Power to Amend the Constitution under Article 368

Table of Contents

Introduction :

With the changing norms of the society the law cannot afford to remain static it changes with the changing times and hence the amendment to the constitution is necessary as it is not permanent and immutable. While making observations on the amending procedure of the constitution Dr. Ambedkar referred to the constitutions of the U.S, Canada, and Australia. And accordingly, Article 368 was inserted in our constitution which talks about “the power of the parliament to amend the constitution”

Procedure for amendment :

The procedure for amending the constitution is provided under Article 368 and accordingly to amend the constitution a bill has to be introduced in either house of the parliament and that must be passed by each house by the majority of the total membership of that house and by a majority of not less than 2/3 rd members of that house present and voting and after passing from both the houses it is then presented to the president for his assent and if the assent is given the constitution stands amended.

Can fundamental rights be amended:

Since the commencement of the constitution, there have been many questions raised about the scope of amending the constitution. On one hand, the parliament exercises its amending power under Article 368, and on the other hand Article 13 of the constitution provides that laws inconsistent with the fundamental rights are void. This has raised many questions such as ;

Does parliament has unlimited power in amending the constitution?
Can fundamental rights be amended by the parliament?
Does Article 13 restrict the scope of parliament to amend the constitution?

All these questions were answered by the supreme court in any number of cases. The first case on the amendability of the constitution which came before the court was Shankari Prasad v.Union of India, in this case, the validity of the first amendment Act was challenged on the ground that the amendment act curtailed the right to property that was guaranteed by Article 31, which is not allowed by Article 13. The court held that the parliament can amend the constitution including the fundamental rights. this ruling was also upheld by the court in Sajjan Singh v. the State of Rajasthan where it was observed that the parliament can amend any part of the constitution including fundamental rights. This judgment of the Sajjan Singh case was overruled by the supreme court in Golaknath v. State of Punjab where it was held that the parliament had no power to amend part III of the constitution to take away or abridge the fundamental rights.

Basic structure doctrine:

After this judgment to override the decision of the Golaknath, the parliament has enacted the 24th amendment act in 1971 that inserted two new clauses one to article 13 and another to article 368. the two newly inserted clauses are as follows :

Clause (4) to article 13 which speaks about nothing intros article shall apply to any amendment of this Constitution made under article 368 and clause (3) to article 368 says nothing in article 13 shall apply to any amendment made under this article.

Thereafter 25th, 26th, and 29th Amendments acts were subsequently passed by the parliament. All these amendments and the power of the parliament to amend the constitution were challenged in Kesavananda Bharathi v. State of Kerala, the court by a majority of 7:6 overruled the Golaknath case and held that the parliament has the power to amend any part of the constitution including fundamental rights but it should not alter the basic structure of the constitution. This was the case that brought the basic structure doctrine to the limelight. The judgment also listed some of the features of basic structure they are:

Supremacy of the constitution.
Unity and sovereignty of India
Federal character of the constitution
Secular character of the constitution

Accordingly, any amendments or laws which destroy or alter the basic structure of the constitution will be struck down by the court.

Later developments :

The scope and extent of the doctrine were more strengthened by the court in Minerva mills v. Union of India where it was observed that the amending power of the parliament cannot be unlimited as limited amending power is itself is the part of the basic structure of the constitution.

And again in Waman Rao v. Union of India, the supreme court reiterated the basic structure and observed that any law which has been inserted in the 9th schedule after the date on which the doctrine was pronounced in the Kesavananda Bharthi case would be subjected to judicial review. And the same stance was reiterated by the court in IR Coelho v. State of Tamil Nadu.

In Kihota Hollohan v. Zachillu, the Supreme Court has declared: “Democracy as a basic feature of the Constitution”. And the court in SR Bommai v. Union of India observed “Democracy and federalism as the essential features of our Constitution and are part of its basic structure.” And in the same case, it was ruled that secularism is a basic feature of the constitution.

And further, the judicial review was held to be the basic and essential feature of the constitution in SP Sampath Kumar v. Union of India and it was observed that “if the power of the judicial review is abrogated or taken away the constitution will cease to be what it is” and the same stance was reiterated by the court in L Chandra Kumar v. Union of India where it was observed that the power of the judicial review that is vested in the high courts under Articles 226 and 227 and the supreme court under Article 32 of the constitution is an essential and integral part of the constitution, constituting the part of its basic structure.

Conclusion :

The doctrine of basic structure is the fundamental principle that has been propounded and upheld by the judiciary. And according to this, the parliament in the exercise of its amending power must not alter or destroy the basic features of the constitution, any law or amendment which tries to alter the basic features of the constitution will be struck down by the courts.

References :

Author: Naveen Talawar,
student in Karnataka state law university's law school