Article 368, located in Part XX of the Constitution of India, is a cornerstone provision that deals with the power of the Parliament to amend the Constitution and the procedure that must be followed for such amendments. This article has been the subject of intense judicial scrutiny and several amendments itself, reflecting the dynamic interplay between parliamentary sovereignty and judicial review.
Text of Article 368
(As amended up to date. The text has evolved; this reflects its current form after various amendments and judicial interpretations.)
(1) Notwithstanding 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 the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the 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 a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in –
(a) article 54, article 55, article 73, article 162 or article 241, 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 itself,
the amendment shall also require to be ratified by the Legislatures 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) Nothing in article 13 shall apply to any amendment made under this article.
(4) No amendment of this Constitution (including the provisions 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 amend by way of addition, variation or repeal the provisions of this Constitution under this article.
(Note: Clauses (4) and (5) were inserted by the 42nd Amendment Act, 1976. However, the Supreme Court in Minerva Mills v. Union of India (1980) struck down these clauses, holding that they violated the basic structure of the Constitution by seeking to exclude judicial review and grant unlimited amending power to Parliament. Clause (3) was inserted by the 24th Amendment Act, 1971.)
Detailed Explanation
Clause (1): Parliament’s Constituent Power
- “Notwithstanding anything in this Constitution…”: This non-obstante clause gives Article 368 overriding effect over other provisions of the Constitution when it comes to amendments.
- "…Parliament may in exercise of its constituent power…": This phrase, added by the 24th Amendment Act, 1971 (in response to the Golaknath case), clarifies that when Parliament amends the Constitution, it does so by exercising its “constituent power” (power to make or change the Constitution) as distinct from its ordinary “legislative power” (power to make laws under the Constitution).
- "…amend by way of addition, variation or repeal any provision of this Constitution…": This gives a wide scope to the amending power, allowing Parliament to add new provisions, alter existing ones, or remove them entirely.
- "…in accordance with the procedure laid down in this article.": This emphasizes that the power to amend is not absolute but must be exercised strictly according to the procedure specified within Article 368 itself.
Clause (2): Procedure for Amendment
- Initiation of Amendment: An amendment can only be initiated by introducing a Bill in either House of Parliament (Lok Sabha or Rajya Sabha). It cannot be introduced in State Legislatures.
- Passage of the Bill: The Bill must be passed in each House by:
- A majority of the total membership of that House (Absolute Majority): This means more than 50% of the total strength of the House, irrespective of vacancies or absentees.
- A majority of not less than two-thirds of the members of that House present and voting (Special Majority): This means that of the members present and actually voting, at least two-thirds must vote in favour of the Bill.
- President’s Assent:
- Once passed by both Houses with the requisite majority (and ratified by States, if required), the Bill is presented to the President.
- The 24th Amendment Act, 1971, made it obligatory for the President to give assent to a Constitution Amendment Bill. The President cannot withhold assent or return the Bill for reconsideration.
- Upon the President’s assent, the Constitution stands amended.
- No Joint Sitting: In case of a disagreement between the two Houses on a Constitution Amendment Bill, there is no provision for holding a joint sitting of the two Houses to resolve the deadlock (unlike ordinary legislation). The Bill must be passed by each House separately.
Proviso to Clause (2): Ratification by States (Federal Provisions)
- For amendments that seek to change certain “entrenched provisions” affecting the federal structure of the Constitution, a more stringent procedure is required in addition to the special majority in Parliament.
- These provisions include:
- (a) Election of the President (Articles 54, 55), extent of executive power of the Union (Article 73) and States (Article 162), High Courts for Union Territories (Article 241).
- (b) The Union Judiciary (Chapter IV of Part V), High Courts in the States (Chapter V of Part VI), Legislative Relations between the Union and States (Chapter I of Part XI).
- (c) Any of the Lists in the Seventh Schedule (which demarcate legislative powers between the Union and States: Union List, State List, Concurrent List).
- (d) The representation of States in Parliament (e.g., allocation of seats in Rajya Sabha).
- (e) The provisions of Article 368 itself (i.e., amending the amending power/procedure).
- Ratification Procedure: Such an amendment Bill, after being passed by both Houses of Parliament by the special majority, must also be ratified by the Legislatures of not less than one-half of the States.
