AMITY UNIVERSITY HARYANA

COMPARATIVE PUBLIC LAW

AND
SYSTEM OF GOVERNANCE
Research Project
On the topic:
AMENDING CONSTITUTION: COMPARATIVE STUDY
OF UNITED KINGDOM, UNITED STATES AND INDIA

SUBMITTED TO:
Mr. Bineesh Kumar
Faculty, Amity Law School

SUMITTED BY:
Nikhil Kumar Tyagi
Student LL.M (2014-15)
Amity Law School

Table of Content
S.No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

Particulars
Cover Page
List of Abbreviations Used
Introduction
What is a constitution?
Written and unwritten constiitution
Amendment and its necessity
Comparative Study of UK, US and India
Conclusion
References
Bibliography
Thank you

Page No.

List of Abbreviations Used

Abbreviations
US
UK

Full Forms
United States of America
United Kingdom

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1. Introduction
Constitution can be described as the fundamental law of the land. It is the basis on which all
other laws are made and enforced. We can all also that Constitution is mother of all other laws
which draws their validity from it. It also sets the outline and authority and limitation for all laws
farmed by the legislative body of any country.
Making of Constitution is one thing and amending it another. Amendments are introduced as per
the changing situations or as per will of the people or with the will of majority of people. India,
United States of America and United Kingdom, all three of these countries are democratic of the
world. India and US are the two worlds largest democratic countries. All three of these countries
have their own system of Governance. Although, India is younger democratic nation than US
and UK, but a mature one. This is also matter of fact that in past both India and US was colonial
country of the UK. India have a written constitution like the US but lengthy than US and UK. In
fact, UK does not have a written Constitution. The System of Governance is more based on the
laws & Acts passed by its parliament from time to time and no written constitution is there like
India and US have. Its obvious that when these three countries have different system of
governance then the procedure of amending the constitution would also be different.
Through this research project I tried to make a comparative study of amendment procedure
available in the Constitution of UK, US and India. Here we will look into the amendment
procedure of three of the countries with a comparison point of view.

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2. Amendment and its necessity
As per the oxford dictionary an amendment denotes idea of correction/repair or improvement.
For most commentators, constitutional amendments rules are designed to serve exactly this
purpose that is, to allow for the correction of or improvement upon prior constitutional design
choice in light of new information, evolving experience or political understanding.
As Prof. Sunstein has opined the Central goal of a constitution is to create the preconditions for
a well-functioning democratic order, one in which citizens are genuinely able to govern
themselves. Understanding the meaning of Constitution from Prof. Sunsteins definition of
constitution, we can also term Constitution as the supreme document of any nation by which
the system of governance is controlled and regulated by enacting laws and regulations.
Constitutions are usually classified as flexible or rigid depending upon the process through
which they can be amended. Prof. A.V. Dicey defines two types of Constitutionsthe flexible as
one under which every law of every description can legally be changed with the same ease and
in the same manner by one and the same body, and the rigid Constitutions as one under which
certain laws generally known as constitutional or fundamental laws, cannot be changed in the
same manner as ordinary laws The UK having an unwritten Constitution, is the best example of
an extremely flexible Constitution as there is no distinction between the legislative power and the
constituent power. The British Parliament has the power to change the Constitution by the
ordinary process of legislation. As opposed to the U.K. system, the constitutional amendment has
an important place under a written Constitution like that of the U.S.A. Its importance increases
where the system is Federal. In a Federal system, additional safeguards like the involvement of
Legislatures at the State level, are also provided for with a view to ensure that the Federal set-up
does not get altered only at the will of the Federal Legislature.
Now the questions comes why do amendments are required to any Constitution? Simple reason
is to react to the changing situations and circumstances within the country and internationally
also. As per the available history of the democratic countries no country can function with
permanent constitution. Few or more amendments are required as per the changing situations.
Like after the 2001 attack on world trade Centre, the US Congress by a resolution conferred
special power upon the President of US to take military action against any nation that may cause
security issue the US or those who are involved in the 2001 attack. This was the first of its kind
amendment in the US Constitution which gives complete sole authority to the President for
taking any military action against any country.

3. Comparative Study of United Kingdom, United States and India

UK, US and India, all three of these countries are democratic countries of the world, United
States is the oldest democratic country of the world and its constitution was made in 1789.
Where India was the Colonial state of the United Kingdom till 1947 and the Indian Constitution
came into force in 1950. But situation in United Kingdom is different. Although, UK is the
democratic country but the head of the state is monarch. Besides this one of the uniqueness of the
UKs constitution is that its not codified one like the US and India having. The UK Parliament
can make any law or amendment by simply passing it by majority and then send to the monarch
for his assent, which just the formality part. Another difference among these three countries is
that United State is a true federal country, where each state has its own constitution; India is
quasi federal there only one constitution for whole country but area of operation is divided
between the Union and the State governments. Whereas UK is not having the federal structure, it
has the unitary setup of government. In Federal system of governance, state legislatures have a
say in amending the constitution but in unitary setup its only the Parliament which has
supremacy for amending the constitution. The British parliament has the power to change and the
constitution by the ordinary process of legislation. As opposed to the UK, the constitution
amendment has an important place under the written Constitution like that of the US and India.
Its importance increases where the system is Federal. In Federal system, additional safeguards
like the involvement of Legislatures at the state level, are also provided for with a view to ensure
that the Federal set-up does not get altered only at the will of the Federal Legislature. Now, to
compare the amending procedure of these three countries, we will discuss the amending
procedures separately of each country a provided under their Constitution.

