Introduction: The constitution of India is neither rigid nor flexible,but is a combination of both. Art.386 in Part-XX gives powers to parliament to amened the Constitution and its procedure. Parliament can amend it by adding Articles, or repealing any provisions but however Parliament can't amend those provisions which destroy the basic structure of the Constitution. The American constitution is very rigid and the British constitution is very flexible. But our constitution is the synthesis of these constitution.
Scope of Art.368:- The framers of the Indian Constitution keen to avoid excessive rigidity. They were anxious to have a document which could grow with a growing nation, adopt itslef to the changing need and circumstances of a growing people. The nature of the 'Amending process' envisaged by the framers of our constitution can be understood by referring the following observation of the Late Prime Minister Pt. Nehru ,
" While we want this constitution be as solid and permanent as we can make it, there is no permanence in the Constitution, there should be certain flexibility if you make anything rigid and permanent we stop the nation's growth,of living, vital, organic people.........
In any event, we couldn't make this constitution so rigid that is can't be adopted to changing conditions. When the word is in a period of transition what we may do today may not be wholly applicable tomorrow."
Thereby the Constitution makers has adopted the middle course to balance between rigidity and flexibility in respect of the amendment of the Constitution. Some of its provisions may be amended by parliament by a simple majority while some of its provisions can be amended only by special majority and ratification of at least 1/2 of the state legislature.
Modes of the amendment of the Constitution:
The provisions of the Constitution of India may, be amended in the following manner:-
(a) By simple majority:-Some articles e.g., Art. 5, 239-A, 312etc. May be amended by parliament by simple majority as like ordinary law. They can, thus, be amended by parliament by ordinary legislative process There are excluded from the preview of the procedure laid down by Art.368.
(b) By special majority:- Articles that can be amended by special majority and laid down in Art.368. All constitutional amendments, other than those referred to above,come within this category and must be effected by a majority of the total membership of each house of Parliament as well as by a majority of not less then 2/3 of the members of that house present and voting.
(C) By special majority and ratification by states:- The following provisions can be amended only when the bill for that purpose is passed in each house of Parliament by a majority of the total membership to that house and by a majority of not less than two third of the members that house present and voting and is ratified by the legislatures of not less than one half of the states by resolution before the Bill is presented to the President for assent:-
1. Election of the President - Art. 54,55
2. Extent of the executive power of the union - Art. 73
3. Extent of the executive power of the state- Art.162
4. High court for union territories-Art.241
5. Distribution of powers between union and states - Art. 245-255
6. Any of the list in the 7th schedule.
7. Article 368 itself.
In the case of Keshwanand Bharti v. State of Kerala (1973) the Supreme Court has made it clear that parliament can amend any provisions of the Constitution but it can't alter the basic structure of the Constitution.
Procedure for amendment: The bill to amened the Constitution may be introduced in either house of Parliament. It must be passed by each house by a majority of total membership to that house and by a majority of not less than 2/3 of the members of that house present and voting. When a bill is passed by both houses it shall be presented to the President for his assent who shall give assent to bill and there upon the Constitution shall stand amended. But a bill which seek to amend the provisions mentioned in Art.368 requiere in addition to the special majority mentioned above the ratification by the 1/2 of the states.
Art.368, however doesn't constitute the complete code. The process of amending the Constitution is the legislative process governed by the rule of that process. Thus, it is clear that most of the provisions of the Constitution can be amended by an ordinary legislative process. Only a few provisions which delt with the federal principle require a special majority plus ratification by the states.
Amendment of Fundamental Rights :- The questions whether Fundamental Rights can be amended under Art. 368 came for consideration of the Supreme Court in SANKARI PRASHAD V. UNION OF INDIA, in this case the validity of the Constitution (1st amendment) Act,1951, which inserted inter alia, Articles 31-A and 31-B of the Constitution was challenged. The amendment was challenged on the ground that it purported to take away the rights conferred by Part III which fall within the prohibition of Art.13(2) and hence,was void. It was argued that the "state" in Art. 12 included parliament and the word "law" in Art.13(2), therefore, must include constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is certain in Art.368, and that the word "Law" in Art.13(2) includes only an ordinary law, made in exercise of the legislative power and doesn't include Constitutional amendment wich is made in exercise of constitutional power. Therefore, a constitutional amendment will be valid even if it violates or takes any of the fundamental rights.
In Sajjan singh vs. State of Rajasthan, the validity of the Constitution (17th amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgement given in SANKARI PRASHAD's case and held that the word "Amendment of the Constitution" means amendment of all the provisions of the Constitution. Justice Gajendra Gadkar said that if the Constitution makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in behalf.
