Amendment under Article 368 of the Constitution of India

By Mohd. Sahil Khan 18 Minutes Read

Introduction

Article 368[1] of the Constitution of India empowers the Parliament of the biggest democracy to amend certain provisions of the Constitution. The introductory word ‘notwithstanding’ implies that it has an overriding effect over other provisions of the Constitution. The amendment so provided under this Article is not merely limited to the addition of certain provisions of the Constitution but also includes repealing any provision or varying the established set of Code. However, it is interesting to find out the extent to which such amendments are valid, as although Article 368(1) gives an overriding effect, the basic structure of the Constitution cannot be altered.

The unique feature of Article 368 is that it is both substantive and procedural law. Article 368(1) provides the substantive law, whereas Article 368(2) provides the procedure for such amendment of the Constitution. Prior to the 24^th Amendment, in the marginal heading, the word ‘power’ was not provided; only the word ‘procedure’ was mentioned. Subsequently, after the 24^th amendment, both the words have been retained. Article 368 itself has undergone a series of events with the deletion and addition of certain clauses that will be dealt with later on in this Article.

Examining Article 368

Article 368 acts as the legal basis for India’s Parliament to amend the Constitution when necessary. This analysis delves into the bare provisions of Article 368 clauses (1) to (5) to understand the scope and limitations of this power.

Article 368(1): The Power to Amend

• This clause forms the foundation of Article 368. It grants Parliament the authority to amend the Constitution “by way of addition, variation or repeal of any provision of this Constitution.” This seemingly absolute power allows Parliament to modify existing provisions, add new ones, or even repeal outdated ones. However, subsequent clauses introduce crucial limitations.

Article 368(2): The Procedural Framework

• This clause outlines the mandatory procedure for any constitutional amendment. It states that an amendment bill must be:
• Introduced in either house of Parliament: This ensures both houses have a chance to debate and scrutinize the proposed amendment.
• Passed by a special majority: A higher threshold of approval is required – two-thirds of the members present and voting in each house. This ensures broad consensus before a fundamental change is made.
• Presented to the President for assent: The President’s assent is the final step, formalizing the amendment as law.

Article 368(3): Connection with fundamental rights

• This clause provides that amendments made under Article 368 (amending the Constitution) cannot be challenged in court based on the grounds of violating fundamental rights (Article 13[2]). By stating that Article 13 does not apply to amendments under Article 368, this clause ensures that constitutional amendments are not subject to the same judicial scrutiny as ordinary laws under Article 13. This provision has been significant in debates regarding the amenability of fundamental rights.

Article 368(4) and Article 368(5): Repealed provisions

• Articles 368(4) and 368(5) of the Constitution of India have been repealed. These provisions were added by the 42nd Amendment Act of 1976, which aimed to curb judicial review powers and enhance the authority of Parliament in amending the Constitution.
• Article 368(4) stated that no amendment of the Constitution made under this article shall be called in question in any court on any ground. Article 368(5) declared that there shall be no limitation whatsoever on the constituent power of Parliament to amend the Constitution under this article.
• These provisions were subsequently repealed by the 44th Amendment Act of 1978, restoring the balance of power between the judiciary and the legislature, and re-establishing judicial review over constitutional amendments.

