Introduction
The Constitution of a country was never meant to be a rigid
document set in stone. Rather, it is supposed to be fluid and dynamic,
constantly adapting to the needs of the society. The social, economic and
political conditions in a country are never constant. A document that may have
been drafted decades ago, thus, may not find much application in the modern
times if it does not suit the present needs of society, and this can even
result in a total constitutional breakdown. This is why almost all
Constitutions in the world carry within it an amendment procedure, to enable it
to change and adapt to the current needs of the society.
In this background, the amendment procedures in the US and
India are discussed below.
Amendment Procedure of the US Constitution
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Article V of the US Constitution provides for the amendment procedure of the Constitution. The process of amendment is a two-stage process, involving the proposal of the amendment in the first stage and consequently, its ratification by a majority of the States in order to be passed. This process can be summarised through the following diagram:
As outlined above, the procedure for amendment of the US
Constitution is as follows:
·
Proposal and Passage:
o Under
the first method of proposal by the Congress, the amendment must first be
proposed in either House of the Congress or even jointly in both Houses, and
then approved by a 2/3rd majority vote of both Houses, separately.
o The
other method of proposal is when the States call for a Constitutional
Convention, where amendments may be proposed. This is a way where the
States can bypass the Congress, as the amendments proposed by the States in
this Convention do not need approval of the Congress. This method of amendment
has never been used in the US, despite its existence in the
Constitution.
·
Notification to the States: A
notification of the amendment is sent to all the Governors of the states by the
national archivist in the US Office of the Federal Register. The Governors then
formally submit the amendment to the State Legislatures, or the State may call
for a convention, as specified by the Congress.
·
Ratification:
o The
first method of ratification is simply, ratification of the proposed amendment,
in the exact same language as proposed by the Constitutional Convention or the
Congress, by 3/4th of the State Legislatures.
o The
Congress may call for a Convention of the States, specifying the number
of delegates to this convention, the mode of election, time and place of
meeting, etc.
o The
method of ratification is prescribed by the Congress and the passage of
the Legislature or Convention, in both cases, for approval or disapproval of
the amendment is by Simple Majority.
·
Announcement: Once 3/4th of
the State Legislatures or the Convention by simple majority ratify the proposed
amendment, the archivist at the US Office of the Federal Register proclaims it
as an amendment to the US Constitution, and this is published immediately in
the Federal Register, and eventually in the US Statutes At Large.
Procedure of Amendment in India
The procedure of amendment of the Constitution is much
simpler in India, as compared to the US. The amendment procedure is prescribed
under Article 368 of the Constitution of India, which can be summarised
as follows:
·
Proposal: A bill proposing an amendment
to the Constitution is first introduces in any House of the Parliament. This is
the only way to initiate an amendment to the Constitution. Such a bill
can be introduced as a Private Member Bill or even a Government Bill. No prior
recommendation of the President is required to do so.
·
Passage of Bill: The bill must be passed
in both Houses of Parliament by a special majority, i.e., by 2/3rd
members present and voting and making up more than 50% of the strength of the
House.
·
Ratification by the States: The
Constitution does not mandate the ratification of the amendment by the States
in all cases, but rather specifies the situations where such ratification is
required. Such ratification, by not less that half of the State Legislatures,
is required when the amendment proposes a change in:
o Provisions
related to the election of the President under Articles 54 and 55.
o Executive
powers of the States and Union under Articles 73 and 162.
o Provisions
dealing with the Judiciary.
o Distribution
of Legislative Powers among States and the Centre under Articles 245 to 255.
o The
Fourth Schedule, dealing with States’ representation in the Parliament.
o Provisions
related to amendment of the Constitution itself, under Article 368.
·
Presidential Assent: Once the Bill is
passed in the Parliament, and is ratified by the States if required, it is sent
to the President for his or her assent. The amendment is then published in the
Gazette of India and is applicable after the assent has been received.
Comparison of the Amendment Procedure in India and USA
The complexity of the procedures of amendment of the
Constitution in India and USA are very different from each other. As stated
before, the process of amendment in the US is very rigid, while that in India
is much simpler.
