Article 368 || Article 368 of Indian Constitution || Amendment of Constitution

 THE AMENDMENT OF THE CONSTITUTION

The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. Constitution of India is a fine mixture of rigidity and flexibility. 

In this article, we will be exploring the extent to which the government (Parliament) can amend, the process of amendment, the essential judicial questions pertaining to it, and various landmark cases in hopes of answering these questions. 

For the purpose of amendment the various Articles of the Constitution are divided into three categories :-

1. Amendment by simple Majority

2. Amendment by special majority

3. By special majority and ratification by States

1. Amendment by simple Majority :- Article 5, 169 and 239-A are placed in this category. 

2. Amendment by special Majority :- All constitutional amendments, which are not covered by first and third categories are placed in this category. Special Majority not less than 2/3 of the members of that House present and voting.

3. Special Majority and Ratification by the States :- Ratification by not less then ½ of the State Legislatures. The following provisions require such ratification by the States :-

1. Election of the President (Article 54 and 55).

2. Extent of the Executive powers of the Union and States (Articles 73 and 162).

3. Articles dealing with Union and State Judiciary (Articles 124 to 147, 214 to 231, 241).

4. Distribution of Legislative powers between Union and State (Article 245-255).

5. GST Council (Article 279-A).

6. Representation of State in Parliament (Schedule IV).

7. Any of the Lists of the seventh Schedule.

8. Article 368 itself.

Procedure for Amendment:-

A bill to amend the constitution can be placed before any House of the Parliament. When this bill is passed by majority of the total number of members of each house (more than 50 percent) and at least 2/3 majority of the members present and voting who will be bound to his assent. After the assent of the President on the Bill, the constitution stands amend.

Amendment of fundamental rights:-

In the case of “Shankari Prasad v. Union of India, 1951, Article 31-A, and 31-B of the Constitution was challenged on the ground of prohibition of Article 13(2) and the court held that the word “law” in Article 13(2) includes only ordinary law made in exercise the legislative power and does not include constitutional amendments.

In “Sajjan Singh v. State of Rajasthan,1965”, the validity of the Constitutional (17th amendment) Act, 1964 was challenged. The SC held that the word “Amendment of the Constitution” means Amendment of all the provision of the Constitution.

In “Golak Nath v. State of Punjab, 1971”, the validity of the Constitutional (17th amendment) Act, 1964 was again challenged. The Supreme Court by majority of 6:5 “prospectively overruled” its earlier decision in the case of Shankari Prasad and Sajjan Singh and held that Parliament had no power from the date of decision to ament Part III of the Constitution. Chief Justice Subba Rao supported this judgement on the following grounds :-

1. The power of Parliament to amend the Constitution is derived from Article 245 of the Constitution and procedure of amend is related from the Article 368 of the Constitution.

2. An amendment if violates any of the Fundamental Rights it may be declared void.

Doctrine of Prospective Overruling:- Justice Subba Rao applied the doctrine of “prospective overruling” and held that 1st , 4th and 17th Amendment will be valid. This doctrine means all cases decided before the Golak Nath’s case shall remain valid.

24th Amendment Act, 1971:-

• A new clause (4) was added to Article 13 which stated that ‘nothing in this Article shall apply to any amendment of this Constitution made under Article 368’.

• The marginal heading of Article 368 was changed in place of ‘Procedure for amendment of the Constitution’. The new heading ‘Power of Parliament to amend the Constitution and Procedure, therefore’. 

• A new sub-clause added in Article 368 which provides that “notwithstanding anything in this Constitution, Parliament may, in the exercise of its Constituent Power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article”.

• It substituted the words “it shall be presented to the President who shall give his assent to the Bill and thereupon” for the words “it shall be presented to the President for his assent and upon such assent being given to the Bill.” 

• By this amendment added a new clause (3) to Article 368 which deals with “nothing in Article 13 shall apply to any amendment made under this Article”. 

Thus, the 24th Amendment not only resorted the amending power of the Parliament but also extended its scope by adding the words “to amend by way of the addition or variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article”.

Conclusion :-

Amendment has become necessary for the point of development of the State in every sphere. The 24th Amendment of the Constitution was the subject of debate at that time. In Indian Constitution, the balance of legislative power is vital and the power of amendment conferred to parliament to after such regulations is often considered an important one. The SC held that the 24th Amendment Act is Constitutional. The Constitution should be able to serve the needs of the society.

Basic Structure and Limitation of Amending Power:-

The validity of the Constitution (24th Amendment) Act, 1971, was challenged in the case of “Keshvanand Bharati v. State of Kerala” popularly known as the “Fundamental Right’s case”. The petitioners had challenged the validity of the ‘Kerala Land Reforms Act 1963’ but during the pendency of the petition the Kerala Act was amended in 1971 and was placed in 9th Schedule by 29th Amendment Act.  This case was handled by special bench of 13 Judges. This case is one of the important case in the history of India and established the doctrine of Basic Structure of the Constitution. In this case, they considered the constitutionality of the 24th, 25th and 29th Amendment of the Constitution. The court held that under Article 368 of Constitution, Parliament is not empowered to amend the basic structure or framework of the Constitution and again said that first part of the 25th Amendment Act is valid but second part of this Amendment Act is invalid.

The expression “Amendment of the Constitution” in Article 368 means any addition or change in any of the provision of the Constitution within the broad contours on the Preamble and the Constitution.

In “Indira Nehru Gandhi v. Raj Narayan and Ans, 1975” the SC applied the theory of basic structure and struck down clause (4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features.

The SC has added the following features as basic features of the Constitution to the list of basic features laid down in the case of ‘Keshvanand Bharati’.

1. Rule of law

2. Judicial Review

3. Democracy, which implies free and fair election

It has been held that “the Jurisdiction of the SC under Article 32, is the basic feature of the Constitution”.

In “Minerva Mills Ltd. V. Union of India, 1980”, the Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Limited amending power is a basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby conferred an unlimited amending power, it was destructive of the basic feature of the Constitution.

In "S.P. Sampat Kumar v. Union of India", the Supreme Court upheld the validity of Article 323-A, and the Administrative Tribunal Act, 1985 as the necessary changes suggested by the Court were incorporated in the Act. It held that though the Act has excluded the judicial review of the High Court in service matters under Articles 226 and 227, but as it has not excluded judicial review under Articles 32 and 136, the Act is valid. The amendment does not affect the basic structure of the Constitution.