Article 368: Boon or Bane

Nitin Kumar[1]

Topics Covered in this article

Introduction

Democracy in any nation ensures the supremacy of its people. People in the democracy have the right to mound the machinery of government according to their aspirations. The aspirations of any dynamic nation keeps on changing with passage of time which necessities constant amendments in constitutions. Framers of constitution were anxious to have a living constitution which could endure the tides of time and adapt to the changing requirement of generations, thus the process of amendment was introduced in Indian constitution. “The amendment process is an opportunity to express democratic conceptions of basic constitutional values without derogating from the fundamental constitutional principles”.[2]

The makers of constitution after analyzing the provisions of amendment in several countries borrowed it from South Africa. They incorporated it with certain changes as to make it suitable for the Indian scenario. Part XX (Article 368) of Indian constitution gives the amending power to parliament. Although article 368 gives an impression that the amending powers are absolute. But the constitution empowers the judiciary the power to adjudge the constitutional validity of all laws. The Supreme Court with the intention to protect the original ideas envisioned by the makers of the constitution pronounced the “doctrine of basic structure” which says that the Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of amending it. This concept was recognized in the historic judgement of Kesavananda Bharati, 1973 case[3] in 1973. Further, this doctrine can only attack those amendments which are subsequent to the judgement of this case.

Amendments have also been done in Article 368. It has been amended by the 24th Amendment in 1971 and 42nd Amendments in 1976. The 24th amendment enables the parliament to dilute fundamental rights through amendments, and empowers it to amend any part of the constitution. The 42nd Amendment provides for curtailment of fundamental rights, it also imposes fundamental duties and this amendment also made changes to the basic structure of the constitution. However, due to the widely criticism of 42nd amendment, attempts have been taken to repeal it by the introduction of 43rd and 44th amendment in 1977 and 1978 respectively, to restore the pre -1976 position to some extent. Some parts of 42nd Amendment were also declared unconstitutional by the Supreme Court in Minerva Mills v UOI in 1980.

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Amending process: Analysis

It is said that “an unamenable Constitution is the worst tyranny of time or rather the very tyranny of time”.[4] A constitution if made rigid and static cannot retain its quality for long unless made amendable. Amendment provision facilitates peaceful development of country and negates the chances of revolution to which people can resort to in order to change the constitution.  According to A.V.Dicey’s[5] observation, twelve unchangeable constitutions of France were able to last for less than ten years and have ultimately perished through violent means. The political, social and economic conditions of a state keep on changing with time. Scientific and technological advancements, change in social values and ideals give rise to new problems and new opportunities. In the absence of a suitable amending clause in a Constitution, the future generations would either resort to a revolution for change or stagnate with such unamendable Constitution. The amending clause in Constitution which can help in avoiding these situations is thus of great significance.

A constitution can be rigid or flexible. In a flexible constitution, constitutional or fundamental laws can be altered in the same way as that of an ordinary law. Hence a flexible constitution can be made to face any necessity or emergency. A flexible constitution serves as an effective check against revolution. It also fulfils the wish or will of the people. Flexibility in a constitution is a merit as it is impossible for the constitution makers to foresee the problems which may arise in future. According to Sir Ivor Jennings[6]– Constitution makers do not have the gift of prophecy. He also said that “Any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen.” On the other hand it has its demerits too. If there could be change in fundamental or constitutional law by ordinary legislation, the whole structure of the constitution can be demolish within a movement. There would be parliamentary supremacy rather than constitutional supremacy. In such a situation the rights and liberties of citizen would be at the mercy of powerful ministry.

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Whereas, in a rigid constitution, the amendment is possible if some special direction has been provided by the makers of the constitution, and the will of the undoubted majority is represented by the legislative body. It also opposes harsh and hasty legislation and provides stability. Definiteness and certainty are some of its features. These safeguard against a radical change depict the more desirable way to secure maturity.

Rigidity in constitution is also essential in a federal constitution. Power of amendment should not be confined exclusively to center or to state. So in the process of amendment, state Governments are associated with the Federal Government. Rigid constitution hence cannot disturb the federal structure against the wish of its federating unit. With lots of perks, rigid constitution has demerits too. The procedure under it is too complex and hard. The amending process under this is very lengthy and time taking.

The amendment procedure under the constitution of India encompasses both rigidity and flexibility. While some constitutional amendment bills are flexible enough to be passed only by a simple majority, others require special Majority to be passed by Parliament. Certain bills which seek to amend the federal provisions of the constitution have much robust procedures; in addition to a special majority by the Parliament it must be ratified by the legislature of half of the states by a simple majority. In all the cases the finality of amendment is attained only after the assent of the President.

Conclusion

Clear demarcation of merits and demerits of extremely rigid and extremely flexible constitution proves that former makes changes nearly impossible while the later encourages frequent and unnecessary change which dilutes the supremacy of the constitution.[7] Rigid and cumbersome process of amendment in a democratic society may lead to delay in fulfilment of will of people. This can lead to adoption of vicious unconstitutional methods for change. Tremendous flexibility on the other hand would act as breeding ground for redundant changes which can be brought by ruling party in order to accomplish their individual political agendas. Fortunately a middle path has been adopted in the Indian constitution. Hence it can neither be called rigid or flexible but a synthesis of both.

Although constitutional drafters were foresighted enough to make provisions of amendment an amalgamation of rigid and flexible. But there has been some glaring instances where sense of arbitrariness could be seen during the formulation on amendments. Rigid procedure at times failed to obstruct changes which were influenced by spirit of ruling political party for their personal gain. This happens mostly in cases where there is dominance of one political party both at centre and in majority of the states. One of such misuse was seen in 1975 when in the case of State of U.P v Raj Narain[8], the Allahabad high court nullified PM Indira Gandhi’s election to Prime Minister. Soon after the judgment,Indira Gandhi pushed for the 39th amendment act which placed the election of Prime Minister beyond the scrutiny of judiciary. She also went ahead bringing 42nd amendment act in 1975 to remove all restrictions regarding limitation of amending power of the parliament and no matters regarding such amendments be contestable in any court. Later on, in case of Minerva Mills v. Union of India[9] some provisions of this amendments was removed and the doctrine of basic structure was reinforced[10].

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Time and again Supreme Court has acted as guardian of the constitution and protected political parties from scraping away the fundamental ethos of Indian Constitution. The constitution though confers the amending power on parliament but it is the apex court which decides upon the constitutional validity of amendments in the light of not only procedural limits but also substantial limits (basic structure doctrine). Thus it can be concluded that the inbuilt provisions in Article 368 along with its judicial interpretation has proved to be a boon.


[1] STUDENT, 3RD YEAR, CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

[2] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A study of the Basic Structure Doctrine, 3 (2nd ed. 2011).

[3] Keshavanand Bharati v. State of Kerala, AIR 1973 SC 1461.

[4] Mulford, The nation need to Amend a Constitution, 12 (2007).

[5] A.V. Dicey, Law of the Constitution 127, (10th ed. 1964).

[6] Sir Ivor Jennings, Some Characteristics of Indian Constitution 14-15, (1953).

[7] Prof. J.W. Garner.

[8] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

[9] Supra Note 4.

[10] Supra Note 3.