Amendment procedure india v. USA

Amendment procedure India V. U.S.

UNIVERSITY OF PETROLEUM & ENERGY STUDIES COLLEGE OF LEGAL STUDIES

BA.LLB(HONS.)

SEMESTER III

ACADEMIC YEAR: 2014 -15 SESSION: JULY-DECEMBER

PROJECT

FOR

Constitutional Law

Topic- Amendment procedure India V. U.S.

Under the Supervision of A.Aaravandan

NAME: YOGENDRA SINGH

SAP NO: 500030840

ROLL NO R450213138


Chapterization

1. Introduction.

2. Constitution of India-

a) The Power of Parliament to amend the Constitution,

b) Legislative Procedure and Constitution Amendment,

c) Scope of Parliament‟s Power to Amend the Constitution.

3. US constitution-

a) Article V of the U.S. Constitution,

b) Congress: Key Actor in the Article V Convention Process,

c) Role for the President of US.

4. Conclusion and Recommendations.

Bibliography


INTRODUCTION

An amendment to the Constitution is a correction, a revision or an improvement to the original

content. Every generation has a right to choose for itself the form of government it believes most

promotive of its own happiness. Most of the time new laws or policies are sufficient to meet changing

priorities, but when that’s not the case, there’s talk about amending the Constitution. Citizens frustrated

with government sometimes pressure the government to use the Constitution’s amendment process.

Others are content to depend on the courts to measure the Constitution against social goals.

A constitutional amendment refers to the modification of the Constitution of a nation or state. In many

jurisdictions the text of the constitution itself is altered; in others the text is not changed, but the

amendments change its effect. The amendment of Indian Constitution is dependent on Article 368 while

the US constitution’s amendment is dependent on its Article V. Most constitutions require that

amendments cannot be enacted unless they have passed a special procedure that is more stringent than

that required of ordinary legislation. Examples of such special procedures include supermajorities in the

legislature, or direct approval by the electorate in a referendum, or even a combination of two or more

different special procedures. A referendum to amend the constitution may also be triggered in some

jurisdictions by popular initiative. The manner in which constitutional amendments are finally recorded

takes two main forms. In most jurisdictions, amendments to a constitution take the form of revisions to

the previous text. Thus, once an amendment has become law, portions of the original text may be

deleted or new articles may be inserted among existing ones. The second, less common method, is for

amendments to be appended to the end of the main text in the form of special articles of amendment,

leaving the body of the original text intact. Although the wording of the original text is not altered, the

doctrine of implied repeal applies. In other words, in the event of conflict, an article of amendment will

usually take precedence over the provisions of the original text, or of an earlier amendment.

Nonetheless, there may still be ambiguity whether an amendment is intended to supersede or to

supplement an existing article in the text.

Every country has different procedures for the amendment of its constitution dependent on the nature

of the constitution.


Constitution of India

The Power of Parliament to amend the Constitution-

A-3681: Power of Parliament to amend the Constitution and Procedure therefor:

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power

amend by way of addition, variation or repeal any provision of this Constitution in accordance with the

procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose

in either House of Parliament, and when the Bill is passed in each House by a majority of the total

membership of that House and by a majority of not less than two-thirds of the members of that House

present and voting, it shall be presented to the President who shall give his assent to the Bill and

thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in:

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the lists in the Seventh Schedule, or

(d) The representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the

States, by resolutions to that effect passed by those Legislatures before the Bill making provision for

such amendment is presented to the President for assent.

(3) Nothing in article shall apply to amendment made under this article.

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have

been made under this article [whether before or after the commencement of section 55 of the

Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any

ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the

constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this

Constitution under this article.

An analysis of the procedure prescribed by article 368 for amendment of the Constitution shows that:

1 Constitution of India, V.N. Shukla,11

th ed.,p.p-995-96.


(i) an amendment can be initiated only by the introduction of a Bill in either House of

Parliament;

(ii) the Bill so initiated must be passed in each House by a majority of the total membership

of that House and by a majority of not less than two-thirds of the members of that House

present and voting. There is no provision for a joint sitting in case of disagreement

between the two Houses;

(iii) when the Bill is so passed, it must be presented to the President who shall give his assent

to the Bill;

(iv) where the amendment seeks to make any change in any of the provisions2 mentioned in

the proviso to article 368, it must be ratified3 by the Legislatures of not less than one-half

of the States;

(v) such ratification is to be by resolution passed by the State Legislatures;

(vi) no specific time limit for the ratification of an amending Bill by the State Legislatures is

laid down; the resolutions ratifying the proposed amendment should, however, be

passed before the amending Bill is presented to the President for his assent

(vii) the Constitution can be amended:

(1) only by Parliament; and

(2) in the manner provided. Any attempt to amend the Constitution by a Legislature

other than Parliament and in a manner different from that provided for will be void and

inoperative.

