Article 368: A Windfall to Citizens

Arti Kadian[1]

“Don’t interfere with anything in the Constitution.  That must be maintained, for it is the only safeguard of our Liberties.” -Abraham Lincoln

Augmenting vitality to democracy, Indian Constitution follows a cardinal (basic) structure which is not merely the roots of its construction but also the foundation for amendments and formation of new laws. Ostensibly, the core mission of the constitution framers was to devise it amenable enough to conform to the changing needs of the society and stubborn enough so that only requisite amendments can be made. Perquisites of this theorem are for the civilians since the party in power will not be able to abuse the amenable laws in order to devise new laws as per there coveting policies.

As stated by Dr. B.R. Ambedkar, “Constitution is not merely a lawyer’s document, but a vehicle of life and its spirit is always the spirit of age.”  The vivacity of a State is dynamic and to expedite the unceasingly dynamic developments and demands of the society, the social, political and the economic conditions vacillate ceaselessly. Accordingly, a constitution drafted at one point of time might become skimpy at another time. As stated by George Bernard Shaw in “Intelligent Woman’s Guide to Socialism”- The institutions under which we live are being changed continually by the Parliament, because we are never satisfied with them. Sometimes they are scrapped for new ones; sometimes they are altered; sometimes they are done away with as nuisances. The new ones have to stretched in the law courts to make them fit, or to prevent them fitting to well if the judges happen to dislike them. For every Constitution has embodied some provisions for its amendment by way of deletion, addition or correction. These provisions are wedded with the aim to vanquish the hardships that may bump into future and obstruct the smooth functioning of the Constitution. The framers of the Constitution wanted to draft such a living document that is capable to develop with the developing nation by adjusting itself to the growing needs of the society.

Oxford dictionary defines “Amendment” as changes made to legislation, for the purpose of adding to, correcting or modifying the operation of the legislation. Any written constitution is incomplete without amending provisions. Also an unamenable Constitution is the worst tyranny of time.  Amendment provisions help the Constitutions to expand because they give opportunities to the coming generations to amend it as per their needs.  Indeed, these amendment provisions form the core of any written constitution. These provisions serve as fortuity to voice democratic ideas of fundamental constitutional values without detracting from the fundamental constitutional principles.

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With regard to the amendment of the Constitution Pandit Nehru once said that the Constitution which is responsive to people’s will, which is responsive to their idea, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. With this view Article 368 was added to the Constitution so that necessary amendments can be done with the changing time. Thus it imparts Indian Constitution a peerless attribute of blend of flexibility and rigidity. Article 368 doesn’t impose any explicit restriction over Parliament’s amending power but there is an ongoing battle between judiciary and the parliament over it since outset of constitution. The contradiction between the principles of ‘parliamentary sovereignty’ and ‘judicial review ‘that is embedded in India’s Constitution has been a source of major controversy over the years.[2] The amending power of the Parliament under the Indian Constitution is the main area which has led to most serious disagreements between the Parliament and Judiciary,[3] the conflict involving Parliamentary Supremacy on one hand and the Judicial review of the scope and extent of the power and the manner in which such power is to be exercised on the other.[4]

Reaction of judiciary can be inferred from following judgments:

Shankari Prasad v. UOI A.I.R. 1951

Validity of 1st Amendment Act to Constitution was challenged which curtailed the Right to Property. SC held that power to amend under Article 368 also includes power to amend FR’s. An amendment is not law within Article 13(2) and will be valid even if abridges FR’s.

Golak Nath v. State of Punjab A.I.R. 1967

Validity of 17th Amendment Act was challenged which inserted certain State acts in the 9th schedule. Here SC reversed its earlier stand. Held that Parliament cannot abridge or take away any of the FR’s. Constitutional amendment is also law within Article 13 and hence would be void for violating any of the FR.

