Article 368: Boon or Bane

Akash Saroha[1]

Introduction

The Indian democracy is run by a document called “The Constitution of India”; the longest written Constitution in the world. the Constitution was written in way back after the independence but it still stood fulfilling all its sacrosanct duties because our Constitution framers provide the Constitution with article 368 i.e. amendment of the Constitution.  No written Constitution in the world survives without amendments because if it is not able to keep its pace with the changing scenario all its provisions become futile making it worthless and also change or transformation is a universal phenomenon nothing can be so perfect that it cannot be altered or changed. So keeping this in mind and after analysing and perused various Constitutions of the world and finally by adopting provisions of amendment from South African Constitution, our Constitution framers inserted article 368 to the Constitution which provides for the power and procedure for the amendment of the Constitution and the amendment procedure is neither so rigid that it makes amendments very difficult nor so flexible that the parliament changes it every day. So it’s a fine mixture of flexibility and rigidity. Apparently the core of a written Constitution is its amendment provision which makes it eternal. Article 368 is truly a boon because of this the Constitution evolves completely and took the shape in which it is today. if article 368 is not there than our Constitution lost its significance and people adopt other measures some of which may be aggressive like rebellion and revolt and thus to avoid these obstacles Article 368 is in the Constitution.

Article 368: a boon

In India the supremacy lies in the people of India neither in Constitution nor in government. This is so because the Constitution is given to us i.e. we the people of India and thus we have all the rights to make this Constitution to keep it updated with the changing scenarios. These things can only be done by way of a very definite amendment clause and our Constitution has one. Its significance lies that within one year of its commencement the first amendment was done to the Constitution and more interestingly the amendment got challenged. Explaining the importance of amendment clause in a Constitution John W. Burgess said; “A complete Constitution may be aid to consist 3 fundamental parts. The first is the organization of the state for the accomplishment of future changes in the Constitution. This is usually called the amending clause and the power which it describes and regulates is called the amending power. This is the most important part of the Constitution. Upon its existence and truthfulness depends the question as to whether the state shall develop with peaceful continuing or shall suffer alterations of stagnation, retrogression and revolution.[2]

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Engender of basic structure doctrine and a check on amending power of the parliament

Before the historic verdict of Keshvananda Bharti[3] Case to amend the Constitution was a very easy task for the parliament due to non-availability of any express and implied restrictions on its power and also easily access to the requisite strength of members to amend the Constitution. Due to this practise the article 368 considered to be bane because the parliament assumed it to be supreme in the matter of amendments, but to preserve the significance of article 368 the Hon’ble Supreme Court in1973 engendered the basic structure doctrine and thus the whole scenario changed. Hon’ble Supreme Court said that not parliament it is the Constitution which is supreme. At the commencement of the Constitution no basic structure doctrine was there, it is the conclusion of long scuffle between the judiciary and the legislature.

Development of the doctrine

In Sajjan Singh’s[4] case the Hon’ble Supreme Court held that parliament has all the powers to amend the fundamental rights and there is no restrictions as to because if our Constitution framers wants to keep out the fundamental rights they would do it by providing expressly and thus there is no restrictions on the power of parliament.

This judgement was overruled by a majority of 6:5 by the Hon’ble Supreme Court in Golaknath vs. State of Punjab[5]. Hon’ble Supreme Court held that Article 368 merely provides a procedure and does not confer any power on the parliament. The power is derived from the article 245 of the Constitution and further court held that amendment in Constitution is a law and thus it can be challenged in a court if it violates the fundamental rights. The Court said that the Fundamental rights are assigned transcendental place in our Constitution and, therefore, they are kept beyond the reach of the parliament.

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By 24th amendment the parliament nullifies the effect of the judgment. 24th amendment extend the scope of article 368 by providing that parliament has the power under article 368 of the Constitution and also no amendment can be challenged in any court. Thus to nullify the effect of the Golaknath judgement parliament amend the article 368 itself.

 In Kesvananda bharti case the majority (7:6) overruled the Golaknath judgement and propounded the basic structure doctrine. The court held that article 368 provides for the power as well as procedure both. 24th amendment held valid as it made explicit what was implicit in the Constitution, but the court declared the second part of the amendment invalid which takes away the power of judicial review of the Supreme Court. Hon’ble Supreme Court held that parliament under article 368 cannot amend the basic structure or framework of the Constitution.

To overcome this judgement the parliament inserted clause 4 and 5 in the article 368 by 42nd amendment act which was declared unconstitutional by the Hon’ble Supreme Court in Minerva mills case[6]. But the basic feature is not yet defined by the Hon’ble Supreme Court.

The boons of article 368 may be summarized as:

  1. It makes the Constitution grows with the time.
  2. It makes the Constitution preserved.
  3. It specific provides which amendment requires what kind of majority
  4. As in Minerva mills case clause 4 and 5 are struck down so every amendment is under the umbrella of judicial review so the supremacy and basic structure of Constitution remains unaffected.

Criticisms of Article 368

Participation of states: every amendment introduced in the parliament by any of the house i.e. either the Loksabha or the Rajyasabha, even the ratification of the states which is required is only half of the states. So the state should be given a significant participation in the amendment process.

No amendment committee: every amendment is based on the whims and fences of the ruling party and thus they amend the Constitution according to their need and not according to the need of the nation e.g. insertion of 4th and 5th clause, 9th schedule in the Constitution. So a specific committee should be appointed which amend the Constitution according to the need of the society and not according to the wills of the parliament.

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What is basic structure: there is no concrete answer what is basic structure of the Constitution. Every learned judge gave examples of what is basic structure according to them but no straight forward rule. So the members of judiciary and parliament come together to decipher this conundrum.

No provisions of joint sitting. There is no provision of joint sitting of both the houses if any deadlock occurs in any amendment bill whereas in ordinary bills the provision of joint sitting is there.

Conclusion

Despite the above mentioned flaws the Constitution of India is developing with the time and mould itself according to the need of the society. Too err is human thus nobody is perfect so as our Constitution is. Our Constitution framers by putting all their knowledge and erudition frame this Constitution and they were aware of the future contingences thus the need of article 368.  Secondly Hon’ble Supreme Court is the guardian of the Constitution and thus if any amendment seems to be contrary to the Constitutional values no matter if parliament put it in 9th schedule; it is still subjected to judicial review (I.R. Coleho’s[7] case); so no amendment can take away the fundamental rights of the citizens and it is not judicial overreach it is judicial activism. Thus article 368 is a very important part of the Constitution and due to this our Constitution has taken the present form and Hon’ble Supreme Court keeps it protected from any kind of uncontrolled attempt of the parliament and keep it preserve so that our Constitution serves till eternity.


[1] Student, SRM University, Harayna.

[2] John W. Burgess, Political Science and Comparative Constitutional Law 137, (Hardpress Publishing, 1913).

[3] Keshavananda Bharti Vs State of Kerala A.I.R. 1972 SC 1461.

[4] Sajjan Singh Vs State of Rajasthan A.I.R. 1965 SC 845.

[5] Golaknath Vs State of Punjab 1967 (2) SCR 762.

[6]  Minerva Mills Vs Union of India A.I.R 1980 SC 1789.

[7] I.R. Coleho Vs State of Tamilnadu (2007) 1 SC 137.

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