Detailed overview on Article 368 of Indian Constitution

 

The Amendment of the Constitution: Article 368

India's first Prime Minister, Pandit Jawaharlal Nehru, once stated that the Constitution should not be so strict that it fails to adjust to the shifting requirements of national growth and power. As a result, the change to the Constitution was deemed necessary by the Constitution's drafters. The process for amending the Indian Constitution is outlined in Article 368. The Indian Constitution is notable for being neither too strict nor too adaptable. Because time is not constant, it permits for changes. Societies change over time, and the law must adjust to keep up.

The Indian constitution is one of the most fascinating texts on the globe. No other nation has a constitution as extensive as ours, which is the biggest in the world. Despite its comprehensiveness, the reason this paper is so intriguing is because it is extremely adaptable. Our founding fathers hoped that the constitution would not only help the nation develop, but that it would also grow alongside it. As a result, the government has the authority to amend the law in response to different problems raised. Article 368 grants these authorities.

Procedure

Article 368 lays down the process by which the Parliament can amend the constitution. The process is as followed.

Step 1

The Bill is introduced in either house of the parliament. 

Step 2 

The Bill must be passed by a total majority (irrespective of vacancies or absentees) and by a majority, not less than 2/3rd of people present and voting by both the houses. There is no provision of joint sitting if there is a disagreement between both the houses. 

Step 3

After acquiring the majority, the Bill is presented to the President who will then give his assent to the Bill. 

In the case of amendment of provisions mentioned in Article 368, It needs to be ratified by not less than half of the states. Ratification should be done by a resolution passed by the state legislature. However, this must be passed before the amendment Bill is presented to the President for his assent. 

The Importance of Amending Constitutional Provisions

There is a reason why our founding fathers made our constitution as adaptable as it is today. This is done to guarantee that the document develops and expands in tandem with the country. Thus, under Article 368, the Parliament's powers to change the constitution are unrestricted in terms of the sections of the constitution that they desire to revise.

However, the Parliament's absolute authority to change the law is risky. Instead of serving as the foundation of our democracy, the constitution will be used to create Parliament's tyranny. The government will change several clauses to ensure that its powers are unrestricted.

What is the Basic Structure?

The Basic Structure Doctrine states that there are certain basic constitutional structures and founding principles that form the backbone of the constitution. Simply put, it is a constitutional ideology that is essential to the survival of the constitution. Some examples are free and fair elections, the federal nature of the state, judicial review, and separation of powers. Governments are prevented from changing these contours of the Constitution.

The Supreme Court has not provided a list of these ideologies. When a particular judicial issue is presented, it is the court that decides what it is. But if we want to explain the nature of the structure, we can say that if these ideologies are violated, not only democracy, but the whole functioning of this country will collapse. The country will fall into complete anarchy or totalitarianism. With these mechanisms, India remains one of the largest democracies in the world.

However, while Congress has full power to amend various sections of the Constitution, it cannot amend, repeal, or add to any section of the Constitution that affects the basic structure of the process. Below are some cases to better understand this concept.

Kesavananda Bharati v. State of Kerala, 1973

Facts:

Swami Kesavananda Bharati, the complainant, was the head of Edneer Matt, a Hindu monastic establishment in Kerala. He challenged the Kerala government's two-state Land Reform Act, which tried to limit how his land was handled.  He claimed that his fundamental rights under Articles 25 (Freedom of conscience and free profession, practice, and propagation of religion), 26 (Freedom to manage religious affairs), 14 (Equality before the law), 19(1)(f) (Right to property omitted), and 31 (unrestricted private ownership) had been violated.

The case was heard by a 13-judge panel. It became one of India's most significant decisions, establishing the Basic Structure Doctrine of the constitution. They examined the validity of the 24th, 25th, and 29th amendments in the case.

The Twenty-fourth Amendment:

The following changes have been made to Article 13:

Article 13 governs government policy and ensures that laws passed by lawmakers do not violate people's rights.

The revision altered Article 13. Clause (4) was added.  It specified that any changes made under Article 368 would be exempt from Article 13.

Changes made to Article 368:

The authority of Parliament to modify has been modified. It stated that, regardless of what is stated in the constitution, the Parliament would be able to add, remove, or modify any part of the constitution using the processes outlined in Article 368, including clauses listed in the proviso to Article 368. After being approved by a plurality, such a Bill or Act only needed the President's assent.

