AMENDMENT (Article 368)

• Original Article 368 of the Indian Constitution: “Procedure for Amendment of the
Constitution” 


• Post 24th Constitutional Amendment: “Power of Parliament to amend the Constitution

and procedure therefor.” 


• Article 368(1) reads - “Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution...”.

• Procedure under Article 368:

• Introduction of a Bill in either House of Parliament

• The Bill must be 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

• Then it shall be presented to the President who shall give his assent to the Bill 


• The Proviso to Article 368(2) states that if an Amendments affects the Federal structure
of our Constitution, then in addition to the special majority above-mentioned,
ratification by resolutions passed by not less than one-half of the State is also required.

• Constituent power:

• It is the highest form of sovereign power which is exercised to enact a Constitution

and consequently establish a constitutional order in the State.

• All State laws, ordinances, proclamations, constitutional offices source their authority
and legitimacy from the “constituent power”.

• SOURCES OF CONSTITUENT POWER: 1) A sovereign body, exercising plenary

power, not restrained by any external authority; 2) The SUBJECTS [citizens +
residential non- citizens] of the State

• Constituent Power is thus Sui Generis and is related to “Constitution Making”. 


• Amending power

• It is the power of “subsequent” Parliaments to amend the constitution by way of

addition, deletion or modification. It is used to correct the imperfections in the
existing Constitutional Framework of the State.
 • The “amending power” of the Parliament, being derived from a specific article of the
Constitution, cannot by itself repeal or re-establish the parent document i.e. the
Constitution.

• U.S. Supreme Court in the landmark decision of Dodge v. Woolsey, observed that the
“amending power” power of the Parliament is merely a delegated power, through the
early exercise of “constituent power”

• Implied limitations:

• The Indian Constitution lacks any unamendable provisions. Also, Indian

jurisprudence, rooted in British tradition, initially rejected the notion of
implicit unamendability. That position, however, was revised in the 1960s and
1970s following Prime Minister Indira Gandhi’s far-reaching attempts to
amend the constitution, leading eventually to the judicial development of the
‘Basic Structure Doctrine’. According to this doctrine, the amendment power
is not unlimited; rather, it does not include the power to abrogate or change
the identity of the constitution or its basic features.

• Doctrine of implied limitations: Professor Dietrich Conrad, a German legal

scholar, opined that the amending power arises out of the existing
constitutional framework and, “howsoever verbally unlimited its power”, it
cannot repeal or change the fundamentals and essentials of the Constitution,
which in turn supports its amending authority, due to the very nature and
structure of such amending power. 


• This position is also further clarified by the Indian Supreme Court in I.R. Coelho
(Dead) by L.Rs. vs. State of Tamil Nadu, wherein it was held “The distinction
drawn by the author between making of a Constitution by a Constituent
Assembly which was not subject to restraints by any external authority as a
plenary law-making power and a power to amend the Constitution, a
derivative power -derived from the Constitution and subject to the limitations
imposed by the Constitution.” 


• Thus, there shall always exist some implied or inherent limitations of the exercise
of the Amending Power of the Parliament. 


• Sri. Sankari Prasad Singh Deo v Union of India, 1951 AIR SC 458- 5 judges

• Whether the Constitution (First Amendment) Act, 1951, which inserted, inter alia,
articles 31A and 31B in the Constitution of India is ultra vires and
unconstitutional?

• Unanimous decision:-

• Although "law" must ordinarily include Constitutional Law, there is a clear

demarcation between ordinary law, which is made in exercise of legislative
 power and constitutional law, which is made in exercise of constituent
power.

• In the absence of a clear indication to the contrary, it is difficult to suppose that

the Constituent Assembly also intended to make those Fundamental Rights
immune from constitutional amendment. That the Constituent Assembly must
have had in mind what is of more frequent occurrence, which is the invasion
of the rights of the subjects by the legislative and the executive organs of the
State by means of laws and rules made in exercise of their legislative power
and not the abridgment or nullification of such rights by alterations of the
Constitution itself in exercise of sovereign constituent power. That power,
though it has been entrusted to Parliament, has been so hedged about with
restrictions that its exercise must be difficult and rare.

