Part XX of the Constitution containing Article 368 is titled as “Amendment of the

Constitution.”

The time is not static, it goes on changing. With it, the life of a nation also changes. The social,
economic and political conditions of the people go on changing. Law, particularly the
Constitutional law of the country, must also change in order to adapt it to the changing needs,
changing philosophy, changing lives, of the people. It, therefore, requires some mechanism
for the law to serve the contemporary needs of the people. Such a mechanism is known as the
amendment of the law, the amendment of the Constitution of the country.1

The term Amendment means addition, substitution or any kind of a change. One of the
features of affective law is that it is always open for change, therefore remains flexible. Thus,
at the time of drafting the Indian Constitution, one important provision added was relating to
its Amendment.

NECESSITY

Balance between non-

Dynamic Nature of The
amendable and easily
Constitution.
amendable constitution.

Neither too rigid, nor too Flexible federation as

flexible. said by Dr. B. R.
Opts for a Middle Course Ambedkar

1 Constitutional Law of India, Prof. Narendra Kumar, Eighth Edition, 2014, Page 1004
Oxfords Dictionary of Law says Amendment means changes made to legislation, for the
purpose of adding to, correcting or modifying the operation of the legislation.

Blacks Law Dictionary defines Amendment as A formal revision or addition proposed or

made to a statute, Constitution, pleading, order, or other instrument AND In Parliamentary
law, it means a motion that changes another motions wording by striking out text, inserting
or adding text, or substituting text.

But Keshavananda Bharti V. State of Kerela2 provided the best explanation as to the
scope and definition of the word Amendment. It purported that A broad definition of the
word Amendment will include any alteration or change. The word amendment when used in
connection with the Constitution may refer to the addition of a provision on a new and
independent subject, complete in itself and wholly disconnected from other provisions, or to
some particular article or clause, and is then used to indicate an addition to, the striking out,
or some change in that particular article or clause".
The Constitution of India provides for amendment mainly in Article 368 and in some other
parts as specified therein.

For the purpose of amendment the various articles of the constitution are divided into three
categories :-
1. Simple Majority (as ordinary law)
• Article 4 - alteration of state boundaries, etc.
• Article 169 - Legislative Councils (abolition/creation)
• Article 239A - Creation of local legislature or COM or both for Union Territories.
However, this cannot be strictly called as an amendment.

2. Special Majority (Purview of Article 368)

• All amendments under constitution are regulated by it.
• Bill should be passed be 2/3rd majority of both the houses, present and voting.

2 (AIR 1973 SC 1461)

3. Special Majority plus Ratification by states (federal matters)
• Articles 55 and 56 - Presidential Election
• Articles 73 and 162 - Extent of executive power of Union or States
• Articles 124-127 and 214-231, 241 - Provisions pertaining to judiciary
• Articles 245-255 - Legislative Powers
• Lists I, II, III - Article 368
The states need to pass the ratification bill by a simple majority.
 PROCEDURE FOR AMENDMENT
A Bill to amend the constitution may be introduced in either House of the Parliament. It must
be passed by each House by a majority of total membership to that House and by a majority
of not less than 2/3rd of the members of that House present and voting. When a bill is passed
by both the Houses it shall be presented to the President for his assent who shall give his
assent to Bill and thereupon the Constitution shall stand amended. But a Bill which seeks to
amend the provisions mentioned in Article 368 requires in addition to the special majority
mentioned above the ratification by the 1/2 of the States. 3

However Article 368 does not constitute the complete code. The process of amending the
constitution is the legislative process governed by the rules of that process.4

AMENDABILITY OF THE INDIAN CONSTITUTION

According to Vepa P. Sarathi, there will never be a conflict between Legislature and Judiciary
and these two powerful organs will be better capable of guiding the third branch i.e.
Executive, if the following view for the purpose of amendment is accepted. Article 368 can
be interpreted in the following manner:
A) The power of the Parliament to amend Constitution is absolute and there are no limits on
that power.
B) Parliament should not, however, take away the power of the courts to strike down ordinary
legislation as tested against the amended Constitution.

One can relate to what Shakespeare said in Measure for Measure:

"O, it is excellent
To have a giants strength; but it tyrannous
To use it like a giant."