The first major distinction arises in terms of the role
of the President in both these nations. Amendment of the Constitution in
the US is an exercise solely within the powers of the Legislatures of the
Centre and the State. The President does not play any role in giving the assent
to a proposal for amendment, as is done in India. This principle was upheld in
the case of Hollingsworth et al. v. Virginia, 3 U.S. 378, where the
11th amendment was challenged on the ground that it wasn’t presented
to the President for approval. It was held that the US Constitution provided
for only 2 mechanisms of approval, which are by the Houses of the Congress and
ratification by the States. Thus, the President has no role to play in
Constitutional Amendments. In India, on the other hand, the President in exercising
his or her executive powers as the head of the executive must give assent to a
proposed amendment for it to be valid and made part of the Constitution.
The second major distinction is the role of the States
in Constitutional Amendments. Firstly, the States, by 2/3rd
majority, in the US can initiate the amendment process by calling for a
Constitutional Convention, which will be valid after the States ratify the
same, and the Congress does not have much role to play in this. On the other
hand, the amendment process in India can be initiated only by either house of
the parliament and no other way. Secondly, the States in the US have much more
say when it comes to the ratification of the proposed amendments. Each
and every proposed amendment has to be ratified by the States through their
legislatures or a convention, as explained above. Without the support of the
States, no amendment can be made to the US Constitution. On the other hand,
proposals for amendment in India are subject to ratification by the States only
in certain situations, as stated above. In any other situation, the States have
no role to play in the process of amending the Constitution.
All in all, the procedure for amendment of the Constitution
in the US is very complex and time-consuming, as compared to India. This
is attributable to the immense involvement of the States. The involvement of
the States also means that in Constitutional Amendments are to be ratified by
at least 3/4th of the States. Such a majority cannot be achieved if
13 or more states do not ratify a proposal for an amendment. Hence, the
amendment process is truly at the behest of the tyranny of 13 states
rather than the majority of the States. This also has an impact on the importance
of the Supreme Court, as it is the main interpreter of the Constitution and
its interpretation cannot be easily overridden by way of a Constitutional
Amendment, as has been attempted many times in India.
Limitations and Ambiguities in the Amendment Procedure for the US Constitution
There are many limitations and ambiguities in the procedure
for amending the Constitution, as given under Article V of the US Constitution.
These are discussed as follows.
Time Limits for Ratification by the States
The US Constitution does not make any mention of time limits
in the amendment procedure. It also does not provide whether any time limits
can be set by the Congress for ratification or not. This was first discussed in
the case of Dillon v. Gloss, 256 U.S. 368 (1920), where the 18th
amendment was challenged on the ground that a time limit was given to the
States to ratify the amendment, thus making it unconstitutional. The court
rejected the argument and held that since the Constitution did not explicitly
prohibit such time-limits, the amendment could not be unconstitutional on this
ground.
This brings forward the question about what a reasonable
time-limit is for ratification, in case no time-limit is set by the Congress.
This was answered in the case of Coleman v. Miller, 307 U.S. 433 (1939), where
the ratification of a Constitutional Amendment to regulate child labour took
more than 10 years. The Court held that it is entirely up to the Congress to
decide the reasonableness of the time taken to ratify a proposed amendment,
given that it is entirely a ‘political question’ making is non-justiciable. This
ruling made the time taken for ratification an irrelevant factor in
Constitutional amendments, making the process even harder, especially when the
Congress does not prescribe a time-limit.
The meaning of 2/3rd Majority and
Supermajority
The Indian Constitution provides a clearly the meaning of a
special majority to be 2/3rd of the members present and voting, and
more than 50% of the House. The US Constitution simply states a requirement of
2/3rd Majority to pass a proposed amendment in a House of the
Congress, without stating whether this refers only to the number of members
present at the time of voting or the total strength of the House. This has been
clarified to be the concept of a Supermajority, which as opposed to a
simple majority which requires the votes of more than half the number of
members, means 2/3rd majority of the total strength of the House.
