BASICS OF LEGISLATION SYNOPSIS

Dr. RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

BASIC OF LEGISLATION

FINAL DRAFT
A DETAILED ANALYSIS OF ARTICLE 368 OF THE
CONSTITUTION OF INDIA

Submitted to Submitted by

Dr. Shashank Shekhar UTKARSH JAISWAL

Asstt. Prof. (Law) Enrollment No. - 155
1st Year (1st Semester)

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BASICS OF LEGISLATION SYNOPSIS

PREFACE
As a part of Basics Of Legislation curriculum and in order to obtain knowledge in the field of
law, I have chosen the above mention topic as per my area of research. The main aim of my
research behind this topic is to learn the different aspects related to the amendment features
of our Constitution and also to throw light on the problems which can been seen regarding
implementation of this article.

During this research I went through some books from which INDIAN POLITY by
M. Laxmikant is the main. During my research I also took reference and help from the bare
act of the Constitution of India. I also took help from the internet sources which were of
great help.

I would like to thank Dr. Shashank Shekhar for giving me this opportunity as well providing
his able guidance from time to time, I am also thankful to my mentor Ms. Brakha Diwedi for
her constant help and support.
BASICS OF LEGISLATION SYNOPSIS

TABLE OF CONTENTS

1.Concept ………………………………………………………4

2.Introduction…………………………………………………..5

3.Procedure for Amendment …………………………………..7

4.Drawbacks &Criticism………………………………………..8

5.Basic Structure………………………………………………...10

6.Elements of Basic Structure…………………………………..12

7.Related Case Laws……………………………………………13

8. Bibliography………………………………………………….15
BASICS OF LEGISLATION SYNOPSIS

CONCEPT

Like any other written Constitution, the Constitution of India also provides for its amendment
in order to adjust itself to the changing conditions and needs. However, the procedure laid
down for its amendment is neither as easy as in Britain nor as difficult as in USA. In other
words the Indian Constitution is neither rigid nor flexible but a synthesis of both.

Giving space for change in Constitution shows the farfetched mentality of our Constitution
makers who provides us with a feature to adjust our laws according to the changing times.
This concept in our constitution is borrowed from the Constitution of Republic of South
Africa.
BASICS OF LEGISLATION SYNOPSIS

INTRODUCTION

Article 368 of the Constitution of India gives power to the parliament to amend the
constitution. This article was inserted in our constitution through the 24th amendment

act, 1971.In detail it states

(1) 1Notwithstanding with 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 procedure established by law.
(2) 2An amendment of this Constitution may be initiated only by 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 majority of not less than
two-thirds of the members of that House present and voting,

Provided that if such amendment seeks to make any change in-

(a) Article 54, Article 55, Article 73, 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 Legislature of not less than
one-half of the states by resolutions to that effect passed by those Legislatures before
the Bill making provision for such amendment is presented to the President for
assent.
(3) 3[Nothing in Article 13 shall apply to any amendment made under this article.]
(4) 4[No amendment of this constitution (including provision 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 made by way of addition ,
variation or repeal the provision of this Constitution under this article.
1
Ins. by the Constitution (Twenty-fourth Amendment)Act,1971
2
Art.368 renumbered as cl. (2)by S.3, ibid
3
Ins. by the Constitution(Twenty-fourth Amendment)Act, 1971.S.3
4
Ins. by the Constitution (Forty-second Amendment) Act, 1976,
BASICS OF LEGISLATION SYNOPSIS

Article 368of our constitution provides for two types of amendments, that is, by a
special majority of Parliament and also through ratification of half of the states by
simple majority. But some other articles provide for the amendment of certain
provisions of constitution by a simple majority of parliament, that is, a majority of the
members of each house present and voting (similar to the ordinary legislative
process). Notably, these amendments are not deemed to be amendments of the
Constitution for the purpose of article 368.
Therefore, the Constitution can be amended in three ways:
(a) Amendment by simple majority of Parliament,
(b) Amendment by special majority of the Parliament, and
(c) Amendment by special majority of the Parliament and the ratification of the state
legislatures.
BASICS OF LEGISLATION SYNOPSIS

