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Criticism of Amendment Procedure - 3 ways to Amend Constitution & More

Last Updated on May 08, 2023
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The amendment procedure of the Constitution of India has faced criticism on various grounds. One major criticism is that the procedure could be more flexible and easier. Amending the Constitution requires a two-thirds majority in both houses of Parliament and ratification by at least half of the state legislatures. This stringent requirement makes it challenging to bring about necessary changes or address emerging issues promptly. Critics argue that the procedure should be more flexible to accommodate evolving needs and societal changes.

Criticism of the Amendment Procedure of the Constitution of India is important from the perspective of UPSC IAS Exams. It covers a significant part of the Polity subject in the Mains General Studies Paper-II syllabus and General Studies Paper-1 of the UPSC Prelims Syllabus.

In this article, let us look at the constitution amendment procedure and provisions, the Procedure for Amending the Constitution of India, criticism of the amendment procedure, the need for amendments, the impact of frequent amendments and judicial pronouncements in important cases such as the “Golaknath v State of Punjab” and “Keshavananda Bharati judgment (1973)” for the UPSC IAS Exam.

Check out the linked article on the Major Amendments of the Indian Constitution for UPSC exams now!

Criticism Of Amendment Procedure 
  • No provision for a Special Body: There is no separate body to modify the constitution, such as a Constitutional Convention (as in the case of the United States) or a Constitutional Assembly.
  • Exclusive to Parliament: The parliament can suggest a constitutional modification. Except in one circumstance, when adopting a resolution seeking the establishment or elimination of legislative councils in the states, state legislatures are not authorized to initiate any bill or proposal to alter the constitution.
  • Parliament can alter the majority of the constitution: The majority can be changed by parliament alone, using either a special majority or a simple majority. The approval of state legislatures is needed only in a few situations, and even then, only in half of them.
  • States have no authority to endorse or deny amendments: The constitution offers no provision for the state legislatures to confirm or refuse an amendment that is presented to them. It is also hushed on the question of whether nations can withdraw their permission after granting it.
  • No joint Sitting: If there is a deadlock over the passage of a constitutional amendment bill, there is no provision for a joint session of both houses of the parliament.
  • A process similar to that of Ordinary lawmaking: The process for amending a document is similar to the process for enacting legislation. The constitutional amendment legislation must be carried out by the parliament in the same way as other laws, with the exemption of the requirement of special majority.
  • Scope for judicial intervention: They offer a lot of scope for the courts to interfere.

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What Are Constitutional Amendments?
  • Making alterations to the constitution, considered the regulating law of the land, is known as a constitutional amendment.
  • Changing or modifying the constitution demands a formal modification to the written text of the nation’s constitution. It involves the addition of a new article or clause, the elimination of an existing article or clause, or the enhancement of existing articles.
  • The text of the constitution has also been amended in other aspects. The constitution’s modification necessitates it to go through a specific procedure, including passing it via multiple legislative assemblies before being sent to the president for ultimate approval and signature.

Check out the linked article on the 42nd Amendment Act for UPSC exams now!

What is the Procedure for Amending the Constitution of India?

The constitution amendment procedure of India involves the following steps:

  • Proposal: An amendment can be proposed by either house of Parliament (Lok Sabha or Rajya Sabha) or by a member of Parliament. The proposal must be made in the form of a bill.
  • Introduction: The amendment bill is introduced in either house of Parliament and must be passed by a majority of members present and voting.
  • Voting: After the bill's introduction, both houses of Parliament must pass it separately with a special majority. This requires a majority of the total membership of each house and a two-thirds majority of members present and voting.
  • Presidential Assent: Once both houses pass the amendment bill, it is sent to the President of India for assent. The President has the power to give or withhold assent.
  • State Ratification: In certain cases, if the amendment affects the federal structure of the Constitution, it requires ratification by at least half of the state legislatures.
  • Amendment: Once the President gives assent and the required state ratification is obtained, the amendment becomes a part of the Constitution.

The procedure ensures that amendments to the Constitution undergo a thorough legislative process, involving both houses of Parliament and, in some cases, the state legislatures.

Three ways the Constitution can be Amended
  • Amendment by simple majority of the parliament (these amendments are not regarded to be amendments of the constitution for the purposes of amendment Article 368),
  • Amendment by special majority of the parliament, and
  • Amendment by special majority of the parliament and the approval of half of the state legislatures.

