This is an established fact that no Constitution however, best foresight it has been drafted with, cannot foresee all the eventualities that a Country might face during its journey through the vicissitudes of time and history. This necessarily calls for having a well defined provision in every Constitution that prescribes a procedure for its amendment so that being the fundamental law of a Country, it could be well adapted to the changing circumstances and prevailing conditions that suits a country the most. Generally, all federal Constitutions prescribe a rigid and tough procedure for amending the Constitutions just because; a federal Constitution has to protect the interests of two units of the federation and thus, no flexible procedure can be tenable in a federal Constitution so as to destroy the federal balance that it seeks to achieve and protect. Although, for all practical purposes, India is very much a federation and hence, has a federal Constitution, but as noted elsewhere, the makers added a wonderful mix of flexibility to the inherent rigidity of a federation and thus, the Constitution of India exhibits a wonderful blend of both rigidity and flexibility so as to ensure that not only the sanctity of the Constitution can be preserved through this rigid procedure, but the impending contingencies could be handled with much ease without going through the rigors of an amendment process.

In this regard, it is illuminating to compare and contrast the amending procedure as is followed in other federations of the world with that of India…

USA

Article V of the US Constitution prescribes the procedure for amendment of the US Constitution. According to the terms of the Article, a Constitutional amendment involves the following two discrete stages or steps:

First: Initiation of the CA Bill;

Second: Ratification.

So far as the first step called initiation is concerned, it may involve either of the following two courses of actions i.e. a CA bill may either be initiated by a vote of two thirds of each house of the Congress or it could be initiated by a Constitutional convention called by the Congress on the request being made to it by the legislatures of at least two thirds of the states.

Nevertheless, till date, the second procedure for initiating the CA has never been employed such that all CAs that have ever been initiated and passed into the US Constitution were effectuated by employing the first procedure only.

Therefore, once a CA initiated and passed according to the procedure mentioned above, the second step called as ratification is into motion which requires the ratification on the part of the Legislatures of at least three fourths of the states. Once this is done, the Constitution stand amended according to the terms of the proposed CA bill and comes into effect upon receiving the signatures of the Executive head called president. It may be worthwhile to state that there is only one limitation insofar as the power to effect an amendment in either case, is concerned that is no amendment can be initiated or passed as such which amounts to deprivation of a state’s equal representation in the upper House (Senate) of the US Congress except by the consent of the state concerned.

Owing to an inherent rigidity in the amending procedure as prescribed in the US Constitution, the experience has shown that it has proved to be one of the toughest procedures of the Constitutional amendment to the effect that ever since the commencement of the US Constitution way back in the year 1787 while, over thousand amendments have been mooted, only about 30 of them have been formally passed by the US Congress. Some of the noted amendments having been passed by the US Congress were the first ten amendments that were effectuated just within two years of the commencement of the US Constitution, to provide for a “Bill of Rights.” In the process however, since then, many amendments of the cardinal importance were killed just because, the requisite number of the states did not ratify the same. This definitely necessitated the intervention of the US Supreme Court to mould the Constitution according to the prevailing circumstances through its highly creative process of Constitutional interpretation. Undoubtedly, this creative judicial process has been facilitated to a great extent by the fact that the US Constitution has been couched in very general terms which has given enough leeway to the Courts to construe it broadly to suit to the exigencies of the time…

In contrast to this, the Indian Constitution makers have opted to go in for a middle path by rendering some flexibility to the partly rigid nature of the Indian Constitution.

Australian

Article 128 of the Commonwealth of Australia Constitution Act-1900 prescribes the amendment procedure of the Australian Constitution. On exactly similar lines of the US Constitution, the Australian Constitution also prescribes two steps in the amendment procedure called as initiation and ratification respectively. Given thus, an amendment process may be initiated either by any one of the two Houses of the Australian Legislature subject to the condition that the same may be initiated only by an absolute majority (51%) of either House of the Australian Legislature or an amendment process may be initiated by an absolute majority of only one House, but in two votes taken at an interval of 3 months in the said house. Once this is done, the proposed amendment is required to be ratified, but not by the states instead, by the electors of the country at a country wide referendum in which a majority of the voters should vote and that too not only in the majority of states but also in the whole commonwealth as such. After this process is over, the CA bill is referred to the Governor General who upon giving his assent to the same, the proposed constitutional amendment becomes effective according to the terms contained therein. Analogous to the condition contained in the US Constitution, no amendment that amounts to decreasing the proportionate representation of a state in either House of the federal legislature is permissible unless, the same is also approved by the majority of the voters of the state concerned. Similarly, the territorial limits of a state can not be affected by any Constitutional amendment.

