Judicial Activism: Imposing Restrictions On The Constituent Power

Rounak Kumar Mishra, BBA LLB (H), Amity University Uttar Pradesh, Lucknow

POWER OF CONSTITUTIONAL AMENDMENTS

In every written constitution, there must be a provision for its amendment. This power of amendment is typically entrusted to a popular, representative body. Such authority is crucial to prevent a constitution from becoming stagnant. Without the ability to change, a constitution may become inadequate in meeting the evolving needs of society. The process of amending a constitution is fundamentally counter-majoritarian, aiming to prevent hasty and ill-considered alterations while also safeguarding certain entrenched provisions from easy modification.1 A constitutional amendment necessitates a special majority, typically requiring two-thirds or three-fourths support to pass. This means that even a minority group whose size surpasses one- third or one-fourth of the total legislative body can block an amendment. The power of constitutional amendment is considered sui juris, meaning it has inherent validity and does not require validation against a higher norm. Consequently, the results of such amendments are generally not subject to judicial review, except when the prescribed constitutional amendment procedures have not been correctly followed.

Article 368 of the Indian Constitution outlines the procedure for its amendment. Parliament can amend the Constitution by passing a bill in both houses with the support of two-thirds of the members present and voting, as well as an absolute majority of the total membership of each house. However, amendments that affect the federal structure require ratification by at least half of the state legislatures after being passed in Parliament.