Authored By – S.VICTORIYA, Government Law College, Vellore, Tamil Nadu / Tamil Nadu Dr. Ambedkar Law University, Chennai, Tamil Nadu
A) Introduction
India, a country with numerous salient features, is recognized as the world’s youngest nation, the largest democratic republic, and the holder of the longest written constitution. The Indian Constitution, being the supreme law and the mother of all statutes, laws, and regulations, requires periodic updates to align with the evolving social landscape of the country.
To ensure this adaptability, the Indian Constitution grants Parliament the power to amend its provisions through Article 368. This article critically analyzes the Scope and Ambit of Amendment Powers Under Article 368, referencing landmark judgments.
Keywords: Article 368, Power of Parliament, Updating Nature of the Indian Constitution, Doctrine of Basic Structure, Non-absolute Power.
B) Scope of Amendment Powers
Since its adoption, the Indian Constitution has undergone numerous amendments, reflecting the changing political, social, and digital dynamics of the nation. Some amendments are particularly notable, such as:
- The 42nd Amendment, 1976 (often referred to as the “Mini Constitution”).
- The 73rd and 74th Amendments, which serve as the cornerstone of India’s local governance system.
The Constitution encompasses provisions for the welfare of the nation, including the powers and procedures for amending its provisions.
Article 368: Power to Amend the Constitution
“The Parliament has the power to amend the Constitution in the form of addition, alteration, and repeal of any article.”
1. Types of Amendments
Amendments are classified based on their subject matter into three categories:
- Procedural Amendments – Changes related to the governance process and procedures.
- Substantive Amendments – Alterations affecting substantive aspects of the Constitution, such as fundamental rights.
- Conceptual Amendments – Amendments reflecting social changes over time.
Additionally, amendments are classified based on the majority vote required:
- Simple Majority Amendments – Require a simple majority (50% + 1) in both houses (Article 368).
- Special Amendments – Require a two-thirds (66.67%) or three-fifths (60%) majority (Article 155).
- Supermajority Amendments – Amendments affecting judicial powers and the federal system require a three-quarters (75%) or four-fifths (80%) majority in both houses (Article 368).
2. Key Features of Amendment Powers
- The Indian Parliament has sovereign power to amend the Constitution.
- The Indian Constitution allows amendments in response to social changes.
- Parliament cannot amend certain provisions, such as fundamental rights.
- The Indian Judiciary plays a crucial role through the Doctrine of Basic Structure.
- Parliament’s amending power is subject to judicial review.
- Every amendment must reflect social welfare.
- The President of India has a formal role in giving assent to amendments.
- There is no time limit for the amendment process.
C) Ambit of Amendment Powers
While Article 368 grants Parliament the power to amend the Constitution, this power is not absolute. The Indian Judiciary has established limitations on this power through the Doctrine of Basic Structure.
This doctrine asserts that Parliament cannot alter or destroy the fundamental framework of the Constitution through amendments. The essential elements that form the Basic Structure include:
- Supremacy of the Constitution
- Rule of Law
- Separation of Powers
- Judicial Review
- Federalism
- Democracy
- Equality
- Social Justice
- Harmonious Relationship between Fundamental Rights and Directive Principles of State Policy
The Doctrine of Basic Structure has evolved through several landmark judgments of the Indian Judiciary.
D) Landmark Judgments on Amendment Powers
i) Golaknath vs. State of Punjab (1967)
- Facts: The Punjab Government acquired land under the Punjab Public Premises and Land Recovery Act, 1959, which included the petitioners’ land. The petitioners challenged this action as unconstitutional.
- Issue: Can Parliament amend fundamental rights through Article 368?
- Judgment: The Supreme Court held that Parliament’s power to amend the Constitution is subject to judicial review and is not absolute.
ii) Kesavananda Bharati vs. State of Kerala (1973)
- Facts: The petitioner, Kesavananda Bharati, managed land under a Hindu monastery, which was acquired by the State Government under the Land Reforms Act, 1973.
- Issue: Is there a limit to Parliament’s power to amend the Constitution?
