Author: Ayushi Verma

Edited by: Sulesh Choudhary

INTRODUCTION

“Constitution is not a mere lawyers’ document, it is a vehicle of Life, and its spirit is always the spirit of Age.”           –  Dr BR Ambedkar

A Constitution is a fundamental and a living document. It lays down the framework of organs of Government of a state. “The Constitution of India was adopted on 26^th November 1949 and came into force on 26^th January 1950”[1]. As nothing is static but dynamic, everything needs reform. The same is the case with the laws of the country. Laws are made for the well-being of society. With the changing needs of society, the Constitution of India must also adapt to these changes. This can be achieved by a procedure known as amendment of the Constitution. It is given under Article 368[2] of the Constitution of India. This provision is borrowed from South Africa. The Indian Constitution is a combination of both flexibility and rigidity. This means that there are different procedures of amendment for different provisions. Some provisions are amended by simple majority and others by special majority. The present article aims to elaborate on the provision, procedure, and relevant case laws regarding the amendment of the Constitution of India.

Keywords: Article 368, Constitution of India, Amendment, Basic Structure

MEANING

Amendment of the Constitution is a process of making alterations or variations to the Constitution. “This includes addition, substitution, variation, and repeal/omission.” This is also known as the Constitutional Amendment.

PROVISION: AMENDMENT OF THE CONSTITUTION OF INDIA

Article 368 under Part XX of the Constitution deals with the power of Parliament to amend the Constitution and its Procedure. It states that:

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, article 241 or article 279A 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 States by resolutions 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[i] on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”[3]

METHODS:

There are three modes of amendment provided by the Constitution itself: –

1. By simple majority
2. By special majority
3. By special majority in both Houses of Parliament including ratification by State Legislatures.

Article 368 only talks about the two modes which are: Amendment by special majority and amendment by special majority including ratification by the states.

Amendment by simple majority:

This method of amendment is used to alter ordinary laws. This includes a simple majority vote of present members and voting. These types of amendments do not fall under the purview of Article 368. Some of the examples where this mode of the amendment is used are; the admission or establishment of new states (Article 2), the Formation of new states and alteration of areas, boundaries, or names of existing states (Article 3), Abolition or creation of legislative councils of states (Article 169), etc.

Amendment by special majority:

The type of amendment by special majority is used where the provisions cannot be amended by simple majority. According to Article 368(2), following is the procedure:

• Firstly, the bill for the purpose of amendment shall be presented in either of the houses of Parliament.
• Secondly, the bill shall be passed by either house by a majority of total members and which shall not be less than two-thirds majority of the members present and voting.
• Thirdly, after the bill is passed by either house, the bill shall be sent to the President for its assent.

Therefore, the Constitution stands amended.

Amendment by special majority including ratification by states:

According to the proviso to clause 2 of Article 368, in the following cases that is:

• Election of the President (Articles 54 and 55)
• The extent of executive power of the union and the state (Articles 73 and 162)
• Constitution, powers, and jurisdiction of the Supreme Court (Chapter 4 of Part 5)
• Constitution, powers, and jurisdiction of the High Courts (Chapter 5 of Part 6)
• High Courts in Union Territories (Article 241)
• Legislative Relations between Union and States (Chapter of Part 9)
• Goods and Services Tax Council (Article 279A)
• Any of the Lists in the Seventh Schedule
• The representation of States in Parliament
• The provisions of Article 368 itself.

Amendment is done by a special majority of parliament including ratification by half of the state legislatures. This type of amendment is used when there is a need to alter the federal structure of the states.  

Procedure:

1. Firstly, an amendment bill shall be introduced in either house of the Parliament.
2. Secondly, such a bill shall be passed in each house of the parliament by a special majority. It requires the majority of the total members which shall not be less than two-thirds of the members present and voting.
3. Thirdly, the bill must be sent to the state legislatures for ratification after it is passed by either house of the Parliament.
4. Fourthly, a bill must be ratified by at least half of the state legislatures. This means by a simple majority which means the majority of members present and voting.
5. Lastly, the bill must be sent to the President for his assent.

After the assent is received the Constitution stands amended.  

Amendment of Fundamental Rights

Following are the important constitutional amendments and judicial precedents that provide the scope of power of the Parliament under Article 368 to amend Fundamental Rights.

1. Shankari Prasad v. Union of India[4]

This was the first case where the amending power of Parliament came into question. In this case, the 1^st Constitutional Amendment, of 1951 was challenged.

• 1^st Constitutional Amendment, 1951

This amendment inserted the new grounds in clause (2) of Article 19, 31A, 31B, and Ninth Schedule to the Constitution.

• Issue: – Whether the term law under Article 13 includes the amendment of the Constitution under Article 368.
• Held: – The Court upheld the validity of the 1^st Amendment and held that the term ‘law’ under Article 13 does not include an amendment to the Constitution. Therefore, Parliament can amend any provision of the Constitution including Fundamental Rights under Article 368.