Undoubtedly, the amendment procedure in the Australian Constitution has also proved to be the most rigid one such that even many good amendments having been moved with the best of intentions on the part of the federal government could not be passed due to their being rejected at the referenda held for the purpose in the commonwealth. This rigidity in the amending procedure has even led one of the Constitutional experts of Australia to remark: “Constitutionally speaking, Australia is a frozen continent.”         

Since the commencement of the Australian Constitution in 1900, only nine amendments have been effectuated till date. In most of the cases even some of the amendments have been passed and approved by a majority of the voters throughout the commonwealth of Australia (First requirement), but could not be passed by the requisite majority of the voters in the majority of the states (second requirement)…

In contrast to this, the amending procedure in the Indian Constitution is not that severe and rigorous in the sense that no such referendum is required as per the terms of Article 368 of the Constitution other than special majority required in each house of the Parliament. Although, this is a different matter that the then Janta Government in power in 1977 which reversed many of the ill conceived amendments of the previous regime of Indira Gandhi, did propose a bill for the purposes of amending Article 368 itself wherein a procedure of referendum was desired to be inserted for amending certain essential features of the Constitution. Unfortunately, due to Congress opposition in RajyaSabha, this well intended amendment bill could not see the light of the day…

Canadian

 The Canadian Constitution is legally referred to as BNA of 1867 as it was enacted by the British parliament and for all purposes was a British parliament statute.

Noted that in the original Canadian constitution (BNA-1867), there was no specific provision as such for the amendment of the Constitution particularly with respect to the federal portion of the Constitution although, the portion of the Constitution pertaining to the provincial part was amenable to amendment by the provincial legislature itself through its ordinary legislative process. So far as the remaining portion of the Constitution was concerned (federal part), two conventions were generally followed in this regard until a permanent provision was incorporated in the Constitution itself. These conventions were:

No.1: BNA, being a statute of the British Parliament, the British parliament was empowered to amend the same subject to the condition that the Canadian government would make a request to it for the same by way of a resolution or a joint address of both the houses of the Canadian Parliament.

No.2: Another convention used be that the Canadian government would make such a request to the British Parliament only after consulting the provinces insofar as the proposed amendment is concerned.

In fact in view of the above conventions and practices being followed, it had long been felt in Canada that such a provision was certainly against the sovereign character of the country as it was strongly felt that despite being a sovereign and independent country, it seemed anomalous to have its Constitution being amended through an agency outside the country rather than by somebody within Canada itself.

To remove this anomaly thus, for the first time in the year 1949, power was given to Canadian parliament to amend the Canadian Constitution, but only that portion which pertained to matters concerning the central government. Whereas, that portion of the Constitution which related to the federal aspects say for example, the part related to the distribution of powers, the power to amend the same was still vested in the British Parliament.

The above anomaly was removed when in the year 1982; the British Parliament finally enacted the Canada Act of 1982 on the request of the Canadian government so as to extend the power of amendment entirely to the Canadian parliament and the Provincial Assemblies to amend any portion of the British North America Act.

Given thus, in pursuance to the above Act, today, the federal portion of the BNA can be amended by the Canadian Parliament by a resolution in each of its House (Senate and House of Commons) including a similar resolution passed in at least two third of the provincial legislative Assemblies subject to the condition that such two thirds of the Provincial legislatures would comprise at least 50% of the population of all the provinces taken together. Noted that for the purpose of an effective passage of an amendment in the Canadian parliament, the required resolution in each House of the Canadian parliament must also need to be passed by a majority of the members particularly, when the proposed amendment seeks to affect the federal matters say, distribution of powers, government of a province and privileges of the legislature etc…