- Judgment: The Supreme Court introduced the Doctrine of Basic Structure, ruling that Parliament’s power to amend the Constitution is not absolute.
iii) Indira Nehru Gandhi vs. Raj Narain (1975)
- Facts: The petitioner challenged the corrupt practices involved in the Lok Sabha election win of Prime Minister Indira Gandhi.
- Issue: Does the 39th Constitutional Amendment have constitutional validity?
- Judgment: The Supreme Court ruled that the 39th Amendment violated the Basic Structure of the Constitution. It declared that the election of the Prime Minister should be subject to judicial review.
iv) Minerva Mills vs. Union of India (1980)
- Facts: The 42nd Amendment granted Parliament excessive power to amend the Constitution without judicial review.
- Issue: Does the 42nd Amendment have constitutional validity?
- Judgment: The Supreme Court ruled that judicial review is an essential part of the Constitution, and any amendment violating the Basic Structure is unconstitutional. The 42nd Amendment was struck down for violating this doctrine.
E) PROCEDURES FOR AMENDMENTS
The procedure for amending the Constitution involves six steps. These steps vary depending on the type of amendment.
1. Proposal of Amendment
A Constitutional Amendment Bill must be proposed by the Parliament. A bill that proposes an amendment is termed as a “Constitutional Amendment Bill.”
2. Introduction in Parliament
The Bill should be introduced in both houses, Lok Sabha and Rajya Sabha, by either a Minister or a Member of Parliament.
3. Discussion and Voting
The Bill must be discussed by all the members of both houses. A voting process is conducted to determine the majority approval of the proposed amendment.
4. Passage in Both Houses
If the Bill secures the required majority in both houses, it is then sent for the President’s Assent.
5. Presidential Assent
The President of India has three options regarding the Bill:
- Give assent – The Bill becomes law.
- Withhold assent – This occurs in the rarest of cases.
- Return for reconsideration – If the President finds it necessary, the Bill may be sent back to the Parliament for further deliberation.
6. Notification
Once the amendment receives the President’s assent and is published in the Official Gazette of the Government of India, it officially becomes part of the Constitution.
F) CONCLUSION & COMMENTS
Article 368 outlines the procedure for amending the Constitution through Parliament. This article reflects the delicate balance between the flexibility and rigidity of the Indian Constitution. The power to amend enables Parliament to update the Constitution in response to societal needs and welfare.
However, this power is not absolute. The Doctrine of Basic Structure, established by the Supreme Court of India, acts as a safeguard against any amendments that could alter the fundamental framework of the Constitution.
While society evolves over time, the Indian Constitution also adapts to these changes through the proper execution of amendment procedures. The government is responsible for strengthening the Constitution, but if amendment powers are misused, it could drastically impact the future of the nation.
Therefore, every citizen must be vigilant and actively participate in the democratic process to ensure the protection of constitutional values.
- Participate in all elections!
- Choose your leaders wisely!
- Save the future of India!
G) REFERENCES
1. Books / Commentaries / Journals Referred
- The Constitution of India: A Contextual Analysis (Hart Publishing, 2018)
- Indian Constitutional Law (LexisNexis, 2014)
- Constitutional Law (LexisNexis, 2010)
- The Constitution of India: A Commentary (Universal Law Publishing, 2008)
- Introduction to the Constitution of India (LexisNexis, 2019)
2. Online Articles / Sources Referred
- Amendment of the Constitution of India – Wikipedia (Accessed on 31/01/2025)
- Article 368: Power of Parliament to Amend the Constitution (Accessed on 31/01/2025)
- Types of Amendments – Byju’s (Accessed on 31/01/2025)
3. Cases Referred
- Golaknath vs. State of Punjab AIR 1976 SC 490
- Kesavananda Bharati vs. State of Kerala AIR 1973 SC 1461
- Indira Gandhi vs. Raj Narain AIR 1975 SC 2299
- Minerva Mills vs. Union of India AIR 1980 SC 1789
4. Statutes Referred
- The Indian Constitution (Amendment 2021) Law
