Amending the Constitution: USA & India

A Constitution is regarded as the document which governs the present and future of a nation. And while doing so, it shapes the nation as per the will of the people who provide sovereignty to the nation. But as the needs and circumstances of every human being changes with time, the same is in the case of a nation. And with the changing atmosphere the constitution needs to adapt itself, in order to remain relevant. And in order to do so, the constitution amendments are done by the legislatures. In the present paper, the author attempts to present the system that exists in the USA, the oldest democracy, and India, the biggest democracy in the world. The author attempts to compare them on the basis of their procedure and how the countries’ popular will has impacted the amendments done to their respective constitution so far.


Introduction
The thought of drafting an indigenous constitution for the Indians by Indians itself is an inspiration from that of the U.S. For Nehru and Gandhi, the example of the U.S. drafting its own constitutional rights after its independence was very strong. Soon after the declaration of Poorna Swaraj in 1930, which can be considered as an equivalent to Declaration of Independence 1776 of the U.S, every Indian decided not to compromise in attaining a complete independence and the great minds of India believed indigenous constitution is the first right step towards it. Thus, the question of whether or not studying U.S constitution history and practice is useful in understanding contemporary constitutional developments in India absolutely gets a positive answer-Yes! Since the drafting of the Constitution, the constitutional history of the U.S. has made a significant impact on the Indian constitution. India had adopted the fundamental rights from the Bill of Rights of the U.S. 1 However, the UDHR also has its own impact on India's fundamental rights. The concept of Judicial review was adopted by the Judiciary of India and this doctrine was first given in the case of Marbury v. Madison 2 and thereby it had opened a Pandora box in the legal system of India. The Kesavananda Bharti case 3 purported doctrine of basic structure for the very first time, and fundamental right is a part of basic structure. In the case, Indira Gandhi v. Raj Narain, 4 The Supreme Court of India upheld that judicial review is a part of this doctrine. In Brij Bhushan v. State of Delhi, 5 the Court opined that Fundamental Right, the "freedom of speech and expression" has been taken from the 1st Amendment Act of the U.S. provisions were made, people would have to use an unconstitutional strategy, such as reform, to change the constitution. Pandit Nehru in the Constituent Assembly said that, 13 "While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in the Constitution. There should be flexibility. If you make anything rigid and permanent you stop the nation's growth." Keeping this in mind, the makers of our Constitution were not in favour to entrust constitutional amendments to a separate body nor were they in favour to have an arrangement like that of the British where Parliament is supreme in every sense. Thus, combining the theory of fundamental law as that of the USA and the theory of Parliamentary sovereignty as that of the UK, makers of our constitution gave powers to amend the constitution to the legislature subject to special procedure laid down.