2 These provisions relate to certain matters concerning the federal structure or of common interest to both the

Union and the States viz., (a) the election of the President (articles 54 and 55); (b) extent of the executive power of the Union and the States (articles 73 and 162); (c) High Courts for Union territories (article 241); (d) The Union Judiciary and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI); (e) distribution of legislative powers between the Union and the States (Chapter I of Part XI and Seventh Schedule); (f) representation of States in Parliament; and (g) the provision for amendment of the Constitution laid down in article 368. 3 The Constitution (Third Amendment) Act, 1954; the Constitution (Sixth Amendment) Act, 1956; the Constitution

(Seventh Amendment) Act, 1956; the Constitution (Eighth Amendment) Act, 1960; the Constitution (Thirteenth Amendment) Act, 1962; the Constitution (Fourteenth Amendment) Act, 1962; the Constitution (Fifteenth Amendment) Act, 1963; the Constitution (Sixteenth Amendment) Act, 1963; the Constitution (Twenty-second Amendment) Act, 1969; the Constitution (Twenty-third Amendment) Act, 1969; the Constitution (Twenty- fourth Amendment) Act, 1971; the Constitution (Twenty-fifth Amendment) Act, 1971; the Constitution (Twenty-eighth Amendment) Act, 1972; the Constitution (Thirtieth Amendment) Act, 1972; the Constitution (Thirty-first Amendment) Act, 1973; the Constitution (Thirty-second Amendment) Act, 1973; the Constitution (Thirty-fifth Amendment) Act, 1974; the Constitution (Thirty-sixth Amendment) Act, 1975; the Constitution (Thirty-eighth Amendment) Act, 1975; the Constitution (Thirty-ninth Amendment) Act, 1975; the Constitution (Forty- second Amendment) Act, 1976; the Constitution (Forty-third Amendment) Act, 1977; the Constitution (Forty-fourth Amendment) Act, 1978; the Constitution (Forty-fifth Amendment) Act, 1980; the Constitution (Forty-sixth Amendment) Act, 1982; the Constitution (Fifty-first Amendment) Act, 1984; the Constitution (Fifty-fourth Amendment) Act, 1986; the Constitution (Sixty-first Amendment) Act, 1988; the Constitution (Sixty-second Amendment) Act, 1989; the Constitution (Seventieth Amendment) Act, 1992; the Constitution (Seventy- third Amendment) Act, 1992; the Constitution (Seventy-fourth Amendment) Act, 1992; the Constitution (Seventy-fifth Amendment) Act, 1994; the Constitution (Seventy-ninth Amendment) Act, 1999; the Constitution (Eighty- fourth) Act, 2001; the Constitution (Eighty-eighth Amendment) Act, 2003 were thus all ratified by the State Legislatures after they were passed by both Houses of Parliament before they were presented to the President for assent.


Whether the entire Constitution Amendment is void for want of ratification or only an amended

provision required to be ratified under proviso to clause (2) of article 368, is a very significant point. In a

case decided in 1992, this issue was debated before the Supreme Court in what is now popularly known

as Anti-Defection case, in which the constitutional validity of the Tenth Schedule of the Constitution

inserted by the Constitution (Fifty-second Amendment) Act, 1985 was challenged. In this case, the

decisions of the Speakers/Chairmen on disqualification, which had been challenged in different High

Courts through different petitions, were heard by a five-member Constitution Bench of the Supreme

Court. The Constitution Bench in its majority judgement upheld the validity of the Tenth Schedule but

declared Paragraph 7 of the Schedule invalid because it was not ratified by the required number of the

Legislatures of the States as it brought about in terms and effect, a change in articles 136, 226 and 227

of the Constitution. While doing so, the majority treated Paragraph 7 as a severable part from the rest of

the Schedule. However, the minority of the Judges held that the entire Constitution Amendment Act is

invalid for want of ratification.


Legislative Procedure and Constitution Amendment-

Article 368 is not a “complete code” in respect of the legislative procedure to be followed at various

stages. There are gaps in the procedure as to how and after what notice a Bill is to be introduced, how it

is to be passed by each House and how the President’s assent is to be obtained4. This point was decided

by the Supreme Court in the Shankari Prasad’s case. Delivering the judgment of the Court, Patanjali

Sastri J. observed:

Having provided for the constitution of a Parliament and prescribed a certain procedure for the conduct

of its ordinary legislative business to be supplemented by rules made by each House (article 118), the

makers of the Constitution must be taken to have intended Parliament to follow that procedure, so far

as it may be applicable consistently with the express provisions of article 368, when they entrusted to it

power of amending the Constitution.

Hence, barring the requirements of special majority, ratification by the State Legislatures in certain

cases, and the mandatory assent by the President, a Bill for amending the Constitution is dealt with the

Parliament following the same legislative process as applicable to an ordinary piece of legislation.

In Lok Sabha, the Rules of Procedure and Conduct of Business make certain specific provisions with

regard to Bills for amendment of the Constitution. They relate to: (a) the voting procedure in the House

at various stages of such Bills, in the light of the requirements of article 368; and (b) the procedure

before introduction in the case of such Bills, if sponsored by Private Members.

