In a flexible Constitution, the amendment may be affected rather easily. The best example of such a Constitution is the English Constitution, which may be amended by passing an ordinary Act of Parliament and there is no distinction between ordinary legislation and constituent legislation. A federal Constitution is usually of a rigid type, for it seeks to achieve a balance between the Centre and the States.
In India, the most important process to modify and adopt the text of the Indian Constitution is contained in Article 368. For the purpose of amendment, various Articles of the Constitution are divided into three categories:
(1) Amendment by simple majority:
Amendments contemplated in Articles 5, 6, and 239-A, can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed in Article 368.
(2) Amendment by special majority:
Articles which can be amended by special majority are laid down in Article 368. All constitutional amendments, other than those referred to as above, come within this category and must be effected by a majority of the total membership of each House of the Parliament, as well as by a majority of not less than two-thirds of the members of that House present and voting.
(3) By special majority and Ratification by States:
Articles which require in addition to the special majority and ratification by not less than one-half of the State Legislatures come under this category. These are fundamental matters where States have important power under the Constitution and any unilateral amendment by Parliament may vitally affect the fundamental basis of the system built up by the Constitution. This class of articles consists of amendments which seek to make any change in the provisions mentioned in Article 368. The following provisions require such ratification by States:
(1) Election of President—Articles 54 and 55.
(2) Extent of Executive power of the Union and States—Articles 73 and 162.
(3) Articles dealing with Judiciary—Supreme Court and the High Court’s—Articles 124 to 147 and 214 to 231, and 241.
(4) Distribution of legislative powers between the Centre and the States.
(5) Any of the Lists of VII Schedule.
(6) Representation of States in Parliament IV Schedule.
(7) Article 368 itself.
Procedure for Amendment under Article 368:
A Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by a majority of not less than two-thirds members of total membership of that House present and voting. When a Bill is passed by both Houses, it is presented to the President for his assent, who shall give his assent to the Bill and the Constitution shall stand amended.
The question whether amendment of fundamental rights are covered by the proviso to Article 368, came for consideration in Shankari Prasad v. Union of India, AIR 1951 S.C. 455. In this case, validity of the First Amendment which inserted Articles 31-A and 31-B, was challenged.
The Supreme Court held that power to amend the Constitution including the fundamental rights, was contained In Article 368 and that the word “Law” in Article 13 (2) includes only an ordinary law and not constitutional amendments. Therefore, a constitutional amendment will be valid even if it abridges or takes away any of the fundamental rights.
Same line of approach was followed in SaJJan Singh vs. State of Rajas than, AIR 1965 S.C. 845, in which the validity of Seventeenth Amendment of the Constitution was challenged. Supreme Court approved the majority Judgment given In Shankari Prasad case, that “amendment of the Constitution” means amendment of all the provisions of the Constitution.
But In Golak Nath vs. State of Punjab, AIR 1967 S.C. 1643, and Supreme Court overruled the decisions of Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend Part III of the Constitution so as to abridge or take away the fundamental rights.
The Constitution (24th Amendment) Act, 1971, was passed to remove the difficulties created by the decision of Golak Nath case. This amendment provides that Article 13 does not include the amendment of the Constitution made under Article 368. It added a new sub-clause In Article 368 which provides that “notwithstanding anything in this Constitution, Parliament may, in exercise of constituent power, amend by way of addition, variation, or repeal any provision of the Constitution.”
The validity of this Amendment was again challenged In Keshvanand Bhartiv. State of Kerala, AIR 1973 S.C. 1461. In this case, Supreme Court overruled the decision of Golak Nath case and held that Article 368, even before the 24th Amendment of the Constitution, contained the powers as well as the procedure of the amendment.
As regards the scope of the amending power contained in Article 368, the court said that the word “amendment” has been used in various places to mean different things. In Article 368, It means any addition or change in any of the provisions of the Constitution. The fundamental rights cannot be abrogated, but they can be amended reasonably. The court further said that every part of the Constitution can be amended provided in the result the basic structure of the Constitution remains the same.
To remove the difficulties created by the decision of Keshvanand Bharti Case, the Constitution (42nd Amendment) Act, 1976, has added two new clauses (4) and (5) to Article 368 of the Constitution. Clause (4) provides that no constitutional amendment (including the provisions of Part III) or purporting to have been made under Article 368 whether before or after the commencement of Constitution (42nd Amendment) Act, 1976, shall be called in question in any court on any ground.
Clause (5) declares that there shall be no limitation whether on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of the Constitution under this Article.
In Minerva Mills Ltd. v. Union of India, AIR 1980 S.C. 1789, the Supreme Court held clauses (4) and (5) of Article 368 as void, because through these clauses all limitations on the amending power of the Parliament were removed.
The court held that Parliament cannot have unlimited power to amend the Constitution. “Limited amending power” is the basic feature of the Constitution. The court, however, held that the doctrine of basic structure is to be applied only in judging the validity of the amendments to the Constitution and it does not apply for judging the validity of ordinary laws made by the Legislature.