AMBITION LAW
AMBITION LAW INSTITUTE
INSTITUTE
CONSTITUTION OF INDIA
SUBJECTIVE (MODEL ANS.) AMENDMENT
Qs. Describe the Procedure of Amendment of the Constitution of India under Article 368. How the basic
structure doctrine developed.
Ans. Article 368 of the Constitution lays down the power of the Parliament to amend the Constitution, and the
procedure to be followed therein:
Clause (1) states that the Parliament has power to amend the Constitution by way of addition, variation or
repeal any provision of this Constitution.
Clause (2) lays down the procedure for amendment :
(1) A Bill to amend the Constitution can be introduced in either House of Parliament.
(2) 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-third of the members of the House present and voting (Dual
Majority).
(3) Each House must pass the Bill separately. There is no provision for holding joint sitting in case of
disagreement.
(4) If the Bill seeks to amend federal provisions of the Constitution [clause (2), proviso], it must be ratified
by the Legislatures of half of the States by a simple majority, that is, a majority of the members of the
House present and voting.
(5) After it is duly passed by both the Houses of Parliament and ratified by half of the State Legislatures,
when necessary, the Bill is presented to the President for assent.
(6) The President must give his consent to the Bill. He can neither withhold his assent nor return the Bill
for reconsideration in the Parliament.
(7) After the President’s assent, the Bill becomes an Act and the Constitution stands amended.
In Shankari Prasad vs. Union of India, AIR 1951 SC 458, the Court held that the power to amend the
Constitution, including the Fundamental Rights, was contained in Article 368 and that the word ‘law’ in
Article 13(3) does not include an amendment of the Constitution which was made in the exercise of the
constituent and not legislative power. Sankari Prasad case was concerned with the validity of the Constitution
(1st Amendment) Act, 1951. After the Court’s decision, several amendments were made in the Constitution
of which the fourth and seventh amendment was related to Part III of the Constitution.
In Sajjan Singh vs. State of Rajasthan, AIR 1965 SC 845, the Supreme Court held that fundamental rights
can be amended.
In Golaknath vs. State of Punjab, AIR 1967 SC 1643, the Supreme court, however overruled Sankari Prasad
case and held that the term “Law” in Article 13 includes an amendment of the Constitution passed under
Article 368. In other words it means that no amendment of Fundamental Right is possible as there is
prohibition in Article 13. The Court further said that power to amend the constitution is a Legislative power
which comes under the purview of residuary power of Parliament under Article 248.
To overcome the embargo imposed by Golaknath case, the then Government enacted 24th Constitutional
Amendment and inserted clause (4) in Article 13 and provided that nothing in Article 13 shall apply to an
amendment in Article 368 and also inserted clause (3) in Article 368 in similar terms. In other words now,
law does not include Amendment. So, restriction of Article 13(2) will not apply to amendment.
In KesavanandaBharati vs. State of Kerala, AIR 1973 SC 1461, (Fundamental Rights Case), the Court by
majority overruled the Golak Nath’s case which denied Parliament the power to amend fundamental rights of
OUR WEBSITE ambitionlawinstitute.com BUY BEST BARE ACTs. Ambitionpublications.com WE ARE ALSO ON
citizens. The Supreme Court held that the Parliament can amend any provision of the Constitution including
Fundamental Rights but there are certain basicfeatures of the Constitution which cannot be altered by an
amendment under Article 368. It further upheld the validity of 24th Constitutional Amendment Act which
allowed amendment of any provision of the Constitution by Parliament under its constituent power. There
can be amendment by way of addition, variation and repeal.
In WamanRao vs. Union of India, AIR 1981 SC 271, the consensus of the majority of the judgment was that
the basic structure could not be destroyed or damaged by amending the Constitution in exercise of the
power under Article 368 of the Constitution.
Doctrine of Basic Structure
The Basic Structure of Constitution means that there are certain basic things in this Constitution which
maintains its identity and this identity is a matter of substance and not of form and it can be seen in basic
principles contained in the Constitution like equality, secularism, judicial independence etc.
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 the amendment of any of the Fundamental Rights.
However, the Supreme Court in the Minerva Mills vs. Union of India, (1980) 2 SCC 591, invalidated this
amendment in the Constitution as it excluded the power of judicial review which is a ‘basic feature’ of the
Constitution.
In I.R.Coelho vs. State of Tamil Nadu, AIR 2000 SC 861, it has been laid down that the Parliament has the
power to amend Part III. But if the amending law destroys the basic structure, it becomes invalid. Even for
the law which is inserted in the Ninth Schedule the result is same. It remains void. Every act included in the
9th schedule after 24th April, 1973 is open to attack on the ground that it damages the basic structure. The
Parliament cannot, by inclusion in the Ninth Schedule grant immunity and exclude examination by the
Court after enunciation of the Doctrine of basic structure.
_____________
OUR WEBSITE ambitionlawinstitute.com BUY BEST BARE ACTs. Ambitionpublications.com WE ARE ALSO ON
