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Article 368: The Amelioration of the Indian Constitution

Amendment of Constitution

  • Amendment of the constitution implies changing certain provisions or updating few external features to meet the requirement of the day.
  • For the Constitution to reflect the reality and necessity of the day, provision of constitutional amendment is necessary.

Requirement of the Constitutional Amendment

  • The necessity for the Amendment of the Constitution can be emphasized as follows:
    1. If there had been no provision of the amendment, the people and the leaders would have adhered to some extra constitutional mean like revolution, violence and so on there by diluting the very constitution per se.
    2. Provisions for amendment of the constitution is made with a view to overcome the difficulties which may encounter in future in the working of the constitution.
    3. It is also necessary in order to fix loop holes at the time of constitution enactment
    4. Ideals, priorities and vision of the people vary greatly generation to generation. In order to incorporate these, amendment is desirable.

Procedures for Amending the Constitution

  • Constitution can be amended by various methods namely, simple majority, special majority, and ratification by at least half the states.
  • Constitutional amendment under article 368 is considered as the core amendment procedure in the Indian constitution, whose procedure can be explained as follows:
     

Power of Parliament to amend the Constitution (Article 368)

  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 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:

    1. Article 54, Article 55, Article 73, Article 162 or Article 241, or
    2. Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
    3. any of the Lists in the Seventh Schedule, or
    4. the representation of States in Parliament, or
    5. the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
       
  3. Nothing in Article 13 shall apply to any 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.

Basic Structure Theory

  • Originally, when the Constitution was framed, the Parliament had the authority to amend any part of the Constitution.
    1. Sankari Prasad Deo v. Union of India
      • The challenge in Sankari Prasad was premised upon the wording of Article 13 of the Constitution, which prohibits the State from making any law in violation of any fundamental right enumerated in Part III
      • It was argued that a Constitutional amendment was “law”, properly called; and so, under Article 13, it was impermissible for the State to amend Part III of the Constitution.
      • The argument was unanimously rejected by a constitution bench of the Supreme Court, which held that the Parliament had the power to amend any provision of the Constitution, without exception.
      • The question came up again fourteen years later in
         
    2. Sajjan Singh v. State of Rajasthan
      • Also before a Constitution bench. Gajendragadkar C.J., speaking for him and two others, upheld Sankari Prasad
      • Mudholkar J. observed that the framers may have intended to give permanency to certain “basic features” such as the three organs of the State, separation of powers etc.
      • He also questioned whether a change in the basic features of the Constitution could be defined as an “amendment” within the meaning of Article 368, or whether it would amount to rewriting the Constitution itself.
      • The position of law was then reversed in
         
    3. I.C. Golak Nathv. State of Punjab
      • An eleven judge bench of the Supreme Court held that the Parliament had no power to amend Part III of the Constitution
      • All provisions dealing with fundamental rights were thus placed beyond the reach of the legislature.
      • In order to overcome Golak Nath, Parliament enacted the Twenty-Fourth Constitutional Amendment.
      • This provided, inter alia, that the prohibition in Article 13 would not apply to an amendment of the Constitution under Article 368. It also substituted the words “amendment by way of addition, variation or repeal” for only “amendment” in Article 368.
      • The Constitutional validity of the Twenty-Fourth Amendment, amongst others, was strongly challenged again in
         
    4. Kesavananda Bharati v. State of Kerala
      • In this case, initially a writ petition was filed for the validity of Kerala Land Reforms Act of 1963. But the Act was subsequently amended and was placed in the IXth Schedule
      • Later on Court was permitted to challenge the 25th and 29th Amendment of the Constitution.
      • The Petition was heard before the thirteen Judges of the Supreme Court.
      • The Court held that the Parliament’s amending power was plenary, and extended to every provision of the Constitution.
      • The Parliament could not damage or destroy the basic structure of the Constitution. In order to determine the basic structure of the Constitution, recourse was taken to the preamble, the Constitutional “scheme”, the struggle for independence from colonial rule, and the drafting history of the Constitution.
      • Chief Justice Sikri, in his majority opinion, provided five such “basic features” present in the Constitution viz:
        1. supremacy of the Constitution,
        2. republican and democratic form of government,
        3. secular character of the Constitution,
        4. separation of powers between the executive, legislature and judiciary, and
        5. federal character of the Constitution. Similar lists were prepared by the other majority judges.
      • The basic structure doctrine was crystallized in three further decisions of the decade.
         
    5. Indira Nehru Gandhi v. Raj Narain, a Constitutional amendment dealing with the election of the Prime Minister and the Speaker was struck down for violating the basic features of democracy, the rule of law and equality.
       
    6. Minerva Mills v. Union of India
      • The Parliament attempted to overturn Kesavananda by inserting the 42ndAmendment, which expressly stated that the amending power was unlimited, and not open to judicial review.
      • The amendment was struck down by the Court on the ground that the limited amending power of the Parliament was itself part of the basic structure.
         
    7. Waman Rao v. Union of India
      It was held that laws placed in the 9th Schedule, and thus beyond the pale of fundamental rights review, would nevertheless have to be tested on the touchstone of the basic structure before they were given immunity.
Conclusion
The Supreme Court recognized Basic Structure dogma for the first time in the historic Kesavananda Bharati case.

Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by parliament.

The Supreme Court declared that the amending powers under Article368 did not intend to damage, emasculate, destroy, abrogate, chang' or alter the basic structur' or framework of the constitution.

This decision is not just a landmark in the evolution of constitutional law, but indeed a turning point in the Constitutional history.

Therefore, by going through all these case laws in the past, Judiciary is the sole protector of Basic structure.

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