3 Constitutional Law of India, Dr. J. N. Pandey, Central Law Agency, 54th Edition, 2017, page 788
4 Ibid, page 789
The elementary question in controversy has been whether Fundamental Rights are amendable
so as to take away the basic rights guaranteed by the Constitution. Another controversy deals
with the extent, scope and authority of Parliament to amend Constitution.
The answer has been given by the Supreme Court from time to time, sometimes under
immense pressure and can be understood in the light of the following cases:

1. Shankari Prasad V. Union of India5

The validity of the First Amendment Act to the Constitution was challenged on the ground
that it purported to abridge the fundamental Rights under Part 3 of the Constitution of India.
Supreme Court held that the power to amend the Constitution, including Fundamental Rights
is contained in Article 368. An amendment is not a law within the meaning of Article 13(2).
Article 13(2) states that – "The State shall not make any law which takes away or abridges
the rights conferred by this part and any law made in contravention to this clause shall, to the
extent of the contravention, be void". An amendment is valid even if it abridges any
fundamental Right.

2. Sajjan Singh V. State of Rajasthan6

The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the
acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that
the amendment fell within the purview of Article 368 and the requirements in the proviso to
Article 368 had not been complied with. Supreme Court approved the judgment in Shankari
Prasad case and held that on Article 13 (2) the case was rightly decided. Amendment includes
amendment to all provisions of the Constitution.

3. Golaknath V. State of Punjab7

The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh
cases and held that Parliament had no power to amend part 3 of the Constitution so as to
abridge or take away any of the Fundamental Rights. It also added that Article 368 merely
lays down the procedure for the purpose of amendment. Further, The Court said that an
amendment is a law under Article 13(2) of the Constitution of India and if it violates any

5 (AIR 1951 SC 458)

6 (AIR 1965 SC 845)
7 (AIR 1967 SC 1643)
fundamental right, it may be declared void. Subba Rao, C.J., supported this judgment on the
following reasonings:
• The Chief Justice rejected the argument that the power to ament the Constitution was a
sovereign power and the said power was supreme to the legislative power and that it did not
permit any implied limitations and that the amendments made in exercise of that power
involve political questions and that therefore they were outside of judicial review.
• The power of the Parliament to amend the Constitution is derived from Article 245, read
with Entry 97 in List I of the Constitution and not from Article 368. Article 368 lays down
merely the procedure for amendment of the Constitution. Amendment is a legislative
process.
• An Amendment is a ‘law’ within the meaning of Article 13(2) and therefore, if it, violates
any of the fundamental rights it may be declared void. The word ‘Law’ in Article 13(2)
includes every kind of law, statutory as well as constitutional law and hence a constitutional
amendment which contravened Article 13(2) will be declared void.8

RESTRICTION ON PARLIAMENT POWER OF AMENDING PROVISIONS IN

THE CONSTITUTION AND JUDICIAL REVIEW
The framers of the Indian constitution were also aware of that fact that if the constitution
was so flexible it would be like playing cards of the ruling party so they adopted a middle
course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable
changes. India got independence after a long struggle in which numerous patriots sacrificed
their life. They knew the real value of the freedom so they framed a constitution in which
every person is equal and there is no discrimination on the basis of caste, creed, sex and
religion. They wanted to build a welfare nation where the social, economical, political rights
of the general person recognise. The one of the wonderful aspect of our constitution is
Fundamental rights and for the protection of these rights they provided us an independent
judiciary. According to constitution, parliament and state legislature in India have the power
to make the laws within their respective jurisdiction. This power is not absolute in nature.9

8 Supra 3, page 790

9 http://www.legalserviceindia.com/articles/thyg.htm
The constitution vests in judiciary, the power to adjudicate upon the constitutional validity
of all the laws. If a laws made by parliament or state legislature violates any provision of the
constitution, the Supreme Court has power to declare such a law invalid or ultra virus. So
the process of judicial scrutiny of legislative acts is called Judicial Review. Article 368 of
the Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document. But the Supreme Court has acted as a brake to the
legislative enthusiasm of Parliament ever since independence. With the intention of
preserving the original ideals envisioned by the constitution-makers. To Abraham Lincoln,
democracy meant a Government of the people, by the people and for the people. So in
democratic nation whenever any law passed by parliament violates any provision of
constitution or takes away any fundamental rights of the person, the Supreme Court has
right and power to strike down that law or act. According to me this jurisdiction of Supreme
Court is essential for protection of basic features of the constitution.10

