Constitutional Amendments in India

The Indian Constitution

The constitution of India is the supreme law of India .at present there are, 448 articles in 25 parts, 12 schedules, 5 appendices and 101 amendments in the Indian Constitution. Initially, i.e in 1949, the Constitution had 395 articles. But many new articles came into play and we total have now 469 articles. Since society and its needs are ever-evolving, constitution needs to keep pace, and therefore amendments to the Indian constitution have been taking place from time to time. As of March 2019, there have been 103 amendments to the Constitution of India since it was first enacted in 1950.

The procedure of amendment

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. The amendment of the Indian constitution is done through a well laid out procedure and there is ample provision to avoid conflict between judiciary i.e., the Supreme Court and legislature, i.e., the Parliament of India, The use of discretionary power to amend constitution by parliament is subject to certain rules and doctrines as interpreted by the Supreme Court. There are laid down doctrines or rules in this regard for checking the validity/legality of an amendment undertaken by parliament, One such doctrine, the most important one is about the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala.

The original constitution provided for three categories of amendments.

Category 1- by simple majority

 The first category of amendments are those contemplated in articles 4 (2), 169, 239A (2), 239AA (7b), 243M (4b), 243ZC (3), 244A (4), 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI. These amendments can be effected by Parliament by a simple majority such as that required for the passing of any ordinary law. The amendments under this category are specifically excluded from the purview of article 368 which is the specific provision in the Constitution dealing with the power and the procedure for the amendment of the Constitution.

Article 4

Article 4 provides that laws made by Parliament under article 2 (relating to admission or establishment of new States) and article 3 (relating to formation of new States and alteration of areas, boundaries or names of existing States) effecting amendments in the First Schedule or the Fourth Schedule and supplemental, incidental and consequential matters, shall not be deemed to be amendments of the Constitution for the purposes of article 368.

 For example, the States Reorganisation Act, 1956, which brought about the reorganization of the States in India, was passed by Parliament as an ordinary piece of legislation. In Mangal Singh v. Union of India (A.I.R. 1967 S.C. 944), the Supreme Court held that power to reduce the total number of members of Legislative Assembly below the minimum prescribed under article 170 (1) is implicit in the authority to make laws under article 4. Article 169 empowers Parliament to provide by law for the abolition or creation of the Legislative Councils in States and specifies that though such law shall contain such provisions for the amendment of the Constitution as may be necessary, it shall not be deemed to be an amendment of the Constitution for the purposes of article 368.

The Fifth Schedule

The Fifth Schedule contains provisions as to the administration and control of the Schedule Areas and Scheduled Tribes. Para 7 of the Schedule vests Parliament with plenary powers to enact laws amending the Schedule and lays down that no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368. Under Para 21 of the Sixth Schedule, Parliament has full power to enact laws amending the Sixth Schedule which contains provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. No such law will be deemed to be an amendment of the Constitution for the purposes of article 368.

Category 2- by special majority

 The second category includes amendments that can be effected by Parliament by a prescribed ‘special majority’;

Category 3- by special majority plus ratification by at least one half of state legislatures- The third category of amendments includes those that require, in addition to such “special majority”, ratification by at least one-half of the State Legislatures. The last two categories are governed by article 368.

Amendment under article 368

Part-xx Article 368 (1) of the Constitution of India grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation.

Article 368. Power of Parliament to amend the Constitution and Procedure therefor:

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in –

(a) article 54, article 55, article 73, article 162, article 241 or article 279A or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3) Nothing in article 13 shall apply to any amendment made under this article.

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty Second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

As per the procedure laid out by article 368 for amendment of the Constitution, an amendment can be initiated only by the introduction of a Bill in either House of Parliament. The Bill must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. There is no provision for a joint sitting in case of disagreement between the two Houses. Total membership in this context has been defined to mean the total number of members comprising the House irrespective of any vacancies or absentees on any account vide Explanation to Rule 159 of the Rules of Procedure and Conduct of Business in Lok Sabha.

The Bill, passed by the required majority, is then presented to the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than one-half of the States. These provisions relate to certain matters concerning the federal structure or of common interest to both the Union and the States viz., the election of the President (articles 54 and 55); the extent of the executive power of the Union and the States (articles 73 and 162); the High Courts for Union territories (article 241); The Union Judiciary and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI); the distribution of legislative powers between the Union and the States (Chapter I of Part XI and Seventh Schedule); the representation of States in Parliament; and the provision for amendment of the Constitution laid down in article 368. Ratification is done by a resolution passed by the State Legislatures. There is no specific time limit for the ratification of an amending Bill by the State Legislatures. However, the resolutions ratifying the proposed amendment must be passed before the amending Bill is presented to the President for his assent.

