Amendment of The Constitution (Doctrine of Basic Structure)

Meaning of Amendment:

Making a change in a text is referred to as Amendment. This change can be in the form of an addition, alteration, variation, modification, removal or repeal of the text.

The constitutional provisions relating to amendment of the Indian Constitution

Article 368 of the Indian Constitution deals with the amendment of the Indian Constitution. This article plays three important roles: –

a. It grants the amendment power upon the Parliament to amend the Indian Constitution.

b. It also lays down the procedure for amendment of the Indian Constitution.

 c. It also poses implicit limitations which exist upon the amending power of the Parliament.

Article 368 of Indian constitution Read as: –

Article 368. [Power of Parliament to amend the Constitution and procedure therefor].

(1) Notwithstanding anything in this Constitution, Parliament may in the 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.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in-

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

 (d) the representation of States in Parliament, or

(e) the provisions of this article,

 the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3) Nothing in Article 13 shall apply to any amendment made under this article.

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

 (Note: Clauses (4) and (5) were held unconstitutional in the case of Minerva Mills Ltd. & Ors. v Union of India 1980.)

Procedure and types of Amendment

 Prior to getting into the amendment procedure; all need to take into consideration that every constitutional provision cannot be amended similarly. As a matter of fact, the constitutional provisions can be or are classified into three categories pertinent to the procedure through which they can be amended. They are as follows: –

1. Some of the Constitutional provisions can be amended by simple majority of each house of the Parliament (i.e., Lok Sabha & Rajya Sabha). Like Articles 4 (Formation of New State), Article 169 (creation or abolition of Legislative Councils) and Article 239-A (Creation of local Legislatures or Council of Ministers or both for certain Union territories) Amendment of these provisions is expressly excluded from the ambit of Article 368. An ordinary bill is introduced for amendment of these provisions.
2. There are some Constitutional provisions which shall be amended only by special majority. Special majority refer as majority of ‘total members of Rajya Sabha & Lok Sabha’ and by a majority of at least two-third ‘present and voting’. All amendments, other than those referred to above, come within this category.
3. And some of the Constitutional provisions which have to be amended by special majority and authorization by States. In essence, States are given an additional empowerment in amendment of these provisions. The list of these provisions is given in clause (2) of Article 368 are as follow: –

1. Election of the President,
2. Extent of executive power of Union and States,
3. Supreme and High Courts,
4. Distribution of legislative powers between Union and States and three lists,
5. Representation of States in Parliament and Article 368 itself.

The above provisions are related to the federal structure of the Constitution and the powers, position, and authority of the Constituent States.

• The procedural aspect for amendment are as follows: –

1. Introduction of a bill in either house of parliament is only way to initiate a Constitutional Amendment.
2. This bill can be introduced either by a Cabinet Minister or Private Member (Private Member refer to those Member of Parliament Who are not part of Cabinet).
3. No prior permission from President is required for the Introduction of the Constitutional Amendment Bill.
4. Then the bill needs to be passed by each of the houses separately.
5. If there is a deadlock over the bill, there is no provision for holding a joint sitting of the two houses for the purpose of consideration and passing of the bill.
6. For passing any bill the procedure to be followed will depend upon the provision which the bill seeks to amend. For essence, if the bill seeks to amend the federal Portion of the Constitution, it is necessary to be approved by the legislatures of half of the States by a simple majority, i.e., a majority of the members of the House present and voting.
7. The bill is presented to the president for assent, after duly passed by both the Houses of Parliament and approved by the state legislatures, where necessary,
8. The prior permission of the President is not required & The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
9. The bill becomes an Act (i.e., Constitutional Amendment Act) and the Constitution stands amended in accordance with the terms of the Act after the President’s assent.

Limitation To constitutional Amendment

The history of India has witnessed many attempts made by the government to amend the core basic principles of the constitution. However, from time to time, the judiciary has stepped in, to outline a thin yet vivid line between parliament’s amending power and the inalienable basic framework of the Constitution.

In the number of judgements, the judiciary has given a light on the fact that to what extent the constitution of India can be amended. In other words, it can be said that the judiciary has set limitations to a constitutional amendment and also answered a very vital question: – can Fundamental rights given in Constitution can be amendable or not?  With the help of those landmark judgements.