Although the ‘special majority’, insisted upon the article 368 is prima facie applicable only to the voting

at the final stage, the Lok Sabha Rules prescribed adherence to this constitutional requirement at all the

effective stages of the Bill, i.e., for adoption of the motion that the Bill be taken into consideration; that

the Bill as reported by the Select/Joint Committee be taken into consideration, in case a Bill has been

referred to a Committee; for adoption of each clause or schedule or clause or schedule as amended, of a

Bill; or that the Bill or the Bill as amended, as the case may be, be passed. This provision, which

represents the position arrived at after consultation with the Attorney- General and detailed discussions

in the Rules Committee, is evidently ex-abundanti cautela. It not only ensures, by a strict adherence to

article 368, the validity of the procedure adopted, but also guards against the possibility of violation of

the spirit and scheme of that article by the consideration of a Bill seeking to amend the Constitution

including its consideration clause by clause being concluded in the House with only the bare quorum

present. Voting at all the above stages is by division. The Speaker may, however, with the concurrence

of the House, put any group of clauses or schedules together to the vote of the House, provided that if

any member requests that any of the clauses or schedules be put separately, the Speaker shall comply

to do so. The Short Title, Enacting Formula and the Long Title may be adopted by a simple majority. For

the adoption of amendments to clauses or schedules of the Bill, a majority of members present and

voting in the same manner as in the case of any other Bill, will suffice.

4 Shankari Prasad Singh Deo vs. Union of India, A.I.R. 1951 S.C. 458.


A Bill for amendment of the Constitution by a Private Member is governed by the rules applicable to

Private Members’ Bills in general. So, the period of one month’s notice applies to such a Bill also. In

addition, in Lok Sabha, such a Bill has to be examined and recommended by the ‘Committee on Private

Members’ Bills before it is included in the List of Business. The Committee has laid down the following

principles as guiding criteria in making their recommendations in regard to these Bills:

(i) The Constitution should be considered as a sacred document— a document which should

not be lightly interfered with and it should be amended only when it is found absolutely

necessary to do so. Such amendments may generally be brought forward when it is found

that the interpretation of the various articles and provisions of the Constitution has not

been in accordance with the intention behind such provisions and cases of lacunae or

glaring inconsistencies have come to light. Such amendments should, however, normally be

brought by the Government after considering the matter in all its aspects and consulting

experts, and taking such other advice as they may deem fit.

(ii) Some time should elapse before a proper assessment of the working of the Constitution and

its general effect is made so that any amendments that may be necessary are suggested as a

result of sufficient experience.

(iii) Generally speaking, notice of Bills from Private Members should be examined in the

background of the proposal or measures which the Government may be considering at the

time so that consolidated proposals are brought forward before the House by the

Government after collecting sufficient material and taking expert advice.

(iv) Whenever a Private Member’s Bill raises issues of far-reaching importance and public

interest, the Bill might be allowed to be introduced so that public opinion is ascertained and

gauged to enable the House to consider the matter further. In determining whether a

matter is of sufficient public importance, it should be examined whether the particular

provisions in the Constitution are adequate to satisfy the current ideas and public demand

at the time. In other words, the Constitution should be adapted to the current needs and

demands of the progressive society and any rigidity which may impede progress should be

avoided.

In Rajya Sabha, the Rules of the House do not contain special provisions with regard to Bills for

amendment of the Constitution and the Rules relating to ordinary Bills apply, subject of course, to the

requirements of article 368.


Scope of Parliament’s Power to Amend the Constitution-

Until the case of L.C. Golak Nath vs. State of Punjab5, the Supreme Court had been holding that no part

of the Constitution was unamendable and that the Parliament might, by passing a Constitution

Amendment Act in compliance with the requirements of article 368, amend any provision of the

Constitution, including the Fundamental Rights and article 368. But in Golak Nath’s case, the Supreme

Court (by a majority of 6:5) reserved its own earlier decisions.

In Golak Nath’s case, the Court held that an amendment of the Constitution is a legislative process. A

Constitution amendment under article 368 is “law” within the meaning of article 13 of the Constitution

and therefore, if a Constitution amendment “takes away or abridges” a Fundamental Right conferred by

Part III, it is void.

The Court was also of the opinion that Fundamental Rights included in Part III of the Constitution are

given a transcendental position under the Constitution and are kept beyond the reach of Parliament.

The incapacity of Parliament to modify, restrict or impair Fundamental Freedoms in Part III arises from

the scheme of the Constitution and the nature of the freedoms.

As a result of the judgment of the Supreme Court in Golak Nath’s case, the Parliament passed the

Constitution (Twenty-fourth Amendment) Act, 1971. This Act has amended the Constitution to provide

expressly that Parliament has power to amend any part of the Constitution including the provisions

relating to Fundamental Rights. This has been done by amending articles 13 and 368 to make it clear

that the bar in article 13 against abridging or taking away any of the Fundamental Rights does not apply

to Constitution amendment made under article 368.

