Article 368 of the Indian Constitution

 Article 368 of the Indian Constitution: Power to Amend the Constitution

Article 368 of the Indian Constitution outlines the process by which the Constitution can be amended, ensuring it evolves with changing times while preserving its core principles. This article grants Parliament the power to make changes through a structured procedure, which involves the introduction of a Bill in either House of Parliament, approval by both Houses, and the President's assent. 

Some amendments, especially those affecting the federal structure or fundamental provisions, require approval from state legislatures. Article 368 plays a vital role in maintaining the Constitution's adaptability and stability, balancing flexibility with safeguard mechanisms like the Basic Structure Doctrine.

Article 368 of Constitution of India

368. 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.

(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--

(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.

Article 368 of the Indian Constitution Explanation

Article 368 outlines the power of Parliament to amend the Constitution and specifies the procedure for such amendments. This ensures that the Constitution can evolve over time while preserving its essential features. Below is a clause-by-clause breakdown:

Clause (1): Power of Parliament to Amend

1. What it Says:

   • Parliament has the authority to amend the Constitution.
   • This can involve:
     • Addition: Introducing new provisions.
     • Variation: Modifying existing provisions.
     • Repeal: Removing provisions.

2. Key Phrase – "Notwithstanding anything in this Constitution": This means Parliament’s power to amend overrides any other provision of the Constitution.

3. Constituent Power: The authority to amend is a special power called "constituent power," distinct from Parliament's normal legislative powers.

Clause (2): The Procedure for Amendment

This clause explains how an amendment is initiated and passed:

1. Introduction of an Amendment Bill

• A Bill proposing a constitutional amendment must be introduced in either House of Parliament (Lok Sabha or Rajya Sabha).
• The Bill is exclusively for constitutional amendments and cannot be part of ordinary legislative procedures.

2. Approval by Both Houses of Parliament

• To pass the Bill, two types of majority are required in each House:
  • Majority of the total membership of the House.
  • Two-thirds majority of members present and voting.

3. President's Assent

• After both Houses approve the Bill, it is sent to the President of India for assent.
• The President cannot withhold their assent in the case of constitutional amendments.
• Once the President gives assent, the Constitution stands amended as per the Bill’s provisions.

Special Cases Requiring State Ratification (Proviso to Clause 2)

Some amendments require ratification by the legislatures of at least half the states in addition to the procedure mentioned above. This is to maintain the balance between the Union and the states in federal matters.

Amendments Requiring State Ratification:

1. Election of the President: Articles 54 and 55 (related to the President's election process).

2. Powers of the Union and States: Articles like 73 (Union executive powers), 162 (State executive powers), and 241 (Union territories).

3. Seventh Schedule: Changes to the Union, State, or Concurrent Lists that allocate subjects to different levels of government.

4. Representation of States in Parliament: Changes affecting how states are represented in the Lok Sabha or Rajya Sabha.

5. Amendment Procedure: Changes to Article 368 itself.

This additional step ensures that significant amendments involving federal principles have broader acceptance.

Clause (3): Article 13 Does Not Apply

1. What it Says: Article 13, which protects fundamental rights from being violated by ordinary laws, does not apply to constitutional amendments under Article 368.

2. Implication: Parliament can amend fundamental rights (Part III of the Constitution) without being restricted by Article 13.

Clause (4): No Judicial Review

1. What it Says: Constitutional amendments made under Article 368 cannot be challenged in a court of law on any ground.

2. Scope: This protection applies to amendments made before or after the 42nd Amendment (1976).

3. Part III Amendments: Even amendments affecting fundamental rights cannot be questioned in court under this provision.

Clause (5): No Limitation on Parliament’s Power

1. What it Says:

   • Parliament's power to amend the Constitution is unlimited.
   • There is no restriction on:
     • What provisions can be amended.
     • The scope of amendments (addition, modification, or repeal).

2. Clarification: This clause asserts that Parliament’s constituent power is supreme and cannot be curtailed by any interpretation.

Understanding Key Points

1. Flexible and Rigid: Some amendments require only parliamentary approval (flexible), while others also need state ratification (rigid).

2. Preservation of Federalism: Amendments affecting the Union-State relationship involve state legislatures to ensure federal principles are respected.

3. Judicial Limitations: Article 368 tries to shield constitutional amendments from judicial review, but courts have intervened using the Basic Structure Doctrine to limit Parliament’s power.

4. Unlimited Power? - While Clause (5) suggests no limits, courts have ruled that Parliament cannot alter the basic structure of the Constitution (e.g., democracy, secularism, rule of law).

