Article 368: Boon or Bane

Aika Soni[1]

The word Constitution in its literal sense means composition of something. Indian Constitution depicts the same. To compose, it requires time and thus the composition of Indian Constitution took 2 years 11 months and 18 days i.e. from 9 Dec, 1946 to 26 Nov, 1949. Constitution of India is a blend of rigidity and flexibility. It incorporates within itself provisions which help in working of the nation. A question that comes to my mind is, what is Nation constituted of? Is it again composition of something? The answer would be an affirmative response. It is composition of its citizens. Citizens are the basic foundation on which the Principles of Constitution stand upon. Now the next question arises, can the composition be changed i.e. to say can the Constitution be amended for its very basic foundation i.e. its citizens? The answer is again yes. The Constitution of India is a living organism, which changes according to the changing need of the society for providing better Laws to follow upon.

Amendment has been defined in different ways and one among them is according to Black Law Dictionary, it defines amendment as

 “A formal revision or addition proposed or made to a statute, Constitution, pleading, order, or other instrument; a change made by addition, deletion or correction specially an alteration of wording”. And “In Parliamentary law, it means a ‘motion that changes another motion’s wording by striking out text, inserting or adding text, or substituting text.”[2]

Our Constitution architects were of opinion that there must be provision in the Constitution which should enable the law makers to alter the Constitutional Provision. This was because to keep Law updated so to meet the needs of the people. And thus today we have a procedure of Amendment under Article 368 in Part XX of the Indian Constitution which was created by the members of Constitutional Assembly. Referring to the need of amending constitution, due to socio-economic conditions Pandit Jawaharlal Nehru said,

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“It is the one of utmost importance that the people should realize that this great Constitution of ours, over which we laboured so long, is not a final and rigid thing. A Constitution which is responsive to the people’s will, which is responsive to their idea, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it.”[3]

He also made it clear that there must be flexibility in the nature of Constitution because if you make it rigid and permanent it will lead to stagnancy of nation’s growth, the growth of living vital, organic people. Thus the Constitution makers were anxious of the fact that the law must not become static and should adopt the dynamic nature of the society. The other thing which they kept in mind was the amendment law must not give excessive power so to be abused and thus they provided for the procedure which was a mixture of rigidity and flexibility as mentioned under Art. 368. But then who will decide what is to be amended, how is to be amended and to what extent is to be amended? This question took about 56 years to get its answer. Valid answers to these questions travelled long journey of debate between Judiciary and Legislature. The journey started in Shankari Prasad[4] in 1951 and ended in I R Coelho[5] in 2007 by concluding that the law under 13(1) does not include Amendment Law and thus the amendment law cannot be declared void under 13(1) but the parliament cannot amend the Basic Structure of the Constitution as propounded in Kesavananda Bharati[6] and so is restricted and also limited in its power to amend the Constitution. That means the Supreme Law can only be amended if the amendment done is not abrogating the Basic Structure principle in anyway. The amendment process is an opportunity to express Democratic conceptions of basic Constitutional values without derogating from the fundamental Constitutional principles.[7]Thus to say amendment in law becomes important because in today’s age where change in person’s mind-set leads to change in fashion, technology, society in a count of second then why not Law, which governs them.

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When there are optimistic thoughts of something there will be pessimistic too. Though Amendment is necessary according to changing needs of the dynamic world but it has its dark side. To talk about some, firstly the power to initiate amendment bill rest with only Parliament and only in one case it is with State Legislature i.e. passing the resolution requesting Parliament for creating and abolition of legislative council. Even on this parliament can take action or disapprove it. That means full power Rest with the Parliament. Secondly, leaving apart special majority cases the other Constitutional amendment bills are passed like ordinary bill, paving way for abuse of power. Thirdly, only in some cases related to amendment the opinion of State is required i.e. again providing Parliament with complete control. Moreover, when there is Single Party Dominated System there are more chances that this provision may be misused due to lack of opposition and thus giving way to party to secure their benefit.

Eventually when we look at the broad picture this process won’t go wrong because we have check and balance system that means we have Judiciary sitting over to find out the dark spot of every confusing colourful picture and fill it with colour of Justice. Highlighting this aspect of check and balance Dr. B. R. Ambedkar said,

“It is the right and privilege of the highest Court of the land to interpret the Constitutional law, however, at the same time; it is also the duty of the Parliament to see that objects aimed at in the Constitution are fulfilled or not by the judgement based on such interpretation. If the object is not achieved because judgement comes in the way, it is the provisions of the Constitution here and there.”[8]

The Constitution provides Parliament with amending powers but the Courts have powers to interpret such amending power and put limitation to it. Thus in present day, there are two limitation put on the parliament to amend the Constitution. First is procedural i.e. the Art.368 itself and substantive i.e. the Basic Structure doctrine. So to conclude there are always bane and boon associated with the aspect, but the main challenge lies in what surpasses and what takes over. Here it is clear; the bane has yielded before the boon. Thus Constitutional Amendments are part of Constitution itself and hence foster the need of the people. At the end I quote “No Written Constitution is complete without amending provisions, in some respects, the amending provision is the most important part of the Constitution.”[9]

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[1] Student, 4th year BALLB, New Law College, BVDU.

[2] Garner, Black Law dictionary 89 (8th ed.).

[3] Parliamentary debates, XII-XIII part II, 9616-17 (1951).

[4] Shankari Prasad Singh v Union of India, AIR 1951 SC 458.

[5] I R Coelho v State of Tamil Nadu, AIR 2007 SC 861.

[6] Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.

[7] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, 3 (Second Impression, 2011).

[8] D K Naikar, Working of Indian Constitution Reflections of a Parliamentarian, 74 (2000).

[9] James Wilford Garner, Political Science and Government 528, (American Book Company, 1928).

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