In His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala6, the Supreme Court reviewed the

decision in the Golak Nath’s case and went into the validity of the 24th, 25th, 26th and 29th Constitution

Amendments. The case was heard by the largest ever Constitution Bench of 13 Judges. The Bench gave

eleven judgements, which agreed on some points and differed on others. Nine Judges summed up the

‘Majority View’ of the Court thus:

1. Golak Nath’s case is over-ruled.

2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.

4. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid.

5. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The

second part namely “and no law containing a declaration that it is for giving effect to such policy shall be

called in question in any court on the ground that it does not give effect to such policy” is invalid.

5 A.I.R. 1967 S.C. 1643.

6 A.I.R. 1973 S.C. 1461.


6. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.

The majority of the Full Bench upheld the validity of the Constitution (Twenty-fourth Amendment) Act

and overruled the decision of the Golak Nath’s case holding that a Constitution Amendment Act is not

“law” within the meaning of article 13. Upholding the validity of clause (4) of article 13 and a

corresponding provision in article 368(3), inserted by the Twenty-fourth Amendment Act, the Court

settled in favour of the view that Parliament has the power to amend the Fundamental Rights also.

However, the Court affirmed another proposition also asserted in the Golak Nath’s case. The Court held

that the expression ‘amendment’ of this Constitution in article 368 means any addition or change in any

of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to

carry out the objectives in the Preamble and the Directive Principles. Applied to Fundamental Rights, it

would be that while Fundamental Rights cannot be abrogated, reasonable abridgement of Fundamental

Rights could be effected in the public interest. The true position is that every provision of the

Constitution can be amended provided the basic foundation and structure of the Constitution remains

the same.

The theory of basic structure of the Constitution was reaffirmed and applied by the Supreme Court in

Smt. Indira Nehru Gandhi vs. Raj Narain case7 and certain amendments to the Constitution were held

void.

Subsequently, on the basis of the Court’s view in Kesavananda Bharati’s case, upholding the concept of

the basic structure, the Supreme Court in Minerva Mills Ltd. vs. Union of India8 declared section 559 of

the Constitution (Forty-second Amendment) Act, 1976 as unconstitutional and void. It held:

Since the Constitution had conferred a limited amending power on the Parliament, the Parliament

cannot under the exercise of that limited power enlarge that very power into an absolute power.

Indeed, a limited amending power is one of the basic features of our Constitution and, therefore, the

limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368,

expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or

to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that

power convert the limited power into an unlimited one.

The concept of basic structure has since been developed by the Supreme Court in subsequent cases,

such as Bhim Singhji case10,Waman Rao case11, Transfer of Judges case12, L. Chandra Kumar case13,P.

7 A.I.R. 1975 S.C. 2299.

8 A.I.R. 1980 S.C. 1789.

9 Section 55 of the Constitution (Forty-second Amendment) Act, 1976 inserted sub clauses (4) and (5) in article 368

of the Constitution providing that there shall be no limitation on the constituent power of the Parliament and that the validity of any Constitution Amendment Act, including those amending the Part III, shall not be called in question in any court on any ground. 10

Bhim Singhji vs. Union of India, A.I.R. 1981 S.C. 234 11

Waman Rao vs. Union of India, A.I.R. 1981 S.C. 271. 12

S.P. Gupta vs. President of India, A.I.R. 1982 S.C. 149. 13

L. Chandra Kumar vs. Union of India and others, A.I.R. 1997 S.C. 1125.


Sambamurthy’s case14, Cash for Query case15, Kihota Hollohon case16, P.V. Narsimha Rao case17, I.R.

Coelho case18, and S.P. Sampath Kumar’s case19.

The basic features of the Constitution are not finite. So far about 20 features described ‘basic’ or

‘essential’ in numerous cases, have been incorporated in the list of basic structure. In Indira Nehru

Gandhi vs. Raj Naraian popularly known as Election case and also in Minerva Mills it has been observed

that the claim of any particular feature of the Constitution to be a ‘basic’ feature would be determined

by the Court in each case that comes before it.

The power and procedure for constitutional amendment in India has some special points of interest:

(i) There is no separate constituent body for the purposes of amendment of the Constitution;

constituent power also being vested in the Legislature.

(ii) Although Parliament must preserve the basic framework of the Constitution, there is no

other limitation placed upon the amending power, that is to say, there is no provision of the

Constitution that cannot be amended.

(iii) The role of the States in Constitution amendment is limited. The State Legislatures cannot

initiate any Bill or proposal for amendment of the Constitution. They are associated in the

process of Constitution amendment by the ratification procedure laid down in article 368 in

case the amendment seeks to make any change in the any of the provisions mentioned in

the proviso to article 368. Besides, all that is open to them is

(1) to initiate the process for creating or abolishing Legislative Councils in their respective

Legislatures and

(2) to give their views on a proposed Parliamentary Bill seeking to affect the area,

boundaries or name of any State or States which has been referred to them under the

proviso to article 358 a reference which does not fetter the power of Parliament to make

any further amendments of the Bill.

