Amendment

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Introduction

“Amendment” is the constitutional and legislative mechanism by which a legal order is altered, refined or corrected to meet changing social needs, political choices or judicial pronouncements. In India, the word most frequently evokes Article 368 of the Constitution and the formidable jurisprudence that has developed around the scope and limits of Parliament’s constituent power. Understanding amendment is indispensable for litigators, drafters, legislators and constitutional counsellors because challenges to amendments raise questions about parliamentary procedure, federalism, fundamental rights and the “basic structure” of the Constitution.

Core Legal Framework

Primary constitutional provisions and statutory processes that govern amendment in India:

  • Article 368, Constitution of India — power of Parliament to amend the Constitution and the procedure therefor. Key operative requirement: an amendment Bill must be passed in each House
    “by a majority of the total membership of that House and by a majority of not less than two‑thirds of the members of that House present and voting.” (Article 368(2): procedural majority requirement.) Certain classes of amendments (e.g., those affecting the federal balance such as the Seventh Schedule, representation of States, powers of the High Courts, etc.) also require ratification by not less than one‑half of the State Legislatures.
  • Articles 107–111 — general legislative procedure in Parliament (introduction, passage, President’s assent), which apply to ordinary and Special Bills (note the distinction between ordinary/statutory amendments and constitutional amendments).
  • Article 123 — power of the President to promulgate Ordinances when Parliament is not in session; used to effect temporary legislative amendments subject to subsequent parliamentary approval.
  • Article 368 read with Article 368 provisos and the relevant Articles whose alteration triggers state ratification (the Constitution itself lists the matters).
  • Statutory amendment procedure — ordinary Acts are amended by subsequent Acts passed as ordinary Bills in Parliament or by State Legislatures (subject to legislative competence under the Seventh Schedule). Money Bills and Finance Bills attract special procedures (Article 110 and Article 117).
  • Procedural and pleadings amendments — governed by Civil Procedure Code (Order 6 Rule 17 CPC), Criminal Procedure Code provisions and relevant Rules of Court for amendment of pleadings/charges.

Practical Application and Nuances

How the law of amendment operates in the daily practice of courts, legislatures and litigation:

  1. Two separate spheres — constituent vs. legislative amendment
  2. Constitutional amendment under Article 368 is a constituent act (exercise of constituent power) distinct from ordinary legislative amendment. An ordinary statute cannot, by simple majority, alter the scheme of the Constitution. Conversely, constitutional amendments may create, alter or abolish statutory schemes, but are subject to constitutional limits.

  3. Practical tip: When challenging a legislative provision you must first ask whether it is an ordinary statute (challengeable as violative of fundamental rights) or an attempted constitutional change camouflaged as ordinary law (rare but litigable).

  4. The majority threshold matters — technical and strategic consequences

  5. The requirement of (a) majority of total membership and (b) two‑thirds of members present and voting is both a procedural and substantive hurdle. Proof of numbers, quorum, voting records and the exact mode of voting may decide the validity of an amendment.

  6. Practical example: If a petitioner asserts that the two‑thirds majority did not exist because of abstention or errors in vote recording, parliamentary records and the Speaker/Chairman’s certificate become material. Courts will examine whether the Bill carried in accordance with parliamentary procedure.

  7. State ratification — a procedural jurisdictional condition

  8. For certain amendments, ratification by one‑half of State Legislatures is mandatory. If a requisite state ratification is absent, the amendment is vulnerable.

  9. Practical application: Records of state legislative resolutions, the manner of passage in state legislatures, and the time‑limit (if any) for ratification are evidence collected in constitutional challenges.

  10. Limits of amendment — “basic structure” and judicial review

  11. In practice the most litigated question is whether Parliament exceeded its power by altering fundamental features of the constitutional scheme. Courts assess the content and effect of the amendment rather than the formal label.

  12. For practitioners: framing the challenge requires careful pleading of (i) which element of the basic structure is impaired (e.g., separation of powers, federalism, judicial review, rule of law, secularism), and (ii) how the amendment’s language and effect produce that impairment. Mere invocation of “basic structure” without specific linkage is less persuasive.

  13. Amendments and Fundamental Rights

  14. Many amendments affect substantive rights. Litigation typically hinges on proportionality (whether the amendment’s objective justifies its effect), arbitrariness, and whether the amendment eliminates judicial remedies.

  15. Example: A statutory amendment creating retrospective criminal liability will face severe constitutional scrutiny under Article 20(1) and the rule against retrospective criminal laws.

  16. Non obstante clauses and saving provisions — drafting technique and judicial treatment

  17. Parliament routinely uses “notwithstanding” clauses and savings to immunise amendments from challenge. Courts will look at the scope of the non‑obstante clause and whether it can validly override entrenched constitutional guarantees or the basic structure.

  18. Practical nuance: A well‑drafted non‑obstante does not automatically shield an amendment that impairs the basic structure. Pleadings should focus on the substance over form.

