Constitutional amendments Procedure in India: Simple, Special and Special with Concurrence with States

The Constitution of India provides a structured procedure for its amendment under Article 368. This enables the Constitution to adapt to changing needs while preserving its fundamental structure. The amending procedure is neither as flexible as that of the British Constitution nor as rigid as the American one — it is a balanced mix. Amendments are classified into three types based on their procedure: Simple Majority, Special Majority, and Special Majority with Concurrence of Half the States.

Amendments by Simple Majority of Parliament:

Certain constitutional provisions can be amended by a simple majority, which means more than 50% of the members present and voting in each House of Parliament. These amendments are not governed by Article 368 and are considered legislative in nature. They are passed like ordinary bills and do not require ratification by the states or Presidential assent under special procedures.

Examples of amendments by simple majority:

• Formation of new states (Article 3)

• Alteration of boundaries or names of existing states

• Abolition or creation of Legislative Councils in states

• Second Schedule: Salaries and allowances of officials

• Changes in the number of judges in the Supreme Court or High Courts

These amendments are relatively easy to make and are useful for administrative or procedural changes that do not affect the federal structure or fundamental rights.

Amendments by Special Majority of Parliament:

Most constitutional amendments follow the procedure laid down in Article 368(2) and require a special majority of the Parliament. A bill to amend the Constitution must be passed:

• By a majority of the total membership of each House, and

• By a two-thirds majority of the members present and voting.

This ensures a wider consensus before key changes are made. Additionally, the bill must be introduced only in either House of Parliament and must be passed separately by both Houses. There is no provision for a joint sitting in case of a disagreement.

Once passed by the required special majority in both Houses, the bill is presented to the President, who is constitutionally bound to give his assent. After receiving the President’s assent, the amendment becomes part of the Constitution.

Examples of amendments requiring special majority:

• Article 368 amendments (other than those affecting federal structure)

• Amendment of Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV)

• Amendment of Union List, State List, and Concurrent List powers without altering the federal structure

• Creation of new All India Services

This procedure ensures that any significant alteration to the Constitution undergoes careful parliamentary scrutiny and approval.

Amendments by Special Majority with Concurrence of Half of the States:

Some provisions of the Constitution, which directly affect the federal structure, require not just a special majority in Parliament but also the ratification by at least half of the state legislatures. This is to maintain the balance of power between the Centre and the States and protect the federal spirit of the Constitution.

The procedure includes:

• Passing the bill in both Houses of Parliament by a special majority.

• Ratification by at least 50% of the state legislatures through a simple majority.

• The bill is then presented to the President for assent.

There is no time limit prescribed within which states must ratify the bill, nor is there a requirement for the states to act simultaneously.

Provisions requiring this type of amendment:

• Election of the President (Articles 54 and 55)

• Extent of the executive power of the Union and states

• Supreme Court and High Court powers (Articles 131–140, 200–213)

• Distribution of legislative powers between the Union and states (Seventh Schedule)

• Representation of states in Parliament (Article 81, 82, and 170)

• Article 368 itself (procedure for amendment)

This type of amendment ensures that states are active participants in changes that affect their authority and position in the Union.

Safeguards and Limitations:

• Judicial Review:

While Parliament has wide powers to amend the Constitution, the Supreme Court in the Kesavananda Bharati case (1973) held that the basic structure of the Constitution cannot be altered. This doctrine acts as a safeguard against misuse of the amending power.

• No Joint Sitting:

The amendment procedure does not allow for a joint session of Parliament, ensuring that each House independently agrees to the amendment.

• No Referendum:

The Constitution does not require a public referendum for amendments.

• Mandatory Presidential Assent:

Once both Houses have passed an amendment, the President must give assent: — there is no discretionary power to withhold approval.

Examples of Major Amendments:

• 1st Amendment (1951): Curtailing right to freedom of speech and expression, added restrictions.

• 42nd Amendment (1976): Known as the “Mini-Constitution,” made sweeping changes during the Emergency.

• 44th Amendment (1978): Undid many of the changes introduced in the 42nd Amendment.

• 73rd and 74th Amendments (1992): Strengthened local self-government through Panchayats and Municipalities.

• 101st Amendment (2016): Introduced the Goods and Services Tax (GST), requiring state ratification.