Article 368: a twin-edged sword

Prashant Baghel[1]

Article 368 of the Indian Constitution, viz., the provision of amendment is a twin-edged sword, as it helps to face the problems of the adaptation of the Constitution according to the circumstances, but at the same time can harm its wielder, the Indian democracy, if not used with proper care. There has to be proper check on the power of amendment, so as to prevent any harm to the identity of Constitution when amendments are done.

Article 368 provides for the power and procedure of amendment. The power of amendment is in the hands of the Parliament. Amendments are introduced in either house of the Parliament as Bills, which must be passed by each of the two houses, with a special majority, viz., not less than half of the total membership of the house and by two third of the voters present. If, the amendment involves issues of federal consideration or state relations etc., In which the states are involved, then it must have to be ratified by not less than half of the total number of states. Then, the bill goes to the president for his assent, and it is only after the sign of the president, that the bill becomes an amendment.

The Indian Constitution is one of the best Constitutions ever written in the world for a democratic country. It was drafted after a lot of discussion and arguments that took over two years for the drafters of the Indian Constitution to finish it. Even though it was well drafted and carried the will of the citizens of India, the drafters were aware of the fact that even after their best efforts there can be some problems in its application that may come out later. They knew that it’s a human made document and can have errors which may not be visible at that time but can appear as a problem later. Thus, in order to deal with this problem, the article-368 was placed in the Constitution. The article 368 deals with the power and procedure of amendment in Constitution.

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The provision of amendment of Constitution gives Indian Constitution, the flexibility required to endure the changes that take place in the society. The society keeps changing with time, because of the development in technology and traditions and customs. Also, the population of the country is increasing at a fast pace. Therefore, the Constitution that was written several decades earlier need to adapt to the changing circumstances, otherwise it would not be able to hold still, such a big democracy.

The provision of amendment, though very useful, can be proved very harmful for the Indian democracy, as it gives the parliament the power to write the Constitution in any way that it may see fit, whether just or unjust, only to satisfy their personal interest. This condition was observed during the Emergency Period, which is also known as the darkest chapter of Indian democracy. Indira Gandhi misused the majority of her party in the parliament to, first, impose Emergency on the country, and then, making amendments in the Constitution as per her interests.

There is always the threat of politics making unjust use of the power given to them. Therefore, it is necessary to put some reasonable restrictions on the exercise of the amendment power of the parliament. The greatest threat is to the fundamental rights of the citizens. The question whether the article 368 gives the parliament, the power to even amend the fundamental rights, provided in the part-III of the Indian Constitution, was first brought up in the case of Shankari Prasad v. Union of India.[2] It was held in this case, that the article 368 gives the parliament, the power to amend any of the provisions of the Constitution. A similar judgement was recovered in the case of Sajjan Singh v. The State Of Rajasthan.[3]

It was in the case of GolakNath v. State Of Punjab,[4] that for the first time, the court held that there are some limitations on the amendments that can be made by the Parliament in the Constitution. It was held that there can be no such amendment in the Constitution that would take away the fundamental rights of the citizens, i.e., fundamental rights cannot be amended.

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One of the landmark judgments of the Supreme Court, i.e., the case of KesavanandBharti v. State Of Kerala,[5] has provided the most reasonable and powerful restriction that has been put on the amending power of the Parliament. This is the case from which the doctrine of “Basic Structure of Constitution” has evolved. The judgement of this case made it clear, that there is implied limitation on the extent of amendment that can be done in the Constitution. The Constitution has two types of features in it, one is basic and the other is circumstantial, and the article 368 only allows amendment in the circumstantial features of Constitution, and the basic features must not be amended for the protection of the true identity of our Constitution. It was made clear in the judgement that every provision of Constitution is open to be amended as far as the Basis Structure or Framework of the Constitution remains unaltered.

The 42nd Amendment in the Constitution gave unlimited power to the Parliament to amend the Constitution in any way desired, by adding 4th and 5th clause in the article 368. The Amendment was struck down by the Supreme Court in the case of Minerva Mills v. Union of India,[6] on the grounds that it was harmful for the basic structure of the Constitution. It was held in this case that, the limited amendment power is an element of basic structure of Constitution, and since the 42nd amendment was against the limitations on amendments, and also against the judicial review, which is also an element of basic structure because it provides for the system of checks and balances, it was struck down by the Supreme Court.

The provision for amendment has been proved to be very useful till now although only if used on putting certain limitations on it. If the Constitution would not have been provided with the amendment mechanism and would have remained completely rigid, then the people would get to other methods of changing Constitution, like that of revolution, and would have caused much chaos. But, it is evident from some inferences of the past, that it is necessary to protect the basic structure of the Constitution, and the judiciary through Judicial review had and has been doing this job very well, and hope it will keep doing so, otherwise, the consequences can be destructive.

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[1] Student, Faculty Of Law, Aligarh Muslim University.

[2] Shankari Prasad v. Union of India, AIR 1951 SC 455.

[3] Sajjan Singh v. The State of Rajasthan, AIR 1965 SC 845.

[4] Golak Nath v. State of Punjab, AIR 1971 SC 1643.

[5] Kesavanand Bharti v. State of Kerala, AIR 1973 SC 2299.

[6] Kesavanand Bharti v. State of Kerala, AIR 1980 SC 1789.