In the case of Golak Nath vs. State of Punjab, the Supreme Court held that the word "law" in Art.13(2) includes the constitutional law also and therefore a constitutional amendment can't take away or violates any of the fundamental rights guaranteed by Part-III of the Constitution. The validity of the Constitution (7th amendment) Act,1964, which inserted certain state Acts in 9th schedule was agian challenged. The Supreme Court by majority of 6:5 prospectively overruled its earlier decision in SANKARI PRASHAD and Sajjan Singh cases and held that Parliament had no power from the date of this decision to amend Part-III of the Constitution so as to take away or abridge the fundamental rights.
In any event, we couldn't make this constitution so rigid that is can't be adopted to changing conditions. When the word is in a period of transition what we may do today may not be wholly applicable tomorrow."
Thereby the Constitution makers has adopted the middle course to balance between rigidity and flexibility in respect of the amendment of the Constitution. Some of its provisions may be amended by parliament by a simple majority while some of its provisions can be amended only by special majority and ratification of at least 1/2 of the state legislature.
Modes of the amendment of the Constitution:
The provisions of the Constitution of India may, be amended in the following manner:-
(a) By simple majority:-Some articles e.g., Art. 5, 239-A, 312etc. May be amended by parliament by simple majority as like ordinary law. They can, thus, be amended by parliament by ordinary legislative process There are excluded from the preview of the procedure laid down by Art.368.
(b) By special majority:- Articles that can be amended by special majority and laid down in Art.368. All constitutional amendments, other than those referred to above,come within this category and must be effected by a majority of the total membership of each house of Parliament as well as by a majority of not less then 2/3 of the members of that house present and voting.
(C) By special majority and ratification by states:- The following provisions can be amended only when the bill for that purpose is passed in each house of Parliament by a majority of the total membership to that house and by a majority of not less than two third of the members that house present and voting and is ratified by the legislatures of not less than one half of the states by resolution before the Bill is presented to the President for assent:-
1. Election of the President - Art. 54,55
2. Extent of the executive power of the union - Art. 73
3. Extent of the executive power of the state- Art.162
4. High court for union territories-Art.241
5. Distribution of powers between union and states - Art. 245-255
6. Any of the list in the 7th schedule.
7. Article 368 itself.
In the case of Keshwanand Bharti v. State of Kerala (1973) the Supreme Court has made it clear that parliament can amend any provisions of the Constitution but it can't alter the basic structure of the Constitution.
Procedure for amendment: The bill to amened the Constitution may be introduced in either house of Parliament. It must be passed by each house by a majority of total membership to that house and by a majority of not less than 2/3 of the members of that house present and voting. When a bill is passed by both houses it shall be presented to the President for his assent who shall give assent to bill and there upon the Constitution shall stand amended. But a bill which seek to amend the provisions mentioned in Art.368 requiere in addition to the special majority mentioned above the ratification by the 1/2 of the states.
Art.368, however doesn't constitute the complete code. The process of amending the Constitution is the legislative process governed by the rule of that process. Thus, it is clear that most of the provisions of the Constitution can be amended by an ordinary legislative process. Only a few provisions which delt with the federal principle require a special majority plus ratification by the states.
Amendment of Fundamental Rights :- The questions whether Fundamental Rights can be amended under Art. 368 came for consideration of the Supreme Court in SANKARI PRASHAD V. UNION OF INDIA, in this case the validity of the Constitution (1st amendment) Act,1951, which inserted inter alia, Articles 31-A and 31-B of the Constitution was challenged. The amendment was challenged on the ground that it purported to take away the rights conferred by Part III which fall within the prohibition of Art.13(2) and hence,was void. It was argued that the "state" in Art. 12 included parliament and the word "law" in Art.13(2), therefore, must include constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is certain in Art.368, and that the word "Law" in Art.13(2) includes only an ordinary law, made in exercise of the legislative power and doesn't include Constitutional amendment wich is made in exercise of constitutional power. Therefore, a constitutional amendment will be valid even if it violates or takes any of the fundamental rights.
In Sajjan singh vs. State of Rajasthan, the validity of the Constitution (17th amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgement given in SANKARI PRASHAD's case and held that the word "Amendment of the Constitution" means amendment of all the provisions of the Constitution. Justice Gajendra Gadkar said that if the Constitution makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in behalf.
In the case of Golak Nath vs. State of Punjab, the Supreme Court held that the word "law" in Art.13(2) includes the constitutional law also and therefore a constitutional amendment can't take away or violates any of the fundamental rights guaranteed by Part-III of the Constitution. The validity of the Constitution (7th amendment) Act,1964, which inserted certain state Acts in 9th schedule was agian challenged. The Supreme Court by majority of 6:5 prospectively overruled its earlier decision in SANKARI PRASHAD and Sajjan Singh cases and held that Parliament had no power from the date of this decision to amend Part-III of the Constitution so as to take away or abridge the fundamental rights.
