Decoding the Blueprint: Navigating Constitutional Change in India

At SapiensForum.com, our team has delved deep into the intricate mechanisms of India’s democratic framework, evaluating the circumstances and legal precedents that determine how a ruling political party can, and cannot, change the very bedrock of the nation – its Constitution. The Indian Constitution, a living document, has seen over a hundred amendments since its adoption, reflecting the dynamic nature of our society. But the power to amend is not absolute; it’s a delicate balance of legislative will and judicial guardianship.

The Pathways to Amendment: Article 368 and Beyond

The primary instrument for constitutional amendment in India is Article 368 of the Constitution. It outlines the procedure, which isn’t a simple majority affair, signaling the framers’ intent for a more rigid, yet adaptable, fundamental law. Our research reveals three distinct avenues for amendment:

1. Simple Majority of Parliament: Certain provisions, often those related to administrative details, can be amended by a simple majority (more than 50% of members present and voting) in both Houses of Parliament. Examples include the admission or establishment of new states, alteration of state boundaries, or the creation/abolition of legislative councils in states. While technically amendments, they are not strictly considered “amendments” under Article 368.
2. Special Majority of Parliament: This is the most common method and applies to the majority of constitutional provisions, including fundamental rights and directive principles of state policy. A bill for amendment must be passed in each House of Parliament by:
   • A majority of the total membership of that House (absolute majority).
   • A majority of not less than two-thirds of the members of that House present and voting (special majority). This dual requirement ensures that constitutional changes are not rushed through by a simple numerical advantage but have substantial cross-party support or a strong mandate.
3. Special Majority of Parliament and Ratification by States: For amendments that impact the federal structure of the Indian Union, a further step is required. After being passed by a special majority in both Houses of Parliament, the amendment bill must also be ratified by the legislatures of not less than one-half of the states by a simple majority. This applies to provisions concerning:
   • The election of the President.
   • The extent of the executive power of the Union and the States.
   • Provisions related to the Supreme Court and High Courts.
   • The distribution of legislative powers between the Union and the States (Seventh Schedule).
   • Representation of States in Parliament.
   • The procedure for amendment of the Constitution itself (Article 368).

This third category acts as a crucial check on the central government’s power, ensuring that states, as vital units of the federation, have a say in matters directly affecting their autonomy and structure.

The Unshakeable Core: The Basic Structure Doctrine

While the Parliament possesses significant power to amend the Constitution, it’s not an unfettered power. The landmark Kesavananda Bharati v. State of Kerala (1973) case introduced and firmly established the “Basic Structure Doctrine.” This revolutionary judicial pronouncement asserted that the Parliament, in its amending power under Article 368, cannot alter or destroy the “basic structure” or fundamental features of the Constitution.

Though not explicitly defined, the Supreme Court has, through various judgments, identified several elements as part of the basic structure, including:

• Supremacy of the Constitution: The Constitution is the supreme law of the land, and no organ of the state is above it.
• Republican and Democratic Form of Government: India’s commitment to a republic and a democratic system.
• Secular Character of the Constitution: The principle of equal respect for all religions and no state religion.
• Separation of Powers: The clear demarcation of powers among the legislature, executive, and judiciary.
• Federal Character of the Constitution: The division of powers between the Union and State governments.
• Unity and Integrity of the Nation: Maintaining the cohesion of India.
• Judicial Review: The power of the judiciary to review legislative and executive actions to ensure their constitutionality.
• Freedom and Dignity of the Individual: The fundamental rights enshrined in Part III.
• Parliamentary System: The framework of a parliamentary democracy.
• Rule of Law: Governance by law, not by arbitrary decisions.

The Basic Structure Doctrine acts as a guardian, preventing a ruling party, even with a strong majority, from fundamentally transforming the core identity and values embedded in the Constitution. It underscores the idea that the power to amend is the power to improve, not to demolish.

The Political Reality: Opportunities and Constraints

A ruling political party, especially one with a comfortable majority in both Houses of Parliament, certainly has a significant advantage in initiating and passing constitutional amendments. A supermajority in Parliament (more than two-thirds) can overcome the special majority hurdle for most amendments. However, even with such strength, the process is fraught with political considerations:

• Consensus Building: Even without legal compulsion, seeking consensus or at least broad political acceptance often eases the passage and acceptance of amendments, especially those with far-reaching implications.
• Public Opinion and Scrutiny: Major constitutional changes are always subject to intense public debate, media scrutiny, and civil society activism. A party must weigh the political cost of pushing through highly contentious amendments against the potential benefits.
• Judicial Scrutiny: The spectre of judicial review under the Basic Structure Doctrine is a constant check. Any amendment that is perceived to violate this doctrine can be challenged in the Supreme Court, potentially leading to its striking down. This has happened in the past, serving as a powerful reminder of the judiciary’s role.
• State Ratification Challenges: For federal provisions, garnering ratification from at least half the states can be a significant hurdle, especially if the ruling party does not control a sufficient number of state governments.

Recent Trends and the Evolving Discourse

In recent years, we’ve observed various amendments reflecting shifts in governance priorities. From socio-economic reforms like the Goods and Services Tax (GST), which required state ratification due to its federal implications, to measures like the Women’s Reservation Act, which aimed to ensure greater representation, constitutional amendments continue to be a tool for addressing contemporary challenges. The debate often revolves around the balance between legislative efficiency and maintaining the constitutional ethos.

Conclusion: A Dynamic Equilibrium

The Indian Constitution, with its flexible yet rigid amendment process, strikes a remarkable balance. A ruling political party undeniably holds the key to initiating constitutional change. However, this power is not absolute. It operates within a sophisticated framework of parliamentary procedures, the imperative of federal cooperation for certain changes, and critically, the watchful gaze of an independent judiciary, armed with the Basic Structure Doctrine. This dynamic equilibrium ensures that while the Constitution can evolve to meet the needs of a changing nation, its fundamental spirit and democratic character remain steadfast. The story of constitutional amendments in India is, therefore, a testament to the enduring strength of its democratic institutions and the constant interplay between political will and constitutional safeguards.