Some of the landmark Judgement Related to the constitutional amendment are given down below: –

1. In, Shankar Prasad vs. the Union of India, 1951, The court held that the word ‘law’ in Article 13 does not include the amendment of the Constitution. Therefore, Fundamental Rights can be amended under Article 368. The same was approved in the case of Sajjan Singh vs. State of Rajasthan, 1965.

• Again In, Golak Nath vs. State of Punjab, 1967, The Supreme Court, with the majority view, said that Fundamental Rights are out of the reach of the Parliament. The court emphasized that Article 368 does not give power to the Parliament but merely provides procedure as to how to amend. The Parliament’s power to amend the constitutional provisions is not under Article 368 but in Article 245. As we have read earlier that amending the Constitution is a legislative process whereas Article 368 provides only the procedure to amend. The court said that the amendment is a law within Article 13, and if in any case violates Fundamental Rights, then it shall be void or unconstitutional.

• Further The 24th Amendment Act, 1971, was said to be an answer to the decision made in Golak Nath’s case. It sought to reverse the ruling of Golak Nath’s case. It inserted clause 4 in Article 13, which stated that Article 13 would not apply to any amendment made under Article 368. This amended the text of Article 368. Before this amendment, Article 368 provided only for the procedure for amendment. Later it changed to “empower the Parliament to amend and procedure therefor.”

• In, Keshavanand Bharati V. State of Kerala (1973) Case, The Supreme Court said that the Parliament has powers to amend the Constitution but not its basic structure. The basic features are those supporting pillars of the Constitution without which the Constitution cannot stand. The Parliament can under Article 368 amend any provision but not its basic features. Thus, the Apex Court created two substantive limitations on the amending power of the Parliament in this case. They are as follows: –

1. Parliament while using its power to ‘amend’, Parliament cannot alter or modify the ‘basic structure’/ ‘fundamental features’ of the Indian Constitution. The word ‘amend’ implied that even after amendment, the identity of the original Constitution must not change.
2.  Parliament cannot delegate its power to amend to some other body (directly or indirectly).

So far, some of the Basic structure features of the Indian constitution recognized by the Supreme court of India which imply limitations to Constitutional amendment under Article 368 are as mentioned below:

a. Supremacy of the Constitution (Kesavananda Bharati v State of Kerala 1973)

b. Republican and Democratic form of Government (Kesavananda Bharati Case)

c. Sovereignty of country (Kesavananda Bharati Case)

d. Secular and federal character of Constitution (Kesavananda Bharati Case)

e. Separation of powers between Legislature, Executive and Judiciary (Kesavananda Bharati Case)

f. Fundamental Rights (Kesavananda Bharati Case)

g. Directive Principles (Kesavananda Bharati Case)

h. Rule of Law (Indira Gandhi v Raj Narain 1975)

i. Judicial Review (Indira Gandhi Case)

j. Democracy which implies free and fair elections (Indira Gandhi Case)

k. Jurisdiction of the Supreme Court under Article 32 (Indira Gandhi Case)

l. Limited power of Parliament to amend the Constitution (Minerva Mills Ltd. v UOI 1980)

m. Harmony and balance between fundamental rights and directive principles. (Minerva Mills Case)

n. Fundamental rights in certain cases. (Minerva Mills Case)

o. Power of judicial review in certain cases. (Minerva Mills Case)

p. Separation of powers between the legislature, the executive and the judiciary. (State of Bihar v Bal Mukund Sah 2000)

q. independent judiciary (Bal Mukund Case)

r. Principle of equality (Indra Sawhney v UOI 2000)

Conclusion

The constitution of India is a dynamic document. Its makers realized the fact that it needs to keep changing with time to be successful. Therefore, they empowered the Parliament to amend it. However, there is a limitation on this power in the sense that the basic essence of our constitution should remain intact. Therefore, the saviours of the constitution (i.e., Supreme Court) from time to time stepped in, with land landmark judgement to outline a thin yet vivid line between parliament’s amending power and the inalienable basic framework of the Constitution.

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