ARTICLE-368 AMENDMENT OF THE CONSTITUTION

Author- Priyanshu Tyagi, Mewar Law Institute

India’s Dynamic Constitution: Amending for Change

The Constitution of India, as the keystone of the nation’s legal system, upholds the necessity for adaptation in the dynamic societal circumstances. This adaptability is expediated by Article 368, which exactly prescribes the process for amending the Constitution. This article analyse the concept of constitutional amendments in India, delving into the  procedures established , types of amendments, their significance, and the criticisms against them.

Keywords (Minimum 5):  Article -368 , Amendment Process , Special Majority , State Ratification , Basic Structure Doctrine , Federal Structure

Meaning, Definition & Explanation

• A constitution’s strength often lies in its ability to evolve alongside the society it governs. The Indian Constitution embodies this principle by allowing for amendments. This process involves adding, modifying, or repealing existing provisions while adhering to a well-defined procedure. Amending the Constitution ensures it remains a relevant document, capable of addressing new challenges while preserving its core values.
• Article 368: The Cornerstone of Change
• Recognizing the need for adaptability, the Indian Constitution integrated Article 368 in Part XX. This article establishes the framework for amending the Constitution, outlining the permissible extent and the procedure to be followed. It ensures that changes are made thoughtfully and legitimately.

The procedure: Amending India’s Constitution

 Article 368 of the Indian Constitution establishes a well-defined procedure for prompting and enacting amendments. Let us discuss the key steps which outlines the established procedure :

1. Initiation: The amendment procedure of the Indian Constitution under article-368 initiates with the introduction of a bill in either the Lok Sabha (lower house) or the Rajya Sabha (upper house) of the Parliament. The Parliament retains the sole authority to commence proposals for amending the Constitution.
2. Presentation of bill: After its initiation, the amendment bill can be presented by either a minister in government of India or even a private member of the Parliament. It should be noted that prior approval from the President is not a required for such introductions.
3. Passage Requirements in Both Houses of Parliament : For an amendment bill to be well enacted as law, it must secure a “special majority” vote in each house of the Parliament. This exacting  requirement sanctions approval from two key components:

• Majority of Total Membership: The amendment bill must reserve a majority vote exceeding fifty percent of the total membership in each house.
• Two-Thirds of Members Present and Voting: furthermore, it requires the approval of two-thirds of the members who are present and actively cast their votes in each house.

4. Absence of a Joint Sitting Mechanism for Dispute Resolution: It is important to note that the Indian Constitution, unlike its approach to resolving disagreements on ordinary bills, does not provide any provision for a joint sitting of both houses of Parliament to address potential disputes concerning an amendment bill. This absence of a joint sitting mechanism signifies that resolving disagreements exclusively relies on negotiations between the houses or the potential desertion of the proposed amendment bill .
5. State Ratification for Amendments Affecting Federal Structure : The amendment procedure under Article 368 recognizes the rare nature of certain provisions that precisely impact India’s federal structure. For such amendments, a supplementary step beyond parliamentary approval is mandated. In these specific cases, the amendment bill requires ratification by a simple majority vote in the legislatures of at least half of the Indian states.
6. Presidential Assent: Once the bill has well passed by both houses of Parliament and secured ratification by the states (if applicable), it is conferred to the President for assent.. The President is bound by law to grant assent and lacks the authority to withhold approval or return the bill for reconsideration.
7. Becoming Law: Upon receiving presidential assent, the bill is transformed into a “Constitutional Amendment Act.” This Act serves as the official mechanism for modifying the Constitution, accumulating the proposed changes and becoming an fundamental part of the supreme law of the land.

