Article Review - Amendment Of Constitution Process

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T18:11:23.590687+00:00

Updated: 2026-08-26T17:12:05.106+00:00

ARTICLE REVIEW - AMENDMENT OF CONSTITUTION

PROCESS

Sonakshi Desai, LL.M., Symbiosis Law School, Pune

INTRODUCTION

The amendment procedures of the Indian and U.S. Constitutions reflect their distinct political and historical contexts. India’s Article 368 provides a flexible yet partly rigid process, allowing frequent changes, while the U.S. Constitution's Article V follows a more rigid and complex procedure, resulting in fewer amendments over time. Article Reviewed: “Sandeep Kumar and Shivika Sood, (2021). Article 368 vs. Article V- A Guide to the Amendment Procedure of Constitution of India & United States1.”

SUMMARY

This research analyzes the procedure of amendment to both Indian and United States constitutions toward their respective political and legal contexts. It points out that changing socio-political incidents require adjustment through constitutional alteration while being resistant and inflexible with it. The Constitution of India offers a liberal but limited approach toward modification while adjusting to changing demands without obliterating the power of Parliament. On the other hand, the United States Constitution is a more rigid process because it has only adopted 27 amendments since its adoption in 1789, which is a conservative approach to constitutional modification as affected by historical factors. Article 3682 provides for amending the Constitution through a combination of rigidity and elasticity. It discusses both formal and informal methods of amendment.

Judicial interpretation and pronouncements make informal approaches that preserve the original wording of the

1 Sandeep Kumar & Shivika Sood, Article 368 vs. Article V - A Guide to the Amendment Procedure of

Constitution of India & United States, 4 INT'l J.L. MGMT. & HUMAN. 2666 (2021).

2 India Const. art. 368.

Constitution but help in the development of its implementation. Golak Nath v. State of Punjab3 had a notable influence on constitutional interpretation in India. Thus, it is said that the Constitution of India is known for its comprehensive framework. Article 368 speaks of the traditional procedure of amendment, which is alteration by addition, amendment, or repeal of the provisions in the Constitution. The procedure varies with the character of the amendment. Articles 44 and 239-A5, which can be amended by a simple majority in both the Houses of Parliament with a majority of members of each House present and voting. These amendments hardly have an impact on the federal structure. Some amendments are often introduced that require a special majority that shall be equal to the absolute majority of each house of Parliaments as well as 2/3rd of those present and voting.

Lastly, there is a number of provisions like Article 736 and the Lists in the 7th Schedule7 that require not only special majority but also approval from at least 50% of the state legislatures. Under this, Dr. B. R. Ambedkar, underlined the quintessential issue of balance between societal change and political exploitation by justifying the notable characteristic of India's amendment procedure which is a combination of flexibility and rigidity. This blend of flexible and rigid approaches allows for strong legislative power while maintaining checks and balances through judicial review. Court judgments that would go to make up the amendment procedures for India, including the judgment wherein the Court established the Basic Structure Doctrine and limited the amendment of Constitution powers of the Parliament.

The Court ruled that Parliament was able to revise any of its provisions but could not alter its fundamental structure through such amendments. This concept was repeated in Minerva Mills Ltd. vs. Union of India8, where the Supreme Court struck down sections restricting judicial review on the ground that it is an integral to the Constitution. In contrast, strict amendment provisions are found in Article V9 of the United States Constitution. It specifies two procedures for proposal of amendments - either a two-thirds vote in each house of Congress, or a Constitutional convention called upon the request of two-thirds

3 Golak Nath v. State of Punjab, AIR 1967 SC 1643 (India).

4 India Const. art. 4.

5 India Const. art. 239-A.

6 India Const. art. 73.

7 India Const. Sched. VII.

8 Minerva Mills Ltd. v. Union of India, (1980) 3 S.C.C. 625 (India).

9 U.S. Const. art. V.

of state legislatures. The proposed amendments then have to be ratified by three-fourths of state legislatures or conventions in three-fourths of the states. It makes the whole process timeconsuming and complicated. Notwithstanding its stability, this rigidity has curtailed the number of amendments effected in the United States. The judicial case of Hollingsworth v. Virginia10 held that, because constitutional amendments are not usual acts of legislation, presidential assent is not required. Dillon v. Gloss11 held that amendments come into effect immediately after ratification by the number of states indispensable for ratification, and not after certification. Apprehension about constitutional flexibility and rigidity can be theoretically derived from the opinion of different experts, be it that of Justice V. Madhava Rao or A. V. Dicey.