  19. Use of Ordinances and classification of Bills

  20. The government may use Presidential ordinances (Article 123) to introduce urgent amendments; later ratification by Parliament is required. Misuse of Ordinance power or misuse of the Money Bill route for what is essentially constitutional or non‑money content has produced litigation (e.g., disputes around certification of Money Bills).

  21. Practical point: Challenge the classification (Money Bill vs. Ordinary Bill) only when you can show the substance falls outside the narrow definition in Article 110 — courts will review certification if the impugned law’s content makes that clear.

  22. Pleadings and procedural amendments in litigation

  23. In civil litigation, amendments to pleadings (Order 6 R.17 CPC) are liberally allowed to effect the determination of the real controversy. However, limitation, prejudice, and change of case law may constrain the Court’s discretion.
  24. For criminal cases, amendment of charges is permitted to reflect the evidence (see CPC/CrPC provisions), but such amendments must not prejudice a fair trial.

Landmark Judgments

  1. Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225
  2. Principle: Parliament’s power to amend the Constitution is wide but not unlimited. The “basic structure” doctrine — that Parliament cannot amend parts of the Constitution that constitute its basic structure — was enunciated. The decision remains the pivot for any challenge to amendments.

  3. Practical import: Any constitutional challenge must confront Kesavananda directly and identify which element(s) of the basic structure the amendment impairs.

  4. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625

  5. Principle: Reiterated and refined Kesavananda — held that amendments which destroy the harmony and balance between Fundamental Rights and Directive Principles or obliterate judicial review are unconstitutional.

  6. Practical import: Amendments that seek to oust judicial review or tilt the balance unduly in favour of political branches are vulnerable.

  7. I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (2007) 2 SCC 1

  8. Principle: Laws placed in the Ninth Schedule after April 24, 1973 (Kesavananda cut-off) are open to judicial review if they violate fundamental rights/basic structure. The Ninth Schedule is not an absolute shield.

  9. Practical import: Use Ninth Schedule chronology and basic structure tests to attack apparent attempts to immunise legislation via constitutional schedules.

  10. Kihoto Hollohan v. Zachillhu, (1992) Supp (2) SCC 651

  11. Principle: Concerning Tenth Schedule (anti‑defection), the Court upheld the schedule but allowed judicial review of the procedure for disqualification, subject to limited constraints.
  12. Practical import: Even where Parliament inserts provisions (e.g., anti‑defection), the courts will supervise to preserve basic constitutional rights and fairness.

Strategic Considerations for Practitioners

For challengers (petitioners)
– Narrow and specific pleadings: Identify the concrete features of the amendment that impair basic structure, and connect them to settled principles (separation of powers, judicial review, federalism, rule of law). Avoid generic assertions.
– Evidence: Compile parliamentary records, voting data, state ratification records, and contemporaneous material to show procedural defects or mala fide intent.
– Relief strategy: Courts are generally cautious about striking down an amendment affecting broad public policy. Seek precise relief (reading down, severance of offending clauses, or declaration of invalidity for specified provisions) rather than blanket annulment.
– Interim relief: Obtaining interim suspension of a constitutional amendment is difficult; require exceptional urgency and clear prima facie case.

For defenders (state/legislature/drafters)
– Meticulous drafting: Use clear language, avoid overbroad ouster clauses, and anticipate proportionality and non‑arbitrariness objections. Where fundamental rights are affected, justify the necessity and proportionality in accompanying legislative materials.
– Procedure compliance: Ensure records show compliance with Article 368 majorities, state ratifications where required, proper certification (if Money Bill issues arise), and clean legislative history.
– Use of non‑obstante: Use sparingly and with caution. A non obstante clause will not save an amendment that destroys basic constitutional features.

For litigators dealing with statutory amendments
– Temporal effect: Challenge retrospective penal statutes vigorously under Article 20; in taxation, challenge retrospective taxation on reasonableness and legitimate expectation grounds.
– Delegated legislation: If a statutory amendment purports to delegate excessive legislative power, attack on intelligible principle and non‑delegation grounds.
– Remedies and severability: When attacking part of an amendment, ask the court to sever offending portions and preserve the remainder unless inseparable.

Common pitfalls to avoid
– Overreliance on abstract doctrines: “Basic structure” must be shown with precise textual and doctrinal connections.
– Failure to prosecute procedural points: If the challenge ignores easily provable procedural defects (majority counts, state ratification), the court may decide on those ground precluding deeper merits examination.
– Treating every statutory change as constitutional: Do not conflate ordinary statutory amendments with constitutional amendments; misclassification undermines credibility.

Conclusion

“Amendment” in the Indian legal context is not a purely technical device: it is an exercise of constituent authority constrained by textual procedure, federalism, fundamental rights and an evolving judicially‑crafted basic structure. For practitioners, mastery requires (a) procedural diligence (vote counts, state ratifications, proper classification of Bills), (b) doctrinal precision in invoking or defending the basic structure doctrine, and (c) tactical use of severance, proportionality and retrospective‑law principles. Whether one is drafting reform or litigating against it, the decisive battleground is substance — what the amendment actually does to the Constitution’s architecture — and not merely the labels used by Parliament.