• The terms of Article 368 are perfectly general and empower Parliament to
amend the Constitution, without any exception whatever. Had it been
intended to save the fundamental right from the operation of that provision, it
would have been perfectly easy to make that intention clear by adding a
proviso to that.

• In the context of Article 13, "law" must be taken to mean rules or regulations
made in exercise of ordinary legislative power and not amendments to the
Constitution made in exercise of constituent power, with the result that Article
13(2) does amendments made under article 368.

• Fourth judges case (NJAC Case)(2016): 5 judges- 4:1

• Whether the NJAC Act (2014) and The Constitution (Ninety-Ninth)

Amendment Act (2014) were valid?

• The majority of the Judges had held that NJAC Act (2014) and the
Constitution (Ninety-Nineth) Amendment Act (2014) abrogated the basic
features of ‘independence of judiciary’, ‘primacy of judiciary over judicial
appointments’, ‘separation of powers’ and ‘rule of law’.

• Dissenting opinion:

• However, Chelameswar J. who was the sole dissenting judge did not go
into the validity of the NJAC Act as a whole. He raised questions
regarding the “Basic Structure” and “Basic Feature” Doctrine. He stated
that to decide the correctness of the submission, it is necessary:- (1) To
identify the ratio decidendi of Bharati case where the theory of "basic
structure" and "basic features" originated. (2) Whether the expressions
"basic features" and "basic structure" of the Constitution are synonyms
or do they convey different ideas or concepts? If so, what are the ideas
they convey? (3) Have they been clearly identified by earlier decisions
of this Court? (4) Are there any principles of law laid down by this
Court to identify the basic features of the Constitution? (5) If the two
expressions "basic features" and "basic structure" mean two different
things, is it the destruction of any one of them which renders any
 Constitutional amendment void or should such an amendment be
destructive of both of them to become void? (6) When can a
Constitutional Amendment be said to destroy or abrogate either a "basic
feature" of the Constitution or the "basic structure" of the Constitution?
It is not very clear from Bharati case whether the expression basic
structure, basic features and essential elements convey the same idea or
different ideas. Therefore, it is necessary to examine some decisions
where the legality of the constitutional amendments was considered by
this Court subsequent to Bharati case.

• He stated that an analysis of the judgments of the abovementioned cases

commencing from Bharati case yields the following propositions: (i)
Article 368 enables the Parliament to amend any provision of the
Constitution; (ii) The power Under Article 368 however does not enable
the Parliament to destroy the basic structure of the Constitution; (iii)
None of the cases referred to above specified or declared what is the
basic structure of the Constitution; (iv) The expressions "basic
structure" and "basic features" convey different ideas though some of
the learned Judges used those expressions interchangeably. (v) The basic
structure of the Constitution is the sum total of the basic features of the
Constitution;

(vi) Some of the basic features identified so far by this Court are
democracy, secularism, equality of status, independence of judiciary,
judicial review and some of the fundamental rights; (vii) The abrogation
of any one of the basic features results normally in the destruction of the
basic structure of the Constitution subject to some exceptions; (viii) As
to when the abrogation of a particular basic feature can be said to
destroy the basic structure of the Constitution depends upon the nature
of the basic feature sought to be amended and the context of the
amendment. There is no universally applicable test visà-vis all the basic
features.

• APPLICATION OF BASIC STRUCTURE/ FURTHER INTERPRETATION OF

BASIC STRUCTURE

• In his book, Democracy and Constitutionalism, Krishnaswamy concludes that 1)

basic features are not general constitutional rules which must be ‘basic’ or central to
the integrity of every constitutional document but only those which are central to the
Indian Constitution. 2)Second, identifying basic features is not about finding the best
general constitutional rules by which Indian Constitutional law may be organized but
identifying the general constitutional rules which provide the foundations for our
constitutional provisions, however imperfect such principles may be.