Dicey distinguishes between stiff and flexible constitutions, the U. S. Constitution is among the most rigid, while the Indian Constitution is basically a combination of both. Justice Rao underscored judicial interpretation as an informal form of amendment to prevent constitutional relevance from becoming lost in an altering society.

CRITICAL ANALYSIS

The article provides great insight into the divergent legal frameworks of the United States and India through close comparison in their respective constitutional amendment procedures. One of the strongest points of this article is the careful distinction drawn between Article V and Article 368 on procedural grounds. The writers have come up with great skill for explaining the underlying rigidity and flexibility of each system, which portray India's amendment process as a mixture of both, thereby enabling great scope for flexibility in passing new enactments. Not only do they describe the amendment process of the United States Constitution as having an unusually onerous stringency, but it also necessitates a supermajority in both Congress and the states. A comparative analysis is bolstered with references to such landmark cases as Kesavananda Bharati v.

State of Kerala12, which established the doctrine of foundational structure in India and illustrated the significance of an independent judiciary in maintaining constitutional equilibrium. These allusions support their assertions and simultaneously

10 Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).

11 Dillon v. Gloss, 256 U.S. 368 (1921).

12 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India).

underscore how fluid and elastic any constitution must be. There are however a few weaknesses about this article, though it can provide a critical examination of the amendment procedures, it fails to penetrate further into exploring the sociopolitical settings that shaped these constitutional structures. For example, the authors simply make reference to the historic pasts of the construction of both constitutions but do not explain how these might illuminate the processes that bring about the modifications that exist now. Furthermore, strenuous analysis into how the histories in which these laws have evolved result from the causes shall make the study more holistic and fully understand its relevance.

Due to the systematic analytical treatment of procedures under the amendment, the article may be considered a very worthwhile contribution in the sphere of Comparative Public Law and therefore a rich source for both the researcher and the practitioner. In addition, the writers place procedural elements within a bigger framework of democracy and governance. The concept that "the sustainability of the Constitutions depends upon their amendability and ability to include the wider perspective" is a very relevant principle in Comparative Public Law and, therefore, underlines flexibility in constitutional law. The paper further analyses the implications of inflexibility and flexibility on democratic governance.

By underlining the ways both constitutions contribute to democratic stability and the protection of fundamental rights despite procedural differences, the authors add to the dialogue on constitutionalism and its significance in modern governance. Their demand for the increasing participation of the public in the amendment process underscores the growing need for constitutional amendment that expresses a better will of the people and displays an increasing knowledge of participatory democracy. In such a way, the arguments and supporting data have become so timely and pertinent-all the more so in light of global threats to democratic institutions and the rise of populism-that one is reminded of an awareness current constitutional difficulties demand-an awareness of how amendment procedures might help or hinder democratic responsiveness, as the writers illuminate.

Their criticism of the current procedures and recommendation that both countries improve the way they include citizen input into constitutional modifications are part and parcel of contemporary democratic governance trends that emphasize increasing rates of public engagement.

COMPARATIVE ANALYSIS

The authors, Sandeep and Shivika, together make some meaningful contributions to comparative public law by strictly elucidating how amendment procedures demonstrate varying political and historical realities. It is tied strongly to constitutional jurisprudence through emphasizing judicial interpretation and landmark cases. However, Patel13 provides a complete comparison of India and the U. S. , bringing to the front the requirement of amendments for constitutions to change with the society. Like Sandeep and Shivika, Patel sets high importance on the doctrinal jurisprudence of the Basic Structure Doctrine as a protection to the Indian democracy. The analysis by Patel does not include examples of recent amendments; meanwhile, Sandeep and Shivika discussed the latest challenges that include the populism of the global level.

