Constitutional politics over (un)constitutional amendments: the Indian experience

This chapter provides critical insights on politics in India over unconstitutional constitutional amendments (UCA). The Indian Constitution is not only one of the longest constitutional documents but is also one that has been amended quite frequently: 104 times in 71 years (January 1950 to December 2020). 1 Article 368 of the Constitution empowers the parliament of India to amend the Constitution formally. 2 In terms of their amendability, provisions of the Constitution can be divided into four categories. First, the amendment of certain provisions 3 is not treated as an amendment for the purpose of Article 368: such provisions can be amended by a “simple majority” and without following the procedure of Article 368. Second, a majority of constitutional provisions require a “special majority” – a majority of the total membership of each House of parliament and a majority of not less than two-thirds of the members of that House present and voting – for amendment. Third, some provisions (including Article 368) require a “special majority and ratification” by resolution passed by not less than one-half of the state legislatures. 4 Fourth, although not expressly provided for or originally envisaged, certain provisions of the Indian Constitution 190are “unamendable” because of the basic structure doctrine developed by the Supreme Court. The last category is the subject matter of this chapter.