Power to Amend the Constitution: A Comparative Study of Article 368 and the Doctrine of Basic Structure

Abstract
The Constitution of India has been described as a living document, designed to be adapted to social, political, and economic changes through the process of amendment provided under Article 368. In this paper, the power of the Constitution to be amended by Parliament is examined, along with the judicial limitations imposed through the doctrine of basic structure, which was developed by the Supreme Court to ensure the preservation of the core principles of the Constitution. The evolution of amendment powers has been traced through landmark cases such as Shankari Prasad, Golak Nath, Kesavananda Bharati, and Minerva Mills, in which the continuing conflict between Parliament’s sovereignty and judicial review has been highlighted. The amendment procedure of India has also been compared with those of the United States, Switzerland, and Australia, through which a balance between rigidity and flexibility has been illustrated. It has been concluded that although constitutional amendments are required for progress, they must be carried out within the limits of the basic structure so that the identity and spirit of the Constitution may be preserved.

Keywords:
Constitutional Amendment, Article 368, Basic Structure Doctrine, Judicial Review, Constitutional Supremacy, Separation of Powers, and Rigidity, Kesavananda Bharati Case.

Introduction
Aristotle father of political science said that “law is salvation of rather than the slavery.” A country who claims the sovereign needs its own constitution which regulates the administrative function of country. Accordingly, our constituent assembly 1946 formed under the program of cabinet mission plan to draft the constitution of India. Our constitution was adopted and enacted on 26 November 1949 and came into force on 26 January 1950.

It took 2 years,11-month ,18 days to draft our constitution. Our constitution is the world’s largest written constitution, originally it had 395 articles ,22 parts ,8 schedule. Today it has 448 articles, 25 parts and 12 schedules. Our constitution has borrowed best features from different constitutions. Our constituent makers ambition was to make a constitution which was neither extremely rigid nor so flexible, the inspiration for the same was taken from South Africa.

Objective of the paper
A country’s objective and goal are reflected in their constitution, which provides basic rights of human. Fundamental rights are protected by judiciary and amendment power of constitution is amend the fundamental right but cannot amend the basic structure of constitution, this doctrine comes by the help of supreme court. Protector of our fundamental right is supreme court. This article is very helpful to understand the evolution of basic structure.

Process Of Amendment –

Article 368, 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.

An amendment of this constitution may be initiated only by the introduction of a bill for the 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 not less than two thirds of the members of that house present and voting, it shall be present to the president who shall give his assent to the bill and thereupon the constitution shall stand amended in accordance with the terms of the bill.

The amendment shall also require to be ratified by the legislatures of not less than one half of the states by resolution to that effect passed by those legislatures before the bill making provision for such amendment is presented to the president for assent.

Nothing in article 13 shall apply to any amendment made under this article. No amendment of this constitution including the provision of part 3 made or purporting to have been made under this article whether before or after the commencement of section 55 of the constitution forty second amendment Act 1976 shall be called in question in any court on any ground. For removal of doubts, it is here by declare that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal the provision of this constitution under this article.

Development Of Article 368

• IN 1971 ARTICLE 368 –
By the (twenty fourth amendment) Act, 19713 clause (1) and clause (3) were introduced in this article, and the original article rearrange as clause ( 2) In this article.

• Parliament may in exercise of its constitution power amend by way of addition, variation and repeal any provision of this constitution in accordance with the procedure laid down in this article.
• Stated as nothing in article 13 shall apply to any amendment made under this article.

• ARTICLE 368 IN 1976 –
By the constitution (forty second amendment) Act 19764 clause (4) and clause (5) inserted in our constitution

 No amendment of this constitution including the provision of part 3 made or purporting to have been made under this article whether before or after the commencement of section 55 of the constitution forty second amendment Act 1976 shall be called in question in any court on any ground.

For removal of doubts, it is here by declare that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal the provision of this constitution under this article.

Dispute Between Supreme Court And Parliament-
In Shankari Prasad vs. Union of India , court held that parliament has power to amend the constitution and article 13(3) does not include the amendment. Power to amend constitution including fundamental rights, was given in article 368. Basically, Shankari Prasad case was concerned with first constitutional amendment act, 1951. After this event several amendments were made under this constitution and especially fourth and seventh constitutional amendments related with the fundamental right.

In Sajjan Singh vs. State of Rajasthan , same thing again mentioned by supreme court, held that fundamental right can be amended. Golak Nath vs. State of Punjab, supreme court however overruled the Sankari Prasad case and held that term ‘Law’ in article 13 include the amendment of the constitution under article 368. It means parliament has no power to amend the fundamental right; there is prohibition under article 13,

24th Constitutional Amendment Act, 19719-

To suppress the effect of Golak Nath case Government enacted 24th constitutional amendment act 1971 and inserted clause (4) in article 13 that ‘Law’ does not apply to amendment in article 368 and also inserted clause (3) in article 368 same thing as earlier discus, that Law does not include Amendment. So, the restriction mention article 13(2) has no effect on amendment.

