Article 368: The Amendment Of The Indian Constitution
A constitution is a document with specific legal sanctity that establishes the
framework and primary functions of a state's organs of government (the
Executive, the Legislature, and the Judiciary) and defines the principles
regulating the activities of those organs.
The constitution is acknowledged as
the mother of all laws in India. While teaching criminal law, one of my
professors stated that if an advocate cannot find a remedy to an unfamiliar
problem under the IPC, CrPC, or any other procedural laws, he or she must resort
to the Indian Constitution!
That is how significant, vast, and comprehensive our
constitution is. So, can such a supreme law of the land be amended? The answer
is absolutely yes, but with some restrictions. The basic structure is an aspect
of the constitution that cannot be changed. In the upcoming sections, we will go
through the basic structure doctrine in detail.
The Rationale Behind Article 368:
The constitution's framers avoided making it overly restrictive because too much
rigidity and the inability to change a constitution might stifle a state's
growth and progress. For the welfare of society as a whole, changing times
necessitate changing laws, and a newer society necessitates newer laws. However,
the founders were also aware of the potential repercussions of making the
Constitution overly adaptable to change. The government will alter it anytime it
wishes, according to their whims and fancies. As a result, both extremes were
avoided, and a middle ground was chosen.
Types of Amendment:
It is now clear that the Constitution's provisions can be changed. However, the
question of what articles are amendable and how they are amendable may arise.
Article 368, clause 2 specifies two categories of articles that can be modified
using proposed methods. They are:
- Amendment by special majority; and
- Amendment by special majority and its ratification by states.
NOTE: Certain provisions of the Constitution can be modified by parliament with
a simple majority vote. Simple majority approval is required for the amendment
process envisioned under Article 4 (changes to 1st and 4th schedules that deals
with names of Indian states and number of Rajya Sabha seats respectively),
Article 169 (Abolition or Creation of legislative councils in Indian states),
and 239-A (Creation of local Legislatures or Council of Ministers or both for
certain Union territories). These articles are expressly excluded from the scope
of the process outlined in Article 368.
- Amendment by special majority:
This category includes all constitutional amendments other than those indicated
above and those listed in the next category. A special majority is described as
a majority of the entire membership of each house of parliament, as well as a
majority of not less than two-thirds of the members present and voting in that
- Amendment by special majority and its ratification by states:
Articles requiring a special majority as well as ratification by at least half
of the state legislatures fall into this category, according to article 368. The
following provisions require ratification by states:
- Articles 54 and 55, which deal with the presidential election.
- Articles 73, 162, 241, or 279A, which deal with the union's and states' executive powers.
- Articles 245 to 255, which establishes the balance of legislative authority between the federal government and the states.
- Articles dealing with the judiciary, including the Supreme Court, state high courts, and UTs.
- Amendments to the Seventh Schedule Lists. (Union, States, and Concurrent lists)
- A change in the representation of states in the parliament.
- Article 368 itself
Therefore, it is evident that the majority of the articles of the Constitution
may be amended through the usual legislative procedure. Only a few provisions
dealing with the federal idea need a special majority and states ratification.
A Chain Of Constitutional Law Cases That Led to The Emergence Of The Basic
As stated at the outset, certain basic features of the Constitution cannot be
changed. Those core provisions, if altered, may change the very essence of the
purpose of the Constitution. Article 368(3) specifies that nothing in Article 13
applies to any alteration made in conformity with this article. This means,
Article 13 does not fall under the purview of Article 368. Article 13 stipulates
that laws that are inconsistent with fundamental rights are null and invalid.
In Shankari Prasad v. Union of India
[i], the subject of whether basic rights can
be altered under Article 368 was challenged for the first time. The Supreme
Court ruled that the ability to amend the constitution under Article 368
encompassed the power to amend fundamental rights as well, and that a
constitutional amendment is legitimate even if it violates fundamental rights.
A similar judicial argument was raised in a subsequent judgement in Sajjan Singh
v. State of Rajasthan
[ii]. In this case, the validity of the 17th constitutional
amendment (1964) was challenged. The Supreme Court had once again upheld the
decision given in Shankari Prasad's case.
Golak Nath v. State Of Punjab
[iii] is the cornerstone decision for the formation
of the Basic structure doctrine. The constitutionality of the 1964 Amendment was
once again called into question.
