Article 368: Power of Parliament to Amend the Constitution

Part XX of the Constitution (Article 368) deals with the power of Parliament to amend the Constitution and its procedure. The Constitution of India is neither too rigid (like the US Constitution) nor too flexible (like the British Constitution). It is a synthesis of both, with different provisions requiring different procedures for amendment.

Provision:

Article 368, in its original form, dealt only with the procedure of amendment. The 24th Constitutional Amendment Act, 1971, added clauses (1) and (3) to Article 368, explicitly stating that Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article. It also declared that such an amendment shall not be questionable in any court.

The 42nd Amendment Act, 1976, added clause (4) and (5) which further reinforced Parliament's power and attempted to remove judicial review of constitutional amendments. However, clause (4) and (5) were subsequently struck down by the Supreme Court in the Minerva Mills case (1980).

Thus, Article 368 presently defines the power of Parliament to amend the Constitution and the procedure for doing so.

Procedure for Amendment

The procedure for amendment under Article 368 is as follows:

1. An amendment of the Constitution can be initiated only by the introduction of a Bill for the purpose in either House of Parliament (Lok Sabha or Rajya Sabha), and not in the State Legislatures (Article 368(2)).

2. The Bill can be introduced by a Minister or a private member and does not require the prior permission of the President.

3. The Bill must be passed in each House by a special majority, that is, a majority (more than 50%) of the total membership of the House and a majority of not less than two-thirds of the members of that House present and voting (Article 368(2)).

4. Each House must pass the Bill separately. There is no provision for a joint sitting of both Houses for the purpose of passing a constitutional amendment bill.

5. If the amendment seeks to change the federal provisions of the Constitution, it must also be ratified by the Legislatures of not less than one-half of the States by a simple majority (a majority of the members present and voting) (Article 368(2) Proviso).

6. After the Bill is passed by both Houses of Parliament (and ratified by the State Legislatures, if required), it is presented to the President for assent.

7. The President must give his assent to the Bill (24th Amendment Act, 1971). He can neither withhold his assent nor return the Bill for reconsideration of the Parliament.

8. After the President's assent, the Bill becomes an Act, and the Constitution stands amended in accordance with the terms of the Act.

This procedure applies to amendments that require a special majority or a special majority plus state ratification. Some provisions of the Constitution can be amended by a simple majority of Parliament, which is not considered an amendment under Article 368 (as per Article 4 and other specific articles).

Amendment by Simple Majority (Article 368(2) - not requiring special majority)

Certain provisions of the Constitution can be amended by a simple majority of both Houses of Parliament. These amendments are considered ordinary legislation and are not deemed to be constitutional amendments under Article 368.

Procedure:

These provisions can be amended by a resolution passed by Parliament by a simple majority of members present and voting, just like an ordinary bill.

Examples of Provisions Amendable by Simple Majority:

• Admission or establishment of new states (Article 2).

• Formation of new states and alteration of areas, boundaries or names of existing states (Article 3).

• Abolition or creation of Legislative Councils in states (Article 169).

• Alteration of the Second Schedule (emoluments, allowances, privileges of President, Governors, Speakers, Judges, etc.).

• Quorum in Parliament (Article 100).

• Salaries and allowances of members of Parliament (Article 106).

• Rules of procedure in Parliament (Article 118).

• Use of English language in Parliament (Article 120).

• Number of puisne judges in the Supreme Court (Article 124).

• Conferment of more jurisdiction on the Supreme Court (Article 138).

• Use of official language (Article 343).

• Citizenship (acquisition and termination) (Article 11).

• Elections to Parliament and state legislatures (Article 327).

• Delimitation of constituencies (Article 327).

• Union Territories (Article 239A).

These provisions are listed outside the scope of Article 368's special procedures.

Amendment by Special Majority (Article 368(2))

The majority of the provisions in the Constitution can be amended by Parliament by a special majority as prescribed in Article 368.

Special majority of each House

Amendment of most of the provisions requires a resolution passed by each House of Parliament by a special majority (majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting).

This category includes the amendment of:

• Fundamental Rights (except those basic features which cannot be altered).

• Directive Principles of State Policy.

• All other provisions which are not covered by the first category (amendment by simple majority) and the third category (amendment requiring state ratification).

Special majority and ratification by half of the State Legislatures

Some provisions of the Constitution, particularly those dealing with the federal structure, require not only a special majority of Parliament but also the ratification by the Legislatures of not less than one-half of the States by a simple majority.

This ensures that the states have a say in the amendment of provisions that affect their powers, status, and relationship with the Centre.

Provisions requiring this procedure:

• Election of the President and its manner (Articles 54, 55).

• Extent of the executive power of the Union and the States (Articles 73, 162).

