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Mains Notes By Shubham Bhaisare, AIR 97, CSE 2021
🔰TYPES OF AMENDMENTS IN THE INDIAN CONSTITUTION🔰
Article 368 provides for TWO (02) types of amendments:
(a) Amendment by Special Majority of the Parliament ;
(b) Amendment by Special Majority of the Parliament and the Ratification of Half of the state legislatures, in case, if the bill seeks to amend the federal provisions of the Constitution.
But, Some Other Articles
provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process). Notably, such amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.
Thus, the Constitution can be amended in THREE (03) ways:
(i) Amendment by simple majority of the Parliament,
(ii) Amendment by special majority of the Parliament (Article 368);
(iii) Amendment by special majority of the Parliament and the ratification of half of the state legislatures (Article 368).
Article 368 provides for TWO (02) types of amendments:
(a) Amendment by Special Majority of the Parliament ;
(b) Amendment by Special Majority of the Parliament and the Ratification of Half of the state legislatures, in case, if the bill seeks to amend the federal provisions of the Constitution.
But, Some Other Articles
provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process). Notably, such amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.
Thus, the Constitution can be amended in THREE (03) ways:
(i) Amendment by simple majority of the Parliament,
(ii) Amendment by special majority of the Parliament (Article 368);
(iii) Amendment by special majority of the Parliament and the ratification of half of the state legislatures (Article 368).
🔸Provisions of the amendment by Special Majority of Parliament🔸
The majority of the provisions in the Constitution need to be amended by a Special Majority of the Parliament, that is, a majority of the total membership of each House and a majority of two-thirds of the members of each House present and voting.
Here, the expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.
▫The provisions which can be amended by this way includes:
(i)Fundamental Rights (FRs)
(ii) Directive Principles of State Policy (DPSP)
(iii) All other provisions which are NOT covered by the other two types of amendment.
Note: Strictly speaking, the special majority is required ONLY for voting at the THIRD reading stage of the bill but by way of abundant caution the requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.
The majority of the provisions in the Constitution need to be amended by a Special Majority of the Parliament, that is, a majority of the total membership of each House and a majority of two-thirds of the members of each House present and voting.
Here, the expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.
▫The provisions which can be amended by this way includes:
(i)Fundamental Rights (FRs)
(ii) Directive Principles of State Policy (DPSP)
(iii) All other provisions which are NOT covered by the other two types of amendment.
Note: Strictly speaking, the special majority is required ONLY for voting at the THIRD reading stage of the bill but by way of abundant caution the requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill.
🔹Provisions of the amendment by Special Majority of Parliament and Consent/ratification of States by Simple Majority🔹
Those provisions of the Constitution which are related to the FEDERAL structure of the polity can be amended BY a special majority of the Parliament and also with the consent/ratification of at least half (minimum 50%) of the state legislatures by a simple majority.
If one or some or all the remaining states take no action on the bill, it does not matter; the moment HALF of the states give their consent, the formality is completed.
There is NO TIME LIMIT within which the states should give their consent to the bill.
▫The following EIGHT (08) provisions of the constitution can be amended in this way:
1. Election of the President and its manner.
2. Extent of the executive power of the Union and the states.
3. Supreme Court and High Courts.
4. Distribution of legislative powers between the Union and thestates.
5. Goods and Services Tax Council. (This provision was added by the 101st Amendment Act of 2016. This is related to Article 279-A.)
6. Any of the lists in the Seventh Schedule.
7. Representation of states in Parliament.
8. Power of Parliament to amend the Constitution and itsprocedure (Article 368 itself).
Those provisions of the Constitution which are related to the FEDERAL structure of the polity can be amended BY a special majority of the Parliament and also with the consent/ratification of at least half (minimum 50%) of the state legislatures by a simple majority.
If one or some or all the remaining states take no action on the bill, it does not matter; the moment HALF of the states give their consent, the formality is completed.
There is NO TIME LIMIT within which the states should give their consent to the bill.
▫The following EIGHT (08) provisions of the constitution can be amended in this way:
1. Election of the President and its manner.
2. Extent of the executive power of the Union and the states.
3. Supreme Court and High Courts.
4. Distribution of legislative powers between the Union and thestates.
5. Goods and Services Tax Council. (This provision was added by the 101st Amendment Act of 2016. This is related to Article 279-A.)