Evolution of Article 368- The Tussle between Legislature and Judiciary

• The inception of the amendment of the Constitution can be traced back to the Bihar Land Reforms Act, 1951[3]. This was the phase where the country had just come out of the clutches of the Britishers, and this was the time during which a vast amount of land area was in the hands of zamindars. To prevent the accumulation of land by certain zamindars, it was imperative to acquire land from the zamindars to conform to the principle of the Directive Principle of the State Policy (Article 39[4]; preventing concentration of wealth in the hands of few people). The zamindars were affected significantly by the passing of the Land Reforms Act. Consequently, the matter was presented before the Court in Kamleshwar Prasad Singh v. State of Bihar[5]; the Act was challenged pursuant to Article 19(1)(f)[6], read along with Article 13(2)[7]. The Act was declared unconstitutional by the Patna High Court. This situation created a dichotomy as it would again defeat the core principle of the DPSPs of avoiding the concentration of wealth in the hands of few people.
• The Parliament recognized this imbroglious situation and subsequently passed the First Amendment Act, 1951, which inserted two saving clauses in the form of Article 31A and Article 31B[8]. Article 31A[9] laid down that if there is any law that aims at the acquisition of property, it won’t be deemed unconstitutional merely because it is violative of Article 19(1)(f) and Article 14[10]. On the other hand, Article 31B was inserted that specified that if any law has been put under the IXth Schedule, then such legal provisions will be outside the ambit of the judicial review.
• If we take a careful look, these two articles validate the earlier Land Reforms Act, which led to the rise of another landmark case, Shankari Prasad Singh Deo v. Union of India[11], in which 1st Amendment Act was challenged on the basis that even the amendments can’t have the power to curb fundamental rights. The petitioner contended that the word ‘law’ under Article 13(2) also includes an amendment. The First Amendment Act limits some fundamental rights protected by Articles 14 and 19[12].
• This raises a question: is it constitutional? The court grappled with this issue. Article 13(2) normally stops the government from passing laws that violate these rights. However, the court ruled it only applies to regular laws, not amendments to the Constitution itself. As a result, the court allowed the First Amendment Act, meaning fundamental rights can be limited through amendments.
• In a similar vein, the 17^th Amendment Act of 1964 was passed, which inserted 44 land reform laws within the IX Schedule. The 17th Amendment, along with the 1^st Amendment, was challenged in Sajjan Singh v. State of Rajasthan[13]. The court reiterated the same rationale as was provided in the Shankari Prasad case that the word ‘amendment’ does not fall within the purview of Article 13(2). Therefore, the 1st and 17th Amendment Acts were both deemed unconstitutional.
• The I.C. Golaknath v. State of Punjab[14] case marked a significant departure from earlier precedents. While overruling Shankari Prasad and Sajjan Singh, the court employed a novel rationale. It held that amendments, being a form of legislation, are subject to the limitations of Article 13(2) just like any other law. Consequently, the 1st and 17th Amendments were deemed unconstitutional, effectively reversing the previous rulings. However, a critical issue emerged. Due to the land reforms enacted under the now-invalidated amendments, significant land acquisitions and developments had already occurred. Retroactive application of the judgment would have caused immense disruption. In a groundbreaking move, the court introduced the concept of prospective overruling. This meant that the overruled judgments (Shankari Prasad and Sajjan Singh) would only lose effect from the date of the Golaknath judgment.

Why did the court hold that the amendment is an ordinary law?

• The court interpreted the Constitution to mean that Article 368 outlines the procedure for amendment, not the power itself. This power, they argued, resides within Entry 97 of List I as a residuary power. However, Entry 97 of List I in Schedule VII cannot be considered in isolation. It must be read in concurrence with Article 245[15]. Notably, Article 245 begins with a crucial clause that subjects Parliament’s legislative power to the provisions of the Constitution. Consequently, Parliament’s power to amend the Constitution is also subject to Article 13(2). This means amendments cannot violate or abridge fundamental rights as mandated by Article 13(2). Therefore, under this interpretation, amendments become ordinary legislation since they fall under Entry 97 of List I when read together with Article 245.

What was the remedy provided to the zamindars whose lands were acquired by the government?

• The concept of just and fair compensation for property acquisition is a cornerstone of a fair legal system. This principle ensures that individuals are not unfairly burdened when the government takes their land for public purposes. Therefore; the zamindars should be adequately compensated, and the compensation upon property acquisition should be just and reasonable.[16] However; this principle faced a challenge by the 4^th Amendment Act which provided that compensation could be any compensation. The 4^th Amendment Act was challenged due to its arbitrariness in State of Gujarat v. Shantilal Mangaldas[17],  and the court held it to be valid legislation. This Act strikes at the concept of equity. Therefore, it was further challenged in the landmark case of R.C. Cooper v. Union of India[18](also known as the Bank Nationalization case). The court overruled the previous judgment and held that the compensation should be reasonable and fair. The rationale of the judgment was further reiterated in MadhavRao Scindia v. Union of India[19].