• Supreme Court and High Courts (Chapter IV of Part V, Chapter V of Part VI).

• Distribution of legislative powers between the Union and the States (Chapter I of Part XI).

• Any of the Lists in the Seventh Schedule.

• Representation of States in Parliament (Fourth Schedule).

• The power of Parliament to amend the Constitution and its procedure itself (Article 368).

The classification of amendment procedures reflects the blend of rigidity and flexibility in the Indian Constitution, balancing the need for orderly change with the protection of fundamental principles and federal features.

Shankari Prasad Singh Deo v. Union of India (1951)

The question of whether Parliament's power to amend the Constitution under Article 368 extends to amending Fundamental Rights arose early in India's constitutional history. This led to a series of landmark judgments that shaped the relationship between Parliament's amending power and judicial review.

This was one of the first cases where the validity of a constitutional amendment (the 1st Amendment Act, 1951, which, among other things, added Ninth Schedule to protect certain land reform laws from judicial review based on Fundamental Rights) was challenged.

Issue:

The main issue was whether the power to amend the Constitution under Article 368 includes the power to amend Fundamental Rights, and whether 'law' in Article 13(2) (which declares laws inconsistent with FRs as void) includes constitutional amendment laws.

Judgment:

The Supreme Court held that the power to amend the Constitution under Article 368 is a constituent power, distinct from the ordinary legislative power of Parliament.

The Court ruled that the word 'law' in Article 13(2) refers only to ordinary legislative laws made in the exercise of legislative power, not constitutional amendment laws made in the exercise of constituent power under Article 368.

Parliament's power to amend Fundamental Rights

Based on this interpretation, the Court concluded that Parliament has the power to amend any part of the Constitution, including the Fundamental Rights. The 1st Amendment Act was held to be valid.

This judgment established the supremacy of Parliament's amending power over Fundamental Rights.

Sajjan Singh v. State of Rajasthan (1965)

This case again involved a challenge to constitutional amendments (17th Amendment Act, 1964, which further added laws to the Ninth Schedule).

Issue:

The validity of the 17th Amendment was challenged, and the arguments raised in Shankari Prasad's case were reiterated, particularly the question of whether Fundamental Rights could be amended.

Judgment:

A majority of 3:2 judges in the Supreme Court reaffirmed the decision in Shankari Prasad's case.

The majority held that Parliament has the power to amend any provision of the Constitution, including Fundamental Rights. They stuck to the interpretation that 'law' in Article 13 does not include constitutional amendment laws.

However, the dissenting judges raised doubts about the majority view and questioned whether Fundamental Rights were truly outside the purview of Article 13. They suggested that the power to amend under Article 368 should not be so wide as to enable Parliament to alter the basic structure of the Constitution.

Although the majority upheld the status quo, the dissenting opinions sowed the seeds for a re-examination of this issue.

Golak Nath v. State of Punjab (1967)

This case brought the conflict between Parliament's amending power and Fundamental Rights to the forefront again. It challenged the 17th Amendment Act once more.

Issue:

The main issue was the same as in the previous cases: whether Parliament has the power to amend Fundamental Rights.

Judgment:

In a significant verdict, a larger bench of 11 judges, by a narrow majority of 6:5, overruled the decisions in Shankari Prasad and Sajjan Singh cases.

The majority held that Fundamental Rights are transcendental and immutable and Parliament cannot abridge or take away any of the Fundamental Rights by a constitutional amendment.

The Court stated that a constitutional amendment Act passed under Article 368 is a 'law' within the meaning of Article 13, and thus, if it violates a Fundamental Right, it would be void.

Doctrine of "Implied Repeal" and "Prospective Overruling"

• Implied Repeal: The Court applied the doctrine of implied repeal, suggesting that if a later law (amendment) is inconsistent with an earlier fundamental law (Fundamental Rights), the earlier law is impliedly repealed. However, this wasn't the core of the judgment's binding principle.

• Prospective Overruling: To avoid chaos and invalidate numerous amendments made previously, the Court applied the doctrine of prospective overruling. It held that the ruling that Parliament cannot amend Fundamental Rights would operate only prospectively (from the date of this judgment, February 27, 1967). All amendments made before this date were held to be valid.

The Golak Nath judgment established that Fundamental Rights were beyond the amending power of Parliament.

Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (1973)

The Golak Nath judgment created a deadlock, as Parliament felt its essential power to amend the Constitution was curtailed. To overcome the Golak Nath ruling, Parliament enacted the 24th Constitutional Amendment Act, 1971, which explicitly stated that Parliament has the power to amend any part of the Constitution (including FRs) and such amendment would not be 'law' under Article 13.