Article 368 provides the framework for amending the Constitution. It ensures adaptability while maintaining a balance between flexibility and rigidity. Parliament holds the power to amend, but the judiciary ensures that essential principles of the Constitution are preserved. This dual safeguard keeps the Constitution both dynamic and stable.

Understanding Article 368

Article 368 of the Indian Constitution outlines the procedure for amending the Constitution. It empowers the Parliament to make changes to the Constitution to address evolving socio-political needs while safeguarding the fundamental structure of the nation.

Provisions of Article 368

1. Authority to Amend: Article 368 grants the Parliament exclusive authority to amend the Constitution, ensuring that necessary modifications can be made to meet the changing needs of society.

2. Types of Amendments:

   • By Simple Majority: Certain provisions, such as the admission of new states or changes to the Second Schedule, can be amended through a simple majority of members present and voting in both Houses of Parliament.

   • By Special Majority: Most constitutional amendments require a special majority, which means a majority of the total membership of each House and not less than two-thirds of the members present and voting.

   • By Special Majority and State Ratification: Amendments affecting the federal structure require ratification by at least half of the state legislatures in addition to a special majority in Parliament.

3. Introduction of Amendment Bill: The amendment process begins with the introduction of a bill in either House of Parliament. Such a bill cannot be introduced as a private member’s bill and must be accompanied by the required majority.

4. State Participation: For amendments that involve the federal structure, state legislatures play a vital role, ensuring the balance of power between the Union and the states is maintained.

5. Presidential Assent: After the amendment bill is passed by Parliament and ratified by the states (if required), it must receive the President’s assent to become law.

Procedure for Amendment

Amendments to a constitution or legal document typically follow a structured process, ensuring both due diligence and public interest. While the specific steps vary depending on the country or organizational framework, a general procedure includes the following:

1. Proposal Stage

• Who Can Propose?
  Amendments may be proposed by:
  • Legislators (Members of Parliament, Congress, or Assembly).
  • The government or executive authority.
  • Citizens through a referendum or petition process (in some systems).
• Initiation of Proposal
  • Drafting of the amendment is done, detailing the exact changes to be made.
  • The proposal must be introduced in a recognized legislative or governing body.

2. Review and Debate

• Examination by Committees:
  The amendment is often sent to a committee for detailed review and recommendations.
• Debate in Legislature:
  A thorough discussion takes place among lawmakers, highlighting the amendment's necessity, implications, and potential challenges.

3. Voting

• Approval by Legislatures:
  • A specific majority (simple, absolute, or two-thirds) may be required for approval.
  • Some systems require approval in both houses of a bicameral legislature.
• Citizen Referendum (if applicable):
  In certain cases, the amendment is put to a public vote for final approval.

4. Ratification

• State or Regional Approval (if necessary):
  In federal systems, states or provinces may need to ratify the amendment.
• Final Adoption:
  Once the necessary approvals are obtained, the amendment is officially adopted.

5. Publication and Implementation

• The amendment is published in an official gazette or legal document repository.
• Necessary steps are taken to implement the amendment into the constitution or governing framework.

Example: Constitutional Amendment in India

1. Proposal Stage: Introduced in either House of Parliament.
2. Approval: Requires a special majority in both Houses.
3. State Ratification: If it affects federal structure, at least 50% of state legislatures must approve.
4. Presidential Assent: The President signs it into law.
5. Publication: Amendment is added to the Constitution.

This systematic process ensures transparency, deliberation, and public trust in legal amendments.

Notable Amendments Under Article 368 of the Indian Constitution

Article 368 of the Indian Constitution empowers Parliament to amend the Constitution through a structured process. Over the years, several significant amendments have been enacted under this provision, shaping India's political, social, and economic landscape. Below are some notable amendments:

1. The First Amendment (1951)

• Key Provisions:
  • Introduced the Ninth Schedule to protect land reform laws from judicial review.
  • Strengthened restrictions on the right to free speech and expression in matters of public order and the sovereignty of the state.
• Significance:
  Addressed agrarian reforms and prevented misuse of fundamental rights against such laws.

2. The Seventh Amendment (1956)

• Key Provisions:
  • Reorganized states based on linguistic lines.
  • Abolished the classification of states into Part A, Part B, Part C, and Part D categories.
• Significance:
  Established the modern framework for state organization in India.

3. The Twenty-Fourth Amendment (1971)

• Key Provisions:
  • Explicitly affirmed Parliament's power to amend any part of the Constitution, including Fundamental Rights.
  • Made it mandatory for the President to assent to a constitutional amendment bill.
• Significance:
  Ensured Parliament's supremacy in constitutional amendments post the Golaknath case.

