Home Constitution Article 368 Power of Parliament to Amend the Constitution

Article 368 Power of Parliament to Amend the Constitution

INTRODUCTION

A Constitution is a dynamic document. It should evolve and grow with a growing nation and should suit the changing needs and circumstances of an evolving and growing society. Sometimes under the impact of a new powerful social and economic forces, the pattern of Government will require major changes. If the Constitution stands as a stumbling block to such desirable changes it may under extreme pressure, be destroyed.

Mulford said: “An unamendable constitution is the worst tranny of time or rather the very tyranny to time.”[1]Similarly, Harold J. Laski has observed: “Law, like life, has its periods of change and its periods of conservation, it is not a closed system of eternal rules elevated above time and place. The respect it can win is measured by the justice it embodies, and its power to embody ideals of justice depends upon its conscious effort to respond in an equal way to the wildest demands it encounters.”[2]

A Constitution must be considered as a living and growing document which must be adaptable, must be flexible and must be changeable.

The Provisions for amendment of the Constitution is made with the view to overcome the problems, which may encounter in future in the working of the Constitution. As society keeps on evolving which means that the laws and customs which were considered to be valid in past it is not necessary that they will be considered valid in the future. For illustration: ‘Sati partha’, during ancient times it was considered to be a valid practice but as generations passed the practice of Sati was considered to be an immoral and barbaric act, hence it was condemned and prohibited.

If no provisions were there for the amendment of the Constitution, the people would have recourse to extra constitutional method like revolution to change the constitution. Like other written Constitutions the Indian Constitution also contains provision for its own amendment. The amendment process of the Indian Constitution is given in Article 368.

POWER & PROCEDURE FOR AMENDMENT

A Bill to amend the Constitution may be introduced in either House of Parliament (Lok Sabha and Rajya Sabha). It must be passed by each House by a majority of the total membership to that House and by a majority of not less than 2/3rd of the members of that House present and voting, except those amendments which can be made by simple majority.

When a Bill is passed by both Houses it shall be presented to the President for his assent who shall give his assent to the Bill and then that Bill shall be added to the Constitution and hence the Constitution stands amended[3]. But a Bill which seeks to amend the provisions mentioned in Article 368 requires a special majority of  ½ of the states along with the majority mentioned above. This is the power of parliament to amend the Constitution.

However, Article 368 does not constitute the complete Code. The process of amending the Constitution is the legislative process governed by the rules of that process.

Most of the provisions of the Constitution can be amended by a simple legislative process. Only few provisions which deal with the federal principle require a special majority plus ratification by the States. The procedure to amend the Constitution is however, not so difficult as in U.S.A and Australia.

The rigid procedure of referendum is followed in Australia and Switzerland or constitutional conventions followed in U.S.A, have not been adopted in the Indian Constitution. Most of the provisions of the Indian Constitution can be amended by the special majority. Though it is different from the ordinary legislative process but the special majority rules do not result in a very rigid method of amendment as it is clear from the fact that since 1950 the Constitution has been amended 103 times.

AMENDMENT OF FUNDAMENTAL RIGHTS

The question whether Fundamental Rights can be amended under Article 368 came before the Supreme Court for consideration within a year of Constitution coming into force. Article 368 lays down the procedure and scope of amendment. Further Article 13(2) in Part III of the Constitution prohibits the State from making any law that takes away or abridges the Fundamental Rights.

So, there arose a controversy as to whether an amendment of Constitution, made in the manner provided for under Article 368, must have to conform to the requirements of the Article 13(2), as defined in Article 13(3), or in other words, whether  a Constitution Amendment Act would be void if it seeks to take away or it is inconsistent with a right provided in Part III of the Constitution.

LANDMARK CASES AND JUDGMENTS

In Shankari Prasad v. Union of India[4], the validity of the  1st amendment of the Constitution was questioned. The Constitution (Amendment) Act of that time curtailed the right to property. It was argued that Article 13 prohibited enacting a law infringing or abrogating the fundamental rights.

A law amending the Constitution must conform to Article 13. So, the amendment Act is unconstitutional as violating Article 13. The Supreme Court did not accept this argument and held that Article 13 is not applicable to Acts which amend the Constitution. Article 368 permit the Parliament to amend any provisions of the Constitution.  

In 1965 in Sajjan Singh v. State of Rajasthan[5], the validity of the Constitution (17th Amendment) Act was challenged. The Apex Court with a majority of 3:2 adhered to the Shankari Prasad Case. But the two judges (Hidayatullah J. and Mudholkar J.) who delivered separate dissenting judgments had doubts whether Article 13 would apply to Constitution Amendment Acts. Hidayatullah J considered the Fundamental Rights as requiring ratification by the States because otherwise the fundamental rights would be play-things of a special majority. Mudholkar J., expressed the view that every Constitution has some fundamental features which are immune from change.

A year later the question of amending the fundamental rights again came before the Supreme Court in the case of I.C. Golaknath v. State of Punjab [6]. In this case 11 judges participated. The Court was divided. Six judges overruled Sajjan Singh case and Shankari Prasad case. Five judges who were in minority dissented. Subbarao CJ, delivered the leading majority judgement. It was held that Article 368 contained only the procedure for amendment. The power to amend is located in    Article 248- Residuary Power. All the legislative powers were subject to the provisions of the Constitution. Article 13(2) constituted a bar. Fundamental Rights cannot be abridged or taken away.

24th, 25th,26th and 29th Amendment were challenged in Kesavanand Bharati v. State of Kerala[7], CJI Sikri constituted of 13 judges to the petitions[8]. The conclusions of the majority (7 judges) have been summarized by the court. The views taken are:-

  1. Golaknath case has been overruled.
  2. Article 368 does not enable Parliament to amend the basic structure or framework of the Constitution.
  3. 24th Act Amendment is valid.
  4. Part of 25th Amendment is invalid.
  5. The 29th Amendment Act is valid.

CONCLUSION

The Indian Constitution is of ‘quasi federal’ nature as the Parliament can amend the provisions of the Constitution with a simple and not so  complex procedure, (Article 368) but at the same time the ‘Basic Structure’ of the Constitution is out of bounds, (Parliament cannot amend the basic Structure of the Constitution). All these aspects make the Indian Constitution a unique and dynamic document.


FOOTNOTES

[1] Constitutional Law II by Krishan Keshav.

[2] Constitutional Law II by Krishan Keshav.

[3] Article 368 the Constitution of India Bare Act.

[4] AIR 1951 SC 458

[5] AIR 1965 SC 845

[6] AIR 1967 SC 1643

[7]AIR 1973 SC 1461.

[8] It has been the largest bench constituted by the Supreme Court. They headed on for 5 months which is also a record. The arguments continued for the time more than 69 days. 11 opinions were handed down. They printed 500 pages. The judges were divided in 7:6. A summary of conclusion the majority had reached was prepared. It was signed by 9 judges.

This article is written by Kush Bhardwaj and edited by Rupreet Kaur Dhariwal.

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