- This ratification must be by resolutions passed by those State Legislatures. The Constitution does not prescribe a time limit for states to ratify.
- The ratification by State Legislatures only requires a simple majority in those legislatures.
Clause (3): Non-applicability of Article 13
- “Nothing in article 13 shall apply to any amendment made under this article.”
- Article 13(2) states that the State shall not make any law which takes away or abridges the rights conferred by Part III (Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void.
- The Golaknath v. State of Punjab (1967) case held that a constitutional amendment is “law” under Article 13(2) and thus cannot abridge Fundamental Rights.
- To overcome this, the 24th Amendment Act, 1971, inserted Clause (3) into Article 368 (and also amended Article 13 itself by adding clause (4) to it, stating that Article 13 shall not apply to any amendment of the Constitution made under Article 368). This was intended to clarify that the bar in Article 13 does not apply to constitutional amendments passed under Article 368.
Clauses (4) and (5): Attempt to Exclude Judicial Review (Struck Down)
- These clauses were inserted by the 42nd Amendment Act, 1976, during the Emergency.
- Clause (4) sought to prevent any constitutional amendment (including those affecting Fundamental Rights) from being challenged in any court on any ground.
- Clause (5) declared that there would be no limitation whatsoever on Parliament’s constituent power to amend the Constitution.
- The Supreme Court, in the landmark case of Minerva Mills Ltd. & Ors vs Union Of India & Ors (1980), struck down both clauses (4) and (5) of Article 368. The Court held that these clauses violated the basic structure of the Constitution because:
- Judicial review is a basic feature, and Clause (4) sought to eliminate it.
- Limited amending power is a basic feature, and Clause (5) sought to confer unlimited amending power.
Important Notes and Comments
- Doctrine of Basic Structure:
- The most significant development in relation to Article 368 is the evolution of the “basic structure” doctrine by the Supreme Court in Kesavananda Bharati v. State of Kerala (1973).
- The Court held that while Parliament has the power to amend any part of the Constitution (including Fundamental Rights), this power is not unlimited. Parliament cannot, in the exercise of its amending power, alter the “basic structure” or framework of the Constitution.
- What constitutes the “basic structure” has been interpreted and expanded by the Court in various subsequent judgments. Elements like supremacy of the Constitution, rule of law, judicial review, federalism, secularism, democratic form of government, parliamentary system, free and fair elections, independence of the judiciary, and the balance between Fundamental Rights and Directive Principles have been held to be part of the basic structure.
- Amendability of Fundamental Rights:
- Initially, in Shankari Prasad (1951) and Sajjan Singh (1965), the Supreme Court held that Parliament could amend any part of the Constitution, including Fundamental Rights.
- In Golaknath (1967), the Court reversed its earlier stance, holding that Fundamental Rights were transcendental and immutable and could not be amended by Parliament under Article 368.
- The 24th Amendment (1971) sought to restore Parliament’s power.
- In Kesavananda Bharati (1973), the Court upheld the validity of the 24th Amendment but propounded the basic structure doctrine, effectively stating that Fundamental Rights can be amended, but not in a way that damages or destroys the basic features of the Constitution, many of which are reflected in the Fundamental Rights.
- Flexibility and Rigidity: Article 368 provides a mix of flexibility and rigidity in the amendment process:
- Flexible: Many provisions can be amended by a special majority in Parliament alone. Also, some constitutional provisions can be amended by Parliament by a simple majority (e.g., creation of new states under Article 3, citizenship provisions), though these are not considered amendments under Article 368 as per Article 4(2).
- Rigid: Amendments to entrenched federal provisions require not only a special majority in Parliament but also ratification by at least half of the State Legislatures.
- Constituent Power vs. Legislative Power: The distinction is crucial. Ordinary laws are made under the Constitution; constitutional amendments change the Constitution itself. Article 368 deals with the latter.
- Evolution through Amendments and Judicial Interpretation: Article 368 has been a battleground for parliamentary supremacy versus judicial review. Its current form and interpretation are a result of several constitutional amendments (e.g., 24th, 42nd) and landmark Supreme Court judgments.
Article 368 is thus central to the adaptability and endurance of the Indian Constitution, allowing it to evolve with changing times while attempting to preserve its fundamental tenets through the doctrine of basic structure.