Article 368 was amended by the 24th and 42nd Amendments in 1971 and 1976 respectively. New clauses 368 (1) and 368 (3) were added by the 24th Amendment in 1971, which also added a new clause (4) in article 13 which reads, “Nothing in this article shall apply to any amendment of this Constitution made under article 368.”The provisions in italics were inserted by the 42nd Amendment but were later declared unconstitutional by the Supreme Court in Minerva Mills v. Union of India in 1980. After the 24th amendment, Article 4(2), etc. of the constitution are superseded/made void by article 368 (1) which is the only procedure for amending the constitution however marginal may be the nature of the amendment. The Supreme court ruled that the constituent power under article 368 must be exercised by the Parliament in the prescribed manner and cannot be exercised under the legislative powers of the Parliament.

Some Notable Amendments of the Indian Constitution

• 1^st Amendment- May 10, 1951– amendments were made in 15, 19, 85, 87, 174, 176, 341, 342, 372 and 376.Insert articles 31A and 31B.Insert schedule 9- Added special provision for the advancement of any socially and educationally backward classes or for the Scheduled Castes and the Scheduled Tribes. To fully secure the constitutional validity of zamindari abolition laws and to place reasonable restriction on freedom of speech. A new constitutional device, called Schedule 9 introduced to protect against laws that are contrary to the Constitutionally guaranteed fundamental rights. These laws encroach upon property rights, freedom of speech and equality before law.
• 4^th Amendment- April 27, 1955– Amend articles 31, 35 band 305; Amend schedule 9- Restrictions on property rights and inclusion of related bills in Schedule 9 of the constitution.
• 7^th Amendment- November 1, 1955– Amend articles 1, 3, 49, 80, 81, 82, 131, 153, 158, 168, 170, 171, 216, 217, 220, 222, 224, 230, 231 and 232 and Insert articles 258A, 290A, 298, 350A, 350B, 371, 372A and 378A; Amend part 8. Amend schedules 1, 2, 4 and 7.
• 8^th Amendment- January 05, 1960– Amend article 334- Extended the period of reservation of seats for the Scheduled Castes and Scheduled Tribes and Anglo-Indians in the Lok Sabha and the State Legislative Assemblies till 1970.
• 10^th Amendment- August 11, 1961- Amend article 240; Amend schedule – Incorporation of Dadra, Nagar and Haveli as a Union Territory, consequent to acquisition from Portugal.
• 12^th Amendment- December 20, 1961– Amend article 240;Amend schedule 1 – Incorporation of Goa, Daman and Diu as a Union Territory, consequent to acquisition from Portugal.
• 13^th Amendment- December 1, 1963– Amend article 170;Insert new article 371A- Formation of State of Nagaland, with special protection under Article 371A.
• 26^th Amendment- December 28, 1971– Amend article 366.
  Insert article 363A; Remove articles 291 and 362-Abolition of Privy Purse paid to former rulers of princely states which were incorporated into the Indian Republic.
• 31^st Amendment- October 17, 1973– Amend articles 81, 330 and 332- Increase size of Parliament from 525 to 545 seats. Increased seats going to the new states formed in North East India and minor adjustment consequent to 1971 Delimitation exercise
• 34^th Amendment- September 7, 1974– Amend schedule 9.- Place land reform acts and amendments to these act under Schedule 9 of the constitution.
• 36^th Amendment- April 26, 1975– Amend articles 80 and 81.Insert article 371F.
  Remove article 2A. Amend schedules 1 and 4, Remove schedule 10- Formation of Sikkim as a State within the Indian Union.
• 45^th Amendment- January 25, 1980– Amend article 334- Extend reservation for SC / ST and nomination of Anglo Indian members in Parliament and State Assemblies for another ten years i.e. up to 1990.
• 52^nd Amendment- February 15, 1985- Amend articles 101, 102, 190 and 191.
  Insert schedule 10- Anti Defection Law – Provide disqualification of members from parliament and assembly in case of defection from one party to other. However, parts of the 10th Schedule to the Constitution of India was struck down by the Supreme Court in the case of Kihoto Hollohan v. Zachillhu 1992 SCR (1) 686, for being in contravention with Article 368 of the Constitution.
• 61^st Amendment- March 28, 1989- Amend article 326- Reduce age for voting rights from 21 to 18.
