Unpacking Article 368: A Critical Look at India's Amendment Procedure

Criticism: Unlike some countries (e.g., USA, where amendments can be proposed by a national convention), the Indian Constitution does not provide for a separate, specialized body like a Constitutional Convention or a Constituent Assembly for the purpose of amending the Constitution.

Constituent Power with Parliament: The constituent power (power to amend the Constitution) is vested in the Parliament, which is primarily a legislative body.

Argument of Critics: Parliament, as a legislative body, might be tempted to amend the Constitution to suit its political agenda or to enhance its own powers, rather than acting purely in the interest of constitutional principles. A legislative body, preoccupied with ordinary law-making and day-to-day politics, may not have the same detached, long-term perspective or specialized expertise for constitutional amendment as a dedicated constituent body. Some argue that fundamental changes to the Constitution should ideally be made by a body more directly representative of the people's constituent will rather than an ordinary legislature.

Counter-Argument / Framers' Intent: The framers likely intended Parliament, as the elected representative body of the people, to be entrusted with this responsibility. Creating a separate constituent body for every amendment would be cumbersome and impractical. The requirement of special majorities (and state ratification for some parts) was seen as a sufficient safeguard. Dr. B.R. Ambedkar had argued in the Constituent Assembly against making the amendment process too difficult or requiring a referendum/convention for all changes, as it could hinder necessary reforms.

Source: Laxmikanth, 'Indian Polity'; Constituent Assembly Debates; K.C. Wheare, 'Modern Constitutions'

Criticism: The role of state legislatures in the constitutional amendment process is significantly limited.

Limitations on State Legislatures:

• No Power to Initiate Amendments: State legislatures cannot initiate any bill or proposal for amending the Constitution. The power of initiation lies exclusively with Parliament.
  (Exception: Article 169 resolution for creating/abolishing Legislative Council, but this is not strictly an Article 368 amendment).
• Limited Role in Ratification: The consent of state legislatures (ratification) is required only for a select category of amendments that affect the federal structure (as listed in the proviso to Article 368(2)). For a vast majority of constitutional provisions, including Fundamental Rights and DPSPs, states have no say in the amendment process.
• Nature of Ratification: Even where ratification is required, it is by a simple majority in the state legislatures, and only half of the states need to ratify.
• No Power to Propose Modifications: States can only ratify or reject the amendment bill as passed by Parliament; they cannot propose any modifications to it.

Argument of Critics: This limited role undermines the federal principle, as states (which are constituent units of the federation) have minimal control over changes to the fundamental law that governs them. It tilts the balance of constituent power heavily in favour of the Union Parliament.

Counter-Argument: The provisions requiring state ratification for core federal matters do provide a significant check. The Indian model is "federalism with a strong centre," and the amendment process reflects this bias, deemed necessary for national unity and integrity.

Source: Laxmikanth, 'Indian Polity'; D.D. Basu, 'Introduction to the Constitution of India'

Criticism: A substantial portion of the Constitution can be amended by the Parliament acting alone, either by a simple majority (for provisions outside Article 368) or by a special majority (for most provisions under Article 368 that do not require state ratification).

Argument of Critics: This makes many important constitutional provisions (including Fundamental Rights and Directive Principles) vulnerable to changes based solely on the will of the Union Parliament, without any direct involvement of the states. It weakens the federal character and the stability of these provisions.

Counter-Argument: The requirement of a "special majority" for amending significant parts (like FRs, DPSPs) is a substantial safeguard against hasty or arbitrary changes by Parliament. The framers intended a balance where core federal features are protected by state ratification, but other important national principles could be adapted by the national legislature with a broad consensus (special majority).

Source: Laxmikanth, 'Indian Polity'

Criticism: The Constitution does not prescribe any time limit within which state legislatures must ratify or reject an amendment bill referred to them.

Argument of Critics: This can lead to indefinite delays in the amendment process if states choose to sit on the bill. It can create uncertainty regarding the fate of an amendment. A state might delay ratification for political reasons or as a bargaining tactic.

