Article 368: Amendment of Constitution
Published on: 8 July, 2020
“An unamendable constitution is the worst tyranny of time or rather the very tyranny of time” – Mulford
Original Text
Power of Parliament to amend the Constitution and procedure therefor –
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.
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, 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 –
- Article 54, Article 55, Article 73, article 162, article 241 or article 279A, or
- Chapter 4 of Part 5, Chapter 5 of Part 6, or Chapter 1 of Part 9, or
- Any of the lists in the seventh schedule, or
- The representation of States in Parliament, or
- 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 3 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.
4. No amendment of this Constitution including the provisions of Part 3 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.
Introduction to Amendment of Constitution
A constitution which cannot be amended is the worst because it can never meet the expectations and needs of its citizens. There it was important for the founding fathers of our Constitution to give the provision for amendment of the Constitution. The Amendment of the Indian Constitution is given under Part 20. Under Part 20, there is only one article, which is Article 368 of the Constitution which deals with the amendment.
Procedure for Amendment of Constitution
A bill to amend the Constitution can be introduced in either house of the Parliament. This bill needs to be passed with a special majority to amend the matters which are dealing with article 368 of the Constitution.
All the amendment of the Indian Constitution is not supposed to use Article 368 to get passed in the assembly. Only those amendments need to use article 368 which are affecting the major portions of the Constitution.
All the amendment of the Indian Constitution is not supposed to use Article 368 to get passed in the assembly. Only those amendments need to use article 368 which are affecting the major portions of the Constitution.
There are 3 types of Procedure for amendment of the Constitution:
1. Amendment by Simple Majority: This is the first type of amendment. Under these amendments article, 368 is not invoked because they are not affecting the major parts of the Indian Constitution. These amendments can be passed by a simple majority of the members who are present and voting. These amendments with the simple majority can pass ordinary laws.
Following are some of the parts of the Constitution which can be amended by Simple Majority:
1. Provisions relating to Citizenship.
2. Provisions relating to appeal to the Supreme Court.
3. Provisions relating to salary and allowances of the Judges of High court.
4. Provisions relating to the salary and allowances of the ministers.
5. Provisions relating to the number of Judges in the Supreme Court.
6. Provisions relating to the creation of legislature in a Union Territory.
1. Amendment by Simple Majority: This is the first type of amendment. Under these amendments article, 368 is not invoked because they are not affecting the major parts of the Indian Constitution. These amendments can be passed by a simple majority of the members who are present and voting. These amendments with the simple majority can pass ordinary laws.
Following are some of the parts of the Constitution which can be amended by Simple Majority:
1. Provisions relating to Citizenship.
2. Provisions relating to appeal to the Supreme Court.
3. Provisions relating to salary and allowances of the Judges of High court.
4. Provisions relating to the salary and allowances of the ministers.
5. Provisions relating to the number of Judges in the Supreme Court.
6. Provisions relating to the creation of legislature in a Union Territory.
2. Amendment by Special Majority: These are the amendments which need the special majority of the Parliament to be passed. They invoke article 368. There are 2 conditions which are to be satisfied with this amendment:
- Majority of the total membership of the house and
- Majority of two-third members of the house present and voting.
3. Amendment by Special Majority and need ratification of half of the states: This is the third type of Constitutional amendment. They affect the federal structure of the State. Just like the second type of constitutional amendment they also need to be passed by a special majority to be passed. In addition to the special majority, they also need ratification by half of the states after they are passed by the Parliament. They invoke article 368 of the Constitution.
Some of the examples of this amendment are given below:
Some of the examples of this amendment are given below:
- Amendment affecting the legislative powers between the Centre and the State: Article 245- 255.
- Amendment of the executive powers of the Union and the States: Article 73 and 162.
- Amendment of Article 368 itself.
Amendment of Constitution and Fundamental Rights
Fundamental Rights are one of the most important parts of the Indian Constitution. The question of amendment of the Fundamental rights under article 368 came before the Parliament in the case of:
Republic day is celebrated every year on 26th January as the Constitution is started on this day only.
1. Shankari Prasad v. Union of India, AIR 1951
After the independence of India various states like Uttar Pradesh and Bihar made land reforms act which took land from Zamindars. Many Zamindars filed a writ petition in the Patna high court due to which the high court invalidated the Bihar land reforms act, 1950. The constituent assembly passed the first amendment act, 1951. This act created Article 31 A and 31 B. These 2 clauses insulated land reforms from judicial scrutiny.
