State the procedure according to which the Constitution of India can be amended. Can the Constitution be destroyed as to destroy its basic features? Explain with reference to the view of the Supreme Court.

The Procedure Under Article 368

Article 368(1) provides that Parliament may, in exercise of its constituent power, amend by way of addition, variation, or repeal any provision of the Constitution in accordance with the procedure laid down in this Article. The procedure itself, set out in Article 368(2), unfolds through several defined stages.

• Initiation: An amendment can be initiated only by the introduction of a Bill for that purpose in either House of Parliament, whether by a Minister or by a private member, and does not require the President's prior permission, unlike ordinary money bills.

• Passage in Parliament: The Bill must be passed in each House by a special majority, meaning a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting. Each House must pass the Bill separately, and no provision exists for a joint sitting in case of disagreement between the two Houses, unlike the procedure for ordinary legislation under Article 108.

• Ratification by States, where applicable: Where the amendment seeks to change any of the provisions specified in the proviso to Article 368(2), namely Articles 54, 55, 73, 162, 241, or 279A, Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, any of the Lists in the Seventh Schedule, the representation of States in Parliament, or Article 368 itself, the amendment must additionally be ratified by the Legislatures of not less than one-half of the States, through resolutions passed by a simple majority of members present and voting, before the Bill is presented to the President. No fixed time limit exists for such ratification, though it must be completed before presidential assent is sought.

• Presidential Assent: Once passed by both Houses and, where necessary, ratified by the required number of States, the Bill is presented to the President, who is constitutionally bound under Article 368(2) to give his assent, since the President possesses no discretion to withhold assent or return the Bill for reconsideration in the case of a constitutional amendment, unlike his powers concerning ordinary legislation under Article 111.

• Effect: Upon receiving presidential assent, the Constitution stands amended in accordance with the terms of the Bill, and the amendment is thereafter notified and takes effect as part of the constitutional text itself.

Constitutional provisions, for this purpose, fall into three broad categories: those that can be amended by Parliament through an ordinary law passed by simple majority, entirely outside Article 368, such as provisions concerning the formation of new States or alteration of State boundaries; those requiring the special majority described above but no State ratification, covering the great majority of constitutional provisions; and those requiring both the special majority and ratification by half the States, reserved for provisions touching the federal structure and Centre-State relations.

Can the Constitution Be Amended to Destroy Its Basic Features

The question of whether this amending power is subject to any implied limitation, beyond the express procedural requirements of Article 368, occupied the Supreme Court through a sequence of decisions that progressively shaped what is now known as the basic structure doctrine.

In Sri Sankari Prasad Singh Deo v. Union of India, the Supreme Court held that a constitutional amendment made under Article 368 does not constitute "law" within the meaning of Article 13(2), and accordingly Parliament's power to amend any part of the Constitution, including fundamental rights, was treated as unrestricted, since the amending power was viewed as an exercise of constituent power fundamentally different in character from ordinary legislative power. This position was substantially reaffirmed in Sajjan Singh v. State of Rajasthan, though certain judges in that decision expressed early doubts about whether Parliament's amending power could extend so far as to alter the Constitution's essential features.

The Supreme Court reconsidered this position in I.C. Golak Nath v. State of Punjab, holding by majority that a constitutional amendment does indeed amount to "law" for the purposes of Article 13(2), and that Parliament's amending power could not, therefore, be used to abridge or take away the fundamental rights guaranteed under Part III, though the Court applied prospective overruling to preserve the validity of amendments already made. Parliament responded through the Constitution (Twenty-Fourth Amendment) Act, 1971, inserting Article 368(3), which expressly excludes the application of Article 13 to any amendment made under Article 368, thereby attempting to restore Parliament's unrestricted power to amend fundamental rights.

