Article 368

Khushbu Dhanetwal[1]

However good a constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However, bad a constitution may be, it is sure to turn out good because if those who are called to work it happen to be a good lot – Dr. B. R. Ambedkar.

Introduction

During the 68 long periods of the Indian Constitution, 101 amendments have been taken place and one of them is the famous “Twenty Fourth Amendment” in the history of the Indian Constitution. The 24th amendment, which amended the Article 368 of the Indian Constitution, was enacted by the Congress Government which was headed by Indira Gandhi and came into force on November 5, 1971. Furthermore, Article 368 was amended by 42nd amendment in 1976.

By the virtue of 24th amendment, clause (1) and clause (3) were inserted in the Article 368 and along with these clauses, a new clause (4) was also inserted in Article 13. Article 368 (1) empowers Parliament to amend the constitution by way of addition, variation or repeal any provision of the Indian Constitution. Article 368(3) and Article 13(4) point towards that nothing in Article 13 shall apply to any amendments made under Article 368.

Article 368 gave a very wide range of power to Parliament to exercise discretionary use of power to amend the Indian Constitution which created difficulties and problems but was, later, solved when Supreme Court restricted the use of the said power.

Article 368(2) – procedure given under article 368 for amendment

Article 368(2) states the procedure to be followed by the Parliament for any amendment to be made in the Indian Constitution. It says that an amendment can only be initiated by the introduction of a bill in the either House of the Parliament i.e. Lok Sabha & Rajya Sabha. The bill, then, should be passed in each House of the Parliament by a majority of total members of that particular House present and voting which, then, must be presented to the President. The President must give his consent to the said bill in order to amend the provisions of the Constitution. However, the said procedure does not apply for amendment which seeks to amend certain provisions given in the proviso Article 368(2) of the Constitution. The provisions given in the said proviso include Article 54 (Election of President), Article 55 (Manner of Election of President), Article 73(Extent of Executive Power of the Union), Article 162 (Extent of Executive Power of the State), Article 241 (High Courts for Union Territories); Chapter IV of Part V (The Union Judiciary), Chapter V of Part VI (The High Courts in the States, Chapter I of Part XI (Legislative Relations between the Union and the States); any of the Lists in the Seventh Schedule; the representations of States in Parliament; and the provisions of the Article 368. And, if there is any amendment which seeks to amend the provisions, herein above mentioned, then the amendment must also be ratified by the Legislatures of not less than one half of the total States.[2]

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Whether fundamental rights are amendable & doctrine of basic structure?

In Shankari Prasad v. Union of India;[3] the question whether the fundamental rights can be amended or not was put before the Supreme Court for the first time. In this case, the amendment to Article 31A and Article 31B was challenged. It was argued that although Parliament has power to amend the provisions of the Constitution but the amendments which take away the fundamental rights are not allowed under Article 13. It was rejected by the Supreme Court five judge bench and was held that Parliament has the power to amend the Constitution including fundamental rights.

In Sajjan Singh v. State of Rajasthan,[4] the validity of the seventh amendment which limited the jurisdiction of the High Courts was challenged and it was held by the five judge bench although it is not specifically provided in Article 368 to amend the fundamental rights but Parliament could assume such power.

In I.C. Golaknath& Ors.v. State of Punjab &Anr.,[5] eleven judge bench (constituted for the first time) was referred to clear the doubts as to whether fundamental rights can be amended or not. A majority of six over five held that Parliament has not right to take away or amend any fundamental right provided and guaranteed under the Indian Constitution. It was further observed by the bench that the Constitution has already expressly mentioned different reasonable restrictions on the fundamental rights of an individual and that no further constraints should be imposed.

In KesavanandaBharti v State of Kerala &Anr.,[6] 24th amendment, 25th amendment and 29th amendment were challenged. In the said case, the doctrine of basic structure was introduced for the first time. The judgment given in KesavanandaBharati Case is the landmark judgement and a turning point for the Indian Constitution. This case overruled the judgement given in I.C. Golaknath& Ors. V State of Punjab &Anr: the majority in the said case held that the Parliament, by virtue of Article 368, has all the powers to amend any provisions of the Constitution but it cannot destroy or damage the ‘basic structure’ of the Indian Constitution.

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Conclusion

All the provisions in the Constitution were made by keeping many things in the mind to solve the day to day problems of an individual by which the societies are governed. The amendments in the Constitution clearly show how the amendments are so important with the growing society and changing patterns of the society. In the event that there would not be any provision/s for such amendments of the Constitution, people would have to go for some other sources to solve their grievances and to be governed. To be on the line of democratic country, provisions under the Constitution for amendments of the Constitution is much more necessary.


[1] Student, School Of Law, University Of Petroleum & Energy Studies, Dehradun.

[2] INDIAN CONST. art. 368.

[3] Shankari Prasad v. Union of India, AIR 1951 SC 455.

[4] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[5] I.C. Golaknath & Ors.v. State of Punjab &Anr, AIR 1971 SC 1643.

[6] KesavanandaBharti v. State of Kerala &Anr, (1973) 4 SCC 225.