Article 368 Of The Indian Constitution

The Indian Constitution is a living document that has evolved with the country over the years. It contains provisions that address the diverse needs of the nation and its citizens. However, as the country grows and faces new challenges, there may be a need to modify certain provisions of the Constitution to better reflect the changing circumstances. This is where Article 368 of the Indian Constitution comes in. This article outlines the procedure for amending the Constitution and grants Parliament the power to alter any provisions of the Constitution through the process of addition, modification, or repeal.

In this blog, we will delve into the provisions of Article 368 of the Indian Constitution and explore its significance in the process of amending the Constitution of India.

What Is Article 368 Of The Indian Constitution

Provisions of Article 368 are as follows:

1. Regardless of any other provisions in the Constitution, Parliament has the authority to alter any provision of the Constitution through the process of addition, modification, or repeal, as part of its constituent power, as long as it follows the procedures outlined in this Article.
2. An amendment to the Constitution can only be proposed by introducing a bill in either the Lok Sabha (the lower house of Parliament) or the Rajya Sabha (the upper house of Parliament). For the amendment to be passed, it must receive a majority of the total membership of each house, as well as a two-thirds majority of the members present and voting in each house. Once the bill has been passed by both houses, it is presented to the President of India for their assent. Upon receiving the President’s assent, the Constitution is amended in accordance with the provisions of the bill:
   
   Providing, however, that in the event that such an amendment intends to make any modifications in— 
   
   (a) article 54, article 55, article 73, article 162, article 241, or article 279A; or
   (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or
   (c) any of the Lists specified in the Seventh Schedule; or
   (d) the representation of States in Parliament; or
   (e) the provisions of this article, 
   
   an amendment to the Constitution must also be ratified by at least half of the state legislative assemblies in India before the bill making the provisions for such amendment can be presented to the President for their assent. This involves the passage of resolutions by these state legislative assemblies supporting the amendment.
3. Any alteration made in accordance with this article is exempt from the provisions of Article 13.
4. No modification to this Constitution (including the provisions of Part III) made or ostensibly made under this article, whether before or after the effective date of section 55 of the Constitution (Forty-second Amendment) Act of 1976, shall be challenged in any court on any grounds.
5. For the avoidance of doubt, it is expressly proclaimed that the constituent power of Parliament to alter this Constitution by way of addition, variation, or repeal should not be in any manner restricted.

Note

1. Clause 3 was inserted by the 24th amendment of the Indian Constitution.
2. Clause 4 was inserted by the 42nd amendment of the Indian Constitution.

Relatable Articles:

Article 54 Of The Indian Constitution: Election of President	Article 55 Of The Indian Constitution
Article 73 Of The Indian Constitution	Article 162 Of The Indian Constitution
Article 241 Of The Indian Constitution	Article 13 Of The Indian Constitution

Why It Becomes Necessary To Amend Certain Provisions Of The Constitution Of India

There may be several reasons why it becomes necessary to amend certain provisions of the Constitution of India. Some of the common reasons include:

1. To reflect the changing needs and circumstances of the country: As the country evolves and faces new challenges, there may be a need to modify certain provisions of the Constitution to better reflect the current realities.
2. To address deficiencies or contradictions in the existing provisions: Over time, certain provisions of the Constitution may become outdated or may contradict each other. In such cases, it becomes necessary to amend the provisions to address these deficiencies.
3. To accommodate the aspirations of the people: The Constitution of India is a document that reflects the aspirations of the people. There may be a need to amend certain provisions to better align them with the aspirations of the people.
4. To resolve disputes and controversies: There may be instances where certain provisions of the Constitution give rise to disputes or controversies. In such cases, amending the provisions may be necessary to resolve these issues.

Basic Structure Doctrine

The basic structure doctrine is a principle in the Indian Constitution that holds that there are certain basic structures and principles that constitute the foundation of the Constitution. These fundamental elements are considered essential for the functioning of the Constitution and cannot be amended or altered by the government.

Some examples of the basic structures of the Constitution include free and fair elections, judicial control, the State’s federal nature, and the separation of powers. The basic structure doctrine ensures that the essential elements of the Constitution are protected and preserved and that the government cannot undermine or alter these fundamental principles through amendments.

As a result, while Parliament has the power to amend various provisions of the Constitution, it cannot repeal or alter the basic structure of the Constitution in the process. The basic structure doctrine helps to safeguard the fundamental principles of the Constitution and ensures that India remains a democratic and functional country.

Amendment Of The Fundamental Rights

The fundamental rights listed in Part III of the Indian Constitution form the basis for protecting the human rights of individuals and private organizations in the country.

The judiciary has consistently upheld these rights in numerous cases, recognizing their importance and giving them precedence over other provisions of the Constitution. However, given that Parliament has the power to amend the Constitution, it is possible for them to alter the fundamental rights as well.

The question then becomes whether these rights are considered part of the “basic features” of the Constitution, which cannot be amended. 

Types of Amendment

There are two types of amendments to the Indian Constitution:

1. Simple Majority Amendment
2. Special Majority Amendment:

Importance Of Article 368

It is due of the fact that Article 368 takes into consideration not only the current social, economic, and political conditions, but also those of the foreseeable future, that this particular provision is regarded as being one of the most essential sections.

It is possible that the values that are upheld in this day and age will seem archaic to future generations.

If a law is stiff and incapable of adapting to the shifting social environment, it is useless.

On the other hand, shortly after the establishment of such authority, members of Parliament and other political leaders began to exercise it for the purpose of maximizing their own personal benefit.

At one point in time, it seemed as though the Constitutional legislation itself was subservient to the Parliament rather than superior to it.

The changes made by the Parliament began to impact the Constitution’s core purpose for being.

Whether the judiciary was involved in Keshavananda Bharati, Indira Gandhi, or Minerva Mills, the court’s judicial review authority limited the Parliament’s ability to modify the Constitution.

The fundamental design of the Constitution cannot be changed by the modifications enacted by the Parliament.

Although the idea of basic structure restricts the ability to alter, appropriate clarification is still required as to what really qualifies as the fundamental aspect of the Constitution. One must resort to the court pronouncements made whenever a disagreement arises involving a breach of a fundamental aspect of the supreme law of the land.

A thoroughly written list of everything that makes up the basic structure is advised since it will not only make it easier to distinguish between what is disparaging and what is not, but it will also permit fewer legal disputes related to this issue.

Criticism Of The Procedure Of Amendment

1. The only place where an amendment can be requested is in Parliament.
2. If a private member of the parliament wishes to move a constitutional amendment bill, the procedure that must be followed is highly stringent.
3. If the ruling party has the necessary numbers in both Houses of Parliament, having even the constituent authority vested in the Parliament increases the likelihood that revisions will be passed. This could lead to the fast passage of legislation.
4. Only a few provisions require the states’ assent.
5. The constitution does not provide a deadline by which states must accept or reject the amendment proposal.

Winding Up

Article 368 of the Indian Constitution is an important provision that outlines the procedure for amending the Constitution of India. Located in Part XX of the Constitution, this article grants Parliament the power to alter any provisions of the Constitution through the process of addition, modification, or repeal, as part of its constituent power. The article specifies the requirements for initiating and passing an amendment bill, as well as the role of the President in the amendment process. It also provides for the ratification of amendments by state legislative assemblies, and specifies the procedures for enforcing and implementing the amendments.

FAQs On Article 368