Amendment of the Constitution
(Article 368)
(1) Notwithstanding anything in this Constitution, 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.
(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, 5[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 Legislatures 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.
In a federal Constitution, power to amend the Constitution is of special importance because it can affect the distribution of powers between Union and states. A federal Constitution is generally rigid in character as the procedure of amendment is unduly complained. The framers of the Indian Constiution were keen to avoid excessive rigidly. They are anxious to have a document which could grow with a growing nation adapt itself to the changing need and circumstances of a growing people.
His Holiness Kesavananda Bharati Sripadgalvaru v. State of Kerala, MANU/SC/0445/1973 : AIR 1973 SC 1461: (1973) 4 SCC 225: (1973) Supp SCR 1. The machinery of amendment should be like a safety value, so devised as neither to operate the machine with too great facility nor to require in order to set in motion, an accumulation of force sufficient to explode it. The Constitution makers have kept the balance between the danger of having non-amendable Constitution and a Constitution which is too easily amendable.
The framers of the Indian Constitution provided for a process which is neither too right nor too flexible. Article 368 specially deals with amendments but some other articles in the Constitution provide for amendments by ordinary legislative process. Thus, provisions of the Indian Constitution may be amended in the following ways-
(1) By Simple Legislative Process.-
Some articles like 4, 169, 239, 312 and Fifth and Sixth Schedules gives authority to Parliament to make amendments by passing a law for this purpose by ordinary legislative process.
(2) By Special Majority.-
The general procedure laid down in article 368 is that a Bill for amendment of the Constitution may be introduced in either House of Parliament but it must be passed by a majority of total membership and 2/3rd majority of members present and voting in each of the two Houses and should receive the assent of the President thereon.
The expression 'total membership' means the total number of members composing the House irrespective of the fact that whether there are vacancies or absentees on any account.
(3) With the consent of State Legislatures.-
According to proviso to clause (2) of article 368, the following provisions can be amended only when a Bill for that purpose is passed by majority of total membership and 2/3rd majority of members present and voting in each House of Parliament and is also ratified by Legislatures of at least 1/2 of the States by resolution before it is presented to the President for his assent-
(1) Election of the President of India (Articles 54, 55).
(2) Extent of executive powers of the Union (Article 73).
(3) extent of the executive power of the State (Article 162).
(4) Provisions relating to Supreme Court (Ch. IV of Part V, i.e. Articles 124-147).
(5) Provisions relating to High Courts for States (CH. V of Part VI, i.e., Articles 214-231).
(6) Provision relating to High Courts for Union Territories (Article 241).
(7) Distribution of Legislative Power (Ch. I of Part XI i.e., Articles 245-55).
(8) Any of the Lists of the VII Schedule.
(9) The representation of states in Parliament (IV Schedule).
(10) Provisions of article 368.
Amendment of Fundamental Rights.-
The question whether an amendment of Fundamental Rights guaranteed by Part III of the Constitution, is permissible under the Procedure Prescribed by article 368 came before the Supreme Court in number of cases which are-
(1) Shankari Prasad Singh Deo v. Union of India, MANU/SC/0013/1951 : AIR 1951 SC 458: 1951 ALJ 740: (1951) 2 MLJ 683: 88 Cal LJ 281: 1951 SCJ 775: MANU/SC/0013/1951 : 1952 SCR 89. The first case on amendability of the Constitution, the validity of the Constitution (First Amendment) Act, 1951, curtailing the right to property guaranteed under article 31 was challenged. The amendment was challenged on the ground that it purported to take away or abridge the rights conferred by Part III.
The Supreme Court held that the power to amend the Constitution, including the fundamental rights, was contained in article 368 and that the word 'law' in article 13(2) did not include an amendment of the Constitution which was made in the exercise of constituent and not legislative power.
(2) Sajjan Singh v. State of Rajasthan, MANU/SC/0052/1964 : AIR 1965 SC 845: 1965 (1) SCJ 377: (1965) 1 SCWR 593: (1965) 1 SCA 875: (1965) 1 SCR 933. The same question was raised in this case and Constitution (Seventeenth Amendment) Act, 1964 was called in question. The Supreme Court approved the majority judgment given in Shankari Prasad's case and held that the words 'amendment of the Constitution' means amendment of all the provisions of the Constitution.
(3) I.C. Golak Nath v. State of Punjab, MANU/SC/0029/1967 : AIR 1967 SC 1643: 1967 All LJ 813: 1967 (2) SCJ 486: (1967) 2 SCA 642: (1967) 2 SCR 762: (1967) 2 SCWR 1006. The validity of the 17th Constitutional Amendment Act was again challenged which inserted certain Acts in Ninth Schedule. The Supreme Court by a majority of 6:5 prospectively overruled its earlier decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power from the date of this decision to amend Part III of the constitution so as to take away or abridge the fundamental rights.
These are the following major propositions which can be drawn from the majority opinion in Golak Nath-
(1) The Substantive Power to amend is not to be found in article 368, this article only contains the procedure to amend the Constitution;
(2) A law made under article 368 would be subject to article 13(2) like any other law;
(3) The ward 'amend' envisaged only mines modifications in the existing provisions but not any major alterations therein;
(4) To amend the Fundamental Rights, a Constituent Assembly ought to be convened by Parliament.
