Blend of Rigidity and Flexibility in the Amendment Process
Indian Polity › Salient Features of the Constitution · Topic 3.2
The Indian Constitution is a synthesis of rigidity and flexibility. It can be amended by a simple majority of Parliament, by a special majority, or by a special majority with the consent of half of the state legislatures, under Article 368.
8 min read · UPSC Prelims · Polity · Salient Features
At a Glance
- What it is The Constitution is neither rigid nor flexible, but a synthesis of both
- Rigid constitution Requires a special procedure for amendment, as in the American Constitution
- Flexible constitution Can be amended in the same manner as ordinary laws, as in the British Constitution
- Article 368 Provides for two types of amendment: by special majority of Parliament, and by special majority with ratification by half of the states
- Third way Some provisions can be amended by a simple majority of Parliament, outside Article 368
- K.C. Wheare The procedure “strikes a good balance between flexibility and rigidity”
- Exam link UPSC Prelims, Polity: Salient Features
Where Does It Fit?
The earlier category explained the classification of constitutions into rigid and flexible. This topic applies it to India. The Constitution is a synthesis of both, and the amendment process shows how. The detailed history of the amendments is taken up in a separate category on amendment of the Constitution.
What Is the Blend?
A rigid Constitution is one that requires a special procedure for its amendment, as the American Constitution does. A flexible Constitution is one that can be amended in the same manner as ordinary laws, as the British Constitution can. The Constitution of India is neither rigid nor flexible, but a synthesis of both. The procedure laid down for its amendment is neither as easy as in Britain nor as difficult as in the USA.
Article 368 in Part XX provides for two types of amendment.
- Some provisions can be amended by a special majority of Parliament, that is, a majority of the total membership of each House and a majority of two-thirds of the members of each House present and voting.
- Some other provisions can be amended by a special majority of Parliament and with the ratification by half of the states.
At the same time, some provisions can be amended by a simple majority of Parliament, in the manner of the ordinary legislative process. These amendments do not come under Article 368.
What Are the Three Ways of Amendment?
| Method | Provisions covered (examples) |
|---|---|
| Simple majority of Parliament (outside Article 368) | Admission or establishment of new states; formation of new states and alteration of areas, boundaries or names; abolition or creation of legislative councils; citizenship; elections to Parliament and state legislatures; delimitation of constituencies; Union territories; the Fifth and Sixth Schedules; official language |
| Special majority of Parliament | Fundamental Rights; Directive Principles of State Policy; all other provisions not covered by the other two categories |
| Special majority of Parliament and consent of half of the state legislatures | Election of the President and its manner; extent of the executive power of the Union and the states; the Supreme Court and the high courts; distribution of legislative powers between the Union and the states; the Goods and Services Tax Council; any of the lists in the Seventh Schedule; representation of states in Parliament; Article 368 itself |
In the third method, if one or some or all of the remaining states take no action on the bill, it does not matter: the moment half of the states give their consent, the formality is completed. There is no time limit within which the states should give their consent.
What Is the Procedure Under Article 368?
- An amendment can be initiated only by the introduction of a bill in either House of Parliament, and not in the state legislatures.
- The bill can be introduced either by a minister or by a private member, and does not require the prior permission of the President.
- The bill must be passed in each House by a special majority.
- Each House must pass the bill separately. In case of disagreement, there is no provision for a joint sitting.
- If the bill seeks to amend the federal provisions, it must also be ratified by the legislatures of half of the states by a simple majority.
- The bill is then presented to the President for assent.
- The President must give assent; he or she can neither withhold assent nor return the bill for reconsideration. The 24th Constitutional Amendment Act, 1971 made it obligatory for the President to give assent.
- After the assent, the bill becomes an Act and the Constitution stands amended.
Parliament cannot amend the provisions that form the basic structure of the Constitution. The Supreme Court ruled this in the Kesavananda Bharati case (1973).
What Do the Critics Say?
- There is no special body, like a Constitutional Convention in the USA, for amending the Constitution; the constituent power is vested in Parliament and, in few cases, the state legislatures.
- The power to initiate an amendment lies with Parliament. State legislatures cannot initiate an amendment, except by passing a resolution requesting Parliament to create or abolish legislative councils, which Parliament may approve, disapprove or ignore.
- A major part of the Constitution can be amended by Parliament alone. Where states must consent, only half of them are needed, while in the USA it is three-fourths.
- There is no time frame for the states to ratify or reject an amendment, and the Constitution is silent on whether states can withdraw their approval.
- There is no joint sitting if there is a deadlock over a constitutional amendment bill, though a joint sitting is available for an ordinary bill.
- Except for the special majority, the process is similar to the legislative process, and the provisions are too sketchy, leaving wide scope for taking matters to the judiciary.
What Did the Constitution-Makers and Scholars Say?
Despite these defects, the process has proved simple and easy and has succeeded in meeting changed needs. It is not so flexible as to allow ruling parties to change it according to their whims, nor so rigid as to be incapable of adapting to changing needs. K.C. Wheare said that it “strikes a good balance between flexibility and rigidity”, and that the variety in the amending process is “wise but rarely found”.
Pandit Nehru said in the Constituent Assembly: “While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution. There should be a certain flexibility.” Dr. B.R. Ambedkar said that the Assembly had refrained from denying the people the right to amend the Constitution, as in Canada, and from making amendment subject to extraordinary terms, as in America or Australia, and had provided for a facile procedure.
Why Is This Topic Important?