i)

Amending Procedure under US Constitution

The Article V of the US Constitution provides for changing (amending) the Constitution. Article
V: "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 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 several States, or by Conventions in three-fourths thereof, as the one or 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.
5
The Procedure provided under this article is of two kinds and the US Congress has a liberty to
choose any one the procedure provided under this Article. The Article provides that the
Constitution can be amended either through a) an act of Congress (US Parliament) b) a national
constitutional convention. Under the first option by an act of Congress, any Member of Congress
may propose to amend the Constitution by introducing a joint resolution. The legislation is
treated like any other in terms of committee consideration, floor scheduling and debate. Passage,
however, requires a 2/3 vote in each chamber. If all were present that would mean 290 out of 435
Members of the House and 67 out of 100 Senators. These super-majorities are very difficult to
obtain. And once passed, the proposed amendment is not sent to the President like it is done in
India or like in UK send to the Royal head of the UK. Instead, it is sent to the states. Threefourths -- or 38 -- of the states must ratify the proposed amendment. Congress is given the
authority by Article V to select one of two methods for the states to use in the ratification
process: ratification by vote of the state legislatures or ratification conventions called for that
purpose. Only one amendment -- the 21st (repealing Prohibition) -- was ratified using the state
convention method instead of being ratified by the state legislatures.
The second option for amending the US Constitution, the call of a National Constitution
Convention as described in Article V, a National Constitutional Convention requires 2/3 of all
state legislatures (34) to petition US Congress to convene a National Constitutional Convention.
But the Article V contains no guidelines for how such a National Convention would be run. This
method of amendment has never been implemented successfully. There has only been one
constitutional convention to date - the original 1787 Constitutional Convention, which produced
the U.S. Constitution.
The rigidity of the US Constitution can be understood by this fact that since 1789, over 10,000
amendments to the US Constitution have been introduced in Congress. Of those, only 33 were
adopted and sent to the states for ratification, and only 27 were ultimately ratified
For amending the constitution in US, state legislatures have a major role to play and its not the
absolute power of the US Congress. Whereas under Indian Constitution States has a role to play
for amending the constitution but not in all matters. And there is complete different picture in
UK, because its does not have the federal structure of government so question of state
ratification comes. Another important aspect, is the role of head of the state in amendment, in
US and India the President is the head of the state and in UK, its the Monarch who is the head of
the state. In US President does not have major role to play in Constitutional amendments except
in voting as the Congressman. Whereas in UK and India, any amendment passed by the

Parliament with due procedure as provided by under their constitution is sent to the President or
the Royal head, as the case may be, for their assent. And the amendment becomes the part of
constitution only after the assent has been given but in US any amendment becomes part of
constitution only after it is ratified by the requisite no. of states.
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ii)

Amending Procedure under Indian Constitution

. The makers of the Indian Constitution were neither in favour of the traditional theory of
Federalism, which entrusts the task of constitutional amendment to a body other than the
Legislature, nor in prescribing a rigid special procedure for such amendments. Similarly, they
never wanted to have an arrangement like the British set-up where the Parliament is supreme and
can do everything that is humanly possible. Adopting the combination of the theory of
fundamental law, which underlies the written Constitution of the United States with the theory
of parliamentary sovereignty as existing in the United Kingdom, the Constitution of India vests
constituent power upon the Parliament subject to the special procedure laid down therein. The
Constitution of India provides for a distinctive amending process as compared to the leading
Constitutions of the world. It may be described as partly flexible and partly rigid.
It is Article 368 of the Indian Constitution which provides the procedure through which
amendment can be brought in Indian Constitution.
Article 368: Power of Parliament to amend the Constitution and Procedure therefor:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent
power amend by way of addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority
of the total membership of that House and by a majority of not less than two-thirds of the
members of that House present and voting, it shall be presented to the President who shall give
his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the
terms of the Bill:
Provided that if such amendment seeks to make any change in:
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the lists in the Seventh Schedule, or
(d) The representation of States in Parliament, or