Amendment Procedure in India: Evolution & Existing
Development of amending procedure of Indian constitution was an interesting journey. Some of the members of constituent assembly were in favour of adopting a simple method of amendment for initial few years so as to save administrative sufferings of the newly formed nation while others like Shri H V Kamath were in favour of providing procedural safeguards to avoid hasty amendments. 14 Commenting on the debate of having a simple method of amendment for the first few years, Dr Babasaheb Ambedkar observed that compared to constitutional amendment procedures of the USA and Australia, the draft amendment procedure is the simplest. It eliminates difficult and elaborate procedures such as decisions by convention and referendum. Only a few specific matters are to be ratified by the State Legislature. Only limitation in it is that it needs to be done by a majority of not less than 2/3 rd of the members of each house present and voting and a majority of total membership of each house. Therefore, the Constitution of India provides for a partly flexible and partly rigid method of amendment. It provides for three categories of amendments 15 -One which can be done by simple majority, secondly one which can be affected by a 'special majority' and thirdly which requires in addition to 'special majority' ratification by one half of the state legislatures. The last two categories come under purview of Article 368 of the Indian Constitution. The founders of the Indian constitution thus demanded a text that could be developed with a growing nation and adapt to changing conditions of the increasing population. From time to time, the Constitution should thus be revised. No one can say it is the end of the floor. An unchanging constitution is the one that becomes the biggest obstacle to the nation's progress. amendment seeks to amend any of the provisions mentioned in proviso 18 to Article 368, it must be ratified by Legislature of not less than half of the states. Such ratification by States is via resolution passed by same and there is no time limit to pass the said resolution. 19 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. 20 Various case laws have analysed the process of amendment as mentioned in Article 368 and laid down various principles in respective judgements. Whether entire Constitution is void for want of ratification or amended provision required to be ratified under proviso to 368(2) was a significant point of law that came before the Hon'ble court in Anti Defection 21 case wherein validity of 10th Schedule of Constitution inserted by 52nd amendment act 1985 was challenged. The Constitution bench in its majority judgement upheld the validity of 10th Schedule but declared Para 7 of the Schedule to be invalid as it was not ratified by a required number of state legislatures. The minority judges in this case treated the whole constitutional amendment act as invalid.
Further it has been observed in Shankari Prasad case 22 by Patanjali Shashtri J that Article 368 is not a complete code in respect of legislative procedure to be followed at various stages. This matter came up before the Hon'ble court in Shankari Prasad case wherein Patanjali Shashtri 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. Thus, in Lok Sabha, Rules for procedure and conduct of business make certain specific provisions with regard to bills for amendment of constitution such as voting procedures at various stages of the bill and procedures in case of private members intending to introduce constitutional amendment bills. Although Special majority as envisaged in the act is applicable only to voting at the final stage, Lok Sabha rules prescribe that such adherence is to be required at all effective stages of the bill. This provision not only ensures strict adherence to article 368 of Indian constitution but also validity of the procedure adopted. It guards against the possibility of violation of the spirit and scheme of that article. 23 The Short Title, Enacting Formula and the Long Title may be adopted by a simple majority. In case of private bills, like any other ordinary bill, the period of one month notice applies to such bills too.  Thus, we can observe that in India, there is no separate body for the purpose of amendment of the constitution and power is vested in the legislature. There is no provision which cannot be amended but within the basic framework of the constitution. Role of states in amendment procedure is very much limited only to amendments under a few articles. Parliament has the exclusive right to change the constitution but it cannot be said that the Parliament is independent. The procedure itself restricts use of power to amend the constitution in parliament. Indian constitution is a dynamic document catering to changing needs and statuses of Indian society and doctrine of basic structure as propounded by Hon'ble court acts like a guiding principle to safeguard the values and essence of Indian constitution. Less amount of complexity and bureaucratic effort in changing the constitution yet preserving the basic structure over years makes it a unique constitution with unique amending procedure.

The Amendment Procedure of the US Constitution
The Article V of the US Constitution provides for the provision for amendment procedure. The process itself presents a unique challenge for state legislatures as institutions, as well as for individual members of a state legislative body. It is because of the fact that there have been really rare implementations and also because there have been very rare cases in the court(s) regarding The Constitution is the fundamental law of the land, it is regarded as the primary document of any nation. Over the period of time, the problems including social, economic and political conditions of any country take various forms and dimensions. The conditions of any country go through various changes over time. Therefore, it becomes a necessity to revisit the constitution so as to make it updated with the time and so that it remains a dynamic document which can cater with the changing needs of the society. This procedure is referred to as the Amendment procedure of the constitution. The constitution amendments ensure that the provisions and interpretation of the constitution remain relevant in the changing time as well. Therefore, no matter how strong the constitution is, there is no eternity to it in its raw form. The states which are founded on popular sovereignty, like India and USA, must make possible fresh assertions of popular will, as that will keep on changing as per the requirements of the people. In the present paper, the author will be comparing the amendment procedure in India and the USA. In order to do that, it is very important to look at the history of amendment procedure in India as the Constitution of India is heavily impacted by the Constitution of the USA. The drafting of a written constitution was itself an inspiration for the Indians from the history of the USA. The popular leaders like Nehru and Mahatma Gandhi were heavily influenced by the inclusion of certain rights in the Constitution itself. After the Declaration of Poorna Swaraj in 1930, it was declared by the leaders that India will get complete independence from any rule and in order to make it happen they were of the opinion that a constitution drafted by the people of India would be necessary. making of FUndamental Rights of India in the same because of which there are many unanswered questions regarding the procedure. The present law is based on the cases that have happened over a long period of time regarding particular issues, in particular circumstances, in particular times and in particular states, across history. Although the Federal Subordinate Courts do not carry the same value of their decisions as that of the Federal Supreme Court, they help a legal researcher to know the full picture of the principles that have evolved over the time which helps to analyse the constitutional process as it exists in the USA.