PROCEDURE FOR AMENDMENT

The procedure for the amendment of the Constitution as laid down in Article 368 is as
follows:
1. An amendment of the Constitution can be initiated only by the introduction of a
bill for the purpose in either House of Parliament and not in state legislatures.
2. The bill can be introduced either by a minister or by a private member and does
not require prior permission of the president.
3. The bill must be passed in each House by a special majority, that is , a majority of
the total membership of the House and a majority of two-thirds of the members of
the House present and voting.
4. Each house must pass the bill separately. In case of a disagreement between the
two Houses, there is no provision for holding a joint sitting of the two House for
the purpose of deliberation and passage of the bill.
5. If the bill seeks to amend the federal provisions of the Constitution, it also must be
ratified by the legislatures of half of the states by a simple majority, that is, a
majority of the House present and voting.
6. After duly passed by both the Houses of Parliament and ratified by state
legislatures, where necessary, the bill is presented to the president for assent.
5
7. The president must give his assent to the bill. He can neither withhold his assent
to the bill nor return the bill for reconsideration of the Parliament.
8. After the president's assent, the bill becomes an Act and the Constitution stands
amended in accordance with the terms of the Act.

5
The 24th Constitutional Amendment Act of 1971 made it obligatory for the president to give his assent to the
Bill
BASICS OF LEGISLATION SYNOPSIS

DRAWBACKS &CRITICISM

On the following grounds the Amendment procedure has been facing criticism

1. There is no provision for a special body like Constitutional Convention (as in USA) or
Constitutional Assembly for amending the Constitution. The constituent power is
vested in the Parliament and only in few cases, in the state legislatures.
2. The power to initiate an amendment to the Constitution lies with the Parliament.
Hence unlike in USA6 , the state legislatures cannot initiate any bill or proposal for
amending the Constitution except in one case, that is, passing a resolution requesting
the Parliament for the creation or abolition of legislative councils in the states. Here
also, the Parliament can either approve or disapprove such a resolution or may not
take any action on it.
3. Major part of the Constitution can be amended by the Parliament alone either by a
special majority or by a simple majority. Only in few cases the consent of the state
legislature is required that too, only half of them, while in USA three-fourths of the
states.
4. The Constitution does not prescribe the time frame within which the state legislatures
are should ratify or reject an amendment submitted to them. Also, it is silent on the
issue whether the states can withdraw their approval after according the same.
5. There is no provision for holding a joint sitting of both the houses if there is a
deadlock over the passage of a constitutional amendment bill. On the other hand, a
provision for a joint sitting is made in the case of an ordinary bill.
6. The process of amendment is similar to that of a legislative process. Except for the
special majority, the constitutional amendment bills are to be passed by the
Parliament in the way as ordinary bills.
7. The provisions relating to the amendment procedure are too sketchy. Hence, they
leave a wide scope for taking the matters to the judiciary.

Despite these defects it cannot be denied that the process has proved to be simple and easy
and has succeeded in meeting the changed needs and conditions. The procedure is not so
flexible as to allow the ruling parties to change it according to their whims. Nor is it rigid as
to be incapable of adopting itself to the changing needs. It, as rightly said by K C Wheare,

6
In USA , an amendment can also be proposed by a constitutional convention called by the Congress (American
Legislature) on the petition of two-thirds of the state legislature.
BASICS OF LEGISLATION SYNOPSIS

"strikes a good balance between flexibility and rigidity"7 . In this context, Pandit Jawaharlal
Nehru said in the Constituent Assembly, 'While we want this Constitution to be as solid as
permanent as we can make it, there is no permanence in a Constitution. There should be a
certain flexibility . If you make any Constitution rigid and permanent , you stop the nation's
growth , the growth of a living, vital, organic people'.8

Similarly B r Ambedkar observed in the Constituent Assembly that, 'The Assembly has not
only refrained from putting a seal of finality and infallibility upon this Constitution by
denying the people the right to amend the Constitution as in Canada or making the
amendment of the Constitution subject to the fulfillment of extraordinary terms and
conditions as in America or Australia, but has provided for a facile procedure for amending
the Constitution'9 .