What's the deal with the 17th Amendment to the Constitution? Through this
amendment, certain state statutes were incorporated into the 9th schedule. Why
is the 9th schedule so peculiar and powerful? The ninth schedule was inserted
into the Indian constitution via the first constitutional amendment in 1951,
with the primary goal of abolishing the Zamindari system.
The superpower of this
schedule is that any provision (even if it breaches fundamental rights) inserted
within it is immune from judicial scrutiny. As a result, the parliament is
afforded unrestricted authority to shield any arbitrarily enacted legislation
under the canopy of the 9th schedule, which is exactly what happened.
As a consequence, it was put to the test. The Supreme Court, by a 6:5 majority,
prospectively overruled the Shankari Prasad and Sajjan Singh cases ruling,
holding that parliament had no competence to change Part 3 of the Constitution
and to take away fundamental rights since the date of this judgement.
Despite the fact that this decision elevated the stature of the judiciary to a
higher tier, the choice of 'prospective' overruling was a setback.
The parliament was obviously unhappy with the verdict and enacted the
Constitution (24th Amendment) Act in 1971. This legislation amended Article 13
and restored and expanded the parliamentary power to amend the Constitution.
The legality of this act was challenged in the case of Keshvananda Bharati v.
State of Kerala
[iv]. During the pendency of the case, the petitioner's
challenged Kerala Land Act was moved to the 9th schedule by the 29th CAA. The
argument was what was the extent of the amending power provided by article 368?
To hear the case, an exceptional and the largest bench of 13 judges was formed!
The court reversed Golaknath's verdict by a majority, ruling that the 24th
constitutional amendment was declarative in character and lawful. Having said
that, the Supreme Court also opined that, under Article 368, the legislature's
power to amend the Constitution is wide but not unlimited and is not permitted
to change the basic framework of the Constitution.
What Comes Under The Purview Of The Basic Framework?
As a result, the mighty Keshvananda Bharati case gave rise to the notion of
basic structure doctrine and specified which provisions fall under its
jurisdiction. Similarly, when this theory was applied to subsequent judgements,
further provisions were added to the list. Let's understand them in sequence.
Through Keshvananda Bharati verdict:
Through the Indira Nehru Gandhi's case:
- Supremacy of the Constitution
- Republican and democratic forms of government
- Federal character of the constitution
- Separation of powers between the legislature, the executive, and the judiciary
- Dignity of the individual secured by various freedoms and fundamental rights
- Parliamentary democracy
- National unity
In the famous Indira Nehru Gandhi v. Raj Narain[v] case, the Supreme Court
struck down clause 4 of Article 329A, which was added by the 39th Constitutional
Amendment Act in 1975. This was accomplished through the use of the basic
structure doctrine. During the verdict process, the following features were
added to the already existing list of basic framework.
Through the Minerva Mills case:
- Judicial review,
- Democracy (free and fair elections),
- Rule of law, and
- Supreme Court jurisdiction under Article 32.
In Minerva Mills Ltd v. Union of India
[vi], the Supreme Court knocked
down section 55 of the 42nd CAA, which had inserted clauses 4 and 5 to article
368 on the grounds that they violated the basic framework, and added the
Through the Ninth Schedule case:
- Independence of judiciary,
- Parliament's limited power to amend the Constitution,
- Harmony and balance between fundamental rights and DPSP's.
In I.R. Coelho v. State of Tamil Nadu
[vii], popularly known as the 9th
Schedule case, the Supreme Court unanimously held that any statute that damages
the basic structure, even if it is incorporated in the 9th Schedule, is open to
A quick and brief flowchart.
The Indian constitution has been changed 105 times till date, proving the
continued and consistent execution of Article 368. As said in the beginning,
changing times necessitate changing laws. The Indian court has proven its worth
by standing firm against any piece of legislation that breached a basic tenet of
the constitution. Our constitution's defining quality, as opined by Dr. B.R.
Ambedkar, is its flexibility, which is amazingly accurate!
- [i] AIR 1973 SC 1461
- [ii] AIR 1965 SC 845
- [iii] AIR 1967 SC 1643
- [iv] AIR 1973 SC 1461
- [v] AIR 1975 SC 2299
- [vi] AIR 1980 SC 1789
- [vii] AIR 2007 SC 861