Amendment of the Constitution: India, USA and South Africa

A constitution must be stable but also adaptable. Amendment is the formal procedure by which the text is changed, and it distinguishes constituent power (the power to make or change the constitution) from ordinary legislative power.

• Rigid constitution: needs a special procedure for amendment (USA, Switzerland, Australia). Flexible constitution: amended by the ordinary legislative process (UK). Lord Bryce (Flexible and Rigid Constitutions) introduced this classification; K.C. Wheare and Dicey also discuss it.

• Mixed/partly rigid and partly flexible: India (Nehru said that the Constitution should not be so rigid that it cannot adapt; it is neither too rigid nor too flexible).

• Methods of amendment: by the legislature with a special majority; by the legislature plus ratification by units (federations); by referendum (Switzerland, Australia); by a special convention; by judicial interpretation (informal amendment).

• Entrenchment: certain provisions are protected by a stricter procedure (e.g., the equal suffrage in the US Senate; sections 1 and 74 of the South African Constitution; basic structure in India).

Article 368 and Categories of Amendment

Part XX (Article 368) deals with the power of Parliament to amend the Constitution and its procedure. The Constitution (Twenty-fourth Amendment) Act, 1971 amended the heading and text to read "Power of Parliament to amend the Constitution and procedure therefor". An amendment bill can be introduced only in Parliament (either House), not in a State legislature, and does not need the President's prior recommendation. There is no provision for a joint sitting in the event of a deadlock. The President must give assent (24th Amendment).

There are three categories:

1. Amendment by simple majority of Parliament (outside Article 368, like ordinary legislation): admission or establishment of new States, and alteration of boundaries (Articles 2, 3 and 4); abolition or creation of Legislative Councils in States (Article 169); the Second Schedule (salaries of constitutional officers); quorum in Parliament; Fifth and Sixth Schedules (administration of Scheduled and Tribal areas); citizenship (Articles 5–11); official language; Union territories; parliamentary privileges; and some others.

2. Amendment by special majority: a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting in each House. This covers most provisions, including Fundamental Rights and Directive Principles.

3. Amendment by special majority plus ratification by at least half of the State legislatures (by simple majority in those legislatures): provisions concerning the federal structure, such as the election of the President (Articles 54, 55); the extent of the executive power of the Union and States (Articles 73 and 162); the Supreme Court and High Courts (Chapter IV of Part V and Chapter V of Part VI); the Union Territories' High Courts (Article 241); the distribution of legislative powers between the Union and States (Chapter I of Part XI); the Seventh Schedule; the representation of States in Parliament; and Article 368 itself. The Constitution (101st Amendment) Act, 2016 (GST) was ratified by States for this reason.

Kihoto Hollohan v Zachillhu (1992): Paragraph 7 of the Tenth Schedule (barring the courts' jurisdiction) was held invalid because the amendment did not obtain ratification by half of the States.

Judicial Limitations: Evolution of the Basic Structure Doctrine

Basic structure features (illustrative): supremacy of the Constitution; republican and democratic form of government; secular character; separation of powers; federal character; unity and integrity of the nation; sovereignty; rule of law; judicial review; independence of the judiciary; free and fair elections; Parts III and IV harmony; welfare state; Article 32, 226 and 227 jurisdictions.

Important Amendments (Memory Table)

• 1st (1951): Ninth Schedule; reasonable restrictions on free speech; Article 15(4).

• 7th (1956): reorganisation of States (States Reorganisation Act).

• 24th (1971), 25th (1971), 39th (1975), 42nd (1976).

• 44th (1978): property right removed from Part III (Article 300A); restored safeguards for emergency; the term "internal disturbance" replaced by "armed rebellion".

• 52nd (1985): anti-defection law (Tenth Schedule). 91st (2003): limited the size of the Council of Ministers to 15% of the House.

• 61st (1988): voting age reduced to 18.

• 73rd and 74th (1992): Panchayats and Municipalities.

• 86th (2002): Article 21A (education), fundamental duty in Article 51A(k).

• 101st (2016): Goods and Services Tax; GST Council (Article 279A).

• 102nd (2018): constitutional status to the National Commission for Backward Classes.

• 103rd (2019): 10% reservation for economically weaker sections (EWS), upheld in Janhit Abhiyan v Union of India (2022) by a 3:2 majority.

• 104th (2020): ended reservation for Anglo-Indians in legislatures and extended SC/ST reservation to 2030.

• 105th (2021): restored States' power to identify socially and educationally backward classes.

