Entrenched Provisions In Indian Constitution & The State Legislatures

Preksha Gopal, B.A. LL.B., CHRIST (Deemed to Be University), Bengaluru

ABSTRACT

The Indian Constitution, renowned for its blend of rigidity and flexibility, outlines the procedure for amendments under Article 368. Among the three methods prescribed, the process requiring a special majority of Parliament and ratification by at least half of the state legislatures stands out for its implications on the federal character of the Constitution. This provision, detailed in Article 368(2), governs changes to deeply entrenched provisions, such as the distribution of powers between the Union and states, representation of states in Parliament, and the structure of the judiciary. This research aims to explore a critical question: does the term “states” under Article 368(2) include Union Territories with legislative assemblies, like Delhi, Puducherry, and Jammu & Kashmir? It also examines whether these Union Territories should have a formal role in ratifying amendments that affect the federal framework of the Constitution. Furthermore, the study probes the necessity of ensuring that all states and Union Territories with legislative powers are given an opportunity to deliberate on such amendments before they are finalized with Presidential assent. Using a doctrinal approach, this study draws its conclusions from the Constitution of India, debates of the Constituent Assembly, judicial precedents and legal commentaries. It analyses whether the current processes adequately preserve the principles of federalism and democratic representation, as well as the framers' intentions, using analytical reasoning. This study points out flaws in the current framework, especially with relation to Union Territories' participation in the ratification process, and it promotes the insertion of more precise constitutional language to resolve these ambiguities. By doing this, it aims to reinforce the concepts of equity, federal balance, and democratic engagement in the amendment process while also adding to the larger conversation on constitutional changes.

Keywords: amendment, Constitution of India, States, Article 368, Union Territories, special majority, State Legislative Assembly, ratification, entrenched provisions.