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Article 368 : crux of The Indian constitution

India as a country has undergone a great many changes since it attained independence. The framers of the Constitution considered the fact that every society changes with the changing times while framing the Constitution. This is why Article 368 was incorporated under the Constitution. If no provisions were made for the amendment of the Constitution, the people would have recourse to extra-constitutional methods like a revolution to change the Constitution. This Article is made to overcome the difficulties which may encounter in the future in the working of the Constitution.

The Indian Constitution is written and it is both rigid as well as flexible unlike the Constitution of the US or Switzerland which is fully rigid. These features make it possible to gradually change the Constitution in an orderly fashion as the changes in the social conditions make it necessary to change the fundamental law.

Types of Constitutional Amendments

For amendment, the various Articles of the Constitution are divided into three categories:
1. Amendment by simple majority: The amendments contemplated in Article 5, 169, and 239-A, can be made by the simple majority just like any other ordinary law.
2. Amendment by Special majority: All constitutional amendments, other than those referred to above, come within this category and must be effected by a majority of the total membership of each house of the parliament as well as by a majority of not less than 2/3 of the members of that house present and voting.
3. Amendment by special majority and Ratification by states: Such ratification must be done by not less than half of the total number of state legislatures.
The following provisions require such ratification by the states:

  • Election of President: Articles 54 and 55.
  • Extent of executive powers of the Union and States: Articles 73,162, 241,279-A.
  • Articles dealing with judiciary, Supreme Court, High Court in the states and Union territories: Articles 124 to 147, 214 to 231, 241.
  • Distribution of Legislative powers between the center and the states: Article 245 to 255.
  • Goods and Services Tax Council: Article 279-A.
  • Any of the lists of the VII schedule.
  • Representation of States in Parliament IV schedule.
  • Article 368 itself.

The procedure of amendment given under Article 368:

A bill to amend the Constitution may be introduced in either house of the parliament. It must be passed by 2/3 majority of the members present and voting in each house of the parliament. When the bill is passed by both the houses, it shall be presented to the President for his/her assent who shall give assent to the bill and thereupon the Constitution shall stand amended.
A bill that seeks to amend the provisions mentioned in Article 368, however, requires in addition to the special majority mentioned above, the ratification by 1/2 of the states. This is because the mentioned provisions deal with the federal principle of the state.

Amendment of Fundamental rights:

The question of whether fundamental rights can be amended under Article 368 came for consideration before the Supreme Court in Shankari Prasad v. Union of India.
The Supreme Court, in this case, held that the power to amend the Constitution including the fundamental rights as contained in Article 368 and that the word ‘law’ in Article 13(8) includes only an ordinary law made in exercise of the Legislative powers and does not include constitutional amendments. Therefore a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.
Later in Sajjan Singh v. the State of Rajasthan, the Supreme Court held that the words “Amendment of the Constitution” means an amendment of all the provisions of the Constitution.
A different view was taken by the Supreme Court in Golak Nath v. the State of Punjab: The Supreme Court, in this case, overruled its earlier decisions in Shankari Prasad and Sajjan Singh’s cases and held that Parliament had no power from the date of this decision to amend Part III of the Constitution to take away or abridge the fundamental rights. It was also laid down in this judgment that:

  • The power of Parliament to amend the Constitution is derived from Article 245 and Article 368 merely lays down the procedure for amendment of the Constitution.
  • An amendment is a ‘law’ within the meaning of Article 13(2) and therefore if it violates any of the fundamental rights it may be declared void.
  • This decision will have a prospective effect and all decisions made before Golak Nath’s case will be valid.

Constitution (24th amendment) Act, 1971: Just after the judgment in the Golak Nath case was passed, the Constitution was amended to rectify the implication of the court’s judgment.
The 24th amendment not only restored the amending power of the Parliament but also extended its scope by adding the words “To amend by way of the addition or variation or repeal any provision of this Constitution following the procedure laid down in this Article”.

Theory of basic structure:
The validity of the Constitution (24th amendment) Act, 1971 was challenged in Keshvananda Bharati v. the State of Kerala, popularly known as the Fundamental rights case. The question involved was as to what was the extent of the amending power conferred by Article 368 of the Constitution?
On behalf of the Union of India, it was claimed that amending power was unlimited, and short of repeal of the Constitution any change could be effected. On the other hand, the petitioner contended that the amending power was wide but not unlimited. Under Article 368, the parliament cannot destroy the basic structure of the Constitution. A Special Bench of 13 judges was constituted to hear the case.
The court by majority overruled Golak Nath’s case and held that under Article 368, the fundamental rights can be amended by the parliament, but it is not empowered to amend the basic structure or framework of the Constitution.

The’ basic structure’ meaning:
Although the judges enumerated certain essentials of the basic structure of the Constitution, they also made it clear that they were only illustrative and not exhaustive. They will be determined based on facts and circumstances in each case. The theory of basic structure is based on the concept of constitutional identity and continuity.
In Keshvananda Bharati, the judges enumerated certain essentials of basic structure as follows:

  1. Supremacy of the Constitution.
  2. Republican and democratic forms of government.
  3. Secular character of the Constitution.
  4. Separation of powers between the Legislature, Executive, and Judiciary.
  5. Federal character of the Constitution.
  6. Sovereignty of the Country.
  7. Dignity of individuals secured by various freedoms and basic rights in Part III
  8. Mandate to build the welfare state contained in Part V.
  9. Unity and Integrity of the Nation.

Thus it was made clear that as a result of the amendment, the old Constitution cannot be destroyed and done away with, it is retained though in the amended form.
In various other upcoming cases, the scope of the ‘basic structure’ of the Constitution has been increased. A few landmark judgments in this respect are:
Indira Nehru Gandhi v. Raj Narayan: The decision in this case added the following concepts to the basic structure:

  • Rule of law
  • Judicial Review
  • Democracy which implies free and fair election.

Minerva Mills Ltd v. Union of India: A few more principles were added to the basic structure:

  • limited power of parliament to amend Constitution.
  • harmony and balance between fundamental rights and directive principles of state policy
  • fundamental rights in certain cases
  • power of judicial review in certain cases.

42nd Amendment:

This amendment added two new clauses, namely clauses 4 and 5 to Article 368 of the Constitution. Article 368(5) made it clear that even the basic structure of the Constitution could be amended.

Later in Minerva Mills v. Union of India, the Supreme Court struck down clauses (4) and (5) of Article 368 on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. This judgment makes it clear that the Constitution, not the Parliament is supreme in India. The court however held that the doctrine of basic structure is to be applied only in judging the validity of amendments to the Constitution and it does not apply for judging the validity of ordinary laws made by legislatures.

The Parliament even though is one of the 3 essential elements of the state, cannot have unlimited amending power to damage or destroy the Constitution to which it owes its existence and also derives its power. Thus we can conclude on the note that Constitution is the supreme and most essential document as it is because of which India derives her sovereignty and therefore to uphold the sovereignty and integrity of India, the Constitution must be protected and preserved.

Author:

Spoorthi Krishna L