K C Wheare has admired the variety of amendment procedures contained in the Constitution
of India. He said,' this variety in the amending process is wise but rarely found'. According to
Granville Austin, 'the amending process has proved itself one of the most ably conceived
aspects of the Constitution. Although it appears complicated, it is merely diverse'.10

7
K C Wheare , Modern Constitutions, 1966,P.43
8
Constituent Assembly Debates, Vol. IX ,P.976
9
Constituent Assembly Debates, VOL. IX, P.976
10
Granville Austin, The Indian Constitution :Cornerstone of a Nation, Oxford, 1966, P.25
BASICS OF LEGISLATION SYNOPSIS

BASIC STRUCTURE OF THE CONSTITUTION

EMERGENCE OF THE BASIC STRUCTURE

The question where Fundamental rights can be amended by the Parliament under Article 368
came for consideration for the Supreme Court within a year of the Constitution coming into
force. In the Shankari Prasad case11(1951), the constitutional validity of the First
Amendment Act (1951), which curtailed the right to property, was challenged. The Supreme
Court ruled that the power of the Parliament to amend the Constitution under Article 368 also
includes the power to amend Fundamental Rights. The word 'law' in Article 13 includes only
ordinary laws and not the constitutional amendment acts (constituent laws). Therefore, the
Parliament can abridge or take away any of the Fundamental rights by enacting a
constitutional amendment act and such a law will not be void under Article 13.

But in the Golakh Nath case12 (1967) the Supreme Court reversed its earlier stand. In that
case, the constitutional validity of the Seventeenth Amendment Act (1964), which inserted
certain state acts in the Ninth Schedule, was challenged. The Supreme Court rules that the
Fundamental Rights are given a 'transcendental and immutable' position and hence, the
Parliament cannot abridge or take away any of these rights. A Constitutional amendment act
is also a law within the meaning of Article 13 and hence, would be void for violating any of
the Fundamental Rights.

The Parliament reacted to the Supreme Court's judgment in the Golakh Nath case (1967) by
enacting the 24th Amendment Act (1971). This Act amended Article 13 and 368 It declared
that the Parliament has the power to abridge or take away any of the Fundamental Rights
under Article 368 and such an act will not be a law under the meaning of Article 13.

And then comes the famous Kesavenand Bharti Case (1973) 13, also known as the case which
saved the Indian Democracy, in this landmark case the Supreme Court overruled its
judgment in the Golakh Nath case (1967). It upheld the validity of the 24th Amendment Act
(1971) and stated that the Parliament is empowered to abridge or take away any of the
Fundamental Rights. At the same time, it laid down a new doctrine of the "basic structure" or
(basic feature) of the Constitution . it ruled that the constituent power of Parliament under

11
Shankari Prasad v. Union of India (1951)
12
Golakh Nath v. State of Punjab, (1967)
13
Kesavanand Bharti v. State of Kerela
BASICS OF LEGISLATION SYNOPSIS

Article 368 does not enable it to alter the 'basic structure' of the Constitution .This means that
the Parliament cannot abridge or take away a Fundamental Right that forms a part of the
'basic structure' of the Constitution.

Again the Parliament reacted to this judicially innovated doctrine of 'basic structure' by
enacting the 42nd Amendment Act (1976).This Act amended Article 368 and declared that
there is no limitation on the constituent power of Parliament and no amendment can be
questioned in any court on any ground including that of contravention of Fundamental
Rights.

However, the Supreme Court in the Minerva Mills case14 (1980) invalidated this provision as
it excluded judicial review which is a 'basic feature' of the Constitution. Applying the
doctrine of ' basic structure' with respect to Article 368, the court held that:

"Since the Constitution had conferred a limited amending power on the Parliament cannot
under the exercise of that limited power enlarge that very power into an absolute power.
Indeed, a limited amending power is one of the basic features of the Constitution and
therefore, the limitations on that power cannot be destroyed. In other words, Parliament
cannot, under Article 368, expand its amending power so as to acquire for itself the right to
repeal or abrogate the Constitution or to destroy its basic feature. The donee of a limited
power cannot by the exercise of that power convert the limited power into an unlimited one".

Again in Waman Rao case15 (1981), the Supreme Court adhered to the doctrine of the 'basic
structure' and further clarified that it would apply to constitutional amendments enacted after
April 24, 1973(i.e., the date of the judgment in the Kesavanand Bharati case.