- Direct Prelims material: The three ways of amendment, and which provisions fall under each, can be asked directly.
- Link to federalism and the basic structure: The consent of states and the Kesavananda limit connect this topic to both.
What Came Next?
The next topic takes up the federal system with a unitary bias, the next of the salient features.
Key People and Terms
- Special majority A majority of the total membership of each House and two-thirds of the members present and voting
- Simple majority A majority of the members of each House present and voting
- Article 368 Parliament’s power to amend the Constitution and the procedure
- Lord James Bryce Gave the classification of constitutions into rigid and flexible
- 24th Amendment Act, 1971 Made it obligatory for the President to assent to an amendment bill
Exam Corner
Points to Remember
- India is a synthesis of rigidity and flexibility; the USA is rigid and Britain is flexible.
- Three ways: simple majority, special majority, special majority with ratification by half of the states.
- Only Parliament can initiate an amendment bill, not a state legislature.
- No joint sitting for a deadlock on a constitutional amendment bill.
- The President must assent, by the 24th Amendment (1971).
- The GST Council provision was added to the state-consent list by the 101st Amendment (2016).
Do Not Confuse With
- Simple majority and special majority: A simple majority is of the members present and voting; a special majority is of the total membership plus two-thirds of those present and voting.
- Amendments under Article 368 and outside it: Simple-majority amendments are not treated as amendments for Article 368.
- Consent of states in India and in the USA: Half of the states by simple majority in India; three-fourths of the states in the USA.
Memory Hook
Three ways: simple, special, special plus half the states. Neither Britain nor America: a synthesis.
Mains Angle
Questions usually ask whether the amendment process is a good balance. Use these points to add depth.
- Balance: Wheare said the procedure strikes a good balance between flexibility and rigidity, and Nehru stressed the need for flexibility so that the growth of a living people is not stopped.
- Parliament-centred: The constituent power lies mostly with Parliament, and state legislatures cannot initiate an amendment.
- Federal safeguard: Provisions on the federal structure need the consent of half of the states.
- Judicial limit: The basic structure doctrine bars an amendment that alters the basic structure.
- Gaps: No time frame for state ratification, no joint sitting on deadlock, and sketchy provisions that invite litigation.
A Question You May Face
An original practice question, not a past paper question.
“The Indian Constitution is neither rigid nor flexible.” Examine with reference to the amendment process.
How to Answer
- Introduction: Define rigid and flexible constitutions with the American and British examples.
- The three methods: simple majority, special majority, special majority with state ratification.
- Evaluation: Wheare’s praise, Nehru’s and Ambedkar’s views, and the criticism of the procedure.
- Conclusion: The procedure meets changing needs without allowing amendment by whim, and the basic structure doctrine limits it.
GS Relevance
Frequently Asked Questions
Is the Indian Constitution rigid or flexible?
The Indian Constitution is neither rigid nor flexible, but a synthesis of both. Its amendment procedure is neither as easy as in Britain, where the Constitution is flexible, nor as difficult as in the USA, where it is rigid. Some provisions need a special majority and others a simple majority.
What are the three ways of amending the Constitution?
The Constitution can be amended by a simple majority of Parliament, by a special majority of Parliament, or by a special majority of Parliament together with the consent of half of the state legislatures by a simple majority. Simple-majority amendments fall outside Article 368.
What is a special majority?
A special majority is a majority of the total membership of each House of Parliament together with a majority of two-thirds of the members of that House present and voting. Total membership means the total number of members in the House, whether or not there are vacancies or absentees.
Which provisions need the consent of states for amendment?
Provisions related to the federal structure need a special majority of Parliament and the consent of half of the state legislatures. They include the election of the President, the Supreme Court and high courts, the Seventh Schedule lists, representation of states in Parliament and Article 368 itself.
Can state legislatures initiate a constitutional amendment?
No. An amendment can be initiated only by introducing a bill in either House of Parliament. State legislatures cannot initiate an amendment, except by passing a resolution requesting Parliament to create or abolish a legislative council, which Parliament may approve, reject or ignore.
Can the President refuse assent to an amendment bill?
No. The President must give assent to a constitutional amendment bill and can neither withhold assent nor return it for reconsideration. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give assent to a constitutional amendment bill.
What did K.C. Wheare say about the amendment procedure?
K.C. Wheare said the Indian amendment procedure strikes a good balance between flexibility and rigidity. He also admired its variety, saying this variety in the amending process is wise but rarely found in other constitutions of the world.
Is there a joint sitting for a constitutional amendment bill?
No. Each House must pass a constitutional amendment bill separately, and there is no provision for a joint sitting if the two Houses disagree. A joint sitting is available only for an ordinary bill, which critics point to as a defect of the procedure.
PYQ Practice — Statement Analysis
1 The Constitution of India is a synthesis of rigidity and flexibility.
Some provisions need a special majority, some a special majority with state ratification, and some a simple majority.
2 A constitutional amendment bill can be initiated in a state legislature.
It can be initiated only in either House of Parliament.
3 The President can withhold assent to a constitutional amendment bill.
The President must give assent, as the 24th Amendment Act (1971) made obligatory.
4 Amendments by a simple majority of Parliament are amendments under Article 368.
They are provided for in other articles and are not deemed to be amendments for the purposes of Article 368.
5 Amendment of the provisions on the federal structure requires ratification by half of the state legislatures.
They must also be passed by a special majority of Parliament.
Related Topics
Browse the full Indian Polity index