Amendment of the Constitution of India

Amending the Constitution of India is the process of making changes to the nation's fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.

However, there is another limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power. This has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala.

Constituent Assembly debates

The framers of the Constitution were neither in favour of the traditional theory of federalism, which entrusts the task of constitutional amendment to a body other than the Legislature, nor did they favour a rigid special procedure for such amendments. They also never wanted to have a British-style system where Parliament is supreme. The framers, instead, adopted a combination of the "theory of fundamental law", which underlies the written Constitution of the United States with the "theory of parliamentary sovereignty" as existing in the United Kingdom. The Constitution of India vests constituent power upon the Parliament subject to the special procedure laid down therein.[1]

During the discussion in the Constituent Assembly on this aspect, some members were in favour of adopting an easier mode of amending procedure for the initial five to ten years. Explaining why it was necessary to introduce an element of flexibility in the Constitution, Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948, "While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible ... while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I think it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote - man and woman - the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so - under this Constitution of course it will have the right to do anything - should have an easy opportunity to make such changes as it wants to. But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible ..."[1][2]

Dr. P.S. Deshmukh believed that the amendment of the Constitution should be made easier as he felt there were contradictory provisions in some places which would be more and more apparent when the provisions were interpreted, and that the whole administration would suffer, if the amendment to the Constitution was not made easy. Brajeshwar Prasad also favoured a flexible Constitution so as to make it survive the test of time. He was of the opinion that rigidity tends to check progressive legislation or gradual innovation. On the other hand, H.V. Kamath favoured ensuring procedural safeguards to avoid the possibility of hasty amendment to the Constitution.[1]

"It is said that the provisions contained in the Draft make amendment difficult. It is proposed that the Constitution should be amendable by a simple majority at least for some years. The argument is subtle and ingenious. It is said that this Constituent Assembly is not elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while the latter has been denied the same right. It is paraded as one of the absurdities of the Draft Constitution. I must repudiate the charge because it is without foundation. To know how simple are the provisions of the Draft Constitution in respect of amending the Constitution one has only to study the provisions for amendment contained in the American and Australian Constitutions. Compared to them those contained in the Draft Constitution will be found to be the simplest. The Draft Constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or a referendum ... It is only for amendments of specific matters—and they are only few—that the ratification of the State Legislatures is required. All other Articles of the Constitution are left to be amended by Parliament. The only limitation is that it shall be done by a majority of not less than two-thirds of the members of each House present and voting and a majority of the total membership of each House. It is difficult to conceive a simpler method of amending the Constitution.

What is said to be the absurdity of the amending provisions is founded upon a misconception of the position of the Constituent Assembly and of the future Parliament elected under the Constitution. The Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind. In considering the Articles of the Constitution it has no eye on getting through a particular measure. The future Parliament if it met as Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it."

— B.R. Ambedkar, speaking in the Constituent Assembly on 4 November 1948[1]