Three Methods for Amending India’s Constitution

Article 368 empowers the Indian Parliament to amend the Constitution through three distinct methods, each tailored to the weight and nature of the proposed change:

1. Simple Majority: Established provisions, governed by separate parliamentary procedures, can be modified by a simple majority vote in Parliament. This mark as approval by more than half (50%) of the members present and voting in each house. Examples include changes related to the creation or boundaries of states, or the establishment of legislative councils within states.
2. Special Majority: For an extensive range of amendments, a more considerable level of approval is required. This “special majority” entails a subdivided requirement:

• First, it requires the support of more than half of the total membership of each house of Parliament (Lok Sabha and Rajya Sabha).
• Further , it must be approved by two-thirds of the members present and voting in each house of Parliament.

This kind of majority encloses amendments to Fundamental Rights, Directive Principles of State Policy, and numerous other provisions not covered by the other methods.

3. Special Majority with State Ratification: Amending provisions regarding India’s federal structure entails an additional step. Here, the special majority vote in Parliament must be supported by ratification from half of the state legislatures. Each state legislature votes by a simple majority, means more than half of the members of the parliament present and voted for the same need to approve the amendment.

By marking these three separate methods, Article 368 assures that the amendment process is precisely graded to the significance of the changes being proposed.

The Unshakeable Core: The Basic Structure Doctrine

The interpretation of the basic structure doctrine serves as a shield, safeguarding the crucial principles of the Indian Constitution from being significantly altered or eliminated through amendments established by Parliament. These fundamental elements constitute the very base of the Indian nation:

• Supremacy of the Constitution: The Constitution reigns supreme as the highest law of the land.
• Separation of Powers: Power is divided and balanced between the legislature, executive, and judiciary, preventing any one branch from becoming too powerful.
• Federalism: India functions as a union of states, with power distributed between the central government and the states.
• Secularism: The state treats all religions with equal respect and does not Favor any particular faith.
• Democracy: The government derives its authority from the will of the people.
• Rule of Law: Everyone, including the government, is subject to the law.

Any amendment in the Constitution of India results in  weakening the basic structure under this doctrine will smacked down by the apex court and declared as unconstitutional. The basic structure doctrine assures the Constitution remains a stable and enduring foundation for Indian democracy.

The Doctrine’s Evolution

The approach regarding doctrine of basic structure has been consolidated through a series of landmark judgments by the Apex Court of India. These proclamations not only established the concept but also civilized its meaning over the period of  time. The following provides a glimpse into this historical evolution:

• Shankari Prasad Case (1951): This case marked the first significant brief with the basic structure doctrine in the legal domain. While the Supreme Court recognised Parliament’s authority to amend the Constitution under Article 368, it did not exactly limit that power. This led to the indication that Parliament could possibly modify any aspect, including fundamental rights. However, the case did not examined deeply the concept of a basic structure, which would be addressed in later judgments.
• Golak Nath Case (1967): This landmark judgment laid a stronger foundation for the basic structure doctrine. The Supreme Court well-established a crucial principle inheriting the Parliament with power to amend the Constitution does not expand to fundamental rights. The court asserted that these rights are the core aspect of the Constitution and cannot be taken away or limited through amendments. This decision essentially limited Parliament’s power and lead the way for a more persuasive understanding of the basic structure.
• Kesavananda Bharati Case (1973): Considered as a landmark judgment, the case of  Kesavananda Bharati vs state of Kerala challenged the validity of the 24th Constitutional Amendment Act (1971) . This act intent to restrain judicial review  of constitutional amendments. The pivotal question before the court was whether the 24th CAA violated the basic structure doctrine and should be struck down.
• In its historic ruling, the Supreme Court confirmed that Parliament has power to amend the Constitution but declared it to be limited. The constitutional bench of 13 judges officially introduced the concept of the “basic structure” and its significant role in safeguarding the Constitution’s core principles.

The Enduring Relevance of the Amendment Power

India’s vast and dynamic nature necessitates a constitution that can evolve alongside it. The amendment process empowers the constitution to remain relevant and effective in governing the country. Here’s how this adaptability fosters a well-functioning democracy:

• Ensuring Responsive Governance: Constitution guides governance needs updates for change. Amendments ensure responsive governance, protect emerging rights.  Safeguarding the emerging rights is essential for justice. It provides Reflection to society’s evolving understanding.
• Acknowledging and Protecting Emerging Rights: As the Society changes, the constitution must guard new rights. Amendment process ensures safeguarding of emerging rights in inclusive society. Embracing new rights is crucial for a fair society. Constitution should evolve with society’s view on fundamental rights.