Further Developments

• The 1970s saw a lot of development with regard to the Article itself and the amendments associated with it. Firstly, by the 24^th Amendment Act, the word ‘power’ was inserted in the marginal heading, signifying that Article 368 is not merely procedural but also substantive in nature. Secondly, three words were added in Article 368(1). The words ‘notwithstanding’ and ‘any provision’ were added to give an overriding effect to this Article, making it superior to other Articles enshrined in the Constitution. Thirdly; the word ‘constituent power’ ensured that Article 368 has derivative power.
• In an attempt to provide superiority to legislation made via amendments, the 25^th Amendment Act was incorporated in 1971. As per this amendment, Article 31C[20] was added, which explicitly stated that any law made in furtherance of objectives of Article 39(b)[21] and Article 39(c)[22] cannot be adjudged unconstitutional even if it is violative of Article 14 and Article 19 of the Constitution.
• Enacted in 1972, the 29th Amendment Act specifically targeted the impact of the Golaknath judgment. This legislation aimed to shield certain land reforms from judicial scrutiny by incorporating them into the Ninth Schedule of the Constitution. Consequently, these reforms, protected by Article 31B, fell outside the purview of judicial review. It can be inferred that the 29th Amendment Act was on similar lines to that of 17^th Amendment Act.
• Early amendments to the Indian Constitution sparked confusion about the true extent of Parliament’s power to change it. Landmark cases like Shankari Prasad and I.C. Golaknath presented conflicting views. Shankari Prasad seemed to prioritize Parliament’s power over social and economic directives (Directive Principles), while Golaknath limited Parliament’s power but arguably weakened fundamental rights protections. This tug-of-war created a critical need to define the boundaries of Parliament’s amendment authority.
• With these questions looming large, the historic Kesavananda Bharati v. State of Kerala[23] case landed at the Supreme Court’s doorstep where the court, while acknowledging the importance of fundamental rights, recognized the need for a dynamic Constitution capable of adapting to changing times. It introduced the doctrine of “basic structure,” propounding that Article 368 empowers Parliament to amend the Constitution, including fundamental rights, as long as such amendments do not destroy the basic framework of the Constitution

Conclusion

In essence, Article 368 of the Indian Constitution creates a system of checks and balances. Parliament has the power to modify the Constitution, like updating an old house to fit modern needs. However, the courts act as the final judge, ensuring any changes don’t fundamentally alter the house’s core structure. This can sometimes lead to disagreements, but it also forces everyone involved to carefully consider any proposed renovations.

This system allows Parliament to make adjustments to keep the Constitution relevant. Imagine updating the electrical wiring to accommodate new technology. But the courts ensure these changes don’t affect the foundation of the house, the core principles of Indian democracy like equality and justice. As India continues to develop and change, future court decisions will likely provide more clarity on what types of changes are acceptable, just like new building codes might emerge for future renovations. This ongoing conversation between Parliament and the courts is essential for a Constitution that needs to be both long-lasting, like a well-built house, and adaptable to the needs of a growing nation.

[1] Art 368, Constitution of India.

[2] Art 13, Constitution of India.

[3] Bihar Land Reforms Act, 1951

[4] Art 39, Constitution of India.

[5] Kamleshwar Prasad Singh v State of Bihar, AIR 1962 SC 1166.

[6] Art 19(1)(f), Constitution of India.

[7] Art 13(2), Constitution of India.

[8] Art 31B, Constitution of India.

[9] Art 31A, Constitution of India.

[10] Art 14, Constitution of India.

[11] Shankari Prasad Singh Deo v Union of India, AIR 1951 SC 458.

[12] Art 19, Constitution of India.

[13] Sajjan Singh v State of Rajasthan, AIR 1965 SC 845.

[14] I.C. Golaknath v State of Punjab, AIR 1967 SC 1643.

[15] Art 245, Constitution of India.

[16] State of West Bengal v Mrs Bela Banerjee, AIR 1954 SC 170.

[17] State of Gujarat v Shantilal Mangaldas, AIR 1969 SC 634.

[18] R.C. Cooper v Union of India, AIR 1970 SC 564.

[19] MadhavRao Scindia v Union of India, AIR 1971 SC 530.

[20] Art 31C, Constitution of India.

[21] Art 39(b), Constitution of India.

[22] Art 39©, Constitution of India.

[23] Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.

Mohd. Sahil Khan