4. The Forty-Second Amendment (1976)

• Key Provisions:
  • Known as the "Mini Constitution" due to its extensive changes.
  • Added the terms "Socialist" and "Secular" to the Preamble.
  • Strengthened the Directive Principles of State Policy.
  • Curtailed the power of the judiciary to review amendments.
• Significance:
  Centralized power and significantly altered the balance between the legislature, executive, and judiciary.

5. The Forty-Fourth Amendment (1978)

• Key Provisions:
  • Reversed some provisions of the Forty-Second Amendment.
  • Restored the primacy of Fundamental Rights, especially regarding property rights.
  • Made the proclamation of Emergency more stringent.
• Significance:
  Safeguarded democratic rights and curbed executive overreach.

6. The Fifty-Second Amendment (1985)

• Key Provisions:
  • Introduced the Anti-Defection Law to address political instability caused by defections.
• Significance:
  Promoted political stability and accountability among elected representatives.

7. The Seventy-Third and Seventy-Fourth Amendments (1992)

• Key Provisions:
  • Strengthened local governance by introducing Panchayati Raj institutions and Urban Local Bodies as constitutional entities.
• Significance:
  Deepened democracy at the grassroots level.

8. The Eighty-Sixth Amendment (2002)

• Key Provisions:
  • Made the Right to Education a Fundamental Right under Article 21A.
  • Mandated free and compulsory education for children aged 6-14 years.
• Significance:
  Reinforced the importance of education in national development.

9. The Ninety-First Amendment (2003)

• Key Provisions:
  • Limited the size of the Council of Ministers to 15% of the legislative assembly's strength.
  • Strengthened the Anti-Defection Law.
• Significance:
  Reduced the burden of oversized ministries and ensured more stable governance.

10. The One Hundred and First Amendment (2016)

• Key Provisions:
  • Introduced the Goods and Services Tax (GST), creating a unified tax structure.
• Significance:
  Simplified the indirect tax regime, promoting ease of doing business.

Each amendment under Article 368 has played a critical role in responding to India's evolving needs. While some amendments reinforced democracy, others ensured social justice and economic reforms. These amendments highlight the Constitution's adaptability to changing circumstances while preserving its core principles.

Judicial Interpretation and the Basic Structure Doctrine

The Supreme Court of India has played a pivotal role in interpreting Article 368. The landmark Kesavananda Bharati v. State of Kerala (1973) case introduced the Basic Structure Doctrine, which asserts that certain fundamental aspects of the Constitution cannot be amended. This ensures that the Constitution’s core principles, such as democracy, secularism, and federalism, remain intact.

Criticism of Article 368 of the Indian Constitution

While Article 368 is significant for maintaining the adaptability of the Indian Constitution, it has faced criticism on several grounds. Critics argue that the provision for constitutional amendments can lead to misuse, undermining the democratic ethos and the sanctity of the Constitution. Below are the primary criticisms:

1. Scope for Abuse by the Legislature

• Article 368 grants the legislature significant power to amend the Constitution, which can be misused to serve political interests.
• Past amendments, like the 42nd Amendment, demonstrated how the ruling party could exploit Article 368 to consolidate power and weaken democratic institutions.

2. Ambiguity in the Basic Structure Doctrine

• While the Basic Structure Doctrine (Kesavananda Bharati case, 1973) prevents the legislature from altering essential features of the Constitution, it does not clearly define what constitutes the "basic structure."
• This lack of clarity leaves room for subjective interpretation, leading to judicial-legislative conflicts.

3. Complexity of the Amendment Process

• The process for amending provisions requiring special majority and state ratification is often criticized for being overly complex and time-consuming.
• This rigidity can hinder the timely implementation of necessary reforms, especially those requiring changes to the federal structure.

4. Exclusion of Public Participation

• The process outlined in Article 368 does not involve direct public participation or a referendum, even for amendments that significantly impact citizens' rights or the federal structure.
• Critics argue that this undermines democratic principles by excluding the voice of the people.

5. Centralized Power

• Certain amendments can alter the federal balance of power in favor of the central government, reducing the autonomy of states.
• For instance, the 42nd Amendment curtailed state powers and centralized authority, leading to criticism of Article 368 for facilitating such changes.

6. Lack of Referendum for Major Changes

• Unlike some other democracies, India does not mandate a referendum for constitutional amendments affecting fundamental rights or the basic structure of governance.
• This limits the broader democratic engagement of citizens in critical constitutional changes.

