Amendment of the Constitution: Art.368 :
A Constitution may be rigid or flexible. It is flexible when the procedure is simple and capable of being changed easily.lt is rigid when there is a special proce- dure and hard to achieve in practice. As Prof. Wheare points out, it is ultimately the people who are rigid or flexible, and hence, it is they who determine the nature of the Constitution. There are some Articles like 5, 6 & 239A which can be amended by a simple majority of Parliament. But, these are not strictly amendments under Art. 368, which has prescribed a different procedure.
Power to Amend: Art. 368 deals with the power of the Parliament to Amend the Constitution.
Initiation : Art. 368 (1): A Bill to amend the Con- stitution may be initiated in either of the Houses of Par- liament. But, it must be passed by a majority of the total strength of each House, with 2/3 majority of the members present and voting. The President shall give his assent to sucha Bill. Thereupon, the Constitution stands amended.
Entrenched Provisions : Art. 368 (2): This incor- porates the federal principle of participation of State in amending the Constitution. If the amending Bill is in respect of the following provisions, it should be passed as above, and also approved by at least half of the total number of States in India.
(a) Election of the President Arts. 54, 55.
(b) Executive power of the President or the Governor Arts.73, 162 & 241.
(c) Provisions relating to the Supreme Court and the High Court of India.
(d) Distribution of Legislative Powers and any of the Lists in the 7th schedule.
(e) The representation of States in Parliament.
(f) Article 368 itself. The Bill is then sent to the President who shall give his assent.
24th Amendment—Art. 368 (3):
Nothing in Art. 13 shall apply to any amendment under this Article (i.e., Law does not include Constitutional Amendment Act). This has been upheld in Bharathi's Case. 42nd Amendmen Art. 368 (4) & (5) provided that
(4) No Amendment shall be questioned in any Court of law, on any ground;
(5) There is no limitation on the Power of Parliament to amend, repeal any provision of the Constitution. Both Arts. 368 (4) and (5) have been struck down by the Supreme Court in Minerva Mills Case (1980).
Non-amendability of Basic Structure :
The leading cases dealing with the interpretation of Art. 368 may be briefly summarised.
1. Shankari Prasad V. Union (1951). The 1st Amendment was challenged in this case. The Supreme Court held that the Parliament was empowered under Art. 368 to amend the Constitution.
2. Sajjan Singh V. State of Rajasthan (1965). The 17th Amendment was challenged. The Supreme Court held that the Parliament had the 'constitutional power' and hence, it could amend.
3. Golaknath V. State of Punjab (1967). Law in Art. 13 was held to include Constitution Amendment Act. As Law against the Constitution was void, it held the Amendment was against Art. 31 (property) and hence void. 1st, 4th and 17th Constitution Amendment Acts were held void. (Court applied prospective overruling to save the situation.) Held, Parlia- ment has no power to amend Part HI of the Constitution.
But 24th Amendment declared that Parliament has the power to amend any part of the Constitution including Part III.
4.Keshavananda Bharati 's Case (1973). Held, 24th, 25th Amendments were valid. Golaknath's case was overruled. Held, Parliament has the power to amend any Article in the Constitution but subject to 'Basic Structure' principle. This means the supremacy of the Constitution, Republican and Democratic form of Government, Federal character etc.The court has the power to decide what basic structure includes. 42nd Amendment (1976) introduced 368(4) and (5).
5. Minerva Mills Case (1980). The Supreme Court struck down Art. 368(4) and (5) as against the 'basic structure' principle. Art. 368(4) damaged the basic structure, as it reduced the power of Judicial review of the Supreme Court. Under Art. 368(5), the Parliament has arrogated to itself the power to abrogate or even to destroy the Constitution. Hence both these were ultra vires and unconstitutional.
6. Keshavananda Bharati's Case : Facts : The Swamiji who was affected as a result of Kerala Land Reforms act challenged this Act. Further, 24th, 25th and 29th Constitu- tional Amendments were also challenged by him before the Supreme Court.
(i) The Supreme Court overruled Golak Nath's Case.
(ii) It held that Art. 368 (Amending provision) does not enable Parliament to alter the basic structure or the framework of the Constitution.
(iii) 24th Amendment (Parliament's power to amend Part and any other provision) was held valid.
(iv) 25th Amendment, First Part—that Art. 39(b) and (c) of Directive Principles prevail over Part III (Fundamental Rights) was valid, it declared.
Second Part—which made the law based on the policy of Part IV-the Directive Principles of State Policy non-justiciable, was held bad. Therefore 31(c) was held invalid.
(v) 29th Amendment, which included 9th Schedule, Kerala Land Reforms Act was valid, it held.
(vi) Amending Power:
The Supreme Court held that Constitution so as to destroy Art. 368 does not include the power to abrogate or take away any Fundamental Right or to completely change the fundamental features of the its identity. The basic theory of our Constitution is that it is Poulvir Constituent (Constituent power) which is vested in the people and this was exercised by the Constituent Assembly in framing the Constitution.
(vii) No narrow or wide interpretation can be given as regards the amending power. Certain checks and balances are built within the Constitution. Hence there are implied limitations on the power of the Parliament to amend.
(viii) The 'basic essentials' of the Constitution should not be Amended. Art. 368 contains the power to amend. To amend is the 'Change', change for the better.It does not include the power to destroy or abrogate the basic essentials or the basic structure of the Constitution. The limited amending power is a basic feature. Parliament cannot arrogate more or absolute powers to destroy the essential features of the Constitution.
Basic Essentials : Examples—(a) Republican form of Government; (b) Democratic rights like Civil right to vote; (c) Office of the President; (d) Judiciary; (e) Federal Struc- ture; (f) Rights of the State, Rule of Law, Judicial Review etc, are basic and form part of the structure. Hence these cannot be abrogated or changed by the Parliament. In Indira Gandhi V. Raj Narain (1975), the Supreme Court held that Equality (Art. 14) and free and fair elections were basic essentials. In Waman Rao V. Union (1981) it held that Acts included in the 9th Schedule of the Constitution before 1973 (Bharati's case) were valid; but, those added after 1973 were ultra vires if they are against the basic structure.In Kihota v Zochilhu 1992, the Supreme Court struck down Para 7 of the 10th Schedule, which had ousted the jurisdiction of the courts to decide disqualification of members of the House.