Article 368: Keeping Constitution Alive

Shubhankit Singh Sengar[1]

“An unamenable constitution is worst tyranny of time or rather the very tyranny of time”[2]

While framing the constitution of India Pandit Nehru (quoted under ‘Reconciliation of a written constitution with parliamentary sovereignty’, Ante), that the constitution should not be so rigid that it cannot be adapted to the changing needs of national development and strength.[3]Indian constitution is a system of fundamental principles for the governance of independent India which came into force on 26th January 1950. Indian constitution is the Suprema Lex i.e., supreme law of the land and no authority is above constitution. Constitution makers cannot anticipate the situations which may arise in the development of progressive India in 1950 or laws which will become necessary for the justice of society in future and this led to the introduction of article 368 in part XX of the constitution and since then article 368 has been the backbone to hold the constitution with the changing circumstances of our nation. Article 368 is the perfect combination of rigidity and flexibility at the same time. Constitution framers gave a way to constitutional amendment by the way of popular demand only.

India since 1951 has witnessed the necessity and importance of article 368 when first constitutional amendment came into force after one year of enactment with various changes specially clarifying that right to equality does not bar the lawmakers to make law for the uplifting weaker section of the society and the impact of the first amendment could be seen today when women are standing on the same podium with men and society is not being biased with any class of people. Because of amending provisions within the constitution, India was able to expand its territory and include various states and union territories within its boundary and administration. Another major reform was the 7th constitutional amendment in which states were recognized on linguistic basis and abolition of class A, B, C, D states. Major land reforms such as deletion of the right to property from the fundamental right and giving it the status of legal right and land acquisition laws by the various ruling regime were also bought up by article 368. The 42nd constitutional amendment also known as “mini-constitution” was the major amendment which bought which the main idea of democracy by adding “Socialist”, “Secular” and “Republic” in the preamble for protecting every individual of any religion, caste or community within territorial boundary of India. 42nd amendment has been called as the improper use of power by leaders which might be true but the other fact also prevails that major portion of the amendment act was either repealed or amended by the 44th amendment of the constitution which in itself states that amending provision are designed to support the popular demand and prevent democracy. Article 368 has been the reason to bring a sense of responsibility in citizens towards the constitution, national flag, and national anthem by adding fundamental duties[4] under article 51A. Various languages such as Bodo[5], mithali[6], Sindhi[7] etc were recognized as an official language to uplift different communities and special status was given to many states under article 371-A of the constitution[8] to preserve the composite culture and take away the insecurities prevailing in small groups. Another argument is raised that constitutional amendments are beyond judicial scrutiny but the argument was set aside when National judicial appointment commission was struck down by the Apex court of India[9]. Various economic reforms have been bought up by the amending provision such as Goods and Services Tax[10]to achieve the goal of “One nation, One Tax” or adding words such as “co-operative societies” under article 19(1) (c) to encourage economic activities of cooperatives or amending state and union list with respect to tax.[11]Justice system has improved with changing condition with the help of amending provisions.

Judicial interpretation is also a form of law and fall within the category of the source of law. Judiciary is having the power to make law in the form of precedent and interpret the law but a law will be enforceable only by the passage of constitutional amendment which is having the highest authority protecting the essence of democracy by majority demand of people.

There is always an argument raised against article 368 that it provides for endless powers to the party in power (as in 42nd amendment) but that is true only to the extent where the party is having 2/3 majority in the parliament. Another factor which need not be ignored that, a party with 2/3 majority is elected by the people of India. An amendment can only be bought up when the introduced bill is passed from both the houses which contain representative elected by the people. Amendment bill is passed as any other ordinary bill subject to the cases of a special majority. Article 368 is subjected to the basic structure of the constitution states that no amendment bill can be introduced in parliament if amending basic structure of the constitution as stated in GolakNath v. State of Punjab[12]which includes a parliamentary system of government, judicial review, federal system, sovereignty and territorial integrity of India etc. and if any such amendment is bought up by parliament then the court would be entitled with the power to annul it on the ground of being ultra vires.

Though article 368 is the backbone of the Indian constitution still a loophole prevails which needs to be looked upon with respect to the president’s role. President is the executive head of our nation holding highest authority within the constitution but the use of the word “shall give his assent”[13] brings a mandate on the president to give consent whether or not he is in support of such amendment. President needs to be given such power to decide and there is an immediate need to amend the constitution with respect role or president by replacing replace the word “shall” from “may” in article 368(2).

Finally, article 368 has played the major part in developing India and to fill the loopholes which were prevalent at the time of framing of the constitution or emerged with the span of time. Article 368 is a boon for the development of the constitution and nation and will always be the barrier for the unauthorized use of power and illegal demand of the legislatures until it is provided by the people in the form of majority. Article 368 has kept the constitution alive even after 68 years of incorporation and could be called as a key to every loophole within the legal system of Indian democracy.

[1] Student, B.A.Ll. B (Hons.) 3rd Year, School Of Law, University Of Petroleum And Energy Studies.

[2] MULFORD, The nation need to Amend the constitution 12 (2007).

[3] DR. DURGA DAS BASU, Introduction to the constitution of India, 177 (22nd ed. 2015).

[4] INDIAN CONST. amend 42nd.

[5] INDIAN CONST. amend 92nd.

[6] Id.

[7] INDIAN CONST. amend 22nd.

[8] INDIAN CONST. amend 13th.

[9] INDIAN CONST. amend 99th.

[10] INDIAN CONST. amend101.

[11] INDIAN CONST. amend 6th.

[12] GolakNath v. State of Punjab, AIR 1643 SC 1967.

[13] INDIAN CONST. amend 24th.