Amending Procedure of UK, US and Indian Constitution

  • The British constitution is a very flexible constitution. It can be amended, partially or wholly, by an ordinary law passed by the British parliament. There is no distinction between constitutional law and ordinary law and each can be amended or repealed or replaced by the British parliament.
  • The US constitution is a very rigid constitution. Article V of the US constitution lays down a difficult method of Amendment. An Amendment proposal in the US constitution has to pass through two stages: 1) Proposal stage, and 2) Ratification stage. An Amendment proposal which successfully passes the two stages do not require presidential signature.
  • The mixture of rigidity and flexibility in Indian constitution was devised to safeguard the basic provisions of the constitution from hasty changes and at the same time to render any easy alteration of its less important aspects possible and thus to impart a degree of flexibility to it.
  • Part XX of the constitution deals with amendment of the constitution. There are three basic ways in which amendment can be made.
  • Most of the provisions can be amended by the parliament through the passing of an amending act by a majority of total membership and 2/3rd majority of members present and voting in each house.
  • Ten provisions (articles/parts/chapters/schedules) of constitution can be amended first by passing the amendment bill in accordance with the specified procedure and then getting it rectified by at least half of the state legislatures.
  • Several specified constitutional provisions can be amended by the parliament by an ordinary law of the parliament passed by a simple majority. State legislatures have been denied the power to initiate amendments.

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  • Q1

    Differentiate between the flexible and rigid constitutions.

    Marks:3
    Answer:

    On the basis of comparison between amendment procedures and law making procedure, the constitutions are of two kinds-

    1. The flexible constitution is one where the amendment to the constitution can be made by the same procedure as required for the enactment of laws.

    2. Rigid constitution is one where the special majority is required to amend the constitution.

    The Indian constitution is both rigid and flexible because some parts of the constitution can be amended by simple majority, whereas other provisions of the constitution can be amended by the special majority.

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  • Q2

    "The provisions for amendment were quite evidently a compromise ''. Comment.

    Marks:3
    Answer:

    In the Constituent Assembly there was a lively debate regarding the constitutional amendments. While commenting on the flexibility of the Constitution Pt. J.L. Nehru pointed out in the Constituent Assembly, '' While we want this constitution to be solid and permanent as we can make it, there is no permanence in constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop the nation's growth of living, vital, organic people----In any event, we could not make this constitution so rigid that it cannot be adapted to changing conditions. When the world is in turmoil and we are passing through a very swift period of transition, what we say do today may not be wholly applicable tomorrow''. The provisions for amendment were quite evidently a compromise between the view that Parliament should be empowered to amend any part of the constitution and the more traditional concept of amendment in federations.

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  • Q3

    Write a short note on the amendments which make no substantial difference to the provisions of the Indian Constitution.

    Marks:3
    Answer:

    The amendments which make no substantial difference to the provisions of the Indian Constitution are referred as the technical or administrative amendments. These amendments are only clarifications, explanations and minor modifications etc. of the original provision. They are amendments only in the legal sense and make no substantial difference to the provision.
    Some examples of technical amendment are-

    1. The increase in the age of retirement of High court judges from 60 to 62 years. (15th Amendment).

    2. Salaries of judge of High court and the Supreme Court were increased by 55th Amendment.

    3. The provision regarding reserved seats in the legislatures for Scs and STs is extended by 10 years through five amendments. But these amendments have not made any difference to the original provision.

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  • Q4

    '' In some countries the procedure of amendment is very rigid while in others it is relatively simple ''. Comment.

    Marks:5
    Answer:

    In some countries the procedure of amendment is very rigid while in others it is relatively simple. The Irish constitution adopted a simple majority procedure in parliament after which it has to be placed before the people through a referendum. In Australia amendment can be made provided it is supported by an absolute majority in parliament, majority in the State legislature as well as majority of the electors. The Canadian Constitution does not have any provision for amendment. Indian constitution gave the power of amendment to the Union Parliament primarily, though in some cases the approval of the State legislature is also required. The procedure being relatively simple, Indian Constitution has been amended several times since it was adopted. The majority of provisions of the constitution can be amended by passing a constitutional amendment bill with special majority in both houses of parliament i.e. by the total membership of the houses and the two third majority of the members present and voting. After the bill has been passed by the parliament, it is presented to the President for his assent and on receiving his assent, it becomes an Act. All the articles not covered in the other procedures are amended in this manner. A constitution amendment bill can be introduced in either house of parliament and the powers of both houses are same in this respect. There is no provision for a joint sitting of both houses with respect to the constitutional amendment bill. The President cannot withhold his assent on the amendment bill passed by the parliament. But the parliament can not amend the basic structure of the constitution as ruled by the Supreme Court in Keshvanand Bharti case in 1973. The court's judgement in Minerva Mill case in 1980 indicates that the judicial reviews cases essentially form a part of the basic structure of the constitution.

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  • Q5

    '' Different articles of the Indian Constitution are deemed to be amended in different ways ''. Comment with special reference to procedures of amendment.

    Marks:5
    Answer:

    Article 368 of the Indian Constitution provides for the procedure of amendment. According to this article an amendment may be introduced in any House of the Parliament. After it is passed by both the houses it is sent for the President's assent. In some cases ratification by half of the State legislatures is also sought before it is sent to the President for approval. It is particularly required to make the federal system work and to ensure that no party having a majority in the parliament can get a federal system work and to ensure that no party having a majority in parliament can get a federal feature of the constitution amended by merely using its numerical strength. Thus it be said that different articles of the constitution are deemed to be amended in different ways. The constitution provides for three procedures of amendment; amendment by sinple majority, amendment by special majority in Parliament and special majority in parliament plus ratification by half of the State legislatures.

    Amendment by simple majority: Amendment bill is introduced in either of the house of Parliament. After being passed by a simple majority there it is introduced in the other where a similar procedure follows. When both the houses pass the bill it is sent for the president's assent. The articles which can be amended by this procedure are Article 2,3 and 4 (dealing with formation of new states, alteration of state boundaries, changing names of states), Articles 5,6,7,8,9,10 and 11 (dealing with citizenship), Aricle 81 (dealing with delimitation of constituencies) etc.

    Amendment by special majority in Parliament: Virtually the whole constitution can be amended by this procedure. According to this procedure an amendment bill can be introduced in any House of Parliament and passed by a majority of total members in the House as well as by majority of not less than two-third of the members of that House present and voting. Once the bill is passed by both the houses separately, it is sent for the President's approval.

    Special majority in parliament plus ratification by half of the State legislatures: Generally this procedure is prescribed with respect to federal features, e.g. Article 54 and 55 (relating to election of President). Article 73 and 162 (extent of executive power of Union Government and State Government respectively), chapter 1 of Part XI (distribution of legislative powers between Union and States) etc.

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