One nation, one election plan: How the Constitution is amended, when do states get a say

Source– The post is based on the article “One nation, one election plan: How the Constitution is amended, when do states get a say” published in “The Indian Express” on 4th September 2023.

Syllabus: GS2- Indian Polity – Significant provisions of Indian constitution

News– The Centre has set up a committee to examine various aspects, both legal and logistical, for implementing the “one nation, one election” idea.

What is the process for amending the constitution?

Informally, changes to the Constitution occur through judicial interpretation and established customs derived from practice.

For instance, the procedure for appointing judges to the higher judiciary. The Constitution mentions a “consultation” between the President and the Chief Justice of India. The Supreme Court has construed this to imply “concurrence.”

Article 368 of the Constitution contains procedure for amending the Constitution –

1) Simple Majority: Several clauses of the Constitution can be modified through legislative process applied in passing regular legislation in Parliament. This entails garnering a majority vote from those present and voting.

Article 368 doesn’t explicitly enumerate these “less significant” clauses. Such clauses are expressly exempted from the scope of Article 368..

Article 4 empowers Parliament to make alterations related to the organization of states. It requires a simple majority for amendment.

Actions such as changing state names, admitting new states to the Union, and revising state boundaries fall into this category.

2) Special Majority: Article 368 stipulates that the constitution amendment Bill must be passed by both Houses of Parliament with a majority vote of not less than two-thirds of the members present and voting.

According to Rule 158 of the Lok Sabha Rules, the term ‘total membership’ refers to the complete number of House members, irrespective of any vacancies or absentees at that moment.

3) Ratification by States: It necessitates not only a special majority for amendment but also requires approval from the legislatures of at least half of the states.

The provisions mandating ratification are explicitly outlined. These pertain to aspects related to the federal nature of the Constitution and are commonly referred to as “entrenched provisions.”

For instance, the Constitution (Ninety-ninth Amendment) Act established the National Judicial Appointments Commission. This Act was passed by both Houses of Parliament and ratified by 16 state legislatures.

In the 1992 Supreme Court case of Kihoto Hollohan v. Zachillu, the issue of ratification emerged as a crucial consideration. One of the challenges to the constitutionality of the Tenth Schedule, was that the amendment was not ratified by the states.

The amendment aimed to exclude the jurisdiction of courts in matters related to the disqualification process. The Supreme Court invalidated this aspect of the amendment while upholding the validity of the Tenth Schedule.

What are entrenched provisions in Article 368?
Article 368 lists six parts of the Constitution that have an additional safeguard for amending them. These are:

1. Article 54 and 55, dealing with the election of the President of India.
2. Article 73 and 162, dealing with the extent of executive power of the Union and states.
3. Articles 124–147 and 214–231, which deal with powers of the Supreme Court and the High Courts
4. Article 245 to 255, dealing with the scheme of distribution of legislative, taxing, and administrative powers between the Union and the states.
5. Article 82-82, dealing with the representation of states in Parliament.
6. Article 368 itself.