The Twenty-fifth Amendment:

Article 31 has been amended to say that no one shall be dispossessed of his possessions. Clause (2) was added.

The clause specified that any legislation that permitted the state to take property for a certain sum would not be challenged in court.

Nothing stated in Article 19 (1)(f) shall affect such legislation, according to Clause 9(b) after (2A).

Article 31C was added.

This was in reference to legislation that implemented the Directive Principles' principles. It specified that laws enacted to guarantee the implementation of Directive Principles would not be subject to the scrutiny of Articles 14, 19, and 31. They will not be deemed null and invalid if they limit such rights.

This is only if the law has been approved by state legislature and has received the President's approval.

The 29th Amendment

The Kerala Land Reforms Act, 1963 (Act 1 of 1964) and other land reform legislation were put to the Ninth Schedule.

The Petitioners' Arguments

They claimed that restructuring Parliament's responsibilities and changing the Constitution are part of the Basic Structure. He also claimed that his basic property rights were being abused. He petitioned the judge for redress.

Issue

The 24th, 25th, and 29th Amendment Acts' constitutionality.

The degree to which Parliament can change the constitution.

Held

The court maintained the 24th Amendment while ruling that the second portion of the 25th Amendment was unconstitutional.

The court answers an incredibly crucial issue that was left unanswered in Golak Nath v. State of Punjab, namely, the degree to which Parliament can amend the Constitution. The court stated that such a power should strike an equilibrium between the Parliament's obligation to uphold the constitution and its obligation to perform socioeconomic responsibilities.

To answer this question, they established the Doctrine of Basic Structure. While they admitted that the Parliaments’ power to amend the constitution was unrestricted with regards to the portion of the constitution they wished to amend, there were certain contours of the constitution that should be left untouched. Hedge.J and Mukherjee.J in their opinions stated that the Indian constitution was more of a social document based on social philosophy than a political document. Just like every philosophy, the constitution contains certain basic features that should not be touched.

The majority bench left it up to the courts to decide what the basic features of the constitution were because, in their opinion, they were not exhaustive.

Amendment of Fundamental Rights

The foundation of human rights in this country is the fundamental rights enshrined in Part 3 of the Constitution. The judiciary of this country has proven time and time again in numerous landmark cases that the fundamental rights of individuals or private organizations cannot be manipulated. It takes precedence over the provisions of the Constitution and forms a very important part of the Constitution.

But since Congress has the power to amend the Constitution, can it also amend its fundamental rights? And do they form the main features of the Constitution? We answer the following questions by analyzing the cases of Sajjan Singh v. Rajasthan and Golak Nath v. Punjab. 

Sajan Singh v. Rajasthan, 1965

In this case, it was held that the fundamental rights could be changed in so far as they were indirect, incidental or irrelevant under the power of Article 226, the article from which the High Court obtained its powers.

Facts

Congress amended certain sections of the Constitution to assist several legislatures with agricultural reform in various states. This was done through legislation such as the Constitution (First Amendment) Act of 1951, the Constitution (Fourth Amendment) Act, and the Constitution (Seventeenth Amendment) Act of 1964. 44 Acts amended 31A (State Acquisition of Property) and added to Appendix 9.

Complainant's allegations

Angered by the legislatures, petitioners said none of them would be recognized because the Constitutional Act (17th Amendment) was unconstitutional. They claimed:

Since the powers provided for in Section 226 are subject to the Seventeenth Amendment, the law must comply with the specific provisions of Section 368.

Sri Sankari Prasad Singh Deo v. Coalition of India and Bihar rulings should be reconsidered.

The 17th Amendment deals with land. Legislation is void because Congress has no right to legislate on land.

This law was contrary to the competent court's decision and was therefore unconstitutional. 

Issues

1.     Whether the Acts violated the powers prescribed by Article 266?

2.     Should the decision of Sri Sankari Prasad  Singh Deo v. Union of India and State of Bihar be considered?

3.     Whether the Acts deal with the land?

4.     Can Parliament validate laws that have been ruled as invalid by the courts?

Held

Law did not affect section 226.

