The term “constituent power” in the context of the Indian Parliament usually refers to the power of the Parliament to amend the Constitution. In India, the procedure for amending the Constitution is outlined in Part XX (Articles 368) of the Constitution of India.
1. Article 368 – Power of Parliament to Amend the Constitution:
A. Sole Authority:
- Article 368 explicitly vests the power to amend the Constitution solely in the Indian Parliament.
B. Procedure for Amendment:
- The procedure for amending the Constitution is detailed in Article 368, specifying the steps Parliament must follow.
C. Special Majority:
- Constitutional amendments require a special majority, which means that the amendment must be passed by a majority of the total membership of each house and by a majority of not less than two-thirds of the members present and voting.
D. Certain Amendments Require State Ratification:
- Some amendments, especially those affecting the federal structure or representation of states in Parliament, require the approval of a majority of the states. State ratification is necessary for certain amendments specified in the Constitution.
E. No Constitutional Limitation:
- While Article 368 outlines the procedure, it does not impose any substantive limitation on the power to amend. In other words, Parliament can amend any part of the Constitution, including fundamental rights.
2. Amendment Process:
A. Initiation:
- Amendments can be initiated by either house of Parliament. There is no provision for citizens’ initiatives or referendums.
B. Approval in Both Houses:
- The amendment must be approved by both houses of Parliament. The Lok Sabha and the Rajya Sabha have equal powers in this regard.
C. Presidential Assent:
- After both houses approve the amendment, it is presented to the President for assent. The President’s assent is a formality, and there is no veto power.
3. Amendment Categories:
A. Simple Majority Amendments:
- Some amendments require a simple majority in both houses.
B. Special Majority Amendments:
- Amendments dealing with certain specified matters, such as federal structure, representation of states in Parliament, etc., require a special majority and, in some cases, state ratification.
C. Special Majority and State Ratification:
- Some amendments need both a special majority and the approval of a majority of the states.
4. Judicial Review:
A. Power of Judicial Review:
- While Parliament has the authority to amend the Constitution, the Supreme Court has the power of judicial review to ensure that amendments do not violate the basic structure of the Constitution.
B. Basic Structure Doctrine:
- The basic structure doctrine, established by the Supreme Court in the Kesavananda Bharati case (1973), asserts that while Parliament has the power to amend the Constitution, it cannot alter its basic structure, which includes features such as federalism, secularism, and democracy.
C. Limitations on Constituent Power:
- The doctrine imposes limitations on the constituent power of Parliament, ensuring that certain essential features of the Constitution remain inviolable.
Conclusion:
The constituent power of the Indian Parliament, as outlined in Article 368, allows for the amendment of the Constitution. While this power is extensive, the basic structure doctrine ensures that certain fundamental principles of the Constitution remain protected. The amendment process is a well-defined constitutional mechanism that balances the need for flexibility with the imperative to safeguard the core values of the Constitution. Judicial review by the Supreme Court serves as a crucial check to prevent arbitrary or unconstitutional amendments.
