Amendment of Indian constitution under article 368

Amendment of Indian constitution under article 368

Introduction

Constitution of the country is the supreme law of the land. On the basis of Constitution other laws are made and are enforced. Law should change according to change of time. Law is not static but dynamic. With time social, economic and political condition of the country keeps changing. Constitutional law of the country should also change according to time. If it does not change it will be outdated on account of economical, social and political development in the country. Constitution of democratic country should be particularly responsive to changing condition. Constitution can be classified as flexible and rigid on the basis of process by which they can be amended. Prof. A.V. Dicey defines two types of Constitutions—the flexible as ‘one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body’, and the rigid Constitutions as ‘one under which certain laws generally known as constitutional or fundamental laws, cannot be changed in the same manner as ordinary laws’.[1]

The Necessity of constitutional change has been put light upon in Keshvananda Bharti vs state of Kerala[2], court held that it is necessary to change the constitution of the country according to social changes. By this possible overthrow of out political institution can be prevented.

The constitution of India provides for different amending process as comparison to other leading constitution of world. Constitution of India can be described as partly flexible and partly rigid. Amendment procedure of Indian constitution incorporated in Article 368.

Modes of Amending Indian Constitution

Constitution of India provides for three modes of amending its provision namely-

  1. By simple majority
  2. By special majority
  3. By special majority and ratification by states.

 

  • Amendment by simple Majority-

  • Some provision of the constitution can be amended by parliament through majority. Article 4, Article 169, Article 239(a), Article 164(5), Article 186, Article 195, Para 7 (2) of Schedule V, Para 21(2) of Schedule VI can be amended by amendment by simple majority. A bill for the purpose of amendment by simple majority can be introduced in either house of the parliament that means a bill can be introduced to either Lok Sabha or Rajya Sabha for the purpose of amendment by simple majority. The amendment of given provision are specifically excluded from the provision of article 368 of the constitution.
  • Amendment by special majority-

  • Procedure of amendment by special majority has been laid down in Article 368 of Indian Constitution. All constitutional amendments other that referred to above and below comes under this category and must be affected by majority of total of membership of each house of parliament as well as by a majority not less than two third of the member of that house present and voting. The expression ‘total membership’ means the total number of members comprising the house irrespective of fact weather there are absentee or vacancy. Provision that can be amended by special majority includes- Fundamental Rights, Directive Principle of State Policy, all other provision which not covered in first (amendment by simple majority) and third (amendment by special majority and ratification by states) category. After the bill has been passed by both the houses it must be presented to the president for his assent. It is to be noted that it is obligatory for the president to give his assent to the amendment bill and the constitution thereafter shall stand amended.
  • Amendment by special majority and ratification by states

  • clause (2) of Article 368 provides for the amendment by special majority and ratification by the states. Which require special majority as well as ratification by the states that is after getting special majority, the bill then has to be ratified by the state’s legislatures of not less than one half of the states. This procedure of amendment of constitution are only applied to the provision of federal structure in Indian constitution. Provision that can be amended by special majority as well as ratification by the states are –
  1. Article 54 and Article 55, relating to the election of the President.
  2. Article 73 and Article 162, dealing with the extent of the executive power of union and states respectively.
  3. Article 124 to 147, Chapter IV of Part V, dealing with constitution, power and jurisdiction of the Supreme Court.
  4. Article 214 to 231, Chapter V of Part VI, provides for power and jurisdiction of High Courts in the states.
  5. Article 241, dealing with High Courts in union territories.
  6. Article 245 to 255, Chapter I of Part XI, regulating legislative relations between union and states.
  7. Any of the three-list mentioned in the seventh schedule.
  8. Provision in fourth schedule for allocation of seats and council of states among states.
  9. Article 368 itself.
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In the cases, where amendment procedure includes special majority and ratification by the states, important voices are given to states in those matters pertaining to the interest of states. Except for the amendment by simple majority the other two procedure (Amendment by special majority and Amendment by special majority and ratification by states) comes under the purview of Article 368.

Analysis of Amendment procedure-

  • Amendment can only be initiated by introducing bill to either house of parliament.
  • When bill passed must be presented to the president who shall give his assent.
  • It is given where the amendment seeks any changes in the provision mention in Article 368(2), it must be ratified by the states state legislature of not less than one half of the states.
  • Such ratification is to be done by resolution passed by the state legislature.
  • No specific time limit for ratification of amending bill by the state legislature is provided.

In Abdul Rahiman bs Vithal Arjun[3], it was stated by the court that constitution can only be amended by parliament. Constitution can only be amended in a prescribed manner. Any attempt to amend the constitution by a legislature other than parliament and in a manner different from the given manner will be void and inoperative.

Judicial Pronouncement on amending power of parliament

  • In Shankari Prasad vs Union of India[4], the issue whether fundamental rights can be amended under article 368 comes for consideration to the Supreme Court. Supreme Court held that the terms of Article 368 are perfectly general and empowers parliament to amend the constitution without any exception whatsoever.
  • In Sajjan Singh vs State of Rajasthan[5], validity of the seventeenth amendment was challenged in this particular case. Contention put up in front of the court, that seventeenth amendment limits the jurisdiction of High Courts and therefore need ratification by half of the states as given under article 368. This contention was disposed by the court, but the court decided to deal with second submission, that the decision on Shankari prasad vs union of India should be reconsidered. The court stated that even if the powers of amending fundamental rights are expressly not provided under article 368, the parliament could by proper amendment assume those powers.
  • In Golaknath vs State of Punjab[6], in this case validity of first, fourth and seventeenth amendment was challenged. Court held that parliament has no power to amend Part III (Fundamental Rights) of the Constitution. ‘Basic structure’ term was used by MK Nambiar, other counsels in the case.
  • In 1971, 24th Amendment Act[7] was passed. 24th Amendment Act made certain changes in Article 13 and Article 368.
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A new clause was annexed to Article 13 – “(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.”

Two Clauses were added to 368 –

“(I) 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.”[8]

“(3) Nothing in article 13 shall apply to any amendment under this article.”[9]

Another modification to the old Article 368 [now Article 368(2)] made it obligatory for president to give his assent to any bill passed under article 368.

Basic structure

24th Amendment Act, which was passed in 1971 where parliament restored for itself the absolute power to amend, any part of the constitution. Which includes Part III (Fundamental Rights) also. The constitutional validity of this amendment was challenged Keshvananda Bharti vs State of Kerala in this case majority judge overruled the Golaknath case and denied parliament power to amend fundamental rights. Court held that article 368 does not enable parliament to alter the basic structure or framework of Indian Constitution. Majority verdict in Keshavananda Bharti recognized the power if parliament to amend any or all provision of the constitution given such an act did not destroy the basic structure of Indian Constitution.

 

[1] A.V. Dicey: Introduction to the Study of the Law of the Constitution, London, 1952, p. 127

[2] Writ Petition (civil) 135 of 1970

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[3] AIR 1958 Bom 94, (1957) 59 BOMLR 579

[4] 1951 AIR 458, 1952 SCR 89

[5] 1965 AIR 845, 1965 SCR (1) 933

[6] 1967 AIR 1643, 1967 SCR (2) 762

[7] https://www.casemine.com/act/in/5a979da74a93263ca60b71dd

[8] https://indiankanoon.org/doc/594125/

[9] https://indiankanoon.org/doc/134715/

Author: sarthbodhi wankhade,
Symbiosis Law School and 5th Year (BA LLB)

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