Article V of the US Constitution states that:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
In the case of Ullman v. United States, the US Supreme Court declared that the only method for amendment of the US Constitution for adding or removing language in the document is to be done as per the procedure provided under the Article V. The text of the Article V provides for two methods for proposing an amendment, 1. Congress may propose an amendment to the states, upon a two-thirds vote of both the houses; or 2. A convention may propose an amendment to the states. A convention is called by Congress, on application of two-thirds of the states. Once the amendment is proposed the next step includes the ratification. The ratification may occur through two processes, as determined by the Congress: 1. Ratification by three-fourths of the state legislatures; or 2. Ratification by three-fourths of states, acting by state convention. Although there is no limitation on the substance that can be amended, but as the US Constitution provides for Federalism itself, even an amendment cannot modify the balance of power among states in the Senate, without the consent of each affected state. 32 The amendments to the Constitution proposed till now have all been through the congressional method and none of them have been through conventional method. 33 Congressional Method, Few difficulties of a constitutional nature have arisen with regard to this method of initiating constitutional change, the only method, as we noted above, so far suc-cessfully resorted to. When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that 32 In 1922 in the case of Leser v. Garnett, 258 US 130 (1922), the US Supreme Court heard a challenge to the Amendment 19th(Women's right to vote), based on a claim that it impermissibly violated a state's autonomy as a political body if the state failed to ratify the amendment (the petitioners were from Maryland, which had not ratified the amendment). The Court rejected the claim. 33 R. Bernstein, Amending America, 1993. they should be incorporated in the text of the original instrument. 34 Instead, the House decided to propose them as supplementary articles, a method followed since. 35 It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals. 36 In the National Prohibition Cases, 37 The Court ruled that in proposing an amendment, the two Houses of Congress thereby indicated that they deemed revision necessary. The same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the Members present-assuming the presence of a quorum-and not a vote of two-thirds of the entire membership. 38 The approval of the President is not necessary for a proposed amendment. 39

Conventional Method,
Because it has never successfully been invoked, the convention method of amendment is surrounded by a lengthy list of questions. 40 When and how is a con-vention to be convened? Must the applications of the requisite number of States be identical or ask for substantially the same amendment or merely deal with the same subject matter? Must the requisite number of petitions be contemporaneous with each other, substantially contemporaneous, or strung out over several years? Could a convention be limited to consideration of the amendment or the subject matter which it is called to consider? These are only a few of the obvious questions and others lurk to be revealed on deeper consideration. 41 This method has been close to utilisation several times. Only one State was lacking when the Senate finally permitted passage of an amendment providing for the direct election of Senators. 42 Two States were lacking in a petition drive for a constitutional limitation on income tax rates. 43 The drive for an amendment to limit the Supreme Court's legislative apportionment decisions came within one State of the required number, and a proposal for a balanced budget amendment has been but two States short of the requisite number for some time. 44 Arguments existed in each instance against counting all the petitions, but the political realities no doubt are that if there is an authentic national move-ment underlying a petitioning by two-thirds of the States there will be a response by Congress. Although Members of Congress have introduced more than 11,000 proposed amendments to the Constitution since the Founding, 45 Congress has approved only thirty-three proposed amendments by the requisite two-thirds vote. Congress has historically proposed constitutional amendments by enacting a joint resolution. 46 Following historical practice involving proposing amendments, which included the Bill of Rights, Members of Congress have proposed amendments as codicils (i.e., supplementary articles), rather than line-by-line revisions to the Constitution's text. 47 After congressional approval, proposed amendments are sent to the states for potential ratification.

Ratification
When a state has ratified an amendment, it must submit a set of paperwork back to the National Archives and Records Administration. The Office of the Federal Register verifies that the documents appear to be in proper order and acknowledges receipt. The National Archives and Records Administration also receives records of other legislative actions-such as rejection of an amendment or rescission of a ratification-but it does not make any substantive determination about the validity of these actions. When it appears that a sufficient number of states have ratified a proposed amendment, the Archivist of the United States issues a proclamation certifying that the amendment has been ratified. The certification is published and serves as an official notice of ratification. A ratified amendment is effective as of the day a sufficient number of state ratifications are completed, not on the day the certification is proclaimed. Apart from the requirements of Article V, there are no provisions of federal law, or established customs and practices that direct a specific procedure related to convening or administering a convention. A federal convention has not occurred since the original convention was convened to draft the constitution in 1787. The experiences of individual states in amending their state constitutions by convention, which has occurred with some regularity over time, may be helpful in considering the issues that might arise in a federal convention, and in considering how those issues might be resolved. Over time, state legislatures have developed customs and practices for submitting applications for a convention to Congress. Congress has never taken action in response to these applications, or in response to the customs and practices used to submit them.

