Skip to main content

Article 368 of the Indian Constitution – Constitutional Amendments

 1. Overview:

  • Article 368 of the Indian Constitution outlines the process for amending the Constitution.

  • It provides the Parliament with the power to amend the Constitution, subject to certain limitations to protect the basic structure of the Constitution.

2. Types of Constitutional Amendments:

There are three types of constitutional amendments based on the nature of the changes:

  1. Type 1: Amendment by a Simple Majority

    • Requires a simple majority of the Parliament (i.e., more than half of the members present and voting).

    • Example: Changes related to the regulation of parliamentary procedures (e.g., changing the name of a state).

  2. Type 2: Amendment by a Special Majority of Parliament

    • Requires:

      • A special majority in both Houses (i.e., at least two-thirds of the members present and voting).

      • The majority must also be more than half of the total membership of both Houses.

    • Example: Amendments to the fundamental rights or the distribution of powers between the Centre and the States.

  3. Type 3: Amendment with Ratification by Half of the State Legislatures

    • Requires:

      • A special majority in Parliament (as in Type 2).

      • Ratification by at least half of the state legislatures (i.e., at least 50% of the states must approve the amendment).

    • Example: Amendments related to the powers of the President, the representation of states in Parliament, or changes to the Federal structure.

3. Procedure for Constitutional Amendment:

  1. Initiation:

    • The amendment bill can be introduced in either the Lok Sabha or the Rajya Sabha.

    • The President's recommendation is not required for constitutional amendments.

  2. Parliamentary Approval:

    • The bill must be passed by:

      • A special majority in both Houses (for Types 2 and 3).

      • For Type 3 amendments, it also requires ratification by at least half of the state legislatures.

  3. Ratification (if required):

    • After being passed by Parliament, the amendment bill is sent to the state legislatures for ratification.

    • Once ratified, it is sent back to the President for assent.

  4. Presidential Assent:

    • The President must give assent for the amendment to become part of the Constitution.

    • The President cannot withhold assent to a constitutional amendment.

4. Key Features of Article 368:

  • Parliament's Power:

    • Parliament has the power to amend the Constitution, but not to alter the basic structure of the Constitution.

  • Basic Structure Doctrine:

    • Established in the Kesavananda Bharati case (1973), this doctrine limits Parliament’s power to amend certain fundamental features of the Constitution, like democracy, secularism, federalism, and the rule of law.

  • No Judicial Review (for Basic Structure):

    • The Supreme Court cannot review the validity of amendments that alter the basic structure.

5. Landmark Case Laws on Article 368:

a) Kesavananda Bharati v. State of Kerala (1973) – The Basic Structure Case

  • Facts:

    • The case challenged the validity of the Twenty-fourth Amendment to the Constitution, which gave Parliament the power to amend any part of the Constitution, including Fundamental Rights.

  • Issue:

    • Whether Parliament could amend the Constitution in a way that violated Fundamental Rights.

  • Judgment:

    • The Supreme Court ruled that Parliament cannot alter the basic structure of the Constitution, even if it has the power to amend it under Article 368.

    • Established the Basic Structure Doctrine: Certain features of the Constitution are inalterable.

  • Significance:

    • This judgment curbed the power of Parliament and ensured the protection of democratic principles.

b) Minerva Mills Ltd. v. Union of India (1980)

  • Facts:

    • The case dealt with the Forty-second Amendment, which restricted the power of judicial review and gave Parliament unchecked powers to amend the Constitution.

  • Issue:

    • Whether the amendment violated the basic structure of the Constitution.

  • Judgment:

    • The Supreme Court struck down parts of the amendment, reinforcing the basic structure doctrine.

  • Significance:

    • Reaffirmed the judicial review power to protect the Constitution’s basic features.

c) Golaknath v. State of Punjab (1967)

  • Facts:

    • The case challenged the Seventeenth Amendment, which curtailed the Fundamental Rights to property.

  • Issue:

    • Whether Parliament could amend Fundamental Rights under Article 368.

  • Judgment:

    • The Court ruled that Parliament could not alter Fundamental Rights through constitutional amendments.

  • Significance:

    • The judgment was later overruled in Kesavananda Bharati, but it was pivotal in shaping the debate over constitutional amendments.

6. Important Constitutional Amendments Under Article 368:

AmendmentYearKey Changes
First Amendment1951Curbed Fundamental Rights for public order.
Twenty-fourth Amendment1971Reaffirmed Parliament’s power to amend the Constitution.
Forty-second Amendment1976Added the word "secular" and "socialist"; curtailed judicial review.
Forty-fourth Amendment1978Restored the power of judicial review.
Eighty-sixth Amendment2002Made education a fundamental right.

7. Key Takeaways:

  • Article 368 gives Parliament the power to amend the Constitution, but with limitations.

  • The basic structure doctrine limits Parliament’s power to change essential features of the Constitution.

  • Judicial review plays a crucial role in ensuring that constitutional amendments do not violate fundamental principles.

Comments

Post a Comment

Popular posts from this blog

Contract Notes - 3

Object and Consideration in Contract Act, 1872 Object of a Contract The object of a contract is the purpose or intention behind the agreement between parties. For an agreement to be enforceable as a contract, its object must be lawful and not opposed to public policy or morality. The lawful object is a necessary element of a valid contract. If the object of the contract is illegal or immoral, the agreement is void. Section 23 of the Indian Contract Act states that the consideration or object of an agreement is lawful unless it is forbidden by law, or is opposed to public policy, or is fraudulent, or involves injury to the person or property of another, or the court regards it as immoral or opposed to public policy. Significance The object ensures that contracts are not made for purposes harmful to society or contrary to law. This protects public interest and maintains ethical standards in contractual relations. Landmark Case: Gherulal Parakh v. Mahadeodas Maiya (1959) AIR 781...
Post a Comment
Read more

Sales of Goods Act, 1930: Section-Wise Notes

1. Concept of Sale and Agreement to Sell 1.1 Definitions Sale of Goods (Section 4(b)): Sale is a contract whereby the ownership (property) in goods is transferred from the seller to the buyer for a price. Both the transfer of ownership and payment of price distinguish a sale. Agreement to Sell (Section 4(a)): Agreement to sell is a contract where the transfer of ownership is to take place at a future time or subject to certain conditions to be fulfilled later. Ownership passes only when those future conditions or time arrive. 1.2 Difference between Sale and Agreement to Sell Aspect Sale Agreement to Sell Transfer of Ownership Immediate transfer of ownership Transfer is future or conditional Nature of Contract Executed contract Executory contract Risk Passes to buyer immediately Remains with seller until transfer Remedies on Seller’s insolvency Buyer becomes owner; goods not affected Buyer has only contractual claim 1.3 Essential Elements of a Contract of Sale Two ...
Post a Comment
Read more

Contract Act Notes 1

Importance of Contracts Meaning of Contract A contract, per Section 2(h) of the Indian Contract Act, 1872, is an agreement enforceable by law. It represents the foundation of business, personal, and legal interactions where parties agree on rights and obligations. Role and Significance of Contracts Legal Enforceability: Contracts give legal backing to promises enabling parties to seek remedies in courts for breach, promoting trust. Facilitates Commerce: Provides a framework for predictable and secure commercial transactions, essential for business growth and economic stability. Defines Rights and Duties: Contracts clarify mutual duties and expectations, reducing disputes. Social Utility: Contracts facilitate cooperation in various spheres including employment, trade, insurance, real estate, etc. Dispute Resolution: Establishes mechanisms for remedies like damages, specific performance, cancellation. Framework for Justice: Ensures fairness, equity, and...
Post a Comment
Read more