6. Any of the lists in the Seventh Schedule.
7. Representation of states in Parliament.
8. Power of Parliament to amend the Constitution and itsprocedure (Article 368 itself).
🔸Provisions of the amendment by Simple Majority of Parliament🔸
A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament OUTSIDE the scope of Article 368.
▫These 18 provisions include:
1. Admission or establishment of new states.
2. Formation of new states and alteration of areas, boundaries or names of existing states.
3. Abolition or creation of legislative councils in states.
4. Second Schedule–emoluments, allowances, privileges andso on of the president, the governors, the Speakers, judges, etc.
5. Quorum in Parliament.
6. Salaries and allowances of the members of Parliament.
7. Rules of procedure in Parliament.
8. Privileges of the Parliament, its members and its committees.
9. Use of English language in Parliament.
10. Number of puisne judges in the Supreme Court.
11. Conferment of more jurisdiction on the Supreme Court.
12. Use of official language.
13. Citizenship–acquisition and termination.
14. Elections to Parliament and state legislatures.
15. Delimitation of constituencies.
16. Union territories.
17. Fifth Schedule administration of scheduled areas and scheduled tribes.
18. Sixth Schedule–administration of tribal areas.
A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament OUTSIDE the scope of Article 368.
▫These 18 provisions include:
1. Admission or establishment of new states.
2. Formation of new states and alteration of areas, boundaries or names of existing states.
3. Abolition or creation of legislative councils in states.
4. Second Schedule–emoluments, allowances, privileges andso on of the president, the governors, the Speakers, judges, etc.
5. Quorum in Parliament.
6. Salaries and allowances of the members of Parliament.
7. Rules of procedure in Parliament.
8. Privileges of the Parliament, its members and its committees.
9. Use of English language in Parliament.
10. Number of puisne judges in the Supreme Court.
11. Conferment of more jurisdiction on the Supreme Court.
12. Use of official language.
13. Citizenship–acquisition and termination.
14. Elections to Parliament and state legislatures.
15. Delimitation of constituencies.
16. Union territories.
17. Fifth Schedule administration of scheduled areas and scheduled tribes.
18. Sixth Schedule–administration of tribal areas.
🔆Directive Principles Of State policy DPSP
✅ The constitution of India aims to establish not only political democracy but
also socioeconomic justice to the people to establish a welfare state.
✅These provisions are given in Part IV of Indian Constitution.
✅ Directive Principles of state policy are in the form of instructions to the governments at the centre as well as states.
✅Though these principles are non justiciable, they are fundamental in the governance of the country.
✅ The idea of the Directive Principles of State Policy has been taken from the
Irish Republic .
✅The Directive Principles of State policy were incorporated in our constitution in order to provide economic justice and to avoid concentration of wealth in the hands of few people.
✅ The constitution covers from Article 36 to 51 as Directive Principles of State
Policy.
✅They are unique blend of socialistic, liberal, democratic and Gandhian Principles.
✅ They describe as the ‘conscience of the constitution’.
✅ In the “State of Tamil Nadu etc. Vs L.Abu Kavur Bai” case in 1984 , the Supreme court held that although directive principles of State Policy are not enforceable, yet the court should not avoid them
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✅ The constitution of India aims to establish not only political democracy but
also socioeconomic justice to the people to establish a welfare state.
✅These provisions are given in Part IV of Indian Constitution.
✅ Directive Principles of state policy are in the form of instructions to the governments at the centre as well as states.
✅Though these principles are non justiciable, they are fundamental in the governance of the country.
✅ The idea of the Directive Principles of State Policy has been taken from the
Irish Republic .
✅The Directive Principles of State policy were incorporated in our constitution in order to provide economic justice and to avoid concentration of wealth in the hands of few people.
✅ The constitution covers from Article 36 to 51 as Directive Principles of State
Policy.
✅They are unique blend of socialistic, liberal, democratic and Gandhian Principles.
✅ They describe as the ‘conscience of the constitution’.
✅ In the “State of Tamil Nadu etc. Vs L.Abu Kavur Bai” case in 1984 , the Supreme court held that although directive principles of State Policy are not enforceable, yet the court should not avoid them
Join @cseupscnotes