The matter was resolved most authoritatively by a thirteen-judge Bench, the largest ever constituted by the Supreme Court, in Kesavananda Bharati v. State of Kerala. The Court held, by a narrow majority, that while Parliament's power under Article 368 to amend the Constitution is exceedingly wide and extends even to fundamental rights, this power does not include the power to alter or destroy the "basic structure" or "basic features" of the Constitution. The Court reasoned that the very word "amend" in Article 368 presupposes the continued existence of the Constitution being amended, and that an amendment contemplates modification or improvement of the existing document, not its wholesale destruction or transformation into an essentially different constitutional order. The Court identified several features as forming part of this basic structure, including the supremacy of the Constitution, the sovereign, democratic, and republican character of the Indian polity, the secular character of the Constitution, the separation of powers between the legislature, executive, and judiciary, and the federal character of the Constitution, though the Court deliberately declined to provide an exhaustive or closed list, leaving the precise content of the basic structure to be determined and elaborated through subsequent cases as they arose.

Subsequent Reaffirmation of the Doctrine

The basic structure doctrine, having been established in Kesavananda Bharati, was tested and reinforced in several later decisions. In Indira Nehru Gandhi v. Raj Narain, the Supreme Court struck down a clause inserted by the Constitution (Thirty-Ninth Amendment) Act that sought to place the election of the Prime Minister and the Speaker beyond the scope of judicial scrutiny, holding that this violated the principle of free and fair elections, itself an essential component of the democratic character forming part of the basic structure.

The doctrine received its most decisive and emphatic reaffirmation in Minerva Mills Ltd. v. Union of India, where the Supreme Court struck down clauses 4 and 5 of the Constitution (Forty-Second Amendment) Act, 1976, which had sought to give Directive Principles of State Policy unconditional primacy over fundamental rights and had further attempted to insert clauses into Article 368 itself declaring that there would be no limitation whatsoever on the constituent power of Parliament to amend the Constitution, and that no amendment could be questioned in any court on any ground. The Court struck down both provisions, holding that judicial review and the concept of limited government form part of the Constitution's basic structure, and reasoning, in language that has become foundational to Indian constitutional jurisprudence, that Parliament's amending power, being itself a power derived from and limited by the Constitution, cannot be exercised to expand itself into an unlimited power, since a limited amending power cannot, through its own exercise, transform itself into an unlimited one, a proposition the Court described using the memorable image that Parliament cannot use its limited power to amend the Constitution so as to enlarge that very power into an absolute one, since doing so would be a case of the Constitution's own creature seeking to devour its creator.

Illustration

Suppose Parliament, having secured the requisite special majority under Article 368(2), and where necessary the ratification of the required number of State Legislatures, passes an amendment converting India from a democratic republic into a one-party state in which no other political party may contest elections, or alternatively, an amendment abolishing the power of judicial review altogether so that no court may examine the validity of any legislative or executive action. Applying the reasoning of Kesavananda Bharati v. State of Kerala and Minerva Mills Ltd. v. Union of India, both amendments, despite fully satisfying the procedural requirements of Article 368, would be struck down as unconstitutional, since they would destroy the democratic character of the polity and the principle of judicial review, both recognised as forming part of the Constitution's basic structure. Contrast this with an amendment altering the composition or size of the Rajya Sabha within reasonable limits, or modifying provisions governing the retirement age or emoluments of judges; such amendments, not touching any basic feature, would be validly enacted and would withstand judicial scrutiny even under the basic structure doctrine.

The Constitution of India, therefore, can be amended strictly in accordance with the procedure laid down in Article 368, involving initiation, special majority passage, State ratification where applicable, and mandatory presidential assent, but this procedural compliance alone does not render every amendment immune from challenge, since the Supreme Court, beginning with the historic pronouncement in Kesavananda Bharati v. State of Kerala and reinforced decisively in Minerva Mills Ltd. v. Union of India, has firmly established that Parliament's constituent power, however extensive, cannot be exercised to destroy the basic structure or essential identity of the Constitution, a principle that ensures the amending power remains a tool for the Constitution's growth and adaptation rather than an instrument for its own annihilation.