Article 368 of the Indian Constitution outlines the procedure for amending the Constitution, enabling adaptability to changing societal needs while preserving its foundational principles.

MEANING AND EXPLANATION OF ARTICLE 368

Article 368 grants Parliament the authority to amend the Constitution by adding, varying, or repealing any provision, following a specific procedure distinct from ordinary legislative processes. This ensures that amendments undergo thorough deliberation, reflecting the collective will of the people and their representatives

HISTORICAL BACKGROUND AND EVOLUTION

The framers of the Constitution recognized the need for a balance between rigidity and flexibility. Initially, the Constitution allowed amendments through a simple majority. However, experiences over time highlighted the necessity for a more structured process to safeguard essential features. This led to the incorporation of Article 368, establishing a comprehensive amendment procedure.

TYPES OF AMENDMENTS UNDER ARTICLE 368

Article 368 provides for two types of amendments:

• Amendments by Simple Majority: Certain provisions can be amended by a simple majority in Parliament. These are not considered amendments under Article 368.

• Amendments by Special Majority: Most constitutional amendments require a special majority, i.e., a majority of the total membership of each House and a two-thirds majority of members present and voting. Some amendments also require ratification by at least half of the state legislatures

PROCEDURE FOR AMENDMENT

The amendment process involves several steps:

1. Initiation: An amendment can be proposed by introducing a Bill in either House of Parliament. State legislatures cannot initiate amendments

2. Passage in Parliament: The Bill must be passed in each House by the required special majority. There is no provision for a joint sitting in case of disagreement between the Houses

3. State Ratification: For amendments affecting federal provisions, ratification by at least half of the state legislatures is necessary. This ensures federal balance and reflects the consent of the states

4. Presidential Assent: After parliamentary approval and, if required, state ratification, the Bill is presented to the President for assent. The President is obligated to give assent, after which the amendment becomes part of the Constitution

DOCTRINE OF BASIC STRUCTURE

The Supreme Court, in the landmark case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, introduced the Basic Structure Doctrine, asserting that while Parliament has wide powers to amend the Constitution, it cannot alter its basic structure. This doctrine ensures that fundamental aspects like the supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, and federalism remain inviolable

KEY CASE LAWS AND THEIR SIGNIFICANCE

1. Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458: The Supreme Court upheld the validity of the First Amendment, stating that Parliament’s power to amend the Constitution under Article 368 includes the ability to amend Fundamental Rights.

2. Sajjan Singh v. State of Rajasthan, 1965 AIR 845: The Court reaffirmed that constitutional amendments made under Article 368 are not “law” under Article 13 and thus cannot be challenged for violating Fundamental Rights.

3. Golak Nath v. State of Punjab, AIR 1967 SC 1643: The Supreme Court held that Parliament could not amend Fundamental Rights, viewing such amendments as “law” under Article 13(2). This decision was later overturned by the 24th Amendment.

4. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461: This landmark judgment established the Basic Structure Doctrine, limiting Parliament’s power to amend the Constitution by protecting its essential features.

5. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789: The Court reaffirmed the Basic Structure Doctrine, striking down clauses that sought to exclude judicial review of constitutional amendments, thereby preserving the balance between Fundamental Rights and Directive Principles.

PRINCIPLES AND DOCTRINES RELATED TO ARTICLE 368

• Doctrine of Basic Structure: Asserts that certain fundamental features of the Constitution cannot be altered by amendments.

• Doctrine of Implied Limitations: Suggests that there are inherent limitations on Parliament’s power to amend the Constitution, even if not explicitly stated.

LEGAL MAXIMS RELEVANT TO CONSTITUTIONAL AMENDMENTS

• “Salus populi suprema lex esto”: The welfare of the people shall be the supreme law. This maxim underscores the purpose behind allowing constitutional amendments—to serve the public good by adapting to changing needs.

• “Lex iniusta non est lex”: An unjust law is no law at all. This principle emphasizes that amendments should not result in unjust laws that violate the Constitution’s core principles.