The two-thirds threshold as a political tool

Weaponising the amendment rule under Article 368 to stage the bill’s failure defeats the constitutional spirit

What is a constitutional safeguard for? The question sounds abstract. It became sharp on April 17, when the Lok Sabha rejected the 131st Constitutional Amendment Bill by a margin its architects had counted in advance. Article 368’s two-thirds rule was designed to compel consensus. The government’s intention, however, was to stage its failure.

Two-thirds was a considered choice. When the Constituent Assembly took up what was then Draft Article 304 on September 17, 1949, several alternatives were available. Brajeshwar Prasad wanted the threshold deleted; it would, he feared, “act as a brake to any progressive legislation”. P S Deshmukh wanted a lower bar initially. Jawaharlal Nehru tabled an amendment to ease procedure. When the article came up, he declined to press it, evidently content to let the Drafting Committee’s architecture stand. Naziruddin Ahmad argued the opposite: a young Constitution needed strictness.

B R Ambedkar’s reply on September 17, 1949, set out the architecture that became Article 368. He divided the Constitution’s provisions into “three categories”. A simple majority could amend some of them. Most required two-thirds. A smaller set, touching federal matters, also required ratification by half the states. He answered the charge of rigidity by looking abroad. Canada had no formal amendment procedure at all. The United States demanded two-thirds of both Houses plus three-fourths of the states. Australia required a national referendum. By those standards, Ambedkar argued, the Indian procedure was flexible. Two-thirds was the price of disciplined change.

One assumption ran through the defence. Ambedkar took it for granted that those invoking the amending power would do so in earnest. The Assembly did not design it for a government tabling an amendment expecting to lose. The rule presupposed legislative seriousness. Madhav Khosla, in India’s Founding Moment (2020), has argued that the Indian Constitution was designed not merely to govern but to educate. It was meant to shape a political culture in which constitutional procedures would be invoked in good faith. Two-thirds was part of that design.

That assumption was tested within 16 months. The Constitution (First Amendment) Act, 1951, was moved by Nehru on May 10 and enacted on June 18. It restricted free speech, created Articles 31A and 31B to shield land-reform legislation, and inserted the Ninth Schedule. Nehru wrote to West Bengal Chief Minister Bidhan Chandra Roy during the passage. “Till the last moment,” he conceded, he could not be sure of the two-thirds. Nehru’s uncertainty is itself revealing. A government anxious about the threshold is a government trying to clear it.

An engineered defeat

The rule has, on balance, done its work. Every one of the 106 numbered amendments cleared Article 368’s two-thirds bar; a smaller subset, touching federal provisions, additionally required ratification by half the states. A narrow set of provisions – Scheduled Areas, new state admissions, citizenship – lies outside Article 368 altogether and can be changed by a simple majority. Sudhir Krishnaswamy, in his 2009 study of the basic structure doctrine, observed that the doctrine had not made the Constitution rigid. In his count, it had cleared nearly 70 amendments by then, and the number has since grown. The doctrine has only made the amendments serious.

Where the rule has failed, the failure has been of politics, not procedure. The First Amendment was passed by a unicameral Provisional Parliament, not the bicameral body Article 368 assumed. The 39th Amendment of 1975 was passed during the Emergency to shield the Prime Minister’s election from judicial review, and was later struck down. The 42nd Amendment was enacted during a suspension of opposition politics.

The 131st is different in kind. Earlier Constitutional Amendment Bills have failed in other ways – by Rajya Sabha defeat after Lok Sabha passage, or by lapse on dissolution. The 131st was brought to a Lok Sabha vote on arithmetic that the government knew in advance would fail it.

A two-thirds bar is an instrument of federal bargaining. It forces a government to negotiate with states, regional parties, and minority opinion, because two-thirds cannot be reached without them. The GST Amendment of 2016 was redrafted repeatedly across two years, absorbing state concerns on compensation and on Council voting weights. The 106th Amendment of 2023 was framed to attract opposition concurrence. The 131st was not. The Bill went to the floor in the form which the Cabinet had approved.

The Bill failed, as the rule required. What it threatens is the rule’s standing as a serious constitutional instrument. When a government tables an amendment it knows cannot pass, the test the rule was meant to impose never runs. Where the assumption that those invoking the two-thirds would do so in earnest holds, the rule works. Where it erodes, the rule survives on paper but loses its purpose.

Critics will object, rightly, that this is a counsel without a remedy. No court can inquire into the motive behind an amendment. No Speaker can refuse to list a Bill because the arithmetic is unfavourable. No procedural reform will cure the use of Article 368 as signalling. The corrective must come from how the event is read by the House, the press, and the electorate. Like many parliamentary conventions, the rule’s strength lies in observance by those it binds. David Landau’s 2013 essay, ‘Abusive Constitutionalism’, described elected governments using amendment procedures against their purpose. The 131st is a quiet variant. What is abused is not the amendment but its engineered defeat, recast as opposition obstruction. It was, in fact, the rule doing its work.

The 131st is a reminder that a constitutional safeguard is only as strong as the willingness of its custodians to invoke it in good faith.

(The writer is a senior journalist based in the National Capital Region)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.