• 71^st Amendment- August 1, 1992– Amend schedule 8- Include Konkani, Manipuri and Nepali as Official Languages.
• 73^rd Amendment-April 24, 1992- Insert part 9.-Statutory provisions for Panchyat Raj as third level of administration in villages.
• 74^th Amendment-June 1 1992– Insert part 9A, amend article 280- Statutory provisions for Local Administrative bodies as third level of administration in urban areas such as towns and cities.
• 78^th Amendment- August 30, 1995- Amend schedule 9- Place land reform acts and amendments to these act under Schedule 9 of the constitution
• 79^th Amendment- January 25, 2000- Amend article 334- Extend reservation for SC / ST and nomination of Anglo Indian members in Parliament and State Assemblies for another ten years i.e. up to 2010.
• 80^th Amendment- June 09, 2000- Amend articles 269 and 270;
  Remove article 272- Implement Tenth Finance Commission recommendation to simplify the tax structures by pooling and sharing all taxes between states and The Centre.
• 84^th Amendment- February 21, 2002– Amend articles 55, 81, 82, 170, 330 and 332- Extend the usage of 1971 national census population figures for statewise distribution of parliamentary seats.
• 86^th Amendment- December 2, 2002- Amend articles 45 and 51A;
  Insert article 21A – Provides Right to Education until the age of fourteen and Early childhood care until the age of six.
• 87^th Amendment- June 22, 2003- Amend articles 81, 82, 170 and 330- Extend the usage of 2001 national census population figures for statewise distribution of parliamentary seats.
• 88^th Amendment- January 15, 2004– Insert article 268A; Amend schedule 7- To extend statutory cover for levy and utilization of Service Tax.
• 89^th Amendment- September 28, 2003– Amend article 338; Insert article 338A- The National Commission for Scheduled Castes and Scheduled Tribes was bifurcated into The National Commission for Scheduled Castes and The National Commission for Scheduled Tribes.
• 91^ST Amendment January 01, 2004– Amend articles 75 and 164;
  Insert article 361B;Amend schedule 10- Restrict the size of council of ministers to 15% of legislative members & to strengthen Anti Defection laws.
• 93^rd Amendment- January 20, 2006– Amend article 15- To enable provision of reservation (27%) for other backward classes(OBC) in government as well as private educational institutions.
• 97^th Amendment- January 12, 2012- Amend Art 19 and added Part IXB- Added the words “or co-operative societies” after the word “or unions” in Article 19(l)(c) and insertion of article 43B i.e., Promotion of Co-operative Societies and added Part-IXB i.e., The Co-operative Societies; The amendment objective is to encourage economic activities of cooperatives which in turn help progress of rural India. It is expected to not only ensure autonomous and democratic functioning of cooperatives, but also the accountability of the management to the members and other stakeholders.
• 99^th Amendment- April13, 2015- Insertion of new articles 124A, 124B and 124C; Amendments to Articles 127, 128, 217, 222, 224A, 231- Formation of a National Judicial Appointments Commission; 16 State assemblies out of 29 States including Goa, Rajasthan, Tripura, Gujarat and Telangana ratified the Central Legislation, enabling the President of India to give assent to the bill. The amendment was struck down by the Supreme Court on 16 October 2015.
• 100^th Amendment- August 1, 2015- Exchange of certain enclave territories with Bangladesh and conferment of citizenship rights to residents of enclaves consequent to signing of Land Boundary Agreement (LBA) Treaty between India and Bangladesh.
• 101^st Amendment – July 01, 2017–  Addition of articles 246A, 269A, 279A; Deletion of Article 268A; Amendment of articles 248, 249, 250, 268, 269, 270, 271, 286, 366, 368, Sixth Schedule, Seventh Schedule. – Introduced the Goods and Services Tax.
• 102^nd Amendment- August 11, 2018- Addition of articles 338B, 342A; Modification of articles 338, 366.- Constitutional status to National Commission for Backward Classes
• 103^rd Amendment- January 12, 2019– Amendment to Article 15 & 16 – A maximum of 10% Reservation for Economically Weaker Sections of citizens of classes other than the classes mentioned in clauses (4) and (5) of Article 15, i.e. Classes other than socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.