Check out the linked article on the 44th Amendment Act for UPSC exams now!

Why can frequent Amendments be bad?
  • Amendments may be politically motivated or politically driven. Such criticism is frequently made with mention of the disputed 42nd amendment brought in by Indira Gandhi at the height of the emergency, when her powers were supreme.
  • Indian constitution has proven comparatively easy to alter and has been modified more than once a year on average. Even though the Indian Supreme Court has the authority to strike down or set aside constitutional amendments, it has no authority to cancel them, which means that lots of ineffective provisions of the constitution stay on the books.
  • A few of the amendments have been carried out in a hurry due to the over enthusiasm of the legislature, offending the fundamental structure of the constitution.

Judicial Pronouncements

Judicial pronouncements or judgements limit the power of parliament in making constitutional amendments solely in such cases as where the fundamental structure of the constitution is not modified.

Mainly three judgements are accountable for this:

  • The Golaknath v State of Punjab case upheld that constitutional amendment Article 368 was subject to fundamental rights.
  • The Keshavananda Bharati judgment(1973), in which the principle was adopted that the constitution has a fundamental structure of constitutional principles and values and that the judiciary has the authority to evaluate and strike down modifications which conflict with, or seek to modify, this fundamental structure of the constitution.
  • The Minerva Mills case enforced and transformed the fundamental structure doctrine of the constitution, unanimously ruling that parliament cannot exercise unrestricted power to modify this basic structure or trample the fundamental rights of people, such as the right to freedom and equality.

Check out the linked article on the Right to Constitutional Remedies for UPSC exams now!

Conclusion
  • One issue that stands out in the Article 368 procedure is that the parliament appears to possess the sole power to alter the constitution in any way.
  • However, it is incorrect to defend that the parliament is self-governing as long as Article 368 is in place. Because the procedure restricts the use of the power to alter the constitution in parliament, it cannot be the decisive authority of the constitutional scheme.
  • The Indian constitution was intended to be dynamic legislation that conserves its legality throughout time without becoming outdated while catering to the demands of several social classes in India.
  • The provisions in connection to the amendment procedure need to be more sketchy. Therefore, they provide a large scope for taking matters to the judiciary. Despite these shortcomings, it cannot be denied that the procedure has proved simple and easy and has successfully fulfilled society's shifting needs and conditions.
  • The process could be more flexible to permit the ruling parties to alter it according to their whims, nor is it highly stringent to be incompetent to adapt to the altering needs.

Check out the linked article on the Difference between Written and Unwritten Constitution for UPSC exams now!

We hope your doubts regarding the Criticism of the Amendment Procedure would have been addressed after going through the above article. Testbook gives good quality preparation material for different competitive examinations. Succeed in your UPSC IAS exam preparations by downloading the Testbook App here!

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Criticism of the Amendment Procedure – FAQs

The constitution requires to be revised over time to change provisions that are inadequate to fulfill the altering and emerging needs of the society. Criticism of the amendment procedure stems from these dire needs.

The 104th amendment was the most recent alteration made to the Indian constitution in 2020. It intended to increase the deadline for reservation of SC/ST seats in Lok Sabha and assemblies by ten years. The process dragged on for years, additionally adding to the criticism of the amendment procedure.

An amendment can be made to the constitution of India in three ways - by simple majority, by special majority and by approval of the state legislatures. As expected, the constitution is safeguarded with vast measures, making it hard to alter, giving rise to certain criticism of amendment procedure throughout various quarters of the nation.

The amending authority gets restricted when a clash occurs between the Supreme Court and the Parliament of India. These are among the many limitations placed on the amenability of the constitution, which has since met with vast criticism of amendment procedures from various sectors of the country.

The procedure for amending the constitution is comparable to that of any other legislative process.

Yes, constitutional amendments can be contested on the grounds that they are outside the parliament's constituent jurisdiction or that they have harmed the constitution's core structure. The supreme court, in essence, found a balance between its authority to interpret the constitution and parliament's right to alter it.

It is hard to pull out outdated aspects - tough to get wide support even though it has been over 200 years and society has modified. Hard to include new ideas - Requirements of the society has changed, but due to entrenchment, these improvements do not take place

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