Practice: While there's no constitutional time limit, the Union government usually communicates an expectation for timely action, and political dynamics often influence the speed of ratification.

Source: Laxmikanth, 'Indian Polity'; D.D. Basu, 'Introduction to the Constitution of India'

Criticism: Article 368 requires a Constitutional Amendment Bill to be passed by each House of Parliament separately by a special majority. There is no provision for a joint sitting of both Houses (Lok Sabha and Rajya Sabha) under Article 108 to resolve a deadlock or disagreement between them over such a bill (unlike ordinary bills).

Argument of Critics: This can lead to a legislative impasse if one House passes the bill and the other rejects it or fails to pass it with the requisite special majority. The bill would then lapse. A determined Rajya Sabha (where the ruling party at the Centre might not have a strong majority) could potentially block important constitutional amendments desired by the Lok Sabha (which is directly elected).

Counter-Argument / Rationale for No Joint Sitting: Constitutional amendments are fundamental changes and require broader consensus, including the considered approval of the Rajya Sabha, which represents the states. Allowing a joint sitting (where Lok Sabha's larger numbers would dominate) could undermine the Rajya Sabha's role as a revising chamber and a protector of state interests in constitutional matters. This feature adds to the rigidity and ensures that amendments have strong bicameral support.

Source: Laxmikanth, 'Indian Polity'

Initial Ambiguity (Historical Context): While Article 368 states that the amendment must be "ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures," it did not explicitly specify whether this ratification by state legislatures required a simple majority or a special majority.

Clarification by Practice and Judicial Interpretation: It has been established through constitutional practice and confirmed by judicial understanding that the ratification by state legislatures needs to be done by a simple majority of the members present and voting in the House (or each House, if bicameral). There is no requirement for a special majority in state legislatures for this purpose.

Criticism (from those desiring more rigidity for federal amendments): Some critics might argue that ratification by a simple majority in states is a relatively low threshold for approving fundamental changes to the federal structure, making it easier for a determined Central government (with influence over half the states) to push through such amendments.

Counter-Argument: Requiring special majorities in states as well could make the amendment process for federal provisions extremely difficult and almost impossible, leading to excessive rigidity. The simple majority requirement in states, coupled with the special majority in Parliament, is seen as a balanced approach.

Source: Laxmikanth, 'Indian Polity'; D.D. Basu, 'Introduction to the Constitution of India'

Criticism (Directed at a Judicially Evolved Limitation, not the Text of Art 368 itself, but impacts its operation): While Article 368 outlines the procedure, the substantive limitation imposed by the Basic Structure doctrine (that Parliament cannot alter basic features) is itself a subject of criticism.

Argument of Critics:

• Vagueness of "Basic Structure": The Constitution does not define "basic structure." The Supreme Court in Kesavananda Bharati did not provide an exhaustive list, stating it would evolve case by case. This leads to uncertainty about what features are "basic" and thus unamendable.
• Judicial Supremacy / Undemocratic: Critics argue that this doctrine gives unelected judges the power to define the limits of the amending power of the elected Parliament, thereby asserting judicial supremacy over the will of the people's representatives.
• Subjectivity: The determination of what constitutes a basic feature can be subjective and depend on the philosophical leanings of the judges on the bench.
• Potential for Hindering Necessary Reforms: Fear that the doctrine might be used to strike down essential amendments needed for socio-economic progress or adapting to new realities, if such amendments are perceived to touch upon a "basic feature."

Counter-Argument (Defence of Basic Structure): Necessary to preserve the fundamental identity and core values of the Constitution. Acts as a check against potential abuse of amending power by a transient parliamentary majority. Upholds constitutionalism and the supremacy of the Constitution. The list of basic features has evolved with a degree of consistency through subsequent judgments.

Relevance to Amendment Procedure: The Basic Structure doctrine acts as an overarching substantive limitation on the procedural powers laid down in Article 368. Even if an amendment follows the correct procedure, it can be invalidated if it violates the basic structure.

Source: Laxmikanth, 'Indian Polity'; Granville Austin, 'Working a Democratic Constitution'; Criticisms of Basic Structure by legal scholars and political commentators