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Parliament's Competence To Amend The Constitution Under Article 368 Vis-A-Vis Doctrine Of Basic Structure

The Indian Constitution, the longest of any sovereign nation in the world, provides a global framework to lead and rule the country, taking its social, cultural and religious diversity into consideration. The Constitution of India, a distinctive text with many special elements, is the longest written constitution in the world . It came into effect on January 26, 1950, the day that India celebrates each year as the Republic Day. the makers of our Indian constitution wanted the Constitution to help the country thrive and grow next to it. So, based on the different points raised, the government can modify the Constitution. Article 368 confers these authorities.

Constitutions are usually classified as 'flexible' or 'rigid' depending upon the process through 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 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'.

The United Kingdom having an unwritten Constitution, is the best example of an extremely flexible Constitution as there is no distinction between the legislative power and the constituent power. The British Parliament has the power to change the Constitution by the ordinary process of legislation.

Pandit Jawaharlal Nehru stated to the Constituent Assembly explaining why it was vital to introduce an element of flexibility in the Constitution:
"There was no permanence in the constitution, as it would stop the nation's growth."

The mechanism for amending the provisions is generally complicated in a federal constitution, so that the provisions are not too often distorted. Nevertheless, our ancestors and framers of our constitution wanted undue rigidity to be avoided. At the same time they knew that it would be subject to repeated modifications if the Constitution were made flexible. Therefore, the Indian constitution took a middle route in avoiding both extremes. It is not too rigid to avoid major adjustments or too flexible to allow trivial alterations.

Procedure Of Amendment Of The Indian Constitution

A constitutional amendment can be begun only by introducing a bill in either House of Parliament (Lok Sabha or Rajya Sabha), not in state legislatures. The bill must be passed by a special majority in each House, which is defined as a majority (that is, more than 50%) of the overall membership of the House and a majority of two-thirds of the members of the House present and voting. The bill must be passed by each House separately.

There is no provision for calling a combined sitting of the two Houses for the purpose of consideration and passing of the bill if the two Houses disagree. If the bill aims to change the federal provisions of the Constitution, it must be ratified by the legislatures of half of the states by a simple majority, or a majority of the House members present and voting. The bill is brought to the president for assent once it has been duly enacted by both Houses of Parliament and ratified by state legislatures, if necessary. The bill must be signed by the president. The bill becomes an Act (i.e., a constitutional amendment act) after the president signs it, and the Constitution is amended in accordance with the terms of the act.

The Constitution Can Be Amended In Three Ways

  1. Amendment by simple majority of the parliament
  2. Amendment by special majority of the parliament and,
  3. Amendment by special majority of the parliament and the ratification of half of the state legislature

Simple majority:
  • Formation of new states, creation or abolition of legislative councils is made by such procedure. Thus, amendment at the instance of the states, or amendment by state legislature, is included in such category.
Some of the articles that can be amended by Parliament by simple majority are listed below:
  1. Admission or establishment of new states.
  2. Formation of new sates and alteration of areas, boundaries or names of existing states.
  3. Abolition or creation of legislative councils in states.
  4. Second Schedule: Emoluments, allowances, privileges and so on.
  5. Quorum in Parliament.
  6. Salaries and allowances of MPs.
  7. Rules of procedure in parliament.
  8. Privileges of Parliament,, its members and its committees.
  9. Use of official language.
  10. Citizenship: acquisition and termination.
  11. Election to Parliament and state legislature.
  12. Delimitation of constituencies.
  13. Union Territories.
  14. 5th Schedule (Provision as to administration and control of schedule area and schedule tribes.
  15. 6th Schedule (Provision for administration of tribal areas in state of Assam, Meghalaya,Tripura, Mizoram and Arunachal Pradesh

Special majority:
The Constitution can be modified solely by the Union Parliament using this procedure. It is a rigid system in that it requires a special majority to modify the constitution, but it is considered flexible technique because any amendment can be passed by parliament alone.

the provision that can be amended by this way include:
  1. Fundamental Rights
  2. Directive principles of state policy, and
  3. All other provision which are not covered by 1st and 3rd category

Amendment by special majority and ratification by state:
For some articles of the Constitution, a special majority is insufficient. It is appropriate to consult the states and obtain their assent when an amendment proposes to change an article dealing to the allocation of powers between states and the Central Government, or articles relating to representation. First, the amendment bill is to be passed by both the Houses of the Union Parliament by a majority of total membership and a 2/3rd majority of members present and voting in each House.

Secondly, after this the amendment bill has to secure ratification from at least half of the several State Legislatures (now at least 14 state legislature).

The following provisions require such ratification by the states:
  1. Election of President: Article 54 and Article 55
  2. Executive Power of Centre and state- Article 73 and Article 162.
  3. Supreme court: Article 124 and 227 , High courts: Article 214 to Article 231, Judiciary for UT: Article241.
  4. Distribution of Legislative Power: Article 245 and 255.
  5. Part XI, Chapter 1.
  6. Lists of 7th Schedule.
  7. Representation of state in council of states: 4th Schedule.
  8. Article 368 itself.

