Article 368: A Double Edged Sword

Aparna Tiwari[1]

Article 368 talks about the procedure for the amendment of the constitution and has been amendment twice in 1971 and 1976 by24th and 42ndamendment respectively. Laws in democracy are made for the people and no changes can be made in the constitution which is undesirable to the people. It is one of the most important provisions of the constitution since it describes two ways to amend the constitution i.e.by special majority where the bill is passed by 2/3 majority present and voting which should be more than half of the total strength of the house and by other process some Articles can be amended only by special majority plus the ratification by half of all the state legislatures. These provisions make the Indian constitution neither rigid like the American constitution nor too flexible like the Canadian constitution.  The Constitution makers made it this way so that our constitution is able to cope up with changing time but at the same time they kept in mind that the constitution is not let vulnerable to the caprice of the politician.  Yet, the constitution makers were not so farsighted to see the challenges that were to come in future, where the political leaders motivated by greed for power would place their own desire over and above the interest people of India.

The complete background of Article 368 shows the apparent tussle between the judiciary and the government and one of the main reasons that can be attributed to it, was the dominance of single party both at the centre and the states after the independence. The congress party in order to fulfill its socialist electoral promise and brought about many reforms in tenancy structure and land ownership. The land owners which were resentful by such laws moved to the courts for the enforcement of their fundamental right to property, the court also struck down laws that breached the fundamental rights. Chagrined by the situation, parliament through first and fourth amendment placed these laws under schedule 9(added by first amendment) which excluded them from the judicial review.

The first controversy with respect to interpretation of Article 368 came in the case of Sankari Prasad v Union of India[2] in 1951; just one year after India adopted its own constitution in 1950.Validity of Article 31-A and 31-B were questioned which were added through First Constitutional Amendment and the main contention was whether fundamental law can be amended by Article 368.  The Court held that the parliament was supreme and therefore it can amendment any part of constitution under Article 368. The court differentiated ordinary law from the constitutional law and said the word “law” in Article 13 included rules and regulation that are made by the parliament in the exercise of its ordinary legislative power and it would not include the constitutional amendments under Article 368 which can be done by the exercise of constitutional powers only.

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The skepticism with respect to Article 368 did not end and the issue again cropped in the case Sajjan Singh v State of Rajasthan[3] which discussed the validity of the 17th constitutional amendment. The court reconsidered the Sankari Prasad case and upheld its decision, while giving the minority decision Hidayatullah J. held, that it required some stronger reasoning to consider that the “fundamental rights are no more fundamental “and the constitutional amendments for the alteration of fundamental rights under Article 368 does not fall under the explicit protection provided under Article 13(2). Similarly, Mudhokar J. also in his minority decision said that a written constitution in a federation creates certain rights and organs which are fundamental and should not be changed.

The issue was again raised in the case of Golaknath v state of Punjab[4] before the bench of 11 judges where the validity of first, seventeenth and fourth constitutional amendment were in question, in this case the majority judgment of 6:5 through prospective overruling held that the Article 368 only gave procedure for amendment while the power to make law came from Articles 245, 246, 248 and list I Entry97 of the Seventh Schedule. Therefore, the amending and the legislative power were the same and thus come within the word “law” under Article 13.

The verdict had profound impact over the politics of India, where the congress party suffered heavy losses since its socialistic steps like the president’s order for derecognizing the prince and the nationalization of banks were struck down by the court, in a haste to regain the supremacy of parliament Indira Gandhi dissolved the Lok Sabha and call for snap poll. For the first time in the Indian politics, the constitution formed a major issue in election where the congress manifesto promised back the supremacy of the parliament.[5]

The congress party won with two-third majority and passed 24th constitutional amendment which made the following changes in Article 368 “Notwithstanding anything in this Constitution, Parliament may in 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. 368(3)-Nothing in article 13 shall apply to any amendment under this article. 368(4)-Nothing in this article shall apply to any amendment of this Constitution made under article 368.” It also made it obligatory on president to give his assent to any amendments made under Article 368.

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These amendments were questioned in the landmark case Kesavananda Bharati v. State of Kerala[6] where the court upheld the constitutionality of 24th amendment but held the parliament cannot alter damage, destroy, abrogate, or weaken the “BASIC STRUCTURE” of constitution.

The Kesavananda judgment is one of the most celebrated judgments since it allowed the flexibility to accommodate changes and the socialistic aims of fast growing and reforming country, and at the same time to protect the principles which are the foundation of the constitution which reflected aspiration and ambition of the people who got independence after 200 years of dark age of slavery under the British Raj.

Later, in the case of Indira Nehru Gandhi v. Raj Narayan[7] the concept of the “basic structure “was reaffirmed and in the case of Minerva Mills v. Union of India[8] clauses (4) and (5) of Article 368 added by the 42nd amendment were declared unconstitutional and were struck down.

The purpose for valid constitutional amendment is, firstly that the changes should not happen just to satisfy the whims of the ruling party rather they should be done after thorough analysis and deliberation and as the last resort. Secondly, the changes should be made in consonance with the will of the people who have given the Indian constitution to themselves. Thirdly, in a federal system changes should be made in agreement with the states and the centre with regards to the issues common to both and not unilaterally by a powerful party. Fourthly, it should protect culture, language and religion of the minority section thus safeguarding social justice and communal rights.[9] The Keshvananda verdict balance the power which earlier was either titled towards parliament or judiciary, but now the interest of the people is held supreme.

The present form Article 368 along with the court’s interpretation has saved the Indian democracy from falling into the clutches of a totalitarian one party government especially when understood in the background of the arbitrary action like the 39th amendment barring any objection to the election of prime minister, president, vice-president and speaker even it is hinged on electoral malpractice which was a step taken after Allahabad High Court cancelled  Indira Gandhi’s candidature on the charges of malpractice and barred her from contesting election for six years. Similarly, the 41st amendment barred any criminal and civil proceedings against the above dignitaries not only for their tenure of office but forever.

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Some may argue that the judiciary having a final say in deciding what forms the part of the basic structure, gives it a dominant position which can be arbitrarily used, but this argument does not hold strong since the judiciary has to support its judgment by strong reasoning and if it fails to do so then its decision can be reviewed. Moreover, judiciary does not work like the party system where everybody has a same goal and works under the leadership of a leader, Judiciary comprises of scholars of law and everybody has a profound opinion and the decision is reached after rigorous process of argument from both the sides and cannot itself acquire the rule making power. Judiciary cannot obtain any monetary gain which would motivate it to act arbitrarily. Today, Article 368 acts like a pillar which supports constitution and a preserves of the ideals of the constitution.


[1] Student, School of Law, UPES, Dehradun.

[2] Sankari Prasad v. Union of India, A.I.R. 1951 S.C. 458.

[3] Sajjan Singh v. State of Rajasthan, (1965) 1 S.C.R. 933.

[4] Golaknath v. state of Punjab, (1967) 2 S.C.R. 762.

[5] Venkatesh Nayak, The Basic Structure of the IndianConstitution, Constitutionnet (July 1, 2014, 9:15PM), http://www.constitutionnet.org/vl/item/basic-structure-indian-constitution.

[6] Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.

[7] Indira Nehru Gandhi v. Raj Narayan, A.I.R. 1975 S.C.C. 2299.

[8] Minerva Mills v. Union of India, (1980) 3 S.C.C. 625.

[9] K. C. Markandan,The Amending Procedure and Constitutional Amendments in the Indian Constitution 27 (Stelling, 1972).