QUES . Indian Constitution has conferred the amending power on the ordinary legislative institutions with a few procedural hurdles. In view of this statement, examine the procedural and substantive limitations on the amending power of the Parliament to change the Constitution. Answer in 250 words.15 marks. UPSC MAINS 2025 GS PAPER 2
HINTS:
Article 368 of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure. However, the procedure laid down for its amendment is neither as easy as in Britain nor as difficult as in USA. In other words, the Indian Constitution is neither flexible nor rigid but a synthesis of both.
Must read: The Constitution (First Amendment) Act, 1951
Why Parliament is entrusted with the power of Amendment of the Constitution?
Being directly elected, Parliament acts as representative of the people. It embodies the sovereign will of the people, hence entrusted with amending power. Moreover, setting up a permanent constituent assembly was considered impractical. Giving amending power to Parliament ensures that the Constitution can adapt without creating new bodies.
Why Procedural and Substantive limitations have been placed on the amending power of the Parliament to change the Constitution?
To prevent abuse, amendments require special procedures that act as hurdles and make constitutional changes deliberate and consensual, not impulsive. These hurdles act as safeguards and can be differentiated into Procedural and Substantive limitations.
Procedural Limitations on the Amending Power of the Parliament
Amendment by Special Majority: Most provisions require a majority of total membership and two-thirds of members present and voting in both Houses.
Amendment by Special Majority plus Ratification: Certain provisions require ratification by at least half of the state legislatures.
No Joint Sitting Provision: In case of disagreement between the two Houses, there is no joint sitting provision. This forces consensus-building within each House separately before an amendment can be passed.
Mandatory Presidential Assent: Every constitutional amendment bill must receive the President’s assent after being duly passed. Unlike ordinary bills, the President cannot withhold or return a constitutional amendment.
Substantive Limitations on the Amending Power of the Parliament
Basic Structure Doctrine: Parliament cannot alter or destroy the “basic structure” of the Constitution, evolved in Kesavananda Bharati (1973) and reaffirmed in later cases.
Must read: What are the basic structures of the Indian Constitution? Can they be amended?
Judicial Review: Amendments are subject to judicial review to ensure that they do not abrogate fundamental features of the Constitution like democracy, secularism, etc.
Independence of the Judiciary: Any amendment that infringes the independence of the judiciary would be unconstitutional.
Federal Polity: Amendments requiring state ratification protect the federal balance; Parliament cannot unilaterally alter the distribution of powers. Amendments cannot convert India from a federation into a unitary state.
Fundamental Rights: Fundamental Rights, especially Articles 14, 19, 21, enjoy judicial protection from amendment that dilutes their essence.
Democratic Principles: Universal adult franchise and free & fair elections form part of substantive limits.
Conclusion:
While Parliament enjoys wide amending powers, procedural and substantive limitations ensure that constitutional flexibility does not erode its core values. The procedural hurdles ensure broad consensus and substantive limitations ensure constitutional amendments preserve democracy’s foundational principles.