2. Sajjan Singh v. State of Rajasthan [5]

In this case the constitutional validity of the 17^th Amendment, 1964 was challenged.

• 17^th Constitutional Amendment, 1964

This amendment modified Article 31A and the Ninth Schedule.

• Held: – The Court reaffirmed its decision given in Shankari Prasad v. Union of India

3. Golak Nath v. State of Punjab [6]

In this case, the 1^st, 4^th, and 17^th Constitutional amendments were challenged.

• 4^th Constitutional Amendment, 1955

This Amendment made an alteration to Article 31(2) of the Constitution and made the question of “adequacy” of compensation non-justiciable.

• Held: – The Supreme Court overruled its decisions given in the case of Shankari Prasad v. Union of India[7]and Sajjan Singh v. State of Rajasthan[8]. Further, it held that Parliament cannot amend the Fundamental rights. The term law under Article 13 is the amendment made under Article 368. Therefore, if an amendment took away Fundamental Rights, the amendment would be declared void.
• 24^th Amendment, 1971

   This amendment act added:

• clause 4 to Article 13 of the Constitution which states that “Nothing in this Article shall apply to any amendment of this Constitution made under Article 368.”[9]
• Heading of the Article 368 was changed from ‘Procedure for amendment of the Constitution’ to ‘Power of Parliament to amend the Constitution and procedure therefor.[10]’
• New clause 1 to Article 368
• After this amendment, it became binding on the President to give his assent to the bill passed by the parliament
• Clause 3 to Article 368.

4. Keshvananda Bharati v. State of Kerala[11]

In this case, the constitutional validity of the 24^th Amendment, of 1971 was challenged

• Held: – The Supreme Court upheld the constitutional validity of the 24^th Amendment and laid down that under Article 368, the parliament has the power to amend the Constitution including fundamental rights subjected to restrictions. The Supreme Court laid down the basic structure doctrine and emphasized that parliament under its exercise of power given under Article 368 cannot amend the basic structure of the Constitution.
• 42^nd Constitutional Amendment, 1976

This amendment inserted clauses 4 and 5 into the Article 368.

And also, it amended Article 31C

5. Indira Nehru Gandhi v. Raj Narain[12]

In this case, elaborated the meaning of the expression “basic structure” of the Constitution and declared the following features as part of the basic structure:

• Judicial Review
• Free and fair elections
• Rule of law
• Right to equality

6. Minerva Mills Ltd. Union of India[13]

In this case, the Court held the provisions of clauses 4 and 5 of Article 368 which were inserted by the 42^nd Amendment Act, 1976 as unconstitutional, as these violated the basic structure doctrine of the Constitution.

BASIC STRUCTURE DOCTRINE

The basic structure doctrine was laid down by the Supreme Court in the Case of Kesavananda Bharati v. State of Kerala[14]. This basic structure doctrine is a restriction on the amending power of the Parliament under Article 368. This states that under Article 368, Parliament has the power to amend the Constitution including fundamental rights which do not constitute part of the Basic Structure of the Constitution. The Court laid down a list of the features included in the basic structure. This list is not exhaustive. With the evolution of time, many other features have been added. Some of the features are Supremacy of the Constitution, Judicial review, Separation of Power, Rule of law, Right to equality, etc.

CONCLUSION

It is important to get reforms in accordance with the changing needs of the society. The law must also be reformed. The Constitution of India, from which all laws originate provides for the amendment too whenever it is necessary. The Constituent Power of the Parliament for Amendment of the Constitution given under Article 368 is not absolute. After analyzing the judicial precedents in this regard, it can be concluded that Parliament can amend any part of the Constitution without violating the basic structure of the Constitution. This basic structure doctrine acts as a limitation and check on the power of the Parliament.

REFERENCES

Books / Commentaries / Journals Referred

• Kumar, N. (2015). Constitutional Law of India.
• Pandey, J. N. (1992). Constitutional Law of India.

Cases Referred

• Shankari Prasad v. Union of India (AIR 1951 SC 458)
• Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)
• Golak Nath v. State of Punjab (AIR 1967 SC 1643)
• Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461)
• Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)
• Minerva Mills Ltd. Union of India (AIR 1980 SC 1789)

Statutes Referred

• Constitution of India. 1950 https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/2024/07/20240716890312078.pdf

ENDNOTES:

[1] Contributors to Wikimedia projects. (2024, July 24). Constitution of India. Wikipedia. https://en.wikipedia.org/wiki/Constitution_of_India

[2] Constitution of India, Article 368 (1950).

[3] Constitution of India, Article 368 (1950). https://indiankanoon.org/doc/594125/

[4] AIR 1951 SC 458.

[5] AIR 1965 SC 845

[6] AIR 1967 SC 1643

[7] AIR 1951 SC 458

[8] AIR 1965 SC 845

[9] Constitution of India, Article 13 (1950).

[10] Constitution of India, Article 368 (1950).

[11] AIR 1973 SC 1461

[12] AIR 1975 SC 2299

[13] AIR 1980 SC 1789

[14] AIR 1973 SC 1461