Article 368 of the Constitution of India

The  Indian Constitution is one of the most interesting documents on the planet. No country has a constitution as comprehensive as ours and it is the largest constitution in the world. However, despite being very comprehensive, what makes this document attractive is that it is so flexible. This is what the fathers of our constitution did. They wanted the Constitution to not only support the growth of the country but also to grow with it. Therefore, the government can amend the constitution according to the many issues raised. These powers are represented by Article 368.

Necessity of amending Constitutional provisions

There is a reason the fathers of our Constitution made it as flexible as it is today. To ensure that the document develops and grows with the country. Accordingly, the powers of parliament to amend the Constitution under Article 368 are not limited to the Constitutional provisions it seeks to amend.  But it is dangerous for Parliament to have absolute power to amend the Constitution. The Constitution will not be the basis of our democracy but will be reduced to a means of establishing the totalitarianism of the parliament. The government will amend various provisions so that its powers are not restricted in any way.  This is a scary thought, but it’s not far from the truth. The government attempted to create a state where the legislature was supreme in several amendments, such as the 39th Amendment and the Second clause of the 25th Amendment.  This is why the judiciary has established The Basic Structure Doctrine of the Constitution of India through various landmark cases.

The Basic Structure Doctrine

The basic structure doctrine states that there are certain basic structures and basic principles of a Constitution that constitute the foundation of the Indian Constitution. Simply put, these are the ideas of the Constitution that are necessary for the existence of the Constitution. Some examples are free and fair elections, the federal nature of the state, judicial control, and separation of powers. Governments are forbidden to touch the outlines of the Constitution by means of amendments. But if you want to explain the nature of the structure, you can say that if you break this ideology, not only democracy, but the entire working of this country will collapse over your head. The country will either fall into complete anarchy or fall into totalitarianism. Thanks to these mechanisms, India still remains one of the largest democracies in the world. Thus, while parliament has unlimited powers to amend various sections of the Indian Constitution, it cannot repeal, amend or add further sections that might affect its basic structure in the process. By this, we know that Article 368 deals with the powers of the Parliament in amending the Constitution of India.

Article 368

Article 368 of the Constitution of India deals with the power of parliament to amend the Constitution and its procedures. This Constitutional amendment can only be initiated by the introduction of a Bill into force in either House of Parliament.  The two provisions that can be amended by a Special Majority are Fundamental Rights and Directive  Principles. The two types of amendments provided by Article 368 are: 

With a special majority of parliament. By the parliament’s special majority along with the ratification of at least half of the state’s legislatures by a simple majority. Certain provisions of the Indian Constitution need amendment by a simple majority of both houses present and voting.  These changes are not considered amendments within Article 368.

Amendment procedure 

Article 368 defines the process by which  Parliament can amend the constitution. The process is as follows:

• First phase: The bill must be introduced in either house of parliament. 
• Second phase: The bill must be passed by a total majority (regardless of vacancy or absence) and a majority of at least two-thirds of the people present and voting of both houses. There is no provision for a joint session in case of disagreement between these two houses. 
• Third phase: Once a majority is achieved, the bill is presented to the President, who will then agree to the bill. 

In the case of amendments to the provisions referred to in Article 368, it shall be ratified by at least half of the States. Ratification must be passed by a resolution passed by the state legislature. However, this must be approved before the amendment bill is presented to the President for his consent.

Amendment of The Fundamental Rights

The Fundamental Rights are the backbone of Human Rights in India stated in Part III of the Indian Constitution. The Judiciary of India in several landmark instances has proved repeatedly that the fundamental right of an individual citizen or private enterprise isn’t always something that may be tampered with. These rights had been given importance in several cases almost about the alternative sections of the Indian Constitution and it may be stated that they make up an incredibly crucial part of it.

Sample Questions

Question 1: What is the distinction between Article 368 and Article 13?

Answer: 

Article 13 prevents the passing of legal guidelines which “eliminate or abridge” the Fundamental Rights provisions. Article 368 doesn’t include or contain  a power to amend the Indian constitution however only a procedure. The power to amend comes from the regular legislative power of Indian Parliament.

Question 2: What are the seven Fundamental Rights of India?

Answer: 

Fundamental Rights under Articles 12-35 (Part III of Constitution of India)

• Right to Equality.
• Right to Freedom.
• Right against Exploitation.
• Right to Freedom of Religion.
• Cultural and Educational Rights.
• Right to Constitutional Remedies.

Question 3: How did the doctrine of the basic structure of the Indian Constitution emerge and evolve in India?

Answer:

‘Doctrine of Basic Structure’ became propounded by the Judiciary of India on 24th April 1973 in the case of Kesavananda Bharati to place a hindrance at the amending powers of the Parliament in order that the ‘basic structure of the basic law of the land’ can’t be amended in exercising of its ‘constituent power’ under the Constitution of India.