This led to the most significant case in Indian constitutional history, the Kesavananda Bharati case, which challenged the validity of the 24th Amendment and other amendments.

Issue:

The main question was the extent of Parliament's power to amend the Constitution under Article 368. Specifically, could Parliament alter, abrogate, or repeal the entire Constitution or any of its essential features, including Fundamental Rights?

Judgment:

A larger bench of 13 judges, by a narrow majority of 7:6, delivered a complex judgment.

• The Court upheld the validity of the 24th Amendment Act, overruling the Golak Nath decision regarding the amendability of Fundamental Rights. It held that Parliament does have the power to amend Fundamental Rights.

• It rejected the view that constitutional amendment is ordinary law under Article 13.

• However, while upholding the amendability of Fundamental Rights, the Court introduced the revolutionary Doctrine of Basic Structure of the Constitution.

The Doctrine of Basic Structure of the Constitution

The Court held that Parliament's constituent power under Article 368 is not absolute. Parliament can amend any provision of the Constitution, but it cannot amend the Constitution in a way that alters or destroys its 'basic structure' or 'basic features'.

The Court did not define what constitutes the basic structure but provided an illustrative list of features considered basic by the majority judges. These included: Supremacy of the Constitution, Republican and Democratic form of Government, Secular character of the Constitution, Separation of powers, Federal character, Unity and integrity of the Nation, Welfare state, Parliamentary system, Rule of law, Harmony and balance between Fundamental Rights and Directive Principles, Free and fair elections, Independence of Judiciary, Judicial review, Limited power of Parliament to amend the Constitution.

Parliament can amend Fundamental Rights but not the Basic Structure

The conclusion was that Parliament can amend Fundamental Rights, but such an amendment must not violate the basic structure of the Constitution. Since Fundamental Rights are considered part of or essential to the basic structure, the essence or the core of Fundamental Rights cannot be taken away by amendment.

The Kesavananda Bharati judgment is the most significant judicial pronouncement that established the limited nature of Parliament's amending power and the judiciary's role as the guardian of the basic framework of the Constitution.

Minerva Mills Ltd. v. Union of India (1980)

This case further solidified and developed the Basic Structure Doctrine established in Kesavananda Bharati. It challenged certain provisions of the 42nd Constitutional Amendment Act, 1976 (enacted during the Emergency).

Issue:

The key issues included the validity of sections of the 42nd Amendment that:

• Extended the primacy of Directive Principles over Fundamental Rights (Article 31C was amended to cover all DPSPs, not just 39(b) and 39(c)).

• Attempted to remove the power of judicial review of constitutional amendments (new clauses 4 & 5 added to Article 368).

Judgment:

The Supreme Court unanimously struck down clauses (4) and (5) of Article 368 (added by the 42nd Amendment) as unconstitutional. The Court held that judicial review and limited power of Parliament to amend the Constitution are part of the basic structure and cannot be taken away by amendment.

The Court also struck down the amendment to Article 31C that extended the primacy of all DPSPs over Fundamental Rights (Articles 14 and 19). The Court held that the harmony and balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure. Giving absolute primacy to all DPSPs over Articles 14 and 19 would destroy this balance.

The Minerva Mills case reiterated and strengthened the Basic Structure Doctrine and highlighted the importance of the balance between Fundamental Rights and Directive Principles as a basic feature.

I.R. Coelho v. State of Tamil Nadu (2007)

This case, decided by a nine-judge bench, clarified the relationship between judicial review, the Basic Structure Doctrine, and the Ninth Schedule.

Issue:

The main question was whether laws placed in the Ninth Schedule after the Kesavananda Bharati judgment (i.e., after April 24, 1973) could be subjected to judicial review on the ground that they violate the basic structure of the Constitution.

The Ninth Schedule was added by the 1st Amendment Act, 1951, to protect certain laws (initially land reform laws) from judicial review on the ground of violating Fundamental Rights. Subsequent amendments added numerous laws to this schedule.

Judgment:

The Supreme Court unanimously held that laws placed in the Ninth Schedule after April 24, 1973, are open to challenge in court on the ground that they violate the basic structure of the Constitution.

The Court reasoned that if laws are included in the Ninth Schedule after the basic structure doctrine was propounded, they must be tested against the basic structure. Any law that takes away or abrogates Fundamental Rights that form a part of the basic structure would be violative of the basic structure and hence unconstitutional.

The I.R. Coelho case reinforced the power of judicial review and the supremacy of the basic structure doctrine, making it clear that the Ninth Schedule cannot be used as a blanket to immunise laws from judicial scrutiny based on the basic framework of the Constitution.

These landmark cases illustrate the dynamic interplay between Parliament's power to amend and the judiciary's power of review, shaping the interpretation and evolution of the Indian Constitution.