CDS (II) 2021 General Knowledge · Question 91 of 120

Correct — B, 1, 2 and 3. Statement 1 is the easy one: Article 368, in Part XX of the Constitution, is headed 'Power of Parliament to amend the Constitution and procedure therefor', and it is the only article that lays down an amending procedure. Statement 2 is the text of Article 368(2) itself — an amendment 'may be initiated only by the introduction of a Bill for the purpose in either House of Parliament'. There is no requirement of the President's prior recommendation, and neither House has a monopoly, so a Constitution Amendment Bill may begin in the Lok Sabha or in the Rajya Sabha. Statement 3 is the one candidates stall on. India has no separate constituent assembly standing by to amend the Constitution; the same two Houses that pass ordinary laws become the amending authority, but only when they follow the heavier route of Article 368 — passage in each House separately by a majority of the total membership of that House and by not less than two-thirds of the members present and voting, with ratification by the legislatures of at least half the States for the entrenched entries. That is exactly what it means to say the special procedure vests constituent power in the ordinary legislature, and the 24th Amendment of 1971 wrote the words 'in exercise of its constituent power' into Article 368(1) to put the point beyond argument. All three being accepted, the answer is 1, 2 and 3.

• (a)1 only — Keeps the article number and throws away the two statements that describe how the article works. Statement 2 is a direct quotation of Article 368(2), so it cannot be false.
• (c)2 and 3 only — Drops the safest statement of the three. Amendment procedure is in Article 368 and nowhere else — Articles 4, 169 and 239A allow certain changes by ordinary law, but they do so expressly by saying such a law is not an amendment for the purposes of Article 368.
• (d)1 and 2 only — The popular defensive pick, made by rejecting statement 3 on the feeling that constituent power must belong to a constituent assembly. Under our scheme it does not — Parliament exercises constituent power itself once it uses the special procedure, which is why an amendment cannot be passed at a joint sitting or by an ordinary majority.

Amending the Constitution of India runs on three tracks. A handful of matters — admission or formation of new States under Article 4, abolition or creation of a State legislative council under Article 169, changes to the Union territories scheme under Article 239A — can be altered by ordinary law passed by a simple majority, and the Constitution says expressly that such a law is not an amendment under Article 368. Everything else goes through Article 368: a special majority in each House, and for the entrenched entries a special majority plus ratification by the legislatures of not less than one-half of the States.

Two of the three statements can be settled from the text of the Article, so the item really turns on the third. The phrase 'vests constituent powers upon the ordinary legislation' reads oddly — the paper prints 'legislation' where the idea being described is the ordinary legislature, and that printed slip is worth noticing but does not change the point being tested. The proposition is the one the Supreme Court worked with in Kesavananda Bharati in 1973: Parliament is both the ordinary law-making body and, when it follows Article 368, the constituent body — a power that is wide but cannot be used to damage the basic structure of the Constitution. Read that way, statement 3 is a description of our amending scheme rather than a claim that an ordinary Bill can amend the Constitution, and the key accepts it.

• Article 368(1), as it stands after the 24th Amendment Act of 1971, lets Parliament 'in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution'.
• Article 368(2): an amendment may be initiated only by the introduction of a Bill in either House; it must be passed in each House by a majority of the total membership of that House and by not less than two-thirds of the members present and voting.
• Entrenched entries — Articles 54, 55, 73, 162 and 241, the chapters on the Union and State judiciary and on Union-State relations, the Lists in the Seventh Schedule, the representation of States in Parliament, and Article 368 itself — additionally need ratification by the legislatures of not less than one-half of the States.
• There is no joint sitting for a Constitution Amendment Bill; each House must pass it separately by the special majority.
• Kesavananda Bharati v. State of Kerala (1973) held that the amending power under Article 368 cannot be used to damage or destroy the basic structure of the Constitution.

• Assuming a Constitution Amendment Bill needs the President's prior recommendation — it does not; that requirement belongs to Money Bills and to Bills under Article 3.
• Assuming a deadlock between the Houses can be broken by a joint sitting under Article 108 — there is no joint sitting for an amendment.
• Assuming a State legislature can introduce or initiate an amendment; States only ratify, and only for the entrenched entries.

Usually as a statements item on who may initiate an amendment, what majority is needed and whether State ratification is required, or as a 'which one is not correct' item on the same article.

• practice — not a real PYQ

  A Bill to amend the Constitution of India may be introduced in which House of Parliament?

  • (a)Only the Lok Sabha
  • (b)Only the Rajya Sabha
  • (c)Either House of Parliament
  • (d)Either House, but only with the previous sanction of the President

  Answer(c) Either House of Parliament — Article 368(2) says an amendment may be initiated only by the introduction of a Bill in either House, and no prior sanction of the President is required.

• practice — not a real PYQ

  Which one of the following changes can be made by Parliament by a simple majority, without following the procedure in Article 368?

  • (a)Alteration of the boundaries of a State
  • (b)Amendment of the Seventh Schedule
  • (c)Amendment of Article 368 itself
  • (d)Change in the representation of States in Parliament

  Answer(a) Alteration of the boundaries of a State — Article 3 read with Article 4 allows this by ordinary law, and Article 4 states that such a law is not an amendment under Article 368.