Article 368: boon or bane

Avni Kritika[1]

Introduction

The Indian Constitution is law of the land and known as ‘lex supreme’. It governs the polity of the country. The Constitution of India in its preamble declares it a sovereign, secular, democratic republic giving its citizens justice, equality and liberty. It was adopted on the red letter day of 26th January, 1950. Indian Constitution known to be the world’s longest written constitution; currently with 448 Articles in 25 Parts and 12 Schedules and has complete essence into itself of a written constitution; which is having the amendment power making the Constitution complete in all sense; which makes the Constitution flexible, rigid and dynamic. For adapting itself in the changing needs of the people; the amendment power is the boon for the citizens and the society.

Amendment procedures can be of both the types; flexible and rigid. In case of rigid: The procedures for amending the Constitution will be difficult like that of Australia, Canada, United States and Switzerland whereas in case of flexible: the procedure for amending the Constitution will be easier like by passing a normal legislation like that of United Kingdom. In India, the amending procedure is considered to be a rigid one in the procedural manner but in reality it is flexible; there is a way out that the ‘basic structure of the Constitution’ cannot be changed and they are as per the KesavandaBharti verdict, Sikri, C.J. included:

  • Republican and democratic form of government
  • Supremacy of the Constitution
  • Separation of power between the three organs of the government i.e., the executive, legislature and judiciary
  • Federal structure of the Constitution
  • Secular character of the Constitution

Provisions for the amendment of the Constitution was done with a view to make the Constitution people friendly as time changes. Therefore, this makes the Article 368 of the Constitution a boon for good governance.

Talking about the definition of amendment, it means to rectify, to correct and make things right. Legally speaking, amendment means enhancement, refinement, elaboration etc. The meaning of amendment was first sought in the case of Sajjan Singh v. State of Rajasthan[2], here the court held that the amending process includes the deletion of one or more provisions and have substitute in place of it. This was further challenged and restricted in the Golaknath case[3], it was said that in amendment only major changes can be made and the pre-existing provisions will not be repealed. Lastly in Keshwananda Bharti Case[4] it was found that the ‘Basic structure of the Constitution’ cannot be changed.

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According to Garner, no written Constitution is complete without the provision of amendment and it is the most important part of the Constitution. The object of the amending clause in the Constitution is to ensure the preservation of the Constitution. A state is always dynamic and keeps on changing with the passage of time; so the political, economic and social scenario of the State. The technological and scientific advancements taking place is changing the lifestyle of the people of the State. The ideas and values are even changing with time and these are giving rise to new problems and hence are in need of new opportunities. Upcoming generation may need the requirement of changing the Constitution more accordingly in a suitable manner. Systematically drafted amending provisions can help the future generations to adapt the Constitution according to the contemporary needs and the philosophy of the Constitution will remain the same. If there are no suitable amendment provisions in the Constitution, it will create chaos in the State and anarchism will take place leading to a revolution. Thus, the amendment clause is of a great significance.

Procedure of amendments

The procedures adopted by the Constitution may vary from time to time. It can be either informal or formal.

Informal method

In this type of method, the actual Constitution texts doesn’t change but the interpretation of the written texts changes from to time. The words written in the Constitution may have one meaning in one situation and the other meaning when the situation varies. The types of informal method are as follows:

  1. Judicial Interpretation
  2. Constitutional Usages and Conventions

Judicial interpretation

It is process by which the Constitutional principles are being interpreted by the judiciary. This is where the courts play a very dominating role. By this method, the existing clauses of the Constitution may get a new meaning without having any formal amendment into itself; thereby leaving the Constitution as it is. This process has been adopted by the countries like U.S. and in limited version in the countries like Canada and Australia.

Constitutional usages and conventions

Through this method, the operation within the framework of the Constitution modifies and the effects are not made but they are evolved by the practices followed for a longer period of time. The Indian Constitution is the most detailed, lengthiest and comprehensive Constitution of the world. Judicial Decisions do bring changes in the Constitution but they are no amendment and changing of the text and it therefore maintains the essence of the Constitution by not altering any text in the Constitution.

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Formal method

Every Constitution has some formal method of amending itself. This is so done to change the language of the Constitutional provisions so as to adopt itself to the changing scenario and the needs. It can be both rigid and flexible; depending upon the country. The formal process is the significant way of having the change in the Constitution according to the circumstance.

In Indian Constitution, the formal method of the amendment is discussed in Part XX of the Constitution consisting of Article 368 only under the title amendment of the Constitution. Even Article 368 has been amended three times till date as in 1956, 1971 and 1976.

Power to amend the constitution

Article 368 has been initially titled ‘Procedure for amendment of the Constitution’ it gave the power to the Union Parliament to amend the Constitution by the prescribed provisions. The 24th Amendment Act, 1971 replaced the initial title with ‘power to amend the Constitution and procedure therefore’. Later, 42nd Amendment Act, 1976 further amended the Article declaring the constituent power of the Parliament as absolute and unlimited and excluding the interference of the Courts. Article 368 of the Indian Constitution discusses Power of Parliament to amend the Constitution and procedure therefore:

  • 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.
  • An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
  • Article 54, Article 55, Article 73, Article 162 or Article 241, or
  • Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
  • any of the Lists in the Seventh Schedule, or
  •  the representation of States in Parliament, or
  • the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
  • Nothing in Article 13 shall apply to any amendment made under this article[5]
  • No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground
  • For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.[6]
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Three kinds of amendments in the Indian constitution

As the Indian Constitution follows the formal process of amendment; so for the purpose of amendment the articles in the Constitution is divided into three categories. The first category is out of the purview of the Article 368 whereas the other two are a part and parcel of the said Article. It enables the Indian Parliament to amend any provisions of the Constitution without disturbing the Basic Structure of the Constitution.

There are three types of amendment described in Article 368.

Amendment by simple majority vote of the parliament

In this, the Article can be amended in the same way by the Parliament as an ordinary law is passed attaining simple majority; it can have done by Union and the State both. Provisions related to citizenship, salaries and allowances, administration and control etc.

Amendment by special majority vote of the parliament

In this, all amendments are done by special majority except those that are included by the provisions of simple majority; it needs the majority of the total membership of both the houses of Parliament and as well as the 2/3rdmembers present and voting.

Amendment by special majority vote with half of the state legislative and assembly’s ratification.

In this amendment to certain Articles requires special majority vote as well as with the ratification of half of the State Legislative and Assemblies. Provisions related to manner and mode of election of the president, extent of executive power of Union and State, high court, union judiciary, lists etc.

Conclusion

The constitutional fathers have included everything that is required for the progressive country. Without having any limitation in the amending power of the Parliament, they have made Article 368 a boon for good governance.


[1] Student, Amity University Lucknow Campus.

[2] Sajjan Singh v. State of Rajasthan, (1965) S.C. 845.

[3] Golaknath v. State of Punjab, (1967) S.C. 1643.

[4] Keshwananda Bharti v. Union of India, (1973) 4 S.C.C. 225.

[5] I.C. Golaknath v. State of Punjab, (1967) S.C. 1643

[6] INDIAN CONSTI.