Types of amendments - COnstitution of India
The last two categories are governed by article 368. The original constitution provided for three categories of amendments.
The original constitution provided for three categories of amendments.
The first category of amendments is those contemplated in articles 4 (2), 169, 239A (2), 239AA (7b), 243M (4b), 243ZC (3), 244A (4), 312(4), para 7(2) of Schedule V and para 21(2) of Schedule VI. These amendments can be effected by Parliament by a simple majority such as that required for the passing of any ordinary law.
The amendments under this category are specifically excluded from the purview of article 368 which is the specific provision in the Constitution dealing with the power and the procedure for the amendment of the Constitution.
Article 4 provides that laws made by Parliament under Article 2 (relating to admission or establishment of new States) and Article 3 (relating to the formation of new States and alteration of areas, boundaries or names of existing States) effecting amendments in the First Schedule or the Fourth Schedule and supplemental, incidental and consequential matters, shall not be deemed to be amendments of the Constitution for the purposes of article 368.
For example, the States Reorganisation Act, 1956, which brought about the reorganization of the States in India, was passed by Parliament as an ordinary piece of legislation.
In Mangal Singh v. Union of India (A.I.R. 1967 S.C. 944), the Supreme Court held that the power to reduce the total number of members of Legislative Assembly below the minimum prescribed under Article 170 (1) is implicit in the authority to make laws under Article 4.
Article 169 empowers Parliament to provide by law for the abolition or creation of the Legislative Councils in States and specifies that though such law shall contain such provisions for the amendment of the Constitution as may be necessary, it shall not be deemed to be an amendment of the Constitution for the purposes of article 368.
The Legislative Councils Act, 1957, which provided for the creation of a Legislative Council in Andhra Pradesh and for increasing the strength of the Legislative Councils in certain other States, is an example of a law passed by Parliament in an exercise of its powers under article 169.
The Fifth Schedule contains provisions as to the administration and control of the Scheduled Areas and Scheduled Tribes. Para 7 of the Schedule vests Parliament with plenary powers to enact laws amending the Schedule and lays down that no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368.
Under Para 21 of the Sixth Schedule, Parliament has full power to enact laws amending the Sixth Schedule which contains provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. No such law will be deemed to be an amendment of the Constitution for the purposes of article 368.
The second category includes amendments that can be affected by Parliament by a prescribed ‘special majority; and
the third category of amendments includes those that require, in addition to such "special majority", ratification by at least one-half of the State Legislatures.
The last two categories are governed by article 368.
Ambedkar speaking in the Constituent Assembly on 17 September 1949, pointed out that there were "innumerable articles in the Constitution" which left matters subject to laws made by Parliament. Under article 11, Parliament may make any provision relating to citizenship notwithstanding anything in articles 5 to 10.
Thus, bypassing ordinary laws, Parliament may, in effect, provide, modify or annul the operation of certain provisions of the Constitution without actually amending them within the meaning of article 368. Since such laws do not, in fact, make any change whatsoever in the letter of the Constitution, they cannot be regarded as amendments of the Constitution nor categorized as such.
Other examples include Part XXI of the Constitution—"Temporary, Transitional and Special Provisions" whereby "Notwithstanding anything in this Constitution" power is given to Parliament to make laws with respect to certain matters included in the State List (article 369); article 370 (1) (d) which empowers the President to modify, by order, provisions of the Constitution in their application to the State of Jammu and Kashmir; provisos to articles 83 (2) and 172 (1) empower Parliament to extend the lives of the House of the People and the Legislative Assembly of every State beyond a period of five years during the operation of a Proclamation of Emergency; and articles 83(1) and 172 (2) provide that the Council of States/Legislative Council of a State shall not be subject to dissolution but as nearly as possible one-t
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