• .Reflecting Evolving Legal Interpretations: Judicial interpretations of the constitution always evolving, uncovering the new rights within existing provisions. Modern interpretations of right to life and personal liberty expanding to include right to privacy. Amendment process allows formal changes in constitution to align with evolving legal interpretations. It Ensures constitution to stay relevant in changing social landscape.
• .Addressing Unforeseen Challenges: State adapts to tackle unforeseen issues from rise of social media and online activism. Constitution can be amended to address challenges and safeguard citizens’ rights. This Adaptability empowers state to respond to new realities not anticipated during constitution drafting.
• Promoting Social Progress: Constitutional reforms break old practices and pave the way for a progressive society. Updates to the constitution reflect the changing values of the governed population. Reforming the constitution can bring about positive social changes. It is important for the constitution to adapt to the people’s evolving aspirations.

Concerns Regarding Amending the Indian Constitution

While the amendment process allows the Constitution to adapt, it has also attracted criticism on several fronts:

• Lack of a Specialized Body: Unlike some nations with dedicated bodies for constitutional amendments, India relies solely on its Parliament and, in specific cases, state legislatures. Critics argue for a dedicated and specialized body to ensure a more intentional and objective approach to amendments.
• Procedural Similarities : The amendment process features the procedure for passing regular laws, with the exception of a special majority requirement. Critics argue that this correlation could lead to undervaluing constitutional amendments.
• Limited Initiation Power: The exclusive power to introduce amendments lies with the Parliament itself. State legislatures can only propose amendments related to establishing or abolishing their legislative councils. This, according to critics, weakens the role of states in the amendment process.
• Parliament’s Dominance: A major portion of the Constitution can be amended solely by the Parliament, with state ratification needed only for specific provisions, and even then, only from half the states of India.
• Deadlock Potential: The absence of a provision for a joint sitting of both houses of Parliament (Lok Sabha & Rajya Sabha) to resolve disputes related to amendment bills can lead to deadlocks situation ,conflicting the amendment process.
• Uncertainties and Legal Challenges: The lack of definite procedures and details in some aspects of the amendment process leaves room for interpretation and potential legal disagreement . Critics advocated for a more well-defined framework to minimize uncertainties.

Important Amendments in Indian Constitution

Conclusion

• The ability to amend the Indian Constitution stands as a keystone of its continued relevance and effectiveness. This process ensures the Constitution remains adaptable, tending progressive governance and inclusivity. By enabling the recognition of new rights, addressing unforeseen challenges, and facilitating social reform, amendments keep the Constitution in sync with the evolving needs and aspirations of Indian society.
• These alterations are not mere twists , they shape the very fabric of India’s legal framework and governance. They ensure that the Constitution should remain a dynamic document, reflecting the desires, challenges, and changing societal norms of its people. This adaptability guarantees the Constitution’s continued significance and effectiveness for generations to come.

References

1. Online Articles / Sources Referred
2. net/articles/article-368
3. org/doc/594125/
4. ipleaders.in/the-amendment-of-the-constitution-article-368
5. com/blog/amendment-of-the-constitution/

2. Cases Referred
   1. Golaknath v. State Of Punjab (AIR 1967 1643 , 1967 SCR (2) 762)
   2. Sri Sankari Prasad Deo v. Union Of India (AIR 1951 S , SCR89)
   3. Kesavananda Bharati v. State Of Kerala (AIR 1973 4 SCC 225)
   4. Minerva Mills Ltd. v. Union Of India ( AIR 1980 SC 1789)
3. Statutes Referred
   1. Article-368 The Constitution Of India , 1949