If the effects of law on the powers of section 226 are indirect, incidental or insignificant, they do not comply with the provisions of section 336. To understand the impact of a law, it is necessary to analyze the substance and content of the law.

The law only wants to change basic rights with the aim of removing obstacles to the implementation of socio-economic policies. Therefore, its effect on the powers of section 266 is incidental and immaterial, and does not constitute a section 336 action. 

Shri Sankari Prasad  case will not reopen: In reconsidering decisions of previous courts, courts must ask themselves: "Is it absolutely necessary and necessary to reopen an issue that has already been decided?" The damage caused by the decision, its impact on the public interest, the effectiveness of the issue, and the urgency of the issue should be analyzed.

The bank said cases should not be reopened according to established guidelines. It also seriously jeopardizes the laws enacted under the Amendment Act.

Congress did not enact a land law

The court ruled that Congress had not enacted land-related legislation through these laws. They only confirmed a previously passed land law.

Congress can verify laws declared invalid

The powers granted under Section 368 may be granted prospectively or retroactively. This allows Congress to enforce laws that courts have declared invalid. 

IC. Golaknath & Ors vs State Of Punjab & Anrs., 1971 

The case went further and overturned Sajjan Singh's judgment against Rajasthan. It turns out that Congress has no power to change basic rights.

Fact-The petitioner filed a written petition opposing the Constitution (17th Amendment) Act of 1964. This included, among other laws, amendments to the Punjab Land Title Protection Act, 1953 (Law 10 of 1953) and the Mysore Land Reform Act (Law 10 of 1962). According to Law No. 14 of 1965.

Issue-Can I change my basic rights?  

Articles 245, 246, and 248 of the Constitution deal with the amendment powers of Parliament. Section 368 only mentions the amendment procedure.

 Moreover, an amendment can only become law if it complies with Article 13 of the Constitution. ACCORDINGLY, IF ANY CERTAIN MODIFICATION WAIVER OR REDUCES ANY OF THE RIGHTS SET FORTH IN THIS PART III, THAT MODIFICATION WILL BE VALID.

 The difficulty the court had to face, however, was that the law in question, while curtailing fundamental rights, had been held in force by previous judgments. They applied the doctrine of future overrule and declared that amendments to these laws were still under consideration. However, they also clarified that after the date of the judgment, Congress no longer has the power to amend provisions of Part 3 of the Constitution.

While the ratio of this case was reversed in the case of Kasavananda Bharati, some of Golak Nath’s arguments were used in the case. 

It was ruled that there were no limitations on amending under Article 368. But this was with the restriction that “Parliament cannot do indirectly what it cannot do directly.” That is amending is strictly a legislative power, not a constitutional one. 

Minerva Mills Ltd. & Ors vs Union Of India & Ors,1980

In this case, the court considered the effect on the government of being able to amend the constitutional provisions that gave the government the power to do so. They also examined the relationship between policy principles and fundamental rights. The Judicial Yuan held Section 5 of 368 (extending power to amend), Section 4 of 368 (overriding judicial review), and Section 4 of the 1976 Amendment Act (overriding judicial review) to be unconstitutional. made a judgment that it was

Fact

To save factories operating in a manner harmful to the public interest, the government passed the Ill Textile Businesses (Nationalization) Act of 1974. This law allowed the government to take over control of these factories. Textile limited company Minerva Mills has been accused by the government of being a "sick industry". A commission was set up to investigate the matter. The report claimed the company was "sick". As a result, the company was placed under government control under Section 18A of the Industries (Development and Regulation) Act 1951.

The factory questioned the constitutionality of such a law made possible by the 1976 Constitution (42nd Amendment) Act. This cast doubt on the constitutionality of the revised law.  

Issue

Constitutionality of the Constitution (42nd Amendment) Act, 1976.

Held

Article 368(5)

The amendment included Section 5 of Article 368, which said there were no restrictions on what part of the Constitution Congress wanted to amend. The bank ruled that the newly introduced amendment was unconstitutional.It extended the government's limited powers to absolute power. Such expansion was against the social, political and economic justice of the people. Congress, therefore, cannot expand its powers and undermine the basic structure of the Constitution.  