Patel also provides a more general scope but a minor importance on judicial review than Sandeep and Shivika, who discussed how courts form informal amendments in India. Some more elaboration about the Basic Structure Doctrine is provided by Patel14, while Sandeep and Shivika's article takes a more democratic approach and focuses on public participation in any amending style of the constitution. For example, Khan and Nag's15 article presents a refreshing comparative analysis of amendment procedures in six countries: India and the U. S. , followed by introduction of Swiss examples along with those from Canada. Although this comparative approach is wider, it does not go deep compared to the sociopolitical layer found in Sandeep and Shivika's analysis. Sandeep and Shivika focused on how India's judiciary preserved democracy.

Khan and Nag's article mainly focuses on legal procedures without further going into socio-political contexts that determine amendment processes. Goyal's16 article makes a significant historical link between the U. S. and Indian constitutions, much as was briefly referenced by Sandeep and Shivika. Goyal widely compares the role of judicial review in constitutional amendments in good time to that of Sandeep and Shivika. 13 Chirag Patel Rs, Amendment of The Constitution in India and US: A Comparative Study. , Indian Journal of Integrated Research in Law Volume II Issue II: ISSN: 2583-0538.

14 Id.

15 Navisha Uzaira Khan and Kohelica Nag, Comparative Study of the Amendment Procedure in India,

Switzerland, Canada, USA, France and Germany, International Journal of Research and Analytical Reviews (IJRAR), 2023.

16 Anmol Goyal, Amending the Constitution: USA & India., International Journal for Multidisciplinary Research (IJFMR), Volume 5, Issue 1, 2023.

However, unlike Sandeep and Shivika, who are calling for more public participation in the amendment process, Goyal does not highlight the socio-political context of the amendments. Both articles argue on how judicial interpretations are used within informal amendments, but Sandeep and Shivika more explicitly mention this aspect. The article is truly distinctive because it highlights the comparative aspect of India and the U. S, putting their procedures for constitutional amendments side by side. Its analysis of judicial review and flexibility, including such Basic Structure Doctrine and case law as Kesavananda Bharati, provides added depth to the discussion through its light on the dynamic role of courts in constitutional interpretation.

Further, the significance that Sandeep and Shivika give to public participation in the amendment process becomes timely and fittingly relevant for the article, right at the pulse of current global debates on democratic responsiveness. Although the article is strong, it does not dig deeper in examining a more profound socio-political context which both amendment procedures in India and U. S. were molded. This becomes essential as it credits history, but further analysis would make its argument stronger. Even more importantly, like Goyal and Patel, providing some empirical examples or case studies of recent amendments or judicial decisions would make the article of Sandeep and Shivika even more powerful in illustrating how such changes have impacted governance. This would also boost relevance of the article in consideration with the recent populism movements that have been witnessed.

Also, like Patel, it is an important contribution to the comparative constitutional discourse that Sandeep and Shivika discuss the Doctrine of Basic Structure. Their articulation of global trends toward public engagement, set against the rigidity of the U. S. Constitution, situates them in scholarship more broadly on constitutional reform and democratic participation. Situating their article within the evolving debates around constitutional adaptability and public involvement, Sandeep and Shivika incorporate such global perspectives into the discussion. The article by Sandeep and Shivika is a good robust comparison of amendment procedures in India and the U. S. It gives an excellent analysis of judicial review and flexibility. It could have done more with respect to the socio-political context, but it could even use fewer case studies related to the contemporary state of affairs.

However, this is aligned with modern scholarship on the constitution. Unlike other articles, this is remarkable for its particular amalgamation of

legal, democratic, and comparative approaches which come together to make a rich input to the field.

CONCLUSION

As a conclusion, Sandeep and Shivika article is generally an impressive contribution in the area of Comparative Public Law, through the thorough analysis it dedicates to procedures pertaining to constitutional amendments in India and the United States. While it does a great job of the presentation of each system's strengths and weaknesses, research into surrounding sociopolitical conditions would help it understand much more. The paper makes major contributions to our knowledge of how constitutional frameworks can evolve to suit changing requirements in society and reminds us that a constitution needs to achieve the right balance between stability and a desire for adaptability in order to be relevant in an ever-changing political arena.