14

P. Sambamurthy vs. State of A.P., A.I.R. 1987 S.C. 663. 15

Raja Ram Pal vs. The Hon’ble Speaker, Lok Sabha and others, JT 2007 (2) S.C. 1 16

Kihota Hollohon vs. Zachilhu and others, (1992) 1 S.C.C. 309. 17

P.V. Narsimha Rao vs. State (CBI/SPE), A.I.R. 1998 S.C. 2120. 18

I.R. Coelho vs. State of Tamil Nadu and others, (2007) 2 S.C.C. 1. 19

S.P. Sampath Kumar vs. Union of India, A.I.R. 1987 S.C. 386.


Summary of Methods of amendment

INDIA- There are three methods of amending the Constitution. But Article 368 of the constitution which

lays down the procedure for amendment mentions two methods.

1. Initiated only by the introduction of a Bill for the purpose in either house of Parliament and

when a bill is passed in each house.

i) by a majority of total membership of that house.

ii) by a majority of not less than two-thirds of the members of that house present and voting,

it shall be presented to the President who shall give his assent to the Bill

and there upon the Constitution shall stand amended in accordance with the term of the Bill.

• Most of the provisions of the constitution can be amended by this procedure.

2. For amending certain provisions a special procedure to be followed-

Special Procedure-

(i) a Bill for the purpose must be passed in each house of Parliament by a majority of total

membership of the house,

(ii) by a majority of not less than two-thirds of the members of that house present and voting

and it should be notified by the legislatures of not less than one-half of the states before the Bill

is presented to the President for assent.

The provisions requiring this special procedure to be followed include-

(a) manner of the election of the President(A-54,55),

(b) matters relating to the executive power of the union and of the state(A-73,162),

(c) representation of the states in Parliament (4th schedule)

(d) matters relating to the Union Judiciary and High Courts in the states (ch-v part vi)

(e)High courts for union territories(A-241 HC for UT)

(f) Dealing with SC (Ch-iv part v)

(g) distribution of legislative powers between the union and the states (ch-I part xi)

(h) any of the list in the seventh schedule(lists I,II & III)

(i) provisions of Article 368 relating to the procedure for amendment of the constitution etc.


3. There are certain provisions which require simple majority for amendments.

They can be amended by the ordinary law making process.

They include-

(a) formation of new states and alteration of areas, boundaries or names of existing ones(A-2)

(b) creation or abolition of Legislative Councils in the states(A-169)

(c) administration and control of scheduled areas and scheduled Tribes(A-244)

(d) the salaries and allowances of the Supreme Court and High Court Judges(A-125)

(e) laws regarding citizenship etc.(A-10)

It is significant that the laws passed by Parliament to change the above provisions would not be

deemed to be amendments of the Constitution for the purpose of Article 368.


US constitution

Article V of the U.S. Constitution-

Article V20

of the U.S. Constitution provides two methods for amending the nation‟s

fundamental charter. The first, or “Congressional” method, authorizes proposal of amendments

by Congress: The Congress, whenever two thirds of both Houses shall deem it necessary, shall

propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, as

Part of this Constitution, when ratified by the Legislatures of three fourths of the several States,

or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be

proposed by the Congress.

The second, or “Article V Convention” method, requires Congress, “on the Application of the

Legislatures of two thirds of the several States,” 34 of 50 at present, to call “a Convention for

proposing Amendments.” Amendments ratified by the states under either procedure are

indistinguishable and have equal force; they are both “valid to all Intents and Purposes, as Part

of this Constitution.” Both modes of amendment share key constitutional requirements:

• Amendments proposed either by Congress or an Article V Convention must be ratified by

three-fourths of the states, 38 at present.

• Congress is authorized to choose the method of ratification in the states. The options are

ratification by ad hoc conventions called by the states for the specific purpose of considering the

ratification, or ratification by the legislatures of the states. The three-fourths requirement applies

in both instances.

In addition, three elements not included in the Constitution have also become “standard

procedure” when Congress proposes amendments. As precedents, they would also likely be

followed for an amendment or amendments proposed by an Article V Convention.

• First, amendments are not incorporated into the existing text of the Constitution as adopted in

1788, but rather, are included as supplementary articles.

• Second, Congress may set a time limit on the ratification process. Beginning with the 18th

Amendment, proposed in 1917, and continuing with the 20th through 26th Amendments,

Congress specified that amendments must be ratified within seven years after being proposed in

order to become effective21

.

20

U.S. Constitution, Article V. 21

The 27th Amendment, the most recently ratified, was proposed to the states in 1789 without a seven-year time limit on ratification. It requires that congressional salary increases can take effect only after an intervening election. Despite having been pending for 203 years, this amendment was revived, ratified by more states, and was ultimately declared to have been ratified in 1992.