This first amendment act was challenged on the ground that it took away the rights given under Part 3 of the Indian Constitution, which is not permitted by article 13 Clause 2.
The Supreme Court rejected the argument and said that the power to amend the Constitution includes the amendment of the Fundamental right under Article 368.
On the point of article 13 (2), the court said that the word ‘Law’ under this clause includes ordinary law and not a constitutional amendment.
So it was finally decided that the constitutional amendment will be valid even if it takes away the rights under Part 3.
The Supreme Court rejected the argument and said that the power to amend the Constitution includes the amendment of the Fundamental right under Article 368.
On the point of article 13 (2), the court said that the word ‘Law’ under this clause includes ordinary law and not a constitutional amendment.
So it was finally decided that the constitutional amendment will be valid even if it takes away the rights under Part 3.
2. Sajjan Singh v. State of Rajasthan, AIR 1965
The 17th amendment act of the constitution added amended article 31A and added 44 statutes under the ninth schedule. This was challenged on the ground that it is affecting the powers of High courts under Article 226. Moreover, this bill wasn’t sent for ratification by half of the states so the procedure under article 368 wasn’t followed. So this constitutional amendment is invalid.
The Supreme Court dismissed the petition. The court said that the Parliament doesn't need to refer to the proviso under Article 368 and satisfy the additional requirement given under it (while amending article 12 to 35).
The Supreme Court dismissed the petition. The court said that the Parliament doesn't need to refer to the proviso under Article 368 and satisfy the additional requirement given under it (while amending article 12 to 35).
The second issue, in this case, was that the main purpose of this amendment is to change the law related to land. This is a part of the State list so the only state can make law under it. The court rejected this contention also by saying that the pith and substance of the act are needed to be checked. The main purpose of the act is to allow the agrarian reforms act passed by different legislatures of State and give them immunity.
The last important issue was an amendment of Fundamental rights under Article 368. This was also given a green signal by the Supreme Court. The court said that the power to amend Fundamental right is given under Article 368.
The last important issue was an amendment of Fundamental rights under Article 368. This was also given a green signal by the Supreme Court. The court said that the power to amend Fundamental right is given under Article 368.
3. Golak Nath v. State of Punjab, AIR 1971
In this case, the petitioners filed a writ petition saying that the decision of financial commissioner declaring 418 acres of land as surplus area be declared as unconstitutional as it was affecting their rights under Article 19 F, 19 G and article 14. Moreover, this petition also demanded to make constitution 1st, 4th and 17th Amendment as invalid.
Finally, under this case, the Supreme Court overruled its decision given under Shankari Prasad and Sajjan Singh cases. The Court took a U-turn and said that the parliament doesn’t have the power to amend the Fundamental rights under article 368 of the Constitution.
Finally, under this case, the Supreme Court overruled its decision given under Shankari Prasad and Sajjan Singh cases. The Court took a U-turn and said that the parliament doesn’t have the power to amend the Fundamental rights under article 368 of the Constitution.
The court also went on to say that amendment is a law under Article 13 clause 2. Therefore it is violating the fundamental rights and it is invalid.
This Judgment given under the Golak Nath case drew a sharp reaction and made the Judiciary Supreme. So later, the Congress party government passed the 24th and 25th constitutional amendment act, 1971.
Under the 24th amendment, the parliament added to clause 4 under Article 13. This clause said that nothing under this article will be applied to article 368. This amendment also added sub-clause 1 under article 368. This sub-clause said that notwithstanding anything in this Constitution, Parliament may, in exercise of its power amend by addition, variation or repeal any provision of the constitution in accordance with this article.
So finally with the passage of the 24th amendment act, the parliament again was given supremacy and unfettered power to amend the constitution of India.
This Judgment given under the Golak Nath case drew a sharp reaction and made the Judiciary Supreme. So later, the Congress party government passed the 24th and 25th constitutional amendment act, 1971.
Under the 24th amendment, the parliament added to clause 4 under Article 13. This clause said that nothing under this article will be applied to article 368. This amendment also added sub-clause 1 under article 368. This sub-clause said that notwithstanding anything in this Constitution, Parliament may, in exercise of its power amend by addition, variation or repeal any provision of the constitution in accordance with this article.
So finally with the passage of the 24th amendment act, the parliament again was given supremacy and unfettered power to amend the constitution of India.