A limitation and amending power or the theory of basic structure:- The validity of the Constitution (24th amendment) Act,1971, was challenged in Keshwanand Bharti vs State of Kerala AIR 1973 S.C. 1461, popularly known as the Fundamental Right's Case. The Supreme Court stated that 24th constitutional amendment Act is valid and parliament can't take away Fundamental Rights. Supreme Court at this time came out with the "doctrine of basic structure". It states that Parliament can't amend the Constitution under Art.368 that relates to the change of basic structure of the Constitution i.e., parliament can't take away those fundamental rights that are a part of basic structure of the Constitution. Parliament than enacted 42nd Constitutional Amendment Act 1976. It states that there is no limit to the power conferred by Art.386 to the Parliament and any change brought about by Art.368 can't be questioned in the court of law.
In Minerva Mills ltd. Vs Union of India AIR 1980, the Supreme Court by 4:1 majority struck down clauses (4) & (5) of Art. 368 inserted by the 42nd Amendment and the ground that this clause destroyed the essential features of the basic structure of the Constitution. Limited amending power is a basic structure of the Constitution. Since these clauses remove all limitations on the amending power and thereby confer an unlimited amending power, it was destructive of the basic feature of the Constitution.
In Waman Rao vs. Union of India the Supreme Court held that all amendment to the Constitution which were made before April 24,1973 ( i.e.,the date on which the judgement of Keshwanand Bharti was delivered) including those by which the 9th schedule to the Constitution was amended from time to time were valid and constitutional but amendment to the Constitution made on or after that date by which the 9th schedule was amendment were left open to challenge on the ground that they were beyond the Constitution power of Parliament because that damage the basic structure of the Constitution.
In M. Nagraj vs. Union of India AIR 2007 S.C 71. The court has held that the basic structure are systematic principle underlying and connecting provisions of the Constitution. They give coherence and durability to the Constitution. This principles are part of the Constitutional law even if not expressly stated. The theory of basic structure is basic on the principle that a change in a thing doesn't involved its destruction of a thing is a matter of substance and not of form.
In M. Nagraj vs. Union of India, the Supreme Court had made it clear that the theory of basic structure is the only theory to judge the validity of the Constitutional amendments.
In I.R. Celho vs. State of Tamilnadu AIR2007 the court has made it clear that use of the expression constituent power shouldn't be taken ti mean that Parliament is original constituent assembly limitation of the basic structure theory will continue to apply. The power to amend the Constitution can't be equated with the power to frame the Constitution.
In Kuldeep Nayyar vs. Union of India, AIR 2006 S.C 312, the doctrine of basic structure applies to the Constitutional amendments under Art.368 and therefore, the Constitutional amendments can be challenged on the ground of violation of the basic structure of the Constitution.
Conclusion: From the above discussion at the conclusion we can say that Art.368 of the Constitution of India give powers to the Parliament to amend the Constitution and its procedure, but it can't destroy the basic structure of the Constitution. It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court a scenario that is unlikely to challange in near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents can't be completely determined with an measure of finally until a judgement of the Supreme Court spells it out.
In Waman Rao vs. Union of India the Supreme Court held that all amendment to the Constitution which were made before April 24,1973 ( i.e.,the date on which the judgement of Keshwanand Bharti was delivered) including those by which the 9th schedule to the Constitution was amended from time to time were valid and constitutional but amendment to the Constitution made on or after that date by which the 9th schedule was amendment were left open to challenge on the ground that they were beyond the Constitution power of Parliament because that damage the basic structure of the Constitution.
In M. Nagraj vs. Union of India AIR 2007 S.C 71. The court has held that the basic structure are systematic principle underlying and connecting provisions of the Constitution. They give coherence and durability to the Constitution. This principles are part of the Constitutional law even if not expressly stated. The theory of basic structure is basic on the principle that a change in a thing doesn't involved its destruction of a thing is a matter of substance and not of form.
In M. Nagraj vs. Union of India, the Supreme Court had made it clear that the theory of basic structure is the only theory to judge the validity of the Constitutional amendments.
In I.R. Celho vs. State of Tamilnadu AIR2007 the court has made it clear that use of the expression constituent power shouldn't be taken ti mean that Parliament is original constituent assembly limitation of the basic structure theory will continue to apply. The power to amend the Constitution can't be equated with the power to frame the Constitution.
In Kuldeep Nayyar vs. Union of India, AIR 2006 S.C 312, the doctrine of basic structure applies to the Constitutional amendments under Art.368 and therefore, the Constitutional amendments can be challenged on the ground of violation of the basic structure of the Constitution.
Conclusion: From the above discussion at the conclusion we can say that Art.368 of the Constitution of India give powers to the Parliament to amend the Constitution and its procedure, but it can't destroy the basic structure of the Constitution. It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court a scenario that is unlikely to challange in near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents can't be completely determined with an measure of finally until a judgement of the Supreme Court spells it out.
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