Article 368: Boon or Bane

Rudra Roshan[1]

India is known as the world’s largest democracy with the lengthiest and the most detailed written Constitution in the world. This distinction would not have been possible without the arduous efforts of the founding fathers of our Constitution which included skimming through all major Constitution of the world and modifying and incorporating ones which suited our needs best.

We should keep in mind that Laws are made for the society and society is not made for the law as society itself is a relatively dynamic concept. So as to walk along with it, the Constitution needed to be relatively flexible. Keeping this thought in mind, our founding fathers included the provision of amendment under Article 368 of the Indian Constitution.

Article 368 is enshrined under Part XX of our Indian Constitution which deals with the powers of the Parliament to amend the Constitution. The bill for the amendment can be presented for making a variation, repealing, or for adding any provision in the Constitution. It can be brought in three ways; i.e. by Simple majority, or by Special majority, or by Special majority of the Parliament and the ratification of half of the State legislatures depending upon provision to provision. Therefore, we can say that the procedure laid down under the provision of the amendment is neither as easy as compared to Britain nor as difficult as compared tithe USA.

Every amendment to the Constitution is made in the form of statute. During the discussion in the Constituent Assembly, Pandit Jawaharlal Nehru while discussing about the importance of flexibility of the Indian Constitution said and I quote:

“While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible…

Also Read  State obligation towards refugees in India: Balance between human rights and national interest

But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible …”[2]

Even though flexibility enhances the effectiveness of the Constitution and suggests opportunities for reformation, it also has some outstanding consequences. When we look into the history of Amendment provision, we can say it faced a long tussle between Legislature and Judiciary. There were certain loopholes in the provision which the political parties took it an opportunity to attain more power and to even out power the Constitution.

This is clearly evident in the case of His Holiness Kesavananda Bharati Sripadagalvaru v State of Kerala[3]; In this case, the Supreme Court held that the Parliament has the power to make amendment but added that such amendments shall not infringe the Fundamental Rights of the people and introduced the concept of Basic Structure Doctrine which was the need of the hour after looking towards the 42nd amendment made by the Parliament which also gave unlimited power to the Parliament to alter or restrict the Fundamental Rights. As stated earlier, this judgment gave birth to a new Doctrine of Basic Structure which is nothing but a bag of principles that are basic and essential to the Constitution, which is of the essence and hence cannot be amended.

The 39th Amendment was formulated, particularly its clause 4 kept the election of The President, The Vice-President, The Prime Minister, and The Speaker of Lok Sabha away from the judicial scrutiny. This again posed the question before the Judiciary that Is Parliament supreme or the Constitution? And again Supreme Court in the case of Indira Gandhi vs. Raj Narain[4]; played its role in preserving Constitutionality and held clause 4 of 39th Amendment unconstitutional as it was violative of Article 14 of the Indian Constitution.

Also Read  Analysis of Paternity Benefits in India

This way in our country the scheme of check and balance have been always playing its role in protecting the Constitution and Constitutionalism which is essential for the survival of the Democracy.

As we look back on several instances of Indian history in which the Judiciary had no option other than stepping in and undoing the wrongs created by the Parliament, a serious question arises on my mind:

‘Did the architect of our Constitution put the Indian Judiciary in a tight spot by bringing flexibility in the Indian Constitution?’

Before answering the question, we should weigh the pros and cons of the amendment under Article 368 so as to settle on an idea.

The advantages of the Amendment are as follows:

  • It definitely helps in coping up with the need of the hour and also protects and enhances the Rights of the people.
  • It acts as a mechanism to remove the flaw, inadequacies or short comings in the provisions of the Constitution. As with time, society changes and likewise new requirements come into picture.
  • The procedure of the amendment is neither undemanding nor challenging because of the presence of the requirement of Simple majority, Special majority, and Special majority of the Parliament and ratification of the half of the State legislature in different circumstances.
  • When we talk about a change, we must not forget that it acts as a tool to enhance the Rights of the people.

The shortcomings of the Amendment are as follows:

  • The power of Amendment is vested in the hands of the Parliament but rather we should be thinking of making a special body responsible for it, like Constitutional Convention in USA or Constitutional Assembly.
  • More active participation of State legislative assembly should be encouraged and developed. As of now, the State legislative assemblies can only initiate a bill or proposal in the case of requesting the Parliament for the creation or abolition of legislative councils in the state.
  • In the case of a dead lock between the two houses of Parliament in matters of the ordinary bill there is a provision of joint sitting but it is not so in the case of Constitutional Amendment bill as it is required to be passed by both the houses of Parliament too.
  • The process of Amendment and the subject matter on which the Parliament can make the Amendment is quite vulnerable.
Also Read  Why Marital Rape Should Not Be Criminalised

Summing up the above points, the standards set by the Constitution has not been proven to be a success, but neither has it been a failure. Despite all these shortcomings, we cannot deny the fact that the provision under Article 368, which talks about Constitutional Amendment, triumphed in meeting the requirement of time. In a real sense, this provision has been proven to be effective. As every coin has two sides and this provision is no exception; but here, the benefits outweigh the risk.

And, definitely it’s not less than a boon for a democratic country like ours. I would like to conclude by throwing light on the words of Granville Austin who rightly said and I quote “the amending process has proved itself one of the most ably conceived aspects of the Constitution. Although it appears complicated, it is merely diverse[5]”.

[1] Student, B.A.LL. B, 4th Year (5 Year Course), New Law College, Bharati Vidyapeeth Deemed To Be University, Pune.

[2] Constituent Assembly of India debates VII, (8th November,1948),

[3] Kesavananda Bharati Sripadagalvaru v State of Kerala (1972) 4 SCC 225.

[4] Indira Gandhi vs. Raj Narain (1975) 2 SCC 159.

[5] Granville Austin, The Indian Constitution: Cornerstone of a Nation 25 (Oxford, 1966).

Leave a comment