Three Constitutional Amendments and the Arithmetic of Article 368
A party with 300 of 543 Lok Sabha seats and 110 of 245 Rajya Sabha seats announces three commitments and tables them as Constitution (Amendment) Bills in the winter session: (i) insert a new Article 21B making access to the internet a fundamental right; (ii) abolish the office of Governor and replace it with a council elected by the state legislature; (iii) rename a state after a historical dynasty. Two Rajya Sabha allies are wavering, and the presiding officers insist on completing the business within the session. The Law Ministry asks you, as a legislative aide, to state the route each Bill must take and the risks. A former Attorney-General warns on television that even a legally passed amendment can be 'undone by the Court', which the ruling party calls contempt of the sovereignty of Parliament.
1. Classify each of the three proposals by the majority and procedure it requires, with reasons.
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Only the first two are constitutional amendments; the third is not.
(i) Article 21B: amending Part III requires the Article 368 special majority in both Houses - a majority of the total membership of that House and two-thirds of members present and voting. No state ratification is needed, because the proviso to Article 368(2) does not cover fundamental rights. Adding a right expands, rather than damages, the basic structure, so the risk of invalidity is low.
(ii) Abolishing the Governor: this touches Articles 153 to 162 and consequentially Articles 200, 201, 213 and 356. The ratification list in the proviso is textual and does not name the state executive, so strictly a special majority suffices. But the office is part of the federal design, and a court could ask whether the change alters the federal scheme; prudence, and federal comity, require prior consultation with state governments and ratification by half the states.
(iii) Renaming a state: this is ordinary legislation under Article 3, passed by simple majority, on the President's recommendation, after the state legislature's views are sought within a set period - those views are not binding. It is not an Article 368 amendment at all, and treating it as one would be a procedural error.
2. Work out whether the party can actually carry the amendment in the Rajya Sabha with its present strength.
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Two separate thresholds must be crossed simultaneously: a majority of the total membership, and two-thirds of members present and voting.
Lok Sabha: total membership 543, so the majority-of-membership threshold is 272. With 300 members present and all voting yes, two-thirds of 300 is 200 and 300 exceeds 272. The Bill passes comfortably.
Rajya Sabha: total membership 245, so at least 123 affirmative votes are needed irrespective of attendance. The party has 110. Even if all 110 attend and vote yes, the two-thirds requirement (74 of 110) is met but the 123-vote floor is not. It therefore needs at least 13 additional affirmative votes from allies or nominated members, and those 13 must be physically present. A walkout by the opposition makes the two-thirds figure easier to satisfy but does nothing about the 123-vote floor. The arithmetic also explains timing: a Bill carried in one session and not passed by the other House lapses on dissolution of the Lok Sabha, so the Rajya Sabha numbers must be secured before dissolution, not after.
3. How far is the former Attorney-General's warning legally correct? Address the ouster clause and the basic structure.
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He is substantially correct, though loose in language. Article 368(3) says nothing in Article 13 applies to an amendment, and the 42nd Amendment added clauses (4) and (5) barring courts from questioning any amendment 'on any ground'. Those two clauses were struck down in Minerva Mills v. Union of India (1980), so judicial review survives. Kesavananda Bharati (1973) permits review on one ground only: whether the amendment destroys the basic structure - federalism, secularism, separation of powers, free and fair elections, judicial review, rule of law. An amendment can therefore be perfectly lawful in procedure and still fail on substance.
Applied here: Article 21B does not damage the structure, so a challenge would be weak. The abolition of the Governor is the live risk. The Union can argue the office is not an essential feature and that an elected state council strengthens federalism; opponents can argue the Governor is a constitutional bridge between Union and State and that removal alters the federal scheme. The Court decides by asking whether the identity of the Constitution is destroyed, not whether the policy is wise. The correct response to the Minister is not contempt but explanation.