4. Keshavnanda Bharati v. State of Kerala, AIR 1973
In this case, Swami Keshavnanda Bharati challenged the validity of the Kerala Land Reforms Act, 1963 by filing a writ petition under Article 32 of the Constitution. This Kerala Land reforms act was added in the 9th Schedule of the Constitution by 29th Constitutional Amendment act.
So the petitioner was allowed to challenge the 24th, 25th 26th and 29th Constitutional amendment act.
The Supreme Court, in this case, decided that the amending power of the Parliament is not unlimited. The Parliament cannot amend the basic structure of the Indian Constitution. The Judges said that article 368 included the power to amend the constitution from the inception and the 24th Constitutional amendment only made it explicit.
So the petitioner was allowed to challenge the 24th, 25th 26th and 29th Constitutional amendment act.
The Supreme Court, in this case, decided that the amending power of the Parliament is not unlimited. The Parliament cannot amend the basic structure of the Indian Constitution. The Judges said that article 368 included the power to amend the constitution from the inception and the 24th Constitutional amendment only made it explicit.
Basic Structure of the Constitution
The concept of basic structure is nowhere found in the Constitution of India. This concept is founded by the Judiciary. The concept tells that the Constitution and the Indian Democracy are having some most important principles which cannot be amended to take away from the Constitution. These most important principles constitute the basic structure of the Constitution. The court never made the principles explicit. They said that it will be decided on a case by case basis.
Over the years, the following are some of the principles which constitute the basic structure of the Constitution:
1. Constitution is Supreme
2. Article 32 of the Fundamental Rights
3. The Sovereign Democratic and Republic structure.
4. Unity and Integrity of India.
5. Judicial Review
6. Principle of Free and Fair Elections.
7. Federalism
8. Rule of Law
9. Secularism
10. The balance between Fundamental Rights and Directive Principles
1. Constitution is Supreme
2. Article 32 of the Fundamental Rights
3. The Sovereign Democratic and Republic structure.
4. Unity and Integrity of India.
5. Judicial Review
6. Principle of Free and Fair Elections.
7. Federalism
8. Rule of Law
9. Secularism
10. The balance between Fundamental Rights and Directive Principles
Indira Nehru Gandhi v. Raj Narayan, AIR 1975
This is a case under which the Supreme Court struck down Article 329 A- Clause 4. This clause was added as part of the Constitution 39th amendment act, 1975. This clause was struck down because it was beyond the amending power of the Constitution. The court said that judicial review is a part of the basic Structure of the Constitution and it cannot be taken away from the court.
42nd Constitutional Amendment and Article 368
After the Judgment in the Keshavnanda Bharati and Indira Nehru Gandhi case, the Parliament enacted the 42nd Constitutional Amendment under Article 368. This constitutional amendment added 2 clauses under Article 368: Clause 4 and 5.
Clause 4 freed the Parliament from judicial review of the Constitutional amendment.
Clause 5 made the parliament free to amend the constitution according to its wishes.
Therefore clause 4 and 5 again created the Supremacy of the Parliament.
Clause 4 freed the Parliament from judicial review of the Constitutional amendment.
Clause 5 made the parliament free to amend the constitution according to its wishes.
Therefore clause 4 and 5 again created the Supremacy of the Parliament.
Minerva Mills v. Union of India, AIR 1980
In the Minerva mills case, the Supreme Court struck down the clause 4 and 5 of Article 368, which was added by the 42nd Constitutional amendment act.
The court struck down these clauses saying that they are against the basic structure of our Constitution. Therefore Minerva mills judgment again made the Constitution as the Supreme and not the Parliament.
The court struck down these clauses saying that they are against the basic structure of our Constitution. Therefore Minerva mills judgment again made the Constitution as the Supreme and not the Parliament.
Important Constitution amendments
- 100th Constitutional Amendment Act, 2015: This act allowed the operationalisation of 1974 India Bangladesh Land Boundary. This settled the dispute of land boundary between the border of India and Bangladesh. Now thousands of stateless citizens got citizenship of one of the countries.
- 101st Constitutional Amendment Act, 2016: This is one of the most important constitutional amendments in India. Under this Goods and Services Act was implemented all over India. GST is an indirect tax collection which is creating a system of single tax to be collected on various goods and services. There are some exceptions under GST like Alcohol and Petroleum products.
