Context:
The Centre has recently formed an eight-member committee, led by former President Ram Nath Kovind and including Union Home Minister, to examine the feasibility of implementing the “one nation, one election” idea. This committee, outlined with seven terms of reference, will consider whether a constitutional amendment is required and if states need to ratify it to facilitate simultaneous elections.
Relevance:
GS II: Polity and Governance
Dimensions of the Article:
- Constitutional Amendment in India: A Mix of Flexibility and Rigidity
- Amendment of the Constitution: Types of Majority and Ratification
- Entrenched Provisions in the Constitution
Constitutional Amendment in India: A Mix of Flexibility and Rigidity
Article 368 and Its Interpretation
- Article 368 of the Indian Constitution governs constitutional amendments.
- The interpretation of this provision has caused tensions between Parliament and the judiciary since 1951.
Debate on Flexibility vs. Rigidity
- During the Constituent Assembly discussions, there was a debate on whether the Constitution should be flexible or rigid.
- The British constitution is flexible, allowing amendments through ordinary legislation.
- The U.S. Constitution requires the ratification of three-fourths of states for amendments.
- India’s Constitution adopted a combination of flexibility and rigidity.
Informal Amendments through Judicial Interpretation and Conventions
- The Constitution is informally amended through judicial interpretation and established conventions.
- For instance, the appointment of judges to the higher judiciary.
- While the Constitution mentions consultation between the President and Chief Justice of India, the Supreme Court interpreted consultation as “concurrence.”
- This interpretation led to the establishment of the collegium system, effectively changing the Constitution’s interpretation.
Amendment of the Constitution: Types of Majority and Ratification
Simple Majority
- Some Constitution provisions can be amended using the simple legislative process in Parliament, similar to passing ordinary legislation.
- This requires a majority vote of those present and voting, without the need for a quorum.
- Article 368 doesn’t explicitly list these provisions as “less significant”; however, they are excluded from Article 368’s purview, forming a separate category.
- Examples include changing state names, admitting new states, and altering state boundaries.
Special Majority
- Provisions not falling under the first category require a special majority, per Article 368.
- The amendment Bill must pass in both Houses of Parliament with a majority of at least two-thirds of the members present and voting.
- According to Lok Sabha Rules, the total membership includes all members, regardless of vacancies or absentees at the time.
Ratification by States
- A third category of provisions requires not only a special majority but also ratification by legislatures in at least half of the states.
- Only after state ratification can such an amendment be presented to the President for assent.
- These are known as “entrenched provisions” and relate to the federal character of the Constitution.
- Examples include the 99th Constitutional amendment in 2014, ratified by 16 state legislatures, and the 122nd Constitutional Amendment Bill in 2016, which introduced the Goods and Services Tax regime, ratified by 23 states.
Entrenched Provisions in the Constitution
Article 368 identifies six parts of the Constitution with additional safeguards for amendment:
- Articles 54 and 55: Covering the election of the President of India.
- Articles 73 and 162: Concerning the extent of executive power of the Union and states.
- Articles 124–147 and 214–231: Pertaining to powers of the Supreme Court and the High Courts.
- Articles 245 to 255: Dealing with the scheme of distribution of legislative, taxing, and administrative powers between the Union and the states.
- Articles 82-82: Addressing the representation of states in Parliament.
- Article 368 itself.
Ratification by States:
- Supreme Court Perspective In the 1992 Supreme Court case of Kihoto Hollohan v Zachillu, the issue of ratification gained importance.
- One argument against the constitutionality of the Tenth Schedule, which deals with disqualification of elected representatives, was its lack of ratification by the states.
- The amendment sought to limit the jurisdiction of courts in matters related to disqualification.
- This touched upon one of the six aspects requiring ratification by half the states: jurisdiction of the Supreme Court and High Courts.
- The Supreme Court upheld the Tenth Schedule’s validity but struck down the part of the amendment affecting court jurisdiction.
-Source: Indian Express