Comparative Analysis
Based on the above discussion it can be said that the Indian Constitution is partly rigid and partly flexible. Whereas based on the fact that till date there has only been 27 amendments in the US Constitution, it is the most rigid constitution in the world. But the option of proposing amendment has given more prominence to states as they are also allowed to propose the same, whereas in India only either of the houses of the parliament can propose the amendment. Though both the countries have formal procedures mentioned under their respective constitution, In India Article 368 and in USA Article V, the informal procedure varies as the informal amendment is done by the Judiciary in case of India but in USA it is done by the States itself. In India, the ratification by states is only needed in the case of such an amendment which is changing the federal structure and in that too only more than half of the states need to verify, which makes it very narrow. While in the USA, constitutional amendment becomes valid only after being ratified by 3/4th of the states acting by the state conventions or by 3/4th majority of the state legislatures. In India, once the amendment is passed by both the houses of the Parliament, the bill is sent to the President for his assent, while in the USA there is no need to place a constitution amendment before the president for approval or veto. The amendment comes into force in India only after it has been duly published in the 46 1 Annals of Cong. 735 (1789). 47 Id. at 733-744.
Official Gazette of India. Whereas in the US the amendment comes into force from the date when the requisite 3/4th number of states has ratified it. But after that the NARA certifies the amendment and gives a certificate that the amendment is valid. One of the glaring differences between both the Constitutions is that, in India the text of the Constitution is amended itself so as to make the amendment part of the constitution, but in the USA the original text of the constitution is not touched rather an amendment is added just like an annexure. This could be because of the reason that the US prefers to safeguard the sanctity of the original text of the Constitution, whereas India prefers to have such a system where the amendments are placed at a pedestal on par with the original wordings of the Constitution. Both in the US and India, the amendments to the Constitution are subject to Judicial review. And in both the countries the legislature has "no right to rewrite the whole of the constitution.''

Conclusion
Analysing the information collected, it can be seen that amendment is the most important pillar of a democracy. It not only helps a nation to keep up with the evolving world but also helps to maintain a just and equal environment for everyone. Constitution is known to be of 2 types i.e. Rigid and Flexible. While the US constitution can be considered as a rigid one, the UK is completely opposite to it. The power to amend any provision in the US is equally divided. The houses as well as the states have an equal responsibility to accept the proposition to ultimately turn it into a bill; whereas, the whole power in India lies between the houses. If one house does not accept the bill, it cannot be passed since there is no provision for conducting a joint meeting to settle disputes. After analysing both the procedures, it is safe to say that India lies between the two, making it comparatively easier to amend the constitution by providing powers with limits. The researcher has also gone through the various modification procedures given in each country's constitution in this comparative review. Even though the United States and India are democratic nations, their ways of working, creating rules, and amending authority are all distinct. India's constitution came much later than the US. India has also borrowed several elements of other countries' constitutions after determining their suitability for our republic. However, there are so many variations in the amending procedures among the compared countries that there are less parallels than there are fingers. In India, there is no independent constituent body for the intent of amending the constitution, like there is in the United States. The Parliament in India has the power to change the Constitution. In India, the state's position in constitutional amendment is small, but in the United States, states have a larger role to play, and states may also propose constitutional amendments. States, on the other hand, are unable to propose constitutional amendments in India. In India, an amendment enacted by Parliament in accordance with Article 368 will only become part of the Constitution after the President's assent. However, in the United States, the President would not have any authority, and the US Constitution makes no allowance for the President's assent. Article 368 grants the Indian Parliament the power to change the constitution in certain cases, however in certain cases, approval by at least half of the states is needed. The important thing to note is that neither the Indian nor the US constitutions provide a time period for ratification. Finally, it can be claimed that the Indian Constitution is more fluid than rigid. Just a few constitutional changes need passage by state governments, and even then, bills by one-half of the states will suffice. The Indian Parliament may change the remainder of the Constitution with a special majority vote. The United States, on the other hand, has a strict constitution that can only be revised by the US Congress by a special mechanism established by the US Constitution for that reason. Both the democratic Constitutions have the ability to survive and contain the capacity to respond to socio-political and economic change. One of the major points that can be taken after studying this paper is that both the countries completely ignore the opinions of citizens before making an amendment. It is suggested that the states should always be given an opportunity to express their views before an amendment is proposed in the country. Thus, although both the amending procedures are not identical, they have certain basic elements in common like giving adequate protection against changes in the important rights of the states, judicial review and also making the state involvement in amending procedure a common feature.