Alexander Hamilton in Federalist No. 73 and
James Madison in Federalist No. 58 stated that this concept of
supermajority prevents the Congress from taking hasty and partial actions, and
keeps a check on the exercise of legislative powers. However, it also adds to
the complexity of the amendment process, thereby making it more time consuming.
Withdrawal of Ratification by a State
The process of ratification by the States gives rise to the
inherent question as to whether a State can be permitted to rescind its
ratification before the majority of 3/4th States is reached. This
situation was seen at the time of the 14th Amendment, where 5 states
rejected this amendment after ratifying it initially. The Congress, however,
passed the proclamation without considering the withdrawal of ratification by
these States. According to the ratio in Coleman v. Miller (Supra), it
can be assumed that this is also a political question within the realm of the
Congress. Thus, it is up to the Congress to accept or reject such withdrawal,
even though such withdrawals have never been accepted by the Congress.
Other Ambiguities
There are other ambiguities inherent in the amendment
procedure of the US Constitution. For instance, the question as whether a State
can take a referendum on a Constitutional Amendment has not been
provided. This was settled in the case of Hawke v. Smith, where
it was held that the State of Ohio could not do so, even though the Ohio
Constitution provided for the same. This is because the amendment procedure
must only follow Article V of the Constitution.
Apart from this, Article V also does not specify the Constituent
Power of the Congress, except that it cannot remove the provision of
apportionment of direct taxes and the States’ right to equal suffrage in the
Senate. Apart from this, there are no limits prescribed under Article V. In
fact, in the National Prohibition Cases (1920), certain
constitutional amendments were held valid because the process under Article V
was followed properly. All contentions as to the invalidity were rejected. The
courts, thus, look only at procedural requirements to adjudge the
constitutional validity of an amendment, thus giving an extremely wide
constituent power to the US Congress.
Limitations on the Constituent Power of the Indian Parliament
Article 368 of the Indian Constitution clearly provides that
there are no limitations on the constituent power of the Indian Parliament.
Thus, it may seem like the Indian Parliament, like the US Congress is free to
amend the Constitution as it likes. However, this is not the case. The courts
in India have played a much more proactive role in determining the constituent
power of the Parliament.
The Supreme Court, prior to 1967, was of the view that the
Parliament could amend any provision of the Constitution of India, including
the Fundamental Rights under Part III. This view was taken in Shankari
Prasad v. Union of India, AIR 1951 SC 455 and Sajjan Singh v.
State of Rajasthan, AIR 1965 SC 845.
This view however, changed in the case of Golak Nath
v. State of Punjab, AIR 1971 SC 1643, where the Seventeenth Amendment
was challenged on the ground that it took away the Right to Property and
Freedom of Profession guaranteed under Article 19. The court reversed the two
cases mentioned above and held that the Parliament cannot amend the
Constitution in a manner that curtails the Fundamental Rights provided under
Part III.
A few years later, the Supreme Court laid down the Basic
Structure Doctrine in the famous case of Kesavananda Bharati v. Union
of India, AIR 1973 SC 1461, where multiple amendments were challenged
before the Supreme Court. The court held that the Parliament, under Article 368
or otherwise, cannot amend the Constitution on a manner that violates or
destroys its Basic Structure, which includes the rule of law and supremacy of
the constitution, separation of powers, the secular and federal character of
the constitution, democracy, fundamental rights, inter alia.
Thus, the Parliament, in no situation, can undermine this
basic structure, as laid down by the Supreme Court.
Conclusion
Based on the analyses above, it is clear that the amendment
procedure in USA and India is very different. The amendment procedure in the US
suffers from many ambiguities, but on the other hand, the system in India
suffers from a lot of problems as well, such as the non-representation of the
States in many Constitutional matters, thereby undermining the principle of
Federalism. Further, the Indian Constitution, like the US Constitution has not
provided any time limit for ratification by the States.
The biggest factor, however, differentiating both systems is
the interpretation of the amendment procedure by the courts and the involvement
of the courts in determining the constituent power of the Legislature. The
Indian courts have played a proactive role in limiting this constituent power
of the Parliament, while the US Courts only look at procedure.
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