10 ibid
 24TH AMENDMENT ACT, 1971:
Golaknaths case created a lot of difficulties and as a result the Parliament enacted 24th
Amendment act, 1971.
The amendment has made the following amendments:-
1. It has added a new clause (4) to Article 13 which provides that ‘nothing in this article
shall apply to any amendment of this constitution made under Article 368.’
2. It substituted a new marginal heading to Article 368 in place of old heading "Procedure
for Amendment of the Constitution" to a new heading – "Power of the Parliament to
Amend the Constitution and Procedure Therefor.”
3. It inserted a new subsection (1) in Article 368 which provides that “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.”
4. It substituted the words, “it shall be presented to the President who shall give his assent
to the Bill and thereupon” for the words “it shall be presented to the President for his
assent and upon such assent being given to the Bill.” Thus it makes it obligatory for the
President to give his assent to the Bill amending the Constitution.
5. It has added a new clause (3) to Article 368 which provides that “nothing in Article 13
shall apply to any amendment made under this Article.”

Thus this amendment not only restored the amending power of the Parliament but also
extended its scope by adding the words “to amend by way of the addition or variation or
repeal any provision of this Constitution in accordance with procedure laid down in this
Article.”11

Kesavananda Bharti V. State Of Kerela12

To the benefit of the Legislators, the 24th Amendment Act, 1971 restored and extended the
scope of power of Parliament to amend the Constitution by adding the words "amend by way
of addition or variation or repeal any provision in accordance with the provisions laid down

11 Supra 3, page 791

12 (AIR 1973 SC 1461)
in this Article" Further, the amendment provided that "Nothing in Article 13 shall apply to
any amendment made under this article" by way of an addition of Clause 3 to Article 368.

One of the various questions raised in this case was the extent of the power of the Parliament
to amend under Article 368. A 13 Judge Constitutional bench was formulated under Chief
Justice Sikri in order to evaluate the intricacies of Golaknaths case. The Supreme Court
overruled its decision in Golaknaths case and held that even before the 24th Amendment,
Article 368 contained power as well as procedure for amendment. The majority held that there
are inherent limitations on the amending power of the Parliament and Article 368 does not
confer power so as to destroy the Basic Structure of the Constitution.13

13 http://www.legalserviceindia.com/article/l19-Amendability-Of-Indian-Constitution.html
 BASIC STRUCTURE
The question whether fundamental rights can be amended under article 368 came for
consideration in the Supreme Court in Shankari Prasad case.[3] in this case validity of
constitution (1st amendment) act, 1951 which inserted inter alia , articles 31-A and 31-B of
the constitution was challenged. The amendment was challenged on the ground that it
abridges the rights conferred by part III and hence was void. The Supreme Court however
rejected the above argument and held that power to amend including the fundamental rights
is contained in Article 368and the same view was taken by court in Sajjan Singh case.
In Golak Nath case, the validity of 17th Amendment which inserted certain acts in Ninth
Schedule was again challenged. The Supreme Court ruled the parliament had no power to
amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and
Sajjan Singh case. In order to remove difficulties created by the decision of SC in Golak Nath
case parliament enacted the 24th Amendment act.14

The Supreme Court recognised BASIC STRUCTURE concept for the first time in the historic
Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter
of the Constitution and the arbiter of all amendments made by parliament. In this case validity
of the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth
Amendments. The court by majority overruled the Golak Nath case which denied parliament
the power to amend fundamental rights of the citizens. The majority held that article 368 even
before the 24th Amendment contained the power as well as the procedure of amendment. The
Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure
or framework of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure'
or framework of the constitution. This decision is not just a landmark in the evolution of
constitutional law, but a turning point in constitutional history.15

Basic Features of the Constitution according to the Kesavananda verdict each judge laid out
separately, what he thought were the basic or essential features of the Constitution.The Theory
of basic structure very effectively proved to be a limitation on the amending power of the

14 http://www.legalserviceindia.com/articles/thyg.htm
15 Ibid
Parliament. The Basic Structure doctrine applies only to the Constitutionality of amendments
and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution
and not just its basic structure.
Chief Justice Sikri indicated that Basic structure is:
1. The supremacy of Constitution
2. The republican and democratic forms of government
3. The secular character of Constitution
4. Maintenance of separation of power
5. The federal character of the Constitution

Justices Shelat and Grover added another three:

1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country'

Justices Hegde and Mukherjea listed the following:

1. The Sovereignty of India
2. The unity of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare state

Justice Jaganmohan Reddy referred the Preamble only:

1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship
4. Equality of status and opportunity
He said that the Constitution would not be itself without the fundamental freedoms and the
directive principles. 16

16 Ibid 13
Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and
Kesavananda Bharati, expressed the view: "The existence of a remote judicial control may
only act as a brake against hasty and unreasonable legislative and executive action and as a
form of guarantee to the public against instability. The stability of the Constitution stabilises
the State."