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Parliament reacted to this and enacted 24th Amendment Act, 1971. This act amended Article 13 and 368. It declared that Parliament has the power to abridge or take away any of the FR’s under Article 368 and such an act will not be law under meaning of Article 13.

This scuffle between Parliament and judiciary gave rise to the Doctrine of Basic Structure which laid down restriction on Parliament’s amending power.

Kesavananda Bharti v. State of Kerala A.I.R. 1973

SC upheld the validity of 24th Amendment Act, 1971 and held that Parliament can abridge or take away any of the FR without disturbing the Basic Structure of the Constitution.

Basic Structure includes:

  • Rule of law
  • Parliamentary system
  • Independent judiciary
  • Judicial review
  • Supremacy of Constitution
  • Welfare State
  • Sovereign, democratic and republic character, etc.

The rationale of SC’s judgment in the Kesavananda Bharti vs. State of Kerala case is well- founded and unpretentious. Parliament owes its power to Constitution. It can be seen that Lok Sabha dissolves periodically, there is retirement of members of Rajya Sabha whereas Constitution endures to prevail supreme. If Parliament gets hold of power to amend basic structure of the Constitution, it would knock off itself as being its creature and evolve as its superior. It manifests that Parliament has been claiming its superiority as is possessed by British Parliament but SC has been interpreting Constitution as the Supreme and Parliament as its creature acting within and not beyond constitutional limits. Though, the power to amend Constitution is conferred on to the Parliament by the Constitution but the SC has the power to interpret the scope of such power and to spell out the limitations, if any, on such amending power.

Henceforth it can be concluded that Constitution is inestimable legacy of Indians. Being a living document, it adapts according to the changing needs of the generations. Albeit there are few ingrained values, a fundamental skeleton on which Constitution lounges. This skeleton originality is the core of every legal system embodied by Constitution and protected by Judiciary through its doctrines and verdicts. It would be distinct issue if the volksgeist desires new skeleton by wrecking old one and would need distinct procedure for that. Meanwhile fundamental characteristics that bind the nation together in determined form must be shielded from transgression. Article 368 which bestows power to Parliament to amend Constitution can’t be interpreted as testifying the death wish of Constitution or as provision of its legal suicide. Parliament while exercising amending power can’t usurp itself the role of official liquidator of Constitution. Basic Structure doctrine developed by SC nurtures the requisite of Constitutionalism which is pivotal for up- keeping the spirit of Constitution, to safeguard, shield and uphold the principle of rule of law devoid of which Constitution is but a dead letter law. The journey of evolution of Doctrine of Basic Structure from the theory of implied limitations to its contemporary shape currently has been zilch scanty of obstreperous, with endeavours to preserve it and even better endeavours to eradicate it since this doctrine singly entitles judiciary to thwart legislature form misusing Article 368 by keeping check on legislature and hinder it form encroaching into traitorous domain of whimsy. Also the doctrine of Basic structure plays a prominent role in securing the conceit of democracy. The modus operandi of judiciary are dynamic and not static. Thus, domain of the doctrine of basic structure keeps on expanding making it a huge list, which in itself demands judicial interpretation to eradicate vagueness. This doctrine protects the very essence of the Constitution. Constitution which is Suprema Lex in our country is outside the pale of any conflict. The concept of basic structure has some minor flaws but the benefits of it overweight he fallacies to a larger extent, making it an integral part of any Constitutional interpretation.

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[1] Student, 4th Year B.A.LL.B.(Hons.), Lovely Professional University, Phagwara.

[2] The Constitution, Countrystudies (November 28, 2019), http://countrystudies.us/india/109.htm.

[3] S.R. Vinodharani, Amendibility of the Indian Constitution, Academia (November 28, 2019), http://www.academia.edu/19927021/Amendability_of_the_Indian_Constitution.

[4] Gary Jeffrey Jacobsohn, An unconstitutional constitution? A comparative perspective, Oxford Journals (November 28, 2019), http://icon.oxfordjournals.org/content/4/3/460.full.