Write a short essay on Amendment of the Indian Constitution.

The Constitution of India, though a document of tremendous detail and rigidity in parts, was deliberately equipped by its framers with a mechanism, Article 368, allowing it to grow and adapt with changing times, and the story of this amending power, from its early treatment as an almost unlimited constituent authority to its eventual subordination to the basic structure doctrine, represents one of the most significant chapters in the evolution of Indian constitutional law.

The Constitutional Text: 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. Article 368(2) provides that an amendment may be initiated only by the introduction of a Bill for that purpose in either House of Parliament, and when the Bill is 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 present and voting, it shall be presented to the President, who is constitutionally bound to give his assent, whereupon the Constitution stands amended in accordance with the terms of the Bill. The proviso to Article 368(2) further requires that where the amendment seeks to change certain specified provisions, namely Articles 54, 55, 73, 162, 241, or 279A, or Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or any of the Lists in the Seventh Schedule, or the representation of States in Parliament, or the provisions of Article 368 itself, the amendment must additionally be ratified by the Legislatures of not less than one-half of the States through resolutions passed to that effect, before the Bill is presented to the President for assent. Article 368(3), inserted by the Constitution (Twenty-Fourth Amendment) Act, 1971, clarifies that nothing in Article 13 shall apply to any amendment made under this Article, an insertion made specifically to overcome the difficulty created by an earlier judicial pronouncement discussed below.

Three Categories of Constitutional Change

Not every change to the constitutional text requires the special procedure of Article 368, and Indian constitutional practice recognises three distinct categories of amendment.

• Certain provisions, such as the formation of new States, alteration of State boundaries or names, and the creation or abolition of Legislative Councils, may be altered by Parliament through an ordinary law passed by simple majority, and are expressly excluded from Article 368's ambit by that Article itself.

• Most provisions of the Constitution may be amended by a special majority of each House of Parliament alone, meaning a majority of the total membership of that House and a majority of not less than two-thirds of members present and voting, without any requirement of State ratification.

• Provisions touching the federal structure, such as those listed in the proviso to Article 368(2), require this same special majority in Parliament and, additionally, ratification by at least one-half of the State Legislatures, reflecting the framers' recognition that changes fundamentally altering Centre-State relations should not rest on the will of Parliament alone.

The Judicial Evolution: From Unlimited Power to the Basic Structure Doctrine

The scope of Parliament's amending power under Article 368 has been shaped through a sequence of landmark Supreme Court decisions that progressively narrowed what was initially understood as an almost boundless constituent authority.

In Sri Sankari Prasad Singh Deo v. Union of India, the Supreme Court held that the word "law" in Article 13(2), which renders void any law that abridges or takes away fundamental rights, does not include a constitutional amendment made under Article 368, since an amendment represents an exercise of constituent power distinct from ordinary legislative power, and accordingly held that Parliament's power to amend the Constitution, including provisions of Part III concerning fundamental rights, was unfettered.

This position was reaffirmed in Sajjan Singh v. State of Rajasthan, where the Supreme Court, while upholding the Seventeenth Amendment, again held that Parliament possessed the authority to amend any part of the Constitution, including fundamental rights, though certain judges in that case expressed doubts about whether this power could extend so far as to alter the Constitution's basic features, a doubt that anticipated the more fundamental reconsideration that followed shortly thereafter.

In I.C. Golak Nath v. State of Punjab, the Supreme Court, by majority, reversed course, holding that the power to amend the Constitution under Article 368 was not unlimited, and that a constitutional amendment does indeed constitute "law" for the purposes of Article 13(2), meaning Parliament could not use its amending power to abridge or take away the fundamental rights guaranteed under Part III. This decision, however, applied the doctrine of prospective overruling, preserving the validity of amendments already made up to that point while restricting the scope of future amendments touching fundamental rights.

Parliament responded to Golak Nath through the Constitution (Twenty-Fourth Amendment) Act, 1971, which inserted Article 368(3), expressly declaring that Article 13 shall not apply to any amendment made under Article 368, thereby attempting to restore the position that fundamental rights could indeed be amended through the constituent power.

The matter reached its most decisive resolution in Kesavananda Bharati v. State of Kerala, where a thirteen-judge Bench, the largest ever assembled by the Supreme Court, held by a narrow majority that while Parliament possesses wide power under Article 368 to amend any provision of the Constitution, including fundamental rights, this power does not extend to altering or destroying the "basic structure" or "basic features" of the Constitution, features such as the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers between the legislature, executive, and judiciary, and the federal character of the Constitution. The Court reasoned that the word "amend" in Article 368 contemplates modification and improvement of the existing constitutional framework, not its wholesale destruction or transformation into a fundamentally different document, and that Parliament's constituent power, however wide, must operate within these implicit limits inherent in the very concept of an amendment to an existing Constitution.

The basic structure doctrine was further tested and reinforced in Indira Nehru Gandhi v. Raj Narain, where the Supreme Court struck down a clause of the Constitution (Thirty-Ninth Amendment) Act that sought to place the election of the Prime Minister beyond judicial scrutiny, holding that this violated the basic structure principle of free and fair elections, itself integral to the democratic character of the Constitution.

The doctrine received its most 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, enacted during the 1975 Emergency, which had sought to give Directive Principles of State Policy unconditional primacy over fundamental rights and had attempted to place constitutional amendments entirely beyond judicial review by inserting Article 368(4) and (5). The Court held that limited government, and the correlative power of judicial review, form part of the basic structure of the Constitution, and that Parliament's amending power, being derived from and limited by the Constitution itself, cannot be exercised to grant itself unlimited amending power, since a limited power cannot, by its own exercise, transform itself into an unlimited one. The Court famously observed that Parliament's power to amend is not a power to destroy the Constitution's identity, and that the very foundation of a controlled Constitution rests on the existence of limitations upon the amending power itself.

Illustration

Suppose Parliament, through a duly passed constitutional amendment satisfying the special majority requirement of Article 368(2), seeks to abolish judicial review of legislation entirely, on the reasoning that this would streamline governance and prevent courts from obstructing legislative policy. Applying the principles established in Kesavananda Bharati v. State of Kerala and reinforced in Minerva Mills Ltd. v. Union of India, such an amendment would be struck down, since judicial review has been recognised as forming part of the Constitution's basic structure, and no amendment, however procedurally compliant with Article 368, can validly abrogate a feature so fundamental to the constitutional scheme. Contrast this with an amendment altering the retirement age of High Court judges, or modifying the salary structure of Supreme Court judges, changes that, while significant, do not touch upon any basic feature of the Constitution and would therefore be upheld as a valid exercise of the amending power, provided the procedural requirements of Article 368 are duly satisfied.

The power of amendment under Article 368, therefore, represents a carefully calibrated instrument that has itself undergone a profound constitutional journey, from the almost unqualified authority recognised in Sri Sankari Prasad Singh Deo v. Union of India, through the corrective intervention in I.C. Golak Nath v. State of Punjab, to its enduring and most authoritative formulation in Kesavananda Bharati v. State of Kerala and Minerva Mills Ltd. v. Union of India, decisions that together ensure Parliament retains the flexibility necessary to adapt the Constitution to evolving national needs while permanently safeguarding the foundational identity, and the essential democratic, federal, and rights-protective character, of the document itself.