• 106th (2023): Women's Reservation (Nari Shakti Vandan Adhiniyam): one-third of seats in the Lok Sabha and State Legislative Assemblies reserved for women, to take effect after the next census and delimitation.

Article V provides a two-stage procedure:

• Proposal: (a) by two-thirds of both Houses of Congress, or (b) by a convention called by Congress on the application of two-thirds of the State legislatures (never used).

• Ratification: (a) by the legislatures of three-fourths of the States, or (b) by conventions in three-fourths of the States, as Congress decides. Only the 21st Amendment (repealing Prohibition) was ratified by state conventions.

• The President has no formal role (Hollingsworth v Virginia, 1798); no presidential signature or veto applies.

• Entrenched clause: no State, without its consent, can be deprived of its equal suffrage in the Senate. (An earlier clause protecting the slave trade expired in 1808.)

• Number: 27 amendments. The first ten (Bill of Rights) were ratified in 1791. Important ones: 13th (1865, abolition of slavery), 14th (1868, citizenship, due process and equal protection), 15th (1870, race and voting), 16th (1913, income tax), 17th (1913, direct election of Senators), 18th (1919, Prohibition) and 21st (1933, repeal), 19th (1920, women's suffrage), 22nd (1951, two-term limit), 25th (1967, presidential disability and succession), 26th (1971, voting age 18), and 27th (ratified 1992, Congressional pay; first proposed in 1789).

• Judicial role: the Court treats most questions as political. Hawke v Smith (1920): ratification must be by the legislature, not by a popular referendum, when Congress specifies legislatures; Dillon v Gloucester (1921): ratification within a reasonable time; Coleman v Miller (1939): the question of time limits for ratification is political; National Prohibition Cases (1920): upheld the 18th Amendment. No "basic structure" doctrine exists in the US.

• Difficulty: very rigid; many proposed amendments fail (e.g., the Equal Rights Amendment did not achieve ratification by three-fourths of the States within the deadline).

• Informal amendment: through judicial interpretation (Marbury, Brown), custom and convention (e.g., the two-term tradition before the 22nd Amendment), and statutes.

• Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) is the supreme law (section 2). It was adopted by the Constitutional Assembly in May 1996; the Constitutional Court refused to certify the first text in the First Certification Judgment (September 1996) and certified the amended text in December 1996. It came into force on 4 February 1997. This unusual certification procedure was required by the Interim Constitution (1993) and its 34 Constitutional Principles.

• Section 74 – Amendment procedure (three tiers):

  1. Section 1 (founding provisions: human dignity, equality, non-racialism and non-sexism, supremacy of the Constitution, universal adult suffrage, multi-party democracy) and Section 74(1) itself: at least 75% of the members of the National Assembly and the support of at least six of nine provinces in the National Council of Provinces (NCOP).

  2. Chapter 2 (Bill of Rights): at least two-thirds of the National Assembly and six provinces in the NCOP (as amended; the Bill of Rights is entrenched at this level).

  3. Other provisions: at least two-thirds of the National Assembly; also the NCOP's support of six provinces if the amendment relates to a matter affecting the NCOP, provincial boundaries, powers, functions or institutions, or specifically deals with a provincial matter.

• Public participation: at least 30 days before a Bill amending the Constitution is introduced, the proposal must be published in the Gazette for public comment and submitted to provincial legislatures (section 74(5)). An amendment bill may only contain amendments and matters connected with them (section 74(8)).

• Judicial review of amendments: the Constitutional Court reviews the procedural validity of amendments. In United Democratic Movement v President of the Republic of South Africa (2002) (the "floor crossing" amendments), the Court upheld the amendments and discussed (without deciding) whether there are substantive limits on amendment, acknowledging the Indian basic structure doctrine; the Court said that a constitutional amendment that destroys the basic structure might be invalid. Earlier, Premier of KwaZulu-Natal v President of the Republic of South Africa (1995) dealt with procedural issues. Section 74 shows that the Constitution's founding values (section 1) are entrenched.

• Recent attempt: the Constitution Eighteenth Amendment Bill (to permit land expropriation without compensation by amending section 25) failed in December 2021 for lack of the required two-thirds majority.

• Features: a tiered, "value-based" entrenchment; open, participatory; the Constitution of South Africa is moderately rigid; the Indian Constitution's amendment procedure was one of the models for the South African approach (the Indian amending procedure, in turn, drew from the South African Constitution of 1909 as the Constituent Assembly borrowed).