Write note on Article 368 and the Supreme Court of India.

The Text of Article 368

Article 368(1) provides that, notwithstanding anything in the Constitution, 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) sets out the operative procedure, requiring an amendment to be initiated only through a Bill introduced in either House of Parliament, passed in each House by a majority of the total membership of that House and a majority of not less than two-thirds of the members present and voting, and thereafter presented to the President, who is bound to give his assent, whereupon the Constitution stands amended in accordance with the Bill's terms. The proviso to Article 368(2) requires that amendments touching specified federally significant provisions, such as Articles 54, 55, 73, 162, 241, or 279A, Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI, the Lists in the Seventh Schedule, the representation of States in Parliament, or Article 368 itself, must additionally be ratified by the Legislatures of not less than one-half of the States before presidential assent is sought. Article 368(3), inserted by the Constitution (Twenty-Fourth Amendment) Act, 1971, provides that nothing in Article 13 shall apply to any amendment made under this Article.

The Supreme Court's Engagement: An Evolving Relationship

The Supreme Court's relationship with Article 368 has unfolded through a sequence of decisions in which the Court progressively defined, contracted, and ultimately settled the outer boundaries of Parliament's amending power, a relationship that can be understood as moving through three distinct phases.

Phase One: Recognition of an Unfettered Power

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 abridging fundamental rights, does not include a constitutional amendment made under Article 368, since such an amendment represents an exercise of constituent power distinct from ordinary legislative power. The Court accordingly upheld Parliament's amending power as extending even to fundamental rights, without any implied limitation. This position was substantially reaffirmed in Sajjan Singh v. State of Rajasthan, where the Court again upheld Parliament's wide amending authority, though certain judges in that decision voiced early reservations about whether this power could extend to altering the Constitution's most essential features, planting the seed for the doctrinal shift that followed.

Phase Two: The Golak Nath Reversal

In I.C. Golak Nath v. State of Punjab, the Supreme Court, by majority, departed from its earlier position, holding that a constitutional amendment does constitute "law" within the meaning of Article 13(2), and that Parliament could not, therefore, use Article 368 to abridge or take away fundamental rights guaranteed under Part III. The Court applied the doctrine of prospective overruling, preserving amendments already made while restricting the scope of future amendments touching fundamental rights. Parliament responded through the Twenty-Fourth Amendment, inserting Article 368(3) to exclude Article 13's application to constitutional amendments, and characterising the amending power expressly as a "constituent power" in Article 368(1) itself, an attempt to restore the position taken in Sankari Prasad.

Phase Three: The Basic Structure Doctrine

The definitive and enduring resolution came in Kesavananda Bharati v. State of Kerala, decided by a thirteen-judge Bench, the largest ever constituted by the Supreme Court. The Court, by a narrow majority, upheld the validity of the Twenty-Fourth Amendment, thereby confirming Parliament's power to amend fundamental rights and effectively overruling Golak Nath on this specific point, but simultaneously held that this wide amending power does not extend to altering or destroying the "basic structure" or "basic features" of the Constitution. The Court reasoned that the very concept of "amendment" presupposes the continued existence and identity of the document being amended, and identified, without providing an exhaustive list, features such as the supremacy of the Constitution, the sovereign, democratic, and republican character of the polity, secularism, separation of powers, and the federal structure, as constituting this basic structure, leaving its full content to be elaborated through subsequent judicial decisions as specific challenges arose.

Testing and Reinforcing the Doctrine

The Supreme Court's relationship with Article 368 continued to develop through subsequent decisions that tested the basic structure doctrine against fresh legislative attempts to expand or circumvent it. In Indira Nehru Gandhi v. Raj Narain, the Court struck down a clause of the Constitution (Thirty-Ninth Amendment) Act seeking to place the election of the Prime Minister beyond judicial scrutiny, holding that free and fair elections form part of the basic structure's democratic character.

The most significant subsequent confrontation arose in Minerva Mills Ltd. v. Union of India, concerning the Constitution (Forty-Second Amendment) Act, 1976, which had inserted clauses (4) and (5) into Article 368, seeking respectively to place all constitutional amendments beyond judicial review and to declare Parliament's amending power entirely unlimited. The Supreme Court struck down both clauses, holding that judicial review forms part of the basic structure, and famously reasoning that Parliament's amending power, being itself a power derived from and limited by the Constitution, cannot be used to enlarge itself into an absolute, unlimited power, since a limited amending power is itself an essential feature of a controlled Constitution.

The doctrine's continued vitality was further confirmed in L. Chandra Kumar v. Union of India, where a seven-judge Bench held that the power of judicial review vested in the High Courts under Article 226 and the Supreme Court under Article 32 forms part of the basic structure and cannot be excluded even by constitutional amendment, reinforcing that certain institutional safeguards remain permanently beyond the reach of Article 368. Similarly, in I.R. Coelho v. State of Tamil Nadu, the Supreme Court held that laws placed in the Ninth Schedule, ordinarily immune from challenge under Articles 14, 19, and 21 by virtue of Article 31B, would nonetheless be subject to basic structure scrutiny if enacted after the date of the Kesavananda Bharati judgment, thereby extending the doctrine's reach even to legislation nominally protected by constitutional amendment.

Illustration

Suppose Parliament, following the full Article 368 procedure including special majority and, where necessary, State ratification, seeks to amend the Constitution to abolish the independence of the judiciary by permitting the executive to remove any judge at will, without the safeguards presently contained in Articles 124 and 217. Applying the reasoning consistently developed from Kesavananda Bharati v. State of Kerala through Minerva Mills Ltd. v. Union of India and L. Chandra Kumar v. Union of India, such an amendment, however procedurally compliant, would be struck down, since judicial independence forms an integral part of the separation of powers recognised as a basic feature of the Constitution. Contrast this with an amendment altering the number of judges in the Supreme Court, or modifying procedural details concerning the appointment process within constitutionally permissible bounds, changes that would be validly enacted since they do not touch any basic feature.

Article 368 and the Supreme Court's engagement with it, therefore, together illustrate the dynamic and ultimately settled equilibrium that now governs constitutional change in India: Parliament retains an extensive constituent power to amend virtually any provision of the Constitution, including fundamental rights, through the procedure this Article prescribes, but this power operates permanently within the outer boundary the Supreme Court articulated in Kesavananda Bharati v. State of Kerala and has consistently defended since, most notably in Minerva Mills Ltd. v. Union of India, L. Chandra Kumar v. Union of India, and I.R. Coelho v. State of Tamil Nadu, ensuring that the Constitution can evolve to meet changing national needs without ever losing the essential identity and foundational character that define it as a Constitution at all.