Finally, the Constitution does not require approval of proposed amendments by the President,

who has no official function in the process of proposing an amendment to the states. The chief

executive‟s approval or signature has no bearing on the process, and he or she cannot veto or

pocket veto a proposed amendment that has been approved by the requisite congressional

majorities, or proposed by an Article V Convention.

The first method has been used by Congress to submit 33 amendments to the states, beginning

with the Bill of Rights in 1789. Of these, 27 amendments were approved by the states; 26 of

them are currently in effect, while one, the 18th Amendment that prohibited the “manufacture,

sale, or transportation of intoxicating liquor,” was ultimately repealed by the 21st Amendment.

The Article V Convention option has yet to be successfully invoked, although not for lack of

activity in the states. Three times in the 20th century, concerted efforts were undertaken by

proponents of particular amendments to secure the number of applications necessary to summon

an Article V Convention. These included conventions to consider amendments to-

(1) provide for popular election of U.S. Senators;

(2) permit the states to include factors other than equality of population in drawing state

legislative district boundaries; and

(3) to propose an amendment requiring the U.S. budget to be balanced under most

circumstances.

The campaign for a popularly elected Senate is frequently credited with “prodding” the Senate

to join the House of Representatives in proposing what became the 17th Amendment to the states

in 1912, while the latter two campaigns came very close to meeting the two-thirds for an Article

V Convention in the 1960s and 1980s, respectively.


The Role of Congress in the Article V Convention Process

The state legislatures are indispensable actors in the process of proposing an Article V

Convention—nothing can happen unless 34 or more apply, but Congress is equally

indispensable in the process of summoning, convening, and by its own assertion, defining,

one. The Constitution, with characteristic economy of phrase, simply directs that “Congress

on the application of the Legislatures of two thirds of the several States, shall call a

Convention for the proposing of Amendments22

.”

Beyond the language of Article V, however, observers have identified subsidiary issues for

consideration by Congress, of which three may arguably be most important:

• Is Congress obligated to call an Article V Convention on the receipt of sufficient state

applications?

• What sort of convention does Article V authorize?

• If an Article V Convention proposes amendments, does Congress have any discretion as to

whether they must be submitted to the states for consideration?

Is Congress Required to Call a Convention?

The language of the Constitution is notably straightforward on Congress‟s duty to call an

Article V Convention: “... on the Application of the Legislatures of two thirds of the several

States, [Congress] shall call a Convention for proposing Amendments… (emphasis added)”

The founders‟ intentions seem unmistakable, and no less an authority than Alexander

Hamilton wrote emphatically that, once the two-thirds threshold is met, “the Congress will be

obliged ... to call a convention for proposing amendments.... The words of this article are

peremptory. The Congress „shall call a convention.‟ Nothing in this particular is left to the

discretion of that body (emphasis added). And of consequence, all the declamation of

disinclination to a change vanishes in air.”

One scholar, Russell L. Caplan, noted that, “ the founding generation spoke with one voice

on this duty,” going on to quote the writings of John Marshall, James Iredell, John

Dickinson, and James Madison in which they all asserted the obligation of Congress to call a

convention once the two-thirds threshold has been passed.

Given the founders‟ stern injunctions, on what grounds could Congress decline to call a

convention? Several factors concerning state applications might be used to represent state

applications as defective, and therefore not valid. For instance, most constitutional scholars

hold that applications proposing a specifically worded amendment are invalid. As one

observer noted, “these resolutions seek to make the „Convention‟ part of the ratifying

(emphasis in the original) process, rather than part of the deliberative process for “proposing”

constitutional amendments.... they are applications for a convention empowered solely to

approve or disapprove the submission to the states of particular amendments „proposed‟

elsewhere.” Another reason for hesitation in calling an Article V Convention centers on the

22

The Article V Convention: Contemporary Issues for Congress, p.18.


great issue of its scope ― general versus limited. A further potential impediment is lack of

contemporaneity, in other words, an application or applications have expired and no longer

have any force. It should be noted, however, that the advocacy group, Friends of the Article

V Convention, holds that state applications never expire.

Similarly, a 2010 study by the Goldwater Institute on the Article V Convention asserts that

Congress‟s role in the convention process is purely ministerial, or clerical:

Congress acts primarily as the legislatures‟ agent. From the nature of that role it follows that

Congress may not impose rules of its own on the states or on the convention. For example, it

may not limit the period within which states must apply. Time limits are for principals, not

agents to impose: if a state legislature believes its application to be stale, that legislature may

rescind it.

Cyril Brickfield, reporting to the House Judiciary Committee in 1957, suggested that

Congress was, arguably, not required to summon an Article V Convention on the

presentation of the requisite number of state applications: “ it is doubtful, however, that there

is any process or machinery by which the congress could be compelled (emphasis added) to

perform this duty.” In support of this assertion, he cited as precedent the failure of Congress

in 1920 to carry out its constitutionally mandated duty to reapportion the House of

Representatives. Congress, he noted, had the mandate to perform, but “its failure of refusal to

do so apparently gives rise to no enforcible cause of action.”