24th Amendment Act, 1971.-
In order to remove difficulties created by the decision of Supreme Court in Golak Nath's case Parliament enacted (24th Amendment Act). This amendment has made the following amendments-
(1) It has added a new clause (4) to article 13 which provides that nothing in this article shall apply to any amendment of this Constitution made under article 368.
(2) It substituted a new marginal heading to article 368, as 'Power of Parliament to amend the Constitution and Procedure there fore.
(3) It inserted a new sub-section (1) in article 368 which provides that notwithstanding anything in this Constitution, 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.
(4) It has added a new clause (3) to article 368.
4. His Holiness Kesavananda Bharati Sripadgalvaru v. State of Kerala, MANU/SC/0445/1973 : AIR 1973 SC 1461: (1973) 4 SCC 225: (1973) Supp SCR 1. In this case the validity of the 24th Constitutional Amendment Act was challenged. This case popularly knows as Fundamental Rights case was decided by Supreme Court overruled the much criticized judgment in Golak Nath case but as to power of Parliament to amend the Constitution, the court ruled that article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
Sikri C.J. held that the basic structure of the Constitution consists of the following features-
(1) Supremacy of the Constitution.
(2) Republican and democratic form of government.
(3) Secular character of Constitution.
(4) Separation of powers between Legislature, executive and judiciary.
(5) Federal Character of the Constiution.
Hegde and Mukherjee, JJ., gave the following illustrations of basic features of the Constitution:-
(1) Sovereignty of India.
(2) Democratic Character of Government.
(3) Unity of the Country.
(4) Essential features of individual freedoms guaranteed by the Constitution.
(5) Mandate to build welfare State and egalitarian society.
(5) Indira Nehru Gandhi v. Raj Narain, MANU/SC/0304/1975 : AIR 1975 SC 2299: (1976) 2 SCR 347: 1975 Supp SCC 1. In this case the Supreme Court applied the theory of basic structure and struck down clause (4) of article 329A which was inserted by the 39th Amendment Act, 1975 on the ground that it was beyond the amending power of Parliament as it destroyed the basic features of the Constiution.
(6) Minerva Mills Ltd. v. Union of India, MANU/SC/0075/1980 : AIR 1980 SC 1789: (1980) 2 SCC 591: 1980 Ker LT 573: 1980 UJ (SC) 727. The Supreme Court by 4:1 majority struck down clauses (4) and (5) of articles 368 inserted by the 42nd Amendment Act, on the ground that these clauses destroyed the essential features of the basic structure of the Constitution. Limiting amending power is a basic structure of the Constitution. The court observed:
"Our constitution is founded on a nice balance of power among the three wings of the State, namely, the executive, the legislature and the judiciary. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws".
(7) S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386: 1987 Lab IC 222: 1986 JT 996 (2): MANU/SC/0851/1987 : (1987) 1 SCC 124: 1986 (4) Supreme 382: (1987) 1 SCWR 245: 1987 SCJ 401: 1987 (1) UJ (SC) 191. In this case, the constitutional validity of article 323A and the provisions of Administrative Tribunals Act, 1985 was challenged on the ground that the Act by excluding the jurisdiction of the High Courts under articles 226 and 227 in service matters had destroyed the power of judicial review which was a basic structure of the Constitution.
The Supreme Court upheld that the validity of article 323A. It has held that though the Act has excluded the judicial review of High Courts in service matter under articles 226, 227 but it has not excluded judicial review by Supreme Court under articles 32, 136.
(8) L. Chandra Kumar v. Union of India, MANU/SC/0261/1997 : AIR 1997 SC 1125: 1997 AIR SCW 1345: JT 1997 (3) SC 589: MANU/SC/0261/1997 : (1997) 3 SCC 261: 1997 SCC(LandS) 577: (1997) 3 SCALE 40: 1997 (3) Supreme 147. The Supreme Court overruled its ruling in the case of Sampat Kumar and held the power of judicial review which is the basic feature of the Constitution. The court has held that power of judicial review over legislative action vested in the High Courts under article 226 and Supreme Court under article 32 of the Constitution is an integral and essential feature of the Constitution and formed part of its basic structure.
(9) I.R. Coelho v. State of Tamil Nadu, MANU/SC/0595/2007 : AIR 2007 SC 861: 2007 AIR SCW 611: 2007 (3) Mad LJ 423: MANU/SC/0595/2007 : (2007) 2 SCC 1: (2007) 1 SCALE 197: 2007 (1) Supreme 137. The Supreme Court held that any law placed in the Ninth Schedule after April 24, 1974 when Keshvananda Bharati's Judgment was delivered will be open to challenge. The Court said that even though an Act is put in the Ninth Schedule by a Constitutional amendment its provision would be open to challenge on the ground that they destroy or damage the basic structure if the fundamental rights are taken away or abrogated pertaining to the basic feature of the Constitution.
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