One of the most fascinating pieces of writing on the globe is the Indian constitution. Ours is the largest constitution in the world and is as detailed as any other nation’s. However, despite being so thorough, this document’s high degree of flexibility is what makes it so fascinating. The authors of our constitution intended for it to be this way; they wanted the document to advance as the nation did, growing alongside it. As a result, the government has the authority to alter the constitution in response to diverse concerns. This authority is granted by Article 368.
But one has to wonder: Doesn’t the constitution provide the government its authority? If that’s the case, then how does the government possess such influence over a document that grants it legitimacy?
In an effort to provide answers to these problems, we will examine the scope of government amendment, the amendment procedure, the critical legal issues involved, and a number of significant instances in this article.
Reasons why Constitutional Amendments Are Needed
The founders of our constitution intentionally left room for interpretation for a reason. This will guarantee that the document develops and expands alongside the country. As a result, under Article 368, the Parliament has limitless authority to modify any part of the Constitution that it so chooses.
However, it is risky for the Parliament to have unchecked power to modify the constitution. The constitution will be turned to a tool for establishing the dictatorial rule of Parliament rather than serving as the foundation of our democracy. The government will change a number of clauses to ensure that its authority is unrestricted.
Although this is a frightening concept, it is not entirely untrue. The government has attempted to build a state where the legislative is paramount through numerous amendments, including the 39th Amendment and the second clause of the 25th Amendment.
Because of this, the judiciary formed The Basic Structure Doctrine of The Indian Constitution through a number of precedent-setting judgments.
What is the Basic Structure?
The Basic Structure Doctrine states there are certain fundamental structures and founding principles of the constitution which make the backbone of the constitution. In simple terms, they are ideologies of the constitution which are essential for the survival of the constitution. Some examples are Free and Fair Election, the Federal nature of the Nation, Judicial review and Separation of Power. The government is restricted from touching these contours of the constitution through amendment.
In the Keshvananda Bharti v. State of Kerala, AIR 1973, The court in this judgment answers an extremely important question that was left unanswered in Golak Nath v. State of Punjab i.e. the extent of Parliament to amend. The court observed that such a power should be a balance between the Parliaments’ duty to follow the constitution and its duty to perform socio-economic duties.
To answer this question, they established the Doctrine of Basic Structure. While they admitted that the Parliaments’ power to amend the constitution was unrestricted with regards to the portion of the constitution they wished to amend, there were certain contours of the constitution that should be left untouched. Hedge.J and Mukherjee.J in their opinions stated that the Indian constitution was more of a social document based on social philosophy than a political document. Just like every philosophy, the constitution contains certain basic features that should not be touched.
Procedure to Amendment
Article 368
Article 368 lays down the process by which the Parliament can amend the constitution. The process is as followed.
Step 1
The Bill is introduced in either house of the parliament.
Step 2
The Bill must be passed by a total majority (irrespective of vacancies or absentees) and by a majority, not less than 2/3rd of people present and voting by both the houses. There is no provision of joint sitting if there is a disagreement between both the houses.
Step 3
After acquiring the majority, the Bill is presented to the President who will then give his assent to the Bill.
It must be approved by at least half of the states in order to change the requirements listed in Article 368. A resolution adopted by the state legislature should be used for ratification. Before the amendment Bill is submitted to the President for his approval, this must, however, be passed.
Amendment of Fundamental Rights
The fundamental rights outlined in Part III of the constitution serve as the bedrock of human rights in this nation. The judiciary of this nation has repeatedly demonstrated in important instances that a private organization’s or an individual’s fundamental right cannot be violated. It may be claimed that these rights make up a very significant component of the constitution because they have frequently been given primacy over the other articles in it.
Is Amending Power restricted by the Theory of Basic Structure?
The government is required to accomplish specific socioeconomic objectives. They occasionally need to change the constitution to accomplish them. But what happens when these changes tamper with the basic structure. Should their obligation to uphold the constitution take a back seat to their duty to conduct socioeconomic duties?
In Indira Nehru Gandhi vs Shri Raj Narain & Anr, 1975 , Smt. Indira Gandhi called emergency and passed certain amendment Acts, one of them being Article 329-A which barred judicial review. What needed to be asked was whether judicial review was a part of the Basic Structure of the Indian Constitution. The court held that the emergency was passed in mala fide and Article 329Apassed under the amendment Act was unconstitutional.
The majority bench stated that the clause tore at the fabric of democracy. A free and fair election is a part of the Basic Structure of the Constitution. To take that away from the people of India is a huge infringement of their rights. The bench also found it violated other basic features of the constitution such as rule of law (restriction of arbitrary power by law) and principles of natural justice i.e. Audi Alteram Partem.
Justice Chandrachud J. also added that the Act was violative of the policy of Separation of Power as it gave the parliament, powers of the Judiciary. He also believed that it was violative of Article 14, as it created an unequal advantage for some considering despite not being under the scrutiny of a free and fair elections, they could hold such a powerful office.
Conclusion
We examined the constitutional change in this article. We discovered that there is something known as the Constitution’s Basic Structure, and that violating it goes against the fundamental rules of justice. The preamble was first considered to be the basic structure of the constitution by the court, but subsequently it was decided that other parts of the constitution, such as judicial review, might also be considered to be parts of the basic structure.
In a number of significant situations, the government attempted to change the constitution to make it simpler to protect the general welfare. The judiciary initially strongly opposed to the idea, but in later rulings, we see the judges become more sympathetic to the notion that the executive might be allowed to override some elements of the fundamental structure in order to protect the interests of the public. But in following decisions, the judiciary was rigorous about modifications that broke the fundamental framework, unless they were completely satisfied that such Acts would be helpful in promoting greater public welfare.
We must understand that this democracy’s foundation is the constitution. Although it was innovative of our founding fathers to include clauses allowing for amendments, it is crucial that these clauses not be abused. Misuse might lead to an excess of legislative or executive authority, which could rip our democracy apart.