Still another option potentially available is preemption of the call for a convention.

Supporters of this tactic maintain that Congress can legally respond to the applications of the

states by proposing its own relevant amendment. During the 1980s campaign for a balanced

budget amendment convention, the National Taxpayers‟ Union asserted that the call for a

convention was, “just a way of getting attention ― something akin to batting a mule with a

board.” In defense of this argument, the House Judiciary Committee‟s 1993 print, Is There a

Constitutional Convention in America‟s Future?, noted that during the 1980s, a number of

states had forwarded conditional applications that specifically stated their applications would

be canceled in the event Congress proposed a balanced budget amendment incorporating the

general principles included therein.

Ultimately, it is difficult to conceive that Congress would fail to heed the deliberate call of a

substantial majority of the nation‟s citizens, acting through the agency of their state

legislatures, and meeting the clearly stated requirements of Article V. As Cyril Brickfield

noted, in the final analysis, “public opinion and, ultimately, the ballot box are the only

realistic means by which the Congress can be persuaded to act.” The House Judiciary

Committee speculated that congressional failure to call a convention might trigger court

challenges that could lead to a constitutional crisis, but another legal scholar wrote that,

“even conceding the reach of the judicial power as exercised these days, I find it difficult to

believe that the Supreme Court would issue an order compelling Congress to carry out a duty

which can hardly be called a simple ministerial duty, or would, in the alternative, take it upon

itself to prescribe the procedures for a convention. I much prefer to rely on the integrity of

Congress in carrying out a constitutional duty.”


Role of president

Perhaps one of the most obvious subsidiary questions surrounding the Article V Convention

process is, “what is the President‟s role?” The immediate answer is that the Constitution

clearly designates Congress as the sole agent in federal aspects of the process—by contrast,

neither the President, nor the executive branch and the judiciary, are mentioned in Article V.

One point of view, noting the language of the article, maintains that the chief executive

would not have a role in the Article V Convention process. The Senate Judiciary

Committee‟s 1971 report on S. 215, the proposed Federal Constitutional Procedures Act, in

the 92nd Congress, noted simply that “in as much as the function of Congress is simply to

operate the machinery to effectuate the actions of the States and the convention, there is no

proper place for a Presidential role23

.”

Moreover, the committee went on to assert that the appropriate device for proposing an

Article V Convention Amendment proposed in the bill was a concurrent resolution, a

legislative vehicle that, by tradition, is not sent to the President for his approval. Thirteen

years later, without explicitly excluding the President, the same committee made what

arguably was a broader claim of congressional authority over the Article V Convention

process in its report on S. 119, the Constitutional Convention Implementation Act of 1984,

98th Congress24

:

Although there is no explicit statement to this effect in Article V, there can be little doubt that

the Congress is possessed with the authority to issue legislation on the subject matter of the

“Constitutional Convention Implementation Act.” Article V states in relevant part that, “The

Congress ... on Application of the Legislatures of two thirds of the several states shall call a

Convention for proposing Amendments.” Congress‟ explicit authority under this provision is

to “call” the convention. The powers invested in Congress under S. 119 are entirely a

function of this responsibility, authorized under the “necessary and proper” clause of Article

I, section 8, clause 18.

In its 1974 study, the American Bar Association cast further doubt on a role for the President

in the Article V Convention. The study argued that presidential approval would impose an

additional requirement in the process, and that the potential of a presidential veto of a

convention call would attach a de facto super-majority requirement not contemplated by the

founders. The report found that, under these circumstances, “the parallelism between the two

initiating methods would be altered, in a manner that could only thwart the intended purpose

of the convention process as an „equal‟ method of initiating amendments.”

Some observers argue, however, that the President should have a role in certain aspects of the

process. The President‟s constitutional authority to approve legislation is cited in support of

this assertion:

23

The Article V Convention: Contemporary Issues for Congress,p.30. 24

Ibid.


Every Order Resolution, or Vote to which the Concurrence of the Senate and House of

Representatives may be necessary (except on a question of Adjournment) shall be presented

to the President of the United States; and before the Same shall take Effect, shall be approved

by him....

Proponents maintain that the President‟s authority to approve or disapprove legislation ― his

veto power ― as provided in Article I, clause 7, would extend to a congressional call for an

Article V Constitutional Convention, notwithstanding the choice of legislative vehicle. In

more than 40 constitutional convention procedures bills introduced from the 1970s through

the 1990s, a concurrent resolution, which does not permit presidential approval, was

designated as the approved vehicle for a call for an Article V Convention. Constitutional

scholar Charles Black emphatically rejected this choice, asserting that the call for a

convention was too important not to come under the President‟s purview:

... a convention call would have the force of law ― significant, vital law, comparable to a

law establishing any other body with power to act. (As a contrasting example, S.J. Res. 197

[in the 92nd Congress], setting up arbitration board ... went to the President.... What possible

reason could there be for not following this procedure as to the setting up of a constitutional

convention, more important by several orders of magnitude than an arbitration board? Can it

be thought that Article I, Section 7, can be evaded by mere nomenclature [emphasis in the

original] ― by merely calling something a “Concurrent” rather than a “Joint” Resolution?