Article 368(4)

The amendment also included section 4 of section 368, which stated that amendments made under section 368 could not be reviewed by the court. The court also ruled that this was unconstitutional. There is an important balance between her three branches of government: the legislative, executive and judicial branches. If this provision were to be valid, the judiciary could not revoke an amendment passed under it, even if it violated the basic structure of the Constitution. The legislative branch determines the validity of laws. That power belongs to the judiciary.

Thus, this article gives the legislature powers that clearly belong to the judiciary. By destroying this separation of powers and denying the common man a source of salvation, they go against the very fabric of democracy.

Section 4 of the 1976 Amendment Act  

This section seeks to separate Article 14 (equality before the law) and Article 19 (freedom of expression) from Article 31(C). As amended, Section 31(C) states that statutes implementing specific policy principles may not be declared invalid if they violate Sections 14 and 19. No court would question such laws. The court declared the amendment unconstitutional. These two rights violated by these laws are not only an integral part of the Universal Declaration of Human Rights, but also an integral part of the basic structure of the Constitution. It was also said that according to the proportion of Kesavanda Bharati cases, castration could not be done by these changes.

Relationship between Part 3 and Part 4 of the Constitution

The Supreme Court also explained the relationship between the 3rd and 4th parts of the Constitution: fundamental rights and policy principles. They explained that both laid the foundations of the Constitution, and that giving priority to either would undermine and undermine the foundations of the Constitution.Both should be read in harmony. 

M. Nagaraj & Others vs Union Of India & Others, 2007

Fact

Several written petitions to the Constitution of 2001 (85th Amendment) Act have been filed.

claimant's allegations

The petitioner, who had violated the Constitution of 2001 (85th Amendment) Act, asked the Court to reverse the Amendment Act in relation to Section 16(4A) (which provides a reservation on seniority promotion). They say such laws violate the basic structure and are unconstitutional. 

They also allege that the articles overrule judgments in various past cases. The exercise of such power violates the very structure of the Constitution.

The amendment also aimed to change the fundamental right to equality. Article 14 (equality before the law) is violated by adding "successive seniority" to "early promotion" in Article 16(1). They argued that the addition of the "precedence of succession" clause would impede efficiency.

Petitioners questioned the 1995 Constitution (77th Amendment). They argued that the promotion of roster points would accelerate seniority if unprecedented gains were made.For example, a roster point her promoter of Alumni Stream would reach the 4th level when he turns 45. On the other hand, at age 56, the General Merit Promoter has reached 3 of her 6 levels.

 Issue

At issue was the constitutionality of the 2001 Constitution (85th Amendment) Act.

Held

The changes to Article 16 were deemed effective and the structure of Article 16 remained unchanged. 

Constitutional Amendments in 2019

Name of Amendment	Amendment	Objective
103rd	Added Clause (6) to Article 15 Added Clause (6) to Article 16	Clause (6) states that individuals from economically weaker sections of society can seek reservation from educational institutions, including private institutions. This is notwithstanding minority institutions Clause (6) of Article 16 established reservation of individuals from economically weaker sections in government posts.
104th	Amended Article 334	The abolishment of Legislative councils in mentioned States. Dual Citizenship for Indian origin outside the country. Quota to educationally backward classes Quota for religious minorities in government service.

 

 

Conclusion

In this article, we have discussed constitutional amendments. We have found that there is what is called the basic structure of the constitution, and that violating the basic principles of justice is against it. It was later decided that other aspects of the constitution, such as judicial review, could also be aspects of the basic structure of the constitution.

In many landmark cases, governments have sought to amend the constitution to more easily guarantee what is best for the public interest. The judiciary vehementlyopposed this whole idea. In later rulings, judges rejected the idea that the executive branch could override certain aspects of the underlying structure in order to best serve the public interest. I can see that you are open minded. Subsequent rulings, however, have been tough on structural changes unless the judiciary is fully convinced that such laws are beneficial in securing the greater public interest.

We must recognize that the Constitution is the bedrock of this democracy. It was revolutionary for the founders of our constitution to provide provisions for amending the constitution, but it is important that such provisions are not abused. It can result in excessive legislative or executive power that can be torn apart. 

References

https://www.legalserviceindia.com/article/l70-Article368.html

https://archive.org/details/jn-pandey.-the-constitutional-law-of-india-edition-tenth