Article 368: Boon or Bane

Rajat Kumar Singh[1]

Article 368 in the Constitution of India 1949

368. Power of Parliament to amend the Constitution and procedure therefore.

(1) 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

(2) 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

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) 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

(3) Nothing in Article 13 shall apply to any amendment made under this article

(4) 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

(5) 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 Part XXI temporary, transitional and special provisions[2]

Also Read  Commutation of Death Penalty and Death Row Phenomenon

Opinion holding article 368 as bane

We all know that the foundation of a building structure has to be really strong and sturdy, so that the building could have a long life! For that purpose, our Constitution has to be error-free, so that legislations here could be error-free! The framers of our Constitution too gave great emphasized on that point.

That’s why they took three long years for enacting it! After lots of deliberations and discussions, they adopted the Constitution on 26th November, 1950 and it came into force from 26th January, 1950. Yes, for the same reason, 26th January is considered as Republic Day of India, whereas 26th November is considered as National Law Day! The Constitution when finally adopted, it has turned out to be the largest Constitution of the World! Yes, don’t be surprised, we Indians have the largest Constitution of the World! This is because the framers tried their best to address all the possible problems and their solutions! They want to make it sure that Grundnorm of India has to be ‘error-free’! In doing so, they consulted, or in rude words, they copied many foreign constitutions, including that of France, United States of America, Russia, Ireland, Canada, Australia and obviously, Great Britain! Well, there is a saying somewhere, that if we copy something for good cause we must call it inspiration! For example, Article 51-A of our Constitution which dealt with the Fundamental Duties of the citizen, (we Indians are less aware of these duties though!) has been inspired (or copied?) from the Constitution of Soviet Union.

Now, let us see our Constitution is fallible or infallible? If we try to analyse our Grundnorm, we will see that our Constitution has become a great confusion! For example, we have federal structure, where the powers are divided between the Central Government and the State Government. But, in course of time, this federal structure has been messed up! Many bills and ordinances could not see the daylight because of the opposition from the State Government. And on other hand we have experienced how the Union Government by invoking Emergency Clause of the Constitution had arbitrarily used the power. In 1977, Justice Beg, in State of Rajasthan vs.

Also Read  Innovation and Intellectual Property: Remedies and Damages Available in India

Union of India, had correctly termed our Central Government as amphibian one, where the Government changes into Unitary or Federal one, as per the need of the time! It does not create flexibility, rather more ‘confusion’! Similarly, there is constant competition between the Parliament and the Supreme Court, regarding who has the upper hand! The Constitution has provided grounds for Judicial Review, being inspired from the Constitution of U.S.A. Similarly, the power for enactment of law has been given to the Parliament, being inspired from Great Britain. The ultimate result – sheer confusion! Do you need proof? There are several instances where Supreme Court termed the law made by Parliament as ultravires to the Constitution, or made some ruling which is different from what provision of the concerned legislation intended to do! On other hand, Parliament took some other routes to implement the laws enacted by it! The Constitution failed to provide the clear cut solution in this case! 

The Constitution under Article 14,15 and 16, specifically concentrated on the term ‘equality’, on other hand, it has provided the option for reservation for women, children and backward classes, where criteria for backward classes is socially and educationally backward, not economically backward! The history of ancient India reflects a very sorry state of backward classes, their upliftment is of utmost importance, but somehow the framers have overlooked the state of economically backward classes, and concentrated more on socially backward section! And the ultimate result – the Constitution is taking us backward instead of moving us forward.

The framers tried their best to create the best Constitution of the world by taking the best options available from the Constitutions of the most developed countries in the world! They wanted to make those foreign systems adjustable in our country of such diverse culture! Well, the boys here also want to have muscles like Hrithik Roshan, hair like George Clooney, voice like Amitabh Bachchan, eyes like Brad Pitt, and so on, but the end result might not be a ‘good-looking’ one. The same has happened with our Constitution, being inspired from so many constitutions of different countries, where each one had different social and cultural perspective! Instead of boon, somewhat our Constitution has ended up to be a bane! The great Indian Constitution has become a great Indian Confusion.[3]

Also Read  Redefining Honour: Problems and Prospects with Prosecuting the Perpetrators U/S 300, IPC

Opinion holding article 368 as boon

Every generation has a different society, a different point of view and different requirements and thus for the sake of which the laws need to be amended. Hence we need article 368. One generation cannot enforce its laws over all others as none of them has the wisdom to make laws for all others. Also one cannot have the privilege of making laws according to opinion suitable to society then just because he is born earlier than other generation. Constitution is not the monopoly of some but the population as a whole should find interest in it.

Conclusion

From the above discussion we can conclude that article 368 is a boon. As no generation has the monopoly of neither wisdom nor it has the same over the constitution, so amendments are very necessary in order to meet the needs of changing society. We can conclude that article 368 is what keeps the constitution young. Thus article 368 is a must for maintaining the youngness of the constitution of India, in the absence of the said article constitution would grow older and less capable day by day and will die one day.


[1] Student, Faculty Of Law A.M.U.

[2] Constitution, GOOGLEWEBLIGHT (November 28, 2019), https://googleweblight.com/i?u=https://indiankanoon.org/doc/594125/&hl=en-IN.

[3] Souvik Dhar, Constitution of India – A Boon or a Ban?, SPEAKINGTREE https://www.speakingtree.in/blog/constitution-of-india-a-boon-or-a-bane.