Basic Structure concept reaffirmed- the Indira Gandhi Election case

In Indira Gandhi v. Raj Narayan17, the Supreme Court applied the theory of basic structure
and struck down cl.(4) of article 329-A, which was inserted by the 39th Amendment in 1975
on the ground that it was beyond the amending power of the parliament as it destroyed the "
basic feature" of the constitution. The amendment was made to the jurisdiction of all courts
including SC, over disputes relating to elections involving the Prime Minister of India.

Basic Features of the Constitution according to the Election case verdict Again, each judge
expressed views about what amounts to the basic structure of the Constitution:
Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
# Sovereign democratic republic status
# Equality of status and opportunity of an individual
# Secularism and freedom of conscience and religion
# 'government of laws and not of men' i.e. the rule of law

17 AIR 1975 SC 2299

 42nd Amendment Act, 1976 and Article 368
42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added
clause 4 and clause 5 to Article 368.
Article 368(4) provided that no Constitutional Amendment shall be called in any court on any
ground.
Article 368(5) provided that there shall be no limitation whatsoever on the constituent power
of the Parliament.

Minerva Mills V. Union of India18

Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd
amendment. Justification for the deletion of the said clauses was based on the destruction of
Basic Structure. The Court was satisfied that 368 (4) and (5) clearly destroyed the Basic
Structure as it gave the Parliament absolute power to amend Constitution. Limitation on the
amending power of the Parliament is a part of the Basic Structure explained in Kesavanandas
case.

S. P. Sampath Kumar V. Union Of India19

The Constitutional validity of Article 323A and the provisions of the Administrative
Tribunals Act was challenged on the ground that it excluded the jurisdiction of High Court
under Article 226 and 227. Supreme Court held that Article 323A and Administrative
Tribunals Act was valid as it has not excluded Judicial Review under Article 32 and 136. It
was not proved beyond reasonable doubt that Article 323A and Administrative Tribunals Act
destroyed the basic structure and the Court upheld their validity.

L. Chandra Kumar V. Union Of India20

The Supreme Court struck down clause 2(d)of Article 323A and clause 3(d) of Article 323B
as they excluded the jurisdiction of High court under Article 226 and 227 as well as
jurisdiction of Supreme Court under Article 32 as they damage the power of Judicial Review
which is a basic feature of Constitution.

18 (AIR 1980 SC 1789)

19 (AIR 1987 SC 386)
20
(AIR 1997 SC 1125)
 CONCLUSION
Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different
judge keep different views regarding to theory of basis structure. But at one point they have
similar view that parliament has no power to destroy, alter, or emasculate the 'basic structure'
or framework of the constitution. "If the historical background, the preamble, the entire
scheme of the constitution and the relevant provisions thereof including article 368 are kept
in mind then there can be no difficulty, in determining what are the basic elements of the basic
structure of the constitution. These words apply with greater force to doctrine of the basic
structure, because, the federal and democratic structure of the constitution, the separation of
powers, the secular character of our state are very much more definite than either negligence
or natural justice."[12].So for the protection of welfare state, fundamental rights, Unity and
integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression,
belief, faith and worship, interpretation of judiciary is mandatory. We can say none is above
constitution even parliament and judiciary.

The final word on the issue of Amendability can be related to Basic Structure defined in
Kesavananda Bhartis case. To name a few Minerva Mills case, S. P. Sampath Kumars case
and L. Chandra Kumars case are well based on the principle of Basic Structure and this
situation is unlikely to change in the near future. It is clear that all laws and constitutional
amendments are now subject to judicial review and laws that transgress the basic structure
are likely to be struck down by the Supreme Court. In essence Parliament's power to amend
the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter
of all constitutional amendments.