“It is the right and privilege of the highest Court of the land to interpret the Constitutional law, however, at the same time; it is also the duty of the Parliament to see that objects aimed at in the Constitution are fulfilled or not by the judgement based on such interpretation. If the object is not achieved because judgement comes in the way, it is the provisions of the Constitution here and there.”- Dr. B.R. Ambedkar [1]

Constitution is the supreme law of land.  The Constitution being the highest law, is therefore, required to be flexible in order to suit the needs of every individual governed under the said law. As time evolves, the nation’s life continues to be dynamic as well. Its political, social and economic conditions change simultaneously. The ideas or laws which were considered morally right may not have a positive approach for the upcoming generations.

Simply put, the principles upon which a Constitution is based in one generation may not work effectively with the next generation. Thus, the framers of the Constitution were well aware that Constitution, must be accustomed, such that it suits all the people’s needs. For this, a machinery or process was necessary. Article 368 was brought into force with effect to this view. Framers shaped Article.368 with a fine blend of rigidity and flexibility. Though Article 368 gives the power to amend the Constitution making it flexible, the same power can only be invoked if the situation demands so. The flexibility and rigidity depend upon the nature and importance of the provisions of the Constitution.

WHAT IS ARTICLE 368? WHAT DOES IT SAY?

Article 368 speaks about the Power of Parliament to amend the Constitution and procedure to be followed for amending the same.

According to the Article mentioned Parliament may exercise its power of amendment by:

(i)Adding a new provision

(ii)Modifying an existing provision

(iii) Repealing an existing provision

Clause 2 of ARTICLE 368 speaks about the procedure regarding the process of amendment.

Procedure for Amendment:

There are three ways in which an amendment can be done.

1. simple majority: Articles that can be amended by Parliament by simple majority as that required for passing of any ordinary law. The amendments under Article 5,169 & 239-A are done by this method. These Articles are excluded from the procedure prescribed in Article 368.
2. Amendment by Special Majority: Articles of the Constitution which can be amended by special majority as laid down in Article 368.All Constitutional amendments other than those referred to above come within this category and must be affected by a majority of the total membership of each house of parliament as well as by majority of not less than two-thirds of the members of that House present and voting.
3. Amendment by Special Majority & Ratification by States: Articles which require, in addition to the special majority as described above, ratification by resolution passed by not less than one- half of the State legislatures come within this class. This class comprises amendments which seek to make any change in the provisions referred in the proviso to article 368(2).

Amendments in the following provisions require such ratification from the States:

• The election and manner of election of the president
• The extent of the executive power of the union
• The extent of the executive power of a state
• Provisions dealing with the Supreme Court
• Provisions dealing with the High Courts in the States
• High Courts for union territories
• Distribution of legislative powers between the union and the states
• The representation of states in parliament
• Seventh schedule of the Constitution

EXTENT OF THE POWER GRANTED UNDER ARTICLE 368:

In order to understand the extent of the power exercised through Article 368, it is first important to look into the very reason of this Article’s existence. This provision was created with a view to overcome the difficulties in case the machinery fails to work in the future. Though this provision was introduced to enhance flexibility of the Constitution, the makers were also conscious of the problems that may arise due to misuse of such power. So, this provision was created in such a way that it enables flexibility paving way for necessary changes but also keeping the said power intact or rigid to avoid or encourage undesirable changes or ill-motives.

It was held in the case “Kesavanandha Bharati Vs St. of Kerala[2] that:

“The machinery of the amendment should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set in motion, an accumulation of the force sufficient to explode it. The Constitution-makers have, therefore, kept the balance between the danger of having a non-amenable Constitution and a Constitution which is too easily amenable”.

However, there are certain areas where this Article cannot be invoked with ease. One is the case of (i) whether or not the Fundamental Rights specified under Part-III of the Constitution comes under the ambit of Article 368 & (ii) whether or not the basic structure of the Constitution can be amended. Let’s discuss the scope of applicability of Article 368 below:

A. Amendment of fundamental rights:

The question whether fundamental rights can be amended under Article 368 is highly debatable till date.

In a case, Shankari Prasad Vs Union of India[3] :

The validity of Constitution (1^st Amendment) which inserted, inter alia, Article 31-A & 31-B was challenged on the ground that it purported to take away or abridged the rights conferred by Part-III which fell within the prohibition of Article 13(2) and hence was void.

The Supreme Court held that the power to amend the Constitution includes the fundamental rights as well. A Constitutional amendment will be valid even if abridges or takes any of the fundamental rights.

 In Sajjan Singh Vs State of Rajasthan[4]– The Supreme Court approved the majority judgement given in Shankari Prasad’s Case and thereby held that the words “amendment of the Constitution” means amendment of all the provisions present in the Constitution.

However, in the subsequent years, the view that Part-III of the Constitution fell within the purview of ARTICLE368 started changing.

In a landmark case, Golaknath Vs State of Punjab[5] overruled the decisions given in Shankari Prasad’s case and Sajjan Singh’s case and held that the Parliament had no power from the date of this decision to amend Part-III of the Constitution so as to take away or abridge the fundamental rights.