In Kesavananda Bharati vs. State of Kerla, The petitioners had challenged the validity of Kerla reform Act, 1963. The petitioners were permitted to challenge the Twenty fourth and twenty fifth and twenty nineth Amendment of constitution also.

Question involved what extent of amending power was conferred to the parliament in under article 368. On be half of Union of India claimed that amending power conferred in article 368 was unlimited. And the other hand petitioner contended that amending power is broad and wide and broad but not unlimited.

The court by majority overruled the Golak Nath’s case which conferred that parliament cannot amend the fundamental rights of citizens. The Supreme Court held that parliament could amend any provision of constitution including fundamental rights. But Supreme court gives doctrine of basic structure which cannot be altered by amendment in article 368. The basic structure of constitution means that certain identity of constitution which maintains its dignity that cannot be altered, certain identity and some basic principles contained in our constitution like equality, secularism and judicial review etc.

Again, the parliament reacted to this judicially discovering doctrine of basic structure by enacting the 42nd amendment 1976.

42nd Constitutional Amendment Act 197611 –

This Act amend article 368 and declared that there is not any limitation on constituent amending power of parliament under article 368 and no amendment can be questioned in any court including the fundamental right as well.

However, in Minerva Mills vs. Union of India  Supreme court invalidated the amendment in the constitution because it excluded the power of judicial review which is the part of basic structure of the constitution. Limited amending power is one of the basic structures and limitation cannot be converted into limited to unlimited power.

In Woman Rao vs. Union of India the Supreme Court held that all the amendment which were taken before April 24. 1973 (i.e., the date on which judgement of Kesvanand Bharati was delivered) including those by which the ninth schedule to the constitution was amended from time to time were valid and constitutional. But amendment to the constitution made after that date the ninth schedule was left to open to challenge on behalf that the constitutional amendment power is beyond the parliament reason is that it affects the basic structure of constitution.

Comparison Of Indian Constitutional Amendment With Other Countries-

Procedure to amend constitutional provision in conformity with federal principle. The procedure to amend the constitution is, however, not so difficult as in America or Australia. The difficult amendment process is followed by America and Australia and Switzerland.
Our constitution is dynamic in nature and what we perform today may not perform tomorrow because our constitution is not static, it is keep changing and adoptive in nature. Our constitution nature is adoptive and developmental to adopt economic and social development. The process of constitutional amendment in India is flexible under article 368 but with limitation to doctrine of basic structure which protected some basic principle from being changed.

Comparative study of United States and India

America is a democratic country, and it is world oldest democratic country, they had prepared it in 1789. It is the first written constitution in world history, that established a national framework, and it is still in effect. Although India was an English colony until 1947, Indian constitution had come in effect 1950. Even though the United Kingdom is a democratic country, the king is the supreme of state, Besides, the UK constitution is different from the United States and India because it is still not compiled.

Amendment Procedure of Us Constitution-

Amendments to the US constitution are permitted under article V of the constitution which makes unique features of their constitution and also essential role within their country. Article V: “congress shall propose amendments to this Constitution whenever two-thirds of the two houses deem appropriate or shall call for a Bill to Legislative Amendments to two thirds of the various States.”

The article provides that the constitution can be amended either through.
a) An act of Congress (parliament)
b) A national constitutional convention.15

The amendments process in united states of America follows this path
(1) Proposal by Congress
(2) Submission to States
(3) Ratification

Two thirds vote required from both the house. Also, unlike in India and United Kingdom, proposed amendment is not sent to the president it sends to the provincial states after it has been approved. By state legislatures three fourths votes of their states must approve for amendment. Or by state conventions in which three-fourths of state held conventions to approve the amendment, this is the most common method.

Provincial legislatures play a significant role in changing the Constitution in United States, and United States congress is not fully empowered. President of United States has no important role to enjoy in constitutional amendment.

In India and United Kingdom, every amendment passed by parliament is send to the president for his approval. If the is approval granted by the president, then amendment becomes part of the constitution but in united states amendment become part of the constitution only if it is approved by the provincial states of its required numbered that is three-fourth.

Comparative study of Switzerland and India-

The Swiss constitution globally known for its commitment to direct democracy. Their citizens have also right that they may challenge any new legal provision by way of popular referendum. And also, one more important thing, citizens might initiate a process of constitutional amendment by simply gaining required number of signatures in support of a proposal.

Amendment In Switzerland—

Constitutional amendment, under the Swiss Constitution, may be requested by the people or decreed by the Federal Assembly.17 They may have the form of general proposal or a specific draft of the provision proposed.18 A specific draft requires only one popular vote to become constitutional law and mitigation through parliamentary drafting is excluded. Hence, initiatives are overwhelmingly submitted as specific drafts. Any constitutional amendment proposal is firstly submitted to federal chancellery. It can be rejected only if title is misguiding, subject to possible appeal to the Swiss supreme court.
The text which is going to be proposed in amendment will be published in the Federal Gazette, triggering the time limit of eighteen months to gather 100,000 signatures19. This is relatively undemanding requirement to meet 100,00 signatures represent less than 2 percent of Swiss voters, and signature collecting is often led by well-organized interest groups.20 Valid initiative are then submitted to parliament with recommendations. Parliament is required to assess an initiative’s validity within two and a half years. A valid initiative is then submitted to popular vote.

