Amendment of the Indian Constitution (Art.368) : Evolution of Basic structure doctrine, Procedure

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Introduction

Life of a nation is not static but changes as its political, social, and economic conditions change. It is therefore possible that a constitution drafted in one era may be found inadequate in another era.

Article 368 in Part XX of the Constitution of India deals with the powers of Parliament to amend the Constitution and its procedure.

Since 1951, questions have been raised about the scope of the constitutional amending process contained in Art. 368. The basic question raised has been whether the Fundamental Rights were amendable so as to dilute or take away any Fundamental Right through a constitutional amendment?

Evolution of Basic Structure Doctrine : Cases

Shankari Prasad vs. Union of India

In the Shankari Prasad case (1951), the constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged. The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws). Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

Sajjjan Singh v. Rajasthan

The same question was raised again in 1964 in Sajjjan Singh v. Rajasthan, when the validity of the Constitution (Seventeenth Amendment) Act, 1964 was called in question. By this amendment, a number of states affecting property rights were placed in the Ninth Schedule and were thus immunized from Court review. But in this case also, it was held that the powers of amending the Constitution conferred on Parliament under Article 368 could be exercised over each and every provision of the Constitution.

I.C. Golaknath and Ors. v. State of Punjab and Anrs

But in the Golak Nath case (1967), the Supreme Court reversed its earlier stand. In that case, the constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged. The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.

24th Amendment Act (1971)

The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.

Kesavananda Bharati v. State of Kerala

However, in the Kesavananda Bharati case (1973), the Supreme Court overruled its judgement in the Golak Nath case (1967). It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution. It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.

Indira Nehru Gandhi v. Raj Narain

The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975). In this case, the Supreme Court invalidated a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the jurisdiction of all courts.

42nd Amendment Act (1976)

Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

Minerva Mills v. Union of India

However, the Supreme Court in the Minerva Mills case (1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution. The Court held that in other words, Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic features.

Waman Rao vs UOI

Again in the Waman Rao case (1981), the Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973 (i.e., the date of the judgement in the Kesavananda Bharati case).

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

Basic features of the Constitution

From the various judgements, the following have emerged as ‘basic features’ of the Constitution or elements of the ‘basic structure’ of the constitution:

1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary
16. Limited power of Parliament to amend the Constitution
17. Effective access to justice
18. Principles (or essence) underlying fundamental rights
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142
20. Powers of the High Courts under Articles 226 and 227

Types of Amendments

Different degrees of rigidity attach to different portions of the Constitution, depending on their importance and significance. The Constitution, accordingly, provides for the following three classes of amendments of its provisions:

1. Constitutional provisions of comparatively less significance can be amended by the simple legislative process as is adopted in passing ordinary legislation in Parliament.
2. Those provisions which are material and vital are made relatively stable as these can be amended only by following the rule of special majority as laid down in Art. 368.
3. There are certain constitutional provisions relating to the federal character, which may be characterised as the ‘entrenched provisions, which need for their amendment, in addition to the passage of the amending Bill by the special majority in the two Houses of Parliament, ratification by half of the State Legislatures.

Procedure for Amendment

The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:

1. An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
2. The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
3. The bill must be passed in each House by a special majority, that is, a majority of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
4. Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
5. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
6. After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
7. 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.
8. After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.

References
1.Laxmikanth, M. Indian Polity For Civil Services and Other State Examinations| 6th revised edition (p. 295). McGraw Hill Education (India) Private Limited. Kindle Edition. 
2.M.P Jain's Indian Constitutional Law