Supporters of the President‟s role in the Article V Convention process also note that the

legislative models offered by constitutional convention procedures bills in the past were more

than simple “calls” for a convention. They prescribed a form and procedures for a

convention, authorized use of federal resources and facilities, and provided for public

funding of convention expenses. As Arthur Bonfield noted,

... Congress must necessarily make more than a mere call for a convention. Such a call would

be meaningless without the inclusion of the specific terms upon which such a body is to be

constituted, organized, and conducted. These terms to be spelled out by Congress would

appear similar to the general kinds of legislation with which Congress normally deals.

Consequently, no reason of logic dictates its different treatment in respect to the need for

Presidential approval.

From the standpoint of the broader national welfare, the same author noted that as the

President is the only federal official elected and responsible to the American people as a

whole, “[h]is participation in this process that would intimately affect all Americans and our

nation as a whole seems, therefore, especially proper and natural.”25

The House Judiciary Committee‟s 1993 study identified a potential alternative, noting that a

call for an Article V Convention and the legislation carrying the call into effect need not be

part of the same vehicle. This suggests a two-step process in which Congress could, on its

own authority, pass a concurrent resolution summoning the convention, while additional

25

The Article V Convention: Contemporary Issues for Congress,p.33.


arrangements implementing the convention call could be contained in a law-making measure,

subject to presidential approval.

Moving beyond the convention call to the actual proposal of amendments passed by an

Article V Convention, most observers maintain that, as with the method of congressional

proposal, the President would not be a part of the process. In this instance, it is asserted that

the Supreme Court‟s ruling in Hollingsworth v. Virginia that the President‟s signature was

not necessary when Congress proposed amendments to the states would arguably apply to

those offered by a convention.

“Checks and Balances” in the Article V Amendment Process

As noted above, the work of an Article V Convention, once proposed, would be subject to

various checks and balances, including congressional authority to designate ratification by ad

hoc conventions or state legislatures and the requirement that all amendments proposed must

be ratified by three-fourths of the states. In addition, for nearly the past century, Congress has

also required that amendments be ratified by the states within a seven-year time limit.


Summary of U.S- Article V-

The Constitution can be amended in one of two ways.

1. By a vote of two-thirds of both the House of Representatives and the Senate

followed by a ratification of three-fourths of the various state legislatures (ratification by thirty-

eight states would be required to ratify an amendment today). (no. of states in U.S.- 50)

This first method of amendment is the only one used to date.

2. By a Convention called for this purpose by two-thirds of the state legislatures, if the

Convention's proposed amendments are later ratified by three-fourths of the state legislatures.

Because any amendment can be blocked by a mere thirteen states withholding approval (in either

of their two houses), amendments don't come easy. (38 needed for passing so, 50-38=12 hence,

12+1=13(50-13=37).

In fact, only 27 amendments have been ratified since the Constitution became effective(1789),

and ten of those ratifications occurred almost immediately--as the Bill of Rights. (over 10,000

proposed in over 200 years).

The difficulty of amending the Constitution greatly increases the importance of Supreme Court

decisions interpreting the Constitution, because

reversal of the Court's decision by amendment is unlikely except in cases when the public's

disagreement is intense and close to unanimous. Even unpopular Court decisions (such as the

Court's protection of flag burning) are likely to stand unless the Court itself changes its collective

mind.


Conclusion

Amendment of US constitution is very rigid and complicated; in case of India it is easy and

flexible. According to V Article House of Congress with 2/3 majority can proposes for

amendment of the Constitution. States can make application for calling convention for

amendment of Constitution with support of more than 2/3, the convention shall be called and

proposed amendments shall be valid. In US both House of Congress and States have power to

amend the Constitution. The amended Constitution has to be ratified by more than 3/4 States to

take effect. The Stares have very decisive and vital power in validating the every amendment of

the Constitution. In India, it is only Parliament can propose for the amendment of the

Constitution and States do not have role to play anything in this matter. Some of the Articles can

be amended with simple majority, special majority and in some limited Articles with ratification

by more than half of the States. Majority means majority of the Member of the Parliament

present on the date of amendment not in relation with total strength of the Member of

Parliament. The fact that US Constitution amended only 27 times in the last 225 years shows

how rigid it is to amend the Constitution. Indian Constitution amended more than 95 times in the

last 60 years proves how easy to amend the Indian Constitution.


REFERENCES-

Constitution of India.

Constitution of U.S.

CONSTITUTION AMENDMENT- Nature and Scope of the Amending Process.

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues

for Congress by-Thomas H. Neale Specialist in American National Government.

Standard 3: Structure and Functions of Government SS.5.C.3.4

US constitution is too entrenched and rigid for the needs of the 21st century by-Sophie

Gadd.

Documents

Amendment procedure india v. USA