However, giving Parliament complete control over constitutional amendments is risky. The constitution would be reduced to a tool to build Parliament's tyranny, rather than being the backbone of our democracy. The administration will change a number of provisions to ensure that its powers are unrestricted. While this is a frightening concept, it is not far off the mark.

The government has attempted to build a state where the legislative is paramount through several amendments such as the 39th Amendment and the second clause of the 25th Amendment.

That is why the Indian Constitution's Basic Structure Doctrine was created by the judiciary in a series of historic instances.

Theory of basic structure (doctrine of basic structure)
The term "basic structure" does not appear anywhere in the Indian Constitution. The idea that the Parliament can't pass laws that change the constitution's essential framework has evolved over time and in various circumstances. The objective is to safeguard people's rights and liberties while preserving the nature of Indian democracy. This doctrine aids in the protection and preservation of the constitution's spirit.

The idea of the constitution's basic structure is one component that has shaped the development of the Indian Constitution for a long time. The landmark Kesavananda Bharati case led to the creation of the Constitution in the following ways: it established tight constraints on Parliament's capacity to modify the Constitution. It states that no amendment can violate the Constitution's basic structure; it allows Parliament to amend any part of the Constitution (within this limitation); and it establishes the judiciary as the supreme authority of whether an amendment violates the basic structure and what constitutes the fundamental structure.

In Indira Nehru Gandhi v. Raj Narayan Under this case, once again the basic structure concept was reaffirmed. The Supreme Court applied the same theory and struck down the 4th clause of Article 329 A on the ground that the Amendment is beyond the power of the parliament and it destroyed the basic structure of the Constitution. The Amendment was made regarding the jurisdiction of all courts including the Supreme Court, regarding the dispute of an election of the Prime Minister of India.

The basic structure of the doctrine consists of the following features:
  1. Supremacy of constitution
  2. Republican and democratic form of government and sovereignty of country
  3. Secular and federal character of constitution
  4. Separation of powers between legislature, Executive and Judiciary

India's Supreme Court has ruled that the constitution, not Parliament, is supreme in India. The court said Parliament can't change the structure of the Constitution because India's Constitution is a fundamental law of the land and cannot amend it. However, parliament can amend its structure to make changes to the constitution.

Amenability Of The Constitution

"Whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution"

This question was raised in:
Shankari Prasad v. Union of India:
In this case, the legitimacy of the constitution (1st amendment), 1951, was challenged through a petition under article 32, specifically the insertion of articles 31 A and 31 B. It was claimed, inter alia, that because Article 13(2) prohibits the enactment of laws abridging fundamental rights, it also prohibits such abridgement through amendment because an amendment is a law.

The court rejected the claim, holding that Article 368 comprised the ability to modify the constitution, including the fundamental rights, and that the word law in article 13(2) did not include a constitutional modification made in the exercise of constituent rather than legislative power. Therefore, a constitutional Amendment will be valid even if it abridges or takes away any of the fundamental rights.

Sajjan Singh v. State of Rajasthan:
In this case, The constitutionality of the 17th Amendment Act, 1964 was challenged on the grounds that one of the acts introduced by the amendment in the 9th Schedule affected the petitioner since the amendment was under the jurisdiction of Article 368 and the proviso to Article 368 had not been met. The Supreme Court upheld the judgment in the Shankari Prasad case, ruling that the matter was correctly resolved under Article 13 (2). The term "amendment" refers to any change to the Constitution's provisions.

Golak Nath vs. The State of Punjab:
The Supreme Court overruled its verdict in the Shankari Prasad and Sajjan Singh cases, holding that Parliament had no authority to amend Part 3 of the Constitution so as to abridge or eliminate any of the Fundamental Rights. It further stated that Article 368 merely establishes the procedure for amending the Constitution. Furthermore, the Court stated that an amendment is a law under Article 13(2) of the Indian Constitution, and that it may be ruled unconstitutional if it breaches any basic right.

24th Amendment Act, 1971

Parliament enacted 24th amendment act,1971 as a result of the difficulties created by the ruling of supreme court in Golaknath v/s The State Of Punjab. The ruling in golaknath vs the state of Punjab overturned a previous Supreme Court decision that supported Parliament's competence to change all elements of the Constitution, including Part III, which deals with fundamental rights.

To overturn the verdict, the government planned to amend article 368 of the Constitution to explicitly state that Parliament has the right to amend any section of the Constitution, putting Fundamental Rights within the scope of that procedure and barring judicial scrutiny of those changes.

The marginal heading of article 368 was changed to Power of Parliament to amend the Constitution and procedure therefor.

President was put under an obligation to give assent to any Bill amending the Constitution by changing words from it shall be presented to the President who shall give his assent to the Bill and thereupon" to "it shall be presented to the President for his assent and upon such assent being given to the Bill.

All laws and constitutional amendments are now subject to judicial examination, and laws that violate the fundamental framework are likely to be overturned by the Supreme Court. In essence, Parliament's power to modify the Constitution is limited, and any constitutional revisions must be decided by the Supreme Court, which is the last arbiter and interpreter.

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