50% more than 545, the total membership of the Lok Sabha).

3. Effective Majority

• This refers to a majority of more than 50% of the effective strength of the House. For example, in the Lok Sabha, out of the total strength of 545, suppose 5 are vacant seats. This means, the effective strength of the House is (545 – 5)  = 540. In this case, the effective majority is 270.
• In the Constitution, an effective majority is mentioned as “all the then members”.

Instances where an effective majority is needed:

• Removal of the Deputy Chairman in the Rajya Sabha (Article 67(b)).
• Removal of the Deputy Speaker of the Lok Sabha and the State Legislatures.

4. Special Majority

Any majority other than simple, absolute and effective are called Special Majorities. There are four types of special majorities. They are as follows:

1. Special Majority according to Article 249
2. Special Majority according to Article 368
3. Special Majority according to Article 368 + 50 percent state ratification by a simple majority
4. Special Majority according to Article 61

Special Majority according to Article 249

• This refers to a majority of 2/3rd members present and voting. This is used to pass a Rajya Sabha resolution to empower the Parliament to make laws in the State List.

Special Majority according to Article 368

• This refers to a majority of 2/3rd members present and voting supported by over 50% of the total strength of the House. This is chiefly used for most of the Constitution Amendment Bills.

Instances where this type of majority is used:

• Passing a constitutional amendment bill which does not affect federalism.
• Removing judges of the Supreme Court or High Court.
• Removing the Comptroller and Auditor General of India (CAG) or the Chief Election Commissioner (CEC).
• National emergency
• Resolution by the State Legislature for the abolition or creation of the Legislative Council.

Special Majority according to Article 368 + 50 percent state ratification by a simple majority

• This type of majority is needed when a constitutional amendment tries to change the federal structure.  E.g. The bill that introduced the National Judicial Appointments Commission. It needed the support of at least 15 state legislatures out of the 29 states.

Special Majority according to Article 61

• This refers to a majority of 2/3rd of the total strength of the House. This is used in the case of impeachment of the President of India.

Criticism of the Amendment Procedure

1. There is no special body for amending the Constitution. As compared to the US, which has a special body (Amendments Convention), there is no such provision in the case of India. Hence, the Constitution has often been amended to attain political goals and ends.

2. State legislatures cannot initiate a constitutional amendment bill (unlike the US). This is held as a criticism against federal base of India. Even in the one exception to the above point (state legislatures can introduce a resolution for demand of State Legislative Councils), is subject to whims of the Parliament, which can reject such a resolution or may not take any action at all. Major part of the Constitution can be amended by the Parliament alone either by a special majority or by a simple majority. Only in few cases, the consent of the state legislatures is required.

3. There is no time frame for state legislature’s ratification or rejection.

4. There is no provision for joint sitting of houses in case of a deadlock between them on the matter of an amendment bill, which is available in the case of an ordinary bill. This seems ironical considering the importance that the amendment process has been accorded in our Constitution.

5. The procedure for amendment is kept too sketchy, leaving a wide scope for judicial intervention, which as we have seen above, has led to various confrontations between the Parliament and the judiciary, which undermines the balance of the Indian polity.

---> Next Article (6. Main Sources of Indian Constitution)