(e) the provisions of this article, the amendment shall also require to be ratified by the
Legislatures of not less than one-half of the States17 by resolutions to that effect passed by
those Legislatures before the Bill making provision for such amendment is presented to the
President for assent.
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(3) Nothing in article 1318 shall apply to amendment made under this article.
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting
to have been made under this article [whether before or after the commencement of section 55 of
the Constitution (Forty-second Amendment) Act,
1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on
the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.
As per the provisions of Article 368, the Constitution of India provides for three categories of
amendments. Firstly, those that can be effected by Parliament by a simple majority such as that
required for the passing of any ordinary lawthe amendments contemplated in articles 4, 169,
para 7(2) of Schedule V and para 21(2)13 of Schedule VI fall within this category and are
specifically excluded from the purview of article 368 which is the specific provision in the
Constitution dealing with the power and the procedure for the amendment of the Constitution;
Secondly, those amendments that can be effected by Parliament by a prescribed special
majority; and Thirdly, those that require, in addition to such special majority, ratification by at
least one half of the State Legislatures. The last two categories being governed by article 368.
Hence, barring the requirements of special majority, ratification by the State Legislatures in
certain cases, and the mandatory assent by the President, a Bill for amending the Constitution is
dealt with the Parliament following the same legislative process as applicable to an ordinary
piece of legislation. This procedure of amending the constitution is different as well similar some
manners to the US and UK amending procedure. In India also state ratification is required but
not in all matters of amendment as the US Constitution requires. In some matters as specified in
Article 368 Indian Parliament has power to amend the constitution and the same amendment can
admitted as part of constitution after the assent of the President. This Presidents assent is similar
to the UK where the assent of the Royal head is required. Amendment procedure under Indian
Constitution is flexible as compared to US Constitution whereas the amendment procedure of
UK is the most flexible among the three compared nations.

iii)

Amending Procedure under UK Constitution

United Kingdom is not having a codified constitution, although many of the resources of the
constitution are written and documented. It also does not have the federal structure like the US
have. The UK Parliament has the power to change the Constitution by the ordinary process of
Legislation. Under the UK Constitution, the right to make or unmake any law whatever; and,
further that no person or body is recognized by the law of England as having a right to override
or set aside the legislation of Parliament (Dicey 1915, 37-38) The another point of difference
between US, India and UK is that US and India have the elected head of the State the President,
whereas in UK monarch is the royal head of the state. The amending procedure is simple in UK
as compared to the US and India. There is no special procedure provided under the UK
Constitution for amending it and the theory of Parliament Sovereignty is applied in UK.

Conclusion:
In this comparative study we have gone through the different amendment procedures provided
in the respective Countrys constitution. We got to know that even though UK, US and India are
democratic countries but their way of functioning, making laws and amending power are
different in as compared to each other. The Constitution of India is the younger one among all
the three countries. We have even borrowed some features of our constitution from the other
countries after testing their suitability to our country. But there are some many differences
between the amending procedures among the compared countries that the similarities are less
than the fingers. Like in US, there is no separate constituent body for the purpose of amendment
of constitution in India and UK. In UK and India, its the Parliament that can amend the
Constitution. The role of the state in Constitutional amendment is limited in India but in US,
states have major role to play and states in US can even initiate any proposal for amendment of
the Constitution. But in India, states cannot initiate the proposal for amending the Constitution.
Whereas in UK there is no question of states as it does not have the federal structure. In India,
the amendment passed by the Parliament with due procedure as provided under Article 368 can
become part of Constitution only after the assent of the President, whereas in UK its monarch
whose assent is required to complete the procedure of amending the constitution. But in US, the
President does not have such status and no provision of Presidents assent is mentioned in US

Constitution. If we compare all the three constitutions, we will find that it is very difficult to
amend the US Constitution as very easy to amend the UK constitution and India lies somewhere
in between the US and UK, that is to say not so easy to amend and not so difficult to amend.
Article 368 gives Indian Parliament supremacy in some matters to amend the constitution but
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then in some matters it requires ratification by not less than one-half of the states. The notable
point is that both in Indian Constitution and US Constitution no time limit has been for
ratification has been prescribed. In last I would to conclude that the Indian Constitution is more
flexible than rigid. It is only few of amendments of the constitution that requires ratification by
state legislatures and even then legislation by one half states would suffice. The rest of the
Constitution could be amended by a special majority by Indian Parliament. Whereas, the US has
a rigid constitution and it can be amended by the US Congress by means of a special process
provided by the US Constitution for that purpose. UK has the flexible constitution; it requires no
special procedure for its amendment and can be amended by the Parliament in the same manner
as ordinary laws are made.

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References

D D Basu, Select Constitutions of the World, Fourth Edition, LexisNexis

V.N Shuklas Constitution of India, Eleventh Edition, Eastern Book Company
Mark Tushnet, Why the Constitution Matters, Universal Law Publishing Co.
Dag Anckar, Constitutional Law and Colonial Heritage: Amendment Methods in
former British Colonies, International Journal of Politics and Good Governance,
Vol.3, No.31, Quarter I 2012
Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment
outside Article V, Columbia Law Review 1994
Websites Referred
Parliament of India
Supreme Court of India
US Supreme Court
White House
House of Commons