B, Theory of Basic Structure with respect to ARTICLE368:

First of all, lets see what is meant by basic structure.  Supreme Court has explained the meaning of basic structure in detail in the case M. Nagraj Vs Union of India[6] as follows:

“Basic structure are systematic principles underlying and connecting provisions of the Constitution. They give coherence and durability to the Constitution. These principles are part of the Constitutional law even if they are not expressly stated. Theory of basic structure is based on the concept of Constitutional identity. The main object behind the theory is continuity and within that continuity of identity”.

In a landmark case, Keshavananda Bharati[7], according to Sikri, C.J., the basic structure of Constitution consists of the following:

1. Supremacy of the Government
2. Republican and democratic forms of Government
3. Secular character of the Constitution
4. Separation of powers between the three organs (Legislative, Executive and Judiciary)
5. Federal character of the Constitution.

In this case validity of the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the Golak Nath case which denied parliament, its power to amend fundamental rights of the citizens. The majority held that article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Article 368 did not allow the Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article368 to ‘damage’, ‘weaken’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the Constitution.

In short, the Court held that power of amendment does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution.

Indira Nehru Gandhi Vs Raj Narayan[8] was another significant case relating to applicability of Doctrine of Basic Structure. In this case, the Court struck down Article 329-A (4) which was inserted by the Constitution (39^th Amendment) Act, 1975 by virtue of the said doctrine/theory. Article 329-A (4) was struck down on the ground that:

• It was ultravires the amending power of Parliament (as it destroyed the basic feature of Constitution).
• It violated the free and fair elections which was an important foundation for a successful democracy, thereby affecting the basic structure of the Constitution.
• The said amendment was contradictory to the right of equality granted under Article 14.

It was also held that the Jurisdiction of the Supreme Court under Article 32 also comes under the realm of basic feature of the Constitution.

Follow up of decisions of Keshavananda Bharathi & Indira Nehru Gandhi case:

 After the decision of the Supreme Court in Keshavananda Bharti and Indira Nehru Gandhi case the Constitution (42nd Amendment) Act, 1976 was passed which added two new clauses, namely, clause (4) and (5) to Art.368 of the Constitution. It stated that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. The plea supporting the 42^nd amendment was that Parliament represents the will of the people and if people wishes to amend the Constitution through Parliament, then there can be no limitation whatever on the exercise of this power. This amendment removed the limitation imposed on the amending power of the Parliament by the ruling of the Supreme Court in Keshavananda Bharti’s case. It was said that the theory of ‘basic structure’ as invented by the Supreme Court is vague, ambiguous and will create difficulties. The amendment was intended to rectify this situation.

Nevertheless, the validity of 42^nd Amendment was further challenged in a case Minerva Mills Vs Union of India[9].

Minerva Mills Vs Union of India : In this case the validity of 42nd amendment Act was challenged on the ground that they are destructive of the ‘basic structure’ of the Constitution. The Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution.

In a nutshell, the Parliament has limited powers to amend the Constitution. Parliament cannot amend or abrogate or vary or weaken the basic foundation with which the Constitution was formed, i.e. Theory of Basic Structure operates as a limitation on the amending power of the Parliament.

Right from the case of Keshavananda Bharathi till the I.R. Coelho case[10], Supreme Court has made it clear that Parliament has no power to bring an amendment to the basic structure of the Constitution. Therefore, the fact that power granted under Article 368 is not absolute has to be highlighted. But Parliament in 42nd Amendment, inserted clause (4) and (5) of Art.368 to wash those limitations imposed upon amending power of the Constitution by the judiciary. But however, this amendment has been declared null and void by the Supreme Court[11].

CONCLUSION:

Article 368 is considered to be one of the important provisions because, the said Article also takes into view the social economic and political conditions of the future. The principles used at present, may become outdated for the successive generations. A rigid law will serve no use if its incompetent with the changing social scenario.

However, with introduction of such power, the Parliament or political leaders started invoking this power for their own personal gain. There was a stage where the Parliament appeared to be superior than the Constitutional law itself. The amendments done by the Parliament started affecting the very reason for the Constitution’s existence. With the involvement of the Judiciary, be it in Keshavananda Bharati or Indira Gandhi or Minerva Mills the Court by its power of judicial review has curtailed the amending power of the Parliament. The amendments made by the Parliament can no more affect the basic structure of the Constitution.

Though the concept of basic structure places restriction on the power to amend, there is still yet some proper clarity needed on what exactly constitutes the basic feature of the Constitution. Whenever a dispute arises regarding violation of basic feature of the supreme law of the land, one must refer the judicial pronouncements delivered. A detailed written list of whatever constitutes the basic structure is suggested as it will not only help one understand what is derogatory and what is not, but also enable reduced litigations owing to this issue.

[1] ‘Working of Indian Constitution reflections of a Parliamentarian’ by D K Naikar, p74 society for human rights law Dharwad 2000.

[2] AIR 1973 SC 1461.

[3] AIR 1951 SC 455 p.458.

[4] AIR 1965 SC 845

[5] AIR 1971 SC 1643

[6] AIR 2007 SC  71

[7] AIR 1973 SC 1461

[8] AIR 1975 SC 2299

[9] AIR 1980 SC 1789.

[10] AIR 2007(1) SC 137.

[11] Minerva Mills Case, AIR 1980 SC 1789.

This article is written by Tanya T.

Disclaimer:  This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.