To be adopted a proposal must receive double majority support both nationwide and from voters in majority of cantons. The perquisites for adaptation are identical for amendments from the parliament, as well as for partial and total revision of constitution.

In the case of a counter proposal from parliament, voters decided separately on both amendments, and in case both being adopted, voters are asked a tie break question in the same ballot. Voting material accompanied by governmental recommendation that must fairly include the argument of initiative’s sponsor.

‘In Switzerland, amendments required the consent and permission of the people via referendum coupled with a federal majority. This makes constitution of Switzerland highly rigid, in contrast with India’s partly flexible and partly rigid character under Article 368’.

‘Switzerland is the epitome of rigidity, as any constitutional change requires both cantonal assent and a democratic referendum. The Indian Constitution purposefully eschewed such severe rigidity in favor of a graduated amending process.’

‘The Indian Constitution take stand halfway between rigidity and flexibility contrast Switzerland, where no constitutional amendment is achievable in the absence of referendum and consent of majority of the cantons, India has stay away from such rigidity.’

Comparative study of Australia and India-

The process of amending the Constitution in ‘Australia’ involves the following steps:

• Parliament passed proposed law to amend the Constitution, it’s required to pass by an absolute majority of each House of the Federal Parliament. In less than two to six months after its passage by parliament a drafted law is to be submitted to electoral. In special condition, a proposed amendment can begin with a referendum if it is passed by only one House of Parliament on two different occasions.
• The Governor General issues a writ for submission of proposed law to the electors to be voted on in a referendum. Yes/No Pamphlet, official pamphlet holds arguments ‘for’ and ‘against’ the proposed law might be put to voters. The electoral commissioner is in need of to post such pamphlet to the household of each elector if the commissioner is delivered with ‘for’ and ‘against’ arguments approve by majority of members of parliament who voted ‘for’ and ‘against’ the proposed law, respectively.
• After the proposed law approved by parliament, the Commissioner must collect all ‘for’ and ‘against’ argument in less than four weeks. The commissioner must post pamphlets at least 14 days before the referendum voting day if they collect cause ‘for’ and ‘against’ the proposal.
  Voting Day- on the day of referendum in which voting would be going on than the qualified voters are given a ballot paper on which they can show their support or opposition to the proposed amendment question.

Indian constitutional amendment process is special majority in both house of parliament and simple majority in half of the state’s legislative assembly, that’s called partly rigid and partly flexible. But Australian amendment procedure section 128 is highly rigid cause it needed of the double special majority in referendum (national majority + majority in states), but if we talk about the article 368 was design to more flexible that it can be change some provision of constitution if it Is necessary for social and political reform.

The Australian requirement of a referendum warranties a federal balance because revision must be accepted by the majority of states in incorporation to the federal government. For the reason of that, the process is extremely harsh but state protective. Hardly any amendments have been successful due to the difficulty of acquiring double majority.

The Indian process under Article 368 is more effective achievable than the Australian one because it does not insist on straight to the people’s approval through referenda. Instead, it provides a role to state only in amendments affecting the federal system. Thus, India is less rigid than Australian but until now deliver constitutional protection through extra special majorities and state ratification where required.

AND DEMERITS OF THE AMENDING MERITS CONSTITUTION
The merits of amending the constitution include:

•  It will help in out the natural selection and advancement of law with the change in needs and time.
•  It will provide aid in the removal of unclear and unnecessary laws
• It will help in the inclusion of new provisions which might not have been necessary to be approved during the time of the creation of the constitution.
• It averts internal revolts and aggression by making timely laws.
•  Assist in proceeding with quick and rapid decisions.
  The demerits of amending the constitution include:
• It builds constitution highly instable
• The constitution may become a puppet of the ruling government.
• The fundamental rights can be breach but cannot infringe basic structure
• The doctrine of constitutional supremacy may come in danger or lose its identity
• It may result in democracy converting into tyranny

CONLUSION-
We can conclude that, although United States and Switzerland and Australia and India all are democratic countries, their mechanism, laws, and amendments are quite different. In India there is no special constitutional amendment body as there in United States and Switzerland and Australia. The constitution of India can only be amended by the parliament of India.
In India the role of the state in the constitutional amendment is limited, but in united states and Australia and Switzerland the state play a key role, and article 368 gives the Indian parliament the power to amend the constitution some cases, but it also requires the approval of the at least half of the approval from the provinces, but the amendment should be in the limit within the sphere of basic structure which comes from Indian judiciary that is supreme court who is last interpreter of the law. India’s constitution is weak and flexible, on other hand, the United State, Switzerland, Australia has a strong and rigid constitution.