14
Minerva Mills v. Union of India (1980)
15
Waman Rao v. Union of India(1981)
BASICS OF LEGISLATION SYNOPSIS

ELEMENTS OF THE BASIC STRUCTURE

The present position is that the Parliament under Article 368 can amend any part of the
Constitution including the Fundamental Rights but without affecting ' basic features' of the
Constitution.

However the Supreme Court is yet to define the basic structure or clarify as to what
constitutes of the basic structure of the Constitution. From what various judgments, the
following have emerged as 'basic structure' of the Constitution or elements
/components/ingredients of the 'basic structure' of the Constitution.

1. Supremacy of Constitution.
2. Sovereign, democratic and republican nature of the Indian polity.
3. Secular character of the Constitution.
4. Separation of powers between the legislature, the executive, and the judiciary.
5. Federal character of the Constitution.
6. Unity and integrity of the nation.
7. Welfare state (socio -economic justice).
8. Judicial review.
9. Freedom and dignity of an individual.
10. Parliamentary system.
11. Rule of law.
12. Harmony and balance between Fundamental Rights and Directive Principles of State
Policy.
13. Principle of equality.
14. Free and fair elections.
15. Independence of Judiciary.
16. Limited power of Parliament to amend the Constitution.
17. Effective access to justice.
18. Principle of reasonableness.
19. Powers of the Supreme Court under Article 32, 136,141,142
BASICS OF LEGISLATION SYNOPSIS

RELATED CASE LAW

Source of Amending Power- It is obvious when Parliament and the State Legislatures
constituent power as distinct from their ordinary legislative power under Article 245
to248and not elsewhere, Kesavanand Bharti v. State of Kerala, (1973)4 SCC 225.

Interpretation/ Construction- The expression "amendment of this Constitution" has a clear

substantive meaning in the context of a written Constitution and it means that any part of the
Constitution can be amended by changing, the same either by variation, addition or repeal.
The meaning of the words "amendment of the Constitution" as used in Article 368 must be
such which accords with the true intention of the Constitution makers as ascertainable from
the historical background, the Preamble, the entire scheme of the Constitution, its structure
and framework and intrinsic evidence in various articles including Article 368. It is neither
possible to give it a narrow meaning nor can such a wide meaning be given which can enable
the amending body to change substantially or entirely the structure and identity of the
Constitution, Kesavanand Bharti v. State of Kerala, (1973)4 SCC 225.

Proviso to Article 368-The proviso was mainly intended to safeguard the rights and powers
of the States in their juristic character as person in a federation .The purpose of the proviso
was the rights, powers and privileges of the States or their status as States should not be taken
away or impaired without their participation to some extent in the amending process,
Kesavanand Bharti v. State of Kerala, (1973)4 SCC 225.

Constitutionality of - Constitutionality of Parliament cannot, under Article 368, expand its

amending power so as to acquire for itself the right to repeal or abrogate the Constitution or
to destroy its basic and essential features. Clause (5) of Article 368 is therefore
unconstitutional. So, also is clause (4) of Article 368 which excludes judicial review of
constitutional amendments. Section 55 of the 42nd amendment is therefore unconstitutional,
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625,643,675-679.

Judicial Review- Power of judicial review, is a basic and essential feature of the
Constitution, L. Chandan Kumar v. Union of India, (1997)3 SCC 261.

Basic Structure- In the matter of application of the principle of the basic structure, twin
tests have to be satisfied, namely the "width test" and the "test of identity", M.Nagraj v.
Union of India,(2006) 8 SCC 212.
BASICS OF LEGISLATION SYNOPSIS

Amending Power- Parliament cannot increase the amending power by amendment of Article
368 to confer on itself unlimited power of amendment and destroy and damage the
fundamentals of the Constitution, nor can it use Article 31-B to achieve the same purpose.
Article 31B therefore cannot go beyond the limited amending power contained in Article 368,
I.R.Coelho v. State of T.N., (2007) 2 SCC 1.

Scope of Amendment- Any amendment that abridges the basic feature of the Constitution
shall be deemed to be ultra vires, Kesavanand Bharti v. State of Kerala, (1973)4 SCC 225.
BASICS OF LEGISLATION SYNOPSIS

BIBILOGRPAPHY

Books Consulted

Indian Polity, by M Laxmikant

Constitution of India, Eastern book Company

K C Wheare, Modern Constitution