Article 368: Boon or Bane?

Sneha Solanki[1]

The country having a monarch has to take care of its throne while a country having a federal constitution has to hold all the powers both at the centre and the state but the country having both the federal and unitary features is more of difficult tasks to do as any misbalance will lead to more of unitary power or vice versa will end up in more turmoil.”INDIA” A constitution which is formed by the amalgamation of the constitution of countries like Russia,  USA, Japan ,England and so on by the honorable constituent assembly chaired by BR Ambedkar which have left enough space for the amendments that are required from time to time as it needs to be workable by people of different ideologies. One sees it as an opportunity to make it more and more convenient for the people respecting the sovereignty, the procedure is neither too rigid nor too flexible to make the concerned amendments. But as one talks about the amendment, there are various questions that are needed to be answered that are – who is going to govern them, checks and balances and if in case of violation of any part of the constitution who is going to struck them down.

 Judiciary and parliament (legislature) are more commonly said to be the pillars of democracy. Moreover, the constitution makers have assigned all the duties and set up all the mechanism that will be needed in the future generation. But having a country embedded with the largest written constitution in the world, is followed by certain ambiguity that led to Misbalance btw two pillars of democracy. Article 368 has assigned powers to the parliament to amend the constitution. Prudently, article 368 gives a chance to repeal laws by the leaders who are elected and who are representing millions of people voted for them. But since 1973 the Keshavnanda Bharti vs. State of Kerela[2]  the idea of the basic structure of doctrine is established, the article seems to have lost its identity as the doctrine limits the parliament to make laws as well as struck down if the courts feel that the law has violated the “doctrine”. The article gives a sense of faith amongst the people who believe that their voices are being heard and applied accordingly also having totally fair that the fixed majority of the houses has to pass the bill and the president shall give his assent. This leads to have people’s government and that understands the changing social, economic and political arena. Also in 70 years of independence there are about 101 amendments which were in turn necessary some of which has been turned by our forefathers due to the changing political system. It must be taken into consideration that parliament has the duty to make laws that are fruitful and must be within the integrity and if it is not then as democratic country which is described as a government of the people, by the people and for the people and so in order to do complete justice to it then they can be abolished but the problem comes when it becomes a hide and seek game for them as many laws has been vanished in the name of judicial review .article 368 needs to have the new idea in the eyes of laws and there should be much protection to laws made by the parliament ,they should not be stuck down so easily. Coming back to the doctrine of basic structure it is not wrong to say that supreme court has step by step has increased its ambit through its vague interpretations as it has given in the interpretation of article 14 and 19 and 21 in Maneka Gandhi case[3].going by H.M. Seervai  words[4], that “what is not in the language of the text is not in its meaning and nothing can be inserted in the text  in light of consideration or criteria which find no place in the text”. The doctrine is not present in the text and so were the acts which supreme court has assumed and this era has came where each and everything is coming under judicial review and conferring the whole power in the hands of judiciary has created an imbalance btw the pillars of democracy.

There are mainly three ambiguities that are dealt within the essay. One is According to article 368, if the majority has passed the bill and the president has given his assent to the bill and that bill contradicts the so-called basic structure, then which part will stay, is there will no value of that letter signed by the president just because it comes under basic structure. Keeping in mind that the list of the basic structure is not exhaustive, thanks to the wide interpretation that anything can be termed into basic if SC finds so. This has completely vanished the authenticity that forefathers have given, i.e. the proper approval and a balance btw the legislature and executive will be superseded by the “basic doctrine. As it has been a number of times that the Supreme Court has made contradictory statements and made various vague interpretations and this doesn’t only make the Supreme Court “supreme amongst the court” but also amongst the state. As from the Coelha case[5] where the 31b has been turned to be constitutional but has led to a clear road that has made judicial review can be done on any amendment that has been passed by the parliament. secondly, prudently speaking, supreme court has not been limited to the interpreting it but interpolating the laws too according to their choices is also carried  big picture completing ignoring the maxim of Salus Populi Suprema Lex as they are just focusing on the basic structure doctrine the fact that the unfolding of the constitution should be a creative process further elaborating ;the proper validity of a law is hidden with the acceptability by the society this will be possible only if that is been done within the ambit of the constitution so this idea of interpolating and interpreting must not be practiced. For instance, the basic structure is not present in any of the language and it is being practiced at several times so this is an amendment, an amendment that the court can challenge any law made by the parliament more specifically an amendment that is made by the ‘supreme court’. thirdly, India is in its developing stage, various laws have been struck down and various are being made the point is at the time where there is so much to change in country by the law and order, the goal is to make India a safe and better place but supreme court is somewhere fighting to gain all powers and dominate all other pillars. In other words, fighting for supremacy will not going to help anywhere but indeed will going to harm as it will be creating a dominating nature where the leaders will no longer interested in taking their responsibilities and the supreme court will not be able to judge the cases and laws collectively.

At the nutshell, article 368 is an advantageous step further it is very important that there a clear image of our legal institution in the mind of public. This ambiguity should vanish and the proper scenario needs to be presented amongst the people. As for now layman is lost in its labyrinth of what is constitutional and what is not and along with what powers are conferred on the parliament and what is not decided yet and this is where the idea of making the language of article 368 is necessitated. They needs to understand that amendments to the constitution which are not supported by the parliament will not last longer as not respecting the views of the representative will give a bad impact on the government and the people which is an absurd idea as if their views won’t matter than will it be good to call this country a “democratic one”?

This amendment demands to be tested? Of course to answer what the basic doctrine means and how is it useful? How vague does it sound that who had made the amendment (the Supreme Court) will also now test it? Is this the picture it draws in the minds of readers. It will not be wrong to assert that at the point when the aforementioned amendment is reviewed, article 368 will again receive its leadership back.

Summing it up, none is above constitution, not even parliament and judiciary.

[1] Student, Bba.,Llb 3rd Year, School Of Law, Upes.

[2] Kesavananda Bharati V. State Of Kerala, (1973) 4 Scc 225.

[3] Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621.

[4] H.M SEERVAI, Constitutional Law of India: A Critical Commentary.

[5] I.R.Coelho v. State of Tamil nadu, AIR.2007 (1), SC.137.