7. Potential to Undermine Fundamental Rights

• Before the Kesavananda Bharati judgment, amendments could alter or abolish fundamental rights, as seen in the 24th and 42nd Amendments.
• Though the judiciary now protects the basic structure, critics argue that past misuse reveals the potential risks of Article 368.

8. Inconsistencies in Federal Representation

• For amendments requiring state ratification, there is no uniformity in how states are consulted or involved.
• Smaller states often have less influence despite significant implications for their governance.

9. Disruption of Judicial Independence

• Amendments like the 42nd Amendment, which sought to limit the judiciary's powers, highlight how Article 368 can be used to weaken judicial independence, a cornerstone of democracy.

10. Lack of Safeguards Against Political Opportunism

• Article 368 does not adequately safeguard against amendments motivated by political expediency rather than genuine national interest.
• Critics cite instances where amendments were passed to validate controversial policies or actions, bypassing public opinion or opposition scrutiny.

While Article 368 is indispensable for the Constitution's adaptability, its potential for misuse, lack of public involvement, and over-centralization invite criticism. Ensuring a more transparent, participatory, and balanced amendment process could address these concerns, reinforcing the Constitution's role as a living and democratic document.

Significance of Article 368 of the Indian Constitution

Article 368 plays a crucial role in maintaining the dynamism and adaptability of the Indian Constitution. It outlines the procedure for amending the Constitution, enabling it to evolve with changing social, economic, and political conditions while preserving its foundational principles. Below are the key aspects that underscore its significance:

1. Ensures the Constitution’s Flexibility

• The amendment process allows the Constitution to adapt to the evolving needs of society without compromising its core structure.
• By providing a mechanism for amendments, Article 368 ensures that the Constitution remains relevant and effective in addressing contemporary challenges.

2. Balances Rigidity and Flexibility

• The Indian Constitution strikes a balance between rigidity and flexibility:
  • Rigid Elements: Provisions requiring a special majority and, in some cases, state ratification.
  • Flexible Elements: Provisions amendable by a simple majority of Parliament.
• This balance ensures stability while allowing necessary changes.

3. Safeguards Fundamental Rights and Structure

• Although Article 368 provides the procedure for amendments, it is limited by the Basic Structure Doctrine, which ensures that essential features of the Constitution, such as democracy, secularism, and the rule of law, remain intact.
• This doctrine, established by the Supreme Court in the Kesavananda Bharati Case (1973), prevents misuse of amending powers.

4. Facilitates Social and Economic Reforms

• Through amendments, transformative reforms such as the abolition of zamindari (First Amendment) and the introduction of the Goods and Services Tax (101st Amendment) have been implemented.
• It empowers the legislature to address emerging socio-economic issues and align governance with modern realities.

5. Strengthens Federalism

• Article 368 accommodates the federal structure by involving states in the amendment process for provisions affecting the federal character, thereby ensuring their participation in significant constitutional changes.

6. Enhances Democratic Processes

• Amendments under Article 368, such as the 73rd and 74th Amendments, have strengthened democratic institutions by empowering local self-governance.
• Such amendments ensure inclusivity and decentralization, key components of a robust democracy.

7. Prevents Arbitrary Amendments

• The detailed process outlined in Article 368, requiring debates, voting thresholds, and, in some cases, state ratification, prevents arbitrary or hasty amendments.
• This procedural rigor upholds the sanctity of the Constitution.

8. Reflects the Constitution’s Supremacy

• The requirement for special procedures and majorities underscores the Constitution's status as the supreme law, ensuring that any change is deliberate and well-considered.

9. Facilitates Judiciary-Legislature Interaction

• The judiciary's role in interpreting the scope of Article 368 ensures a healthy system of checks and balances between the legislature and judiciary. This interaction upholds constitutional integrity and prevents overreach by any branch.

10. Promotes National Integrity

• Amendments that address linguistic, cultural, and regional diversity (e.g., Seventh Amendment on state reorganization) foster unity and integrity while respecting India's pluralistic ethos.

Article 368 embodies the resilience of the Indian Constitution, allowing it to evolve with time while safeguarding its fundamental principles. It acts as a bridge between the past, present, and future, ensuring that the Constitution remains a living document capable of guiding India through changing circumstances.

Conclusion

Article 368 embodies the balance between change and continuity in the Indian Constitution. While it enables necessary amendments to address contemporary challenges, safeguards like the Basic Structure Doctrine ensure that the Constitution’s essence is preserved. This delicate balance highlights the vision of the framers of the Constitution and their commitment to a robust and adaptable democratic framework.