• There were two key elements to Chief Justice Chandrachud’s proposal for
identifying basic features of the Constitution.

• First, basic features must be identified in each individual case.—identification

of basic features of the Indian constitution is judicially managed it will develop
as constitutional common law rather than through any codifying technique.
 • a substantive restriction on the general constitutional rules which may be identified
as basic features of the Constitution. Basic features are those principles which are
central to the ‘integrity of the Constitution.’

• Justice Sikri – Kesavananda Bharati - attempted to provide a closed, fixed catalogue

of basic features.

• Justice Matthew – in Minerva Mills - pointed out that for a principle to be part of
the basic structure it must be a terrestrial concept having its habitat within the four
corners of the Constitution, and not an abstract principle above it.

• Justice Mudholkar – in Sajjan Singh – suggested that the preamble was what
appeared to be the epitome of the basic features of the Constitution.
• CRITICISMS OR DEBATES ON BASIC STRUCTURE

• Mathew J.’s Holmes-ian observation in Indira Nehru Gandhi v. Raj Narain, denying
that the basic structure was some “brooding omnipresence in the sky“.

• The basic argument about the doctrine of basic structure can be stated as: the basic
structure cannot – by definition – ignore any constitutional provision; rather, it is the
combination of all the individual clauses that provide us with our architectonic basic
structure. However, the question arises: why structural unity at all? Professor John
Manning argues that imposing structural unity upon a Constitution (or a statute)
could often amount to an interpretive betrayal by failing to respect the numerous
compromises and bargains that went into producing the patchwork statute that
eventually passes the all-important parliamentary vote.

• Debate between Doctrine of implied limitations: Professor Dietrich Conrad v. H.R.

Khanna’s idea of Inherent limitations:-

• Inherent limitations (HR Khanna):- Justice Khanna proceeded with the belief
that the amending power is not subject to any implied limitations; however, it
is subject to certain inherent limitations flowing from the basic structure of the
constitution. He reasoned that the theory of implied limitations has its roots in
political theory based on a doctrinal approach and is ill suited for the
interpretation of amending power in our Constitution. The learned judge also
brushed aside the invocation of limitations based on any higher values outside the
provisions of the Constitution. He located the basic structure within the four
corners of the text of the Constitution by interpreting the word : “amendment”.
He further held that amendments are not par with original provisions of the
Constitution on the assumption that while the former derive their power from the
‘derivative amending power’ while the latter derives its powers from the ‘original
constituent power’

• Debate: implied limitations means that the constitution has a basic structure
within it (like maybe the preamble, the FRs) and any amendment (which we
assume comes from outside the constitutional structure) cannot penetrate this
basic structure. But H.R. Khanna, went into the dictionary meaning of the word
amend. Amend means to modify, or improve, and not change or remove. It means
that the basic structure of the constitution is inherent to it already. All
 amendments also come from within the structure of the constitution. And these
amendments are limited by the basic structure of the constitution.

• Bruce Ackerman argues against basic structure doctrine as:

• If the authority of the Constitution is ultimately derived from “We the

People”, then surely “We the People” are allowed to change Our minds

• The Constitution itself provides the mechanism by which We the People

can change Our minds – the super majoritarian amendment procedure

• If the Constitution is indeed the creation of ‘we the people’, what on earth
justifies the judges in denying to the people the right to change their
minds, through the very procedure they wrote into the Constitution to do just
that, even if it is to make mutable the principles they once considered
immutable?

• Ackerman argues that lawmaking occurs at different levels of public

engagement and participation

• And with degrees of legitimacy accorded to each level depending upon the
nature of participation.

• Other Criticisms of basic structure:

• No textual basis

• Obstruction to constitutional reform

• The doctrine of basic structure provides a wide scope for the legislature
to operate, and limited the scope of judicial interference

• S. P. Sathe argues that vague nature of the doctrine could lead to

changes in aspects such as democracy and secularism

• Criticism based on the refusal of the Supreme Court to come forth with
an exhaustive list of basic features. However, with changes in the
constitution the basic structure could also change