Times change and consequently, the life of a nation is not static but dynamic, organic and living; its political, economic and social conditions change continuously. It is, therefore quite conceivable that a Constitution drafted in one era, and in a particular context, may be found inadequate in another era and in another context.

Article 368 (1) of the Constitution of India allows constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of variation, addition, repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation. Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively.

The phraseology of article 368 has been amended twice since the inauguration of the Constitution. However, the basic features of the amending procedure have remained intact in spite of these changes.

These basic features are:

1. An amendment of the Constitution can be initiated only by introducing a bill for the purpose in either House of Parliament.
2. After the bill is passed by each house by a majority of its total membership, and a majority of not less than two-thirds of the members of that house present and voting, and after receiving the assent of the President, the Constitution stands amended in accordance with the terms of the bill.
3. To amend certain constitutional provisions relating to its federal character, characterized as the ‘entrenched provisions’, after the bill to amend the Constitution is passed by the Houses of Parliament as mentioned above, but before being presented to the President for his assent, it has also to be ratified by the legislatures of less than one half of the states by resolutions.

Development of article 368 through  judgments :

 Shankari Prasad Singh :

• In Shankari Prasad Singh v. Union of India AIR 1951 SC 458 the first case on Amendability of the Constitution, the validity of the Constitution (First Amendment) Act, 1951, curtailing the right to property was challenged.
• The argument against the validity of the first amendment was that article 13 prohibits enactment of a law infringing or abrogating the fundamental rights, that the word ‘law’ in article 13 would include any law, even a law amending the constitution and, therefore, the validity of such a law could be judged and scrutinized with reference to the fundamental rights which it could not infringe.
• Thus, a conflict was posed between article 13 and article 368.
• The court rejected the contention and limited the scope of article 13 by ruling that the word ‘law’ in article 13 would not include within its compass a constitution amending law passed under article 368.
• Therefore, the word ‘law’ in article 13 must be taken to refer to rules and regulations made in exercise of ordinary legislative power, and not to constitutional amendments made in exercise of the constituent power under article 368 with the result that article13(2) does not affect amendments made under article 368.
• The court, thus, ruled that article 13 refers to a ‘legislative’ law, i.e., an ordinary law made by a legislature, but not to a ‘constituent’ law, i.e. a law made to amend the constitution.
• The court thus held that Parliament could by following the procedure laid down in article 368 amend any fundamental right.

1. Sajjan Singh :

• The validity of the Constitution (Seventeenth Amendment) Act, 1964 was called in question in Sajjan Singh v. Rajasthan AIR 1965 SC 845.
• By this amendment, a number of statutes affecting property rights were placed in the ninth schedule and were thus immunized from court review.
• In the instant case, the court was called upon to decide the following questions:
  1. Whether the amendment of the Constitution insofar as it purported to take away or abridged the fundamental rights was within the prohibition of article 13(2); and
  2. Whether articles 31 A and 31 B (as amended by the XVII amendment) sought to make changes to article 132, 136 and 226, or in any of the lists in the VII schedule of the Constitution so that the conditions prescribed in the proviso to article 368 had to be satisfied?
• The court again drew the distinction between an ‘ordinary’ law and a ‘constitutional’ law made in exercise of ‘constituent power’ and held that only the former, and not the latter, fell under article 13.

  Golak Nath :

• The question whether any of the fundamental rights could be abridged or taken away by Parliament in exercise of its power under article 368 was raised again in Golak Nath v. State of Punjab AIR 1967 SC 1643.
• Again, the constitutional validity of the Constitution (Seventeenth Amendment) Act was challenged in a very vigorous and determined manner.
• Eleven judges participated in the decision and they were divided 6 to 5.
• The majority held that the fundamental rights were non-amendable through the constitutional amending procedure set out in article 368, while the minority upheld the line of reasoning adopted by the court in the two earlier cases.
• Overruling the position adopted by the court in Shankari Prasad and Sajjan Singh, it was now ruled that the term ‘law’ in a comprehensive sense would include constitutional law as well. Article 13(2) of the gives an inclusive definition of ‘law’ which would take in even constitutional law.
• The court formulated its position as follows: “an amendment of the Constitution is law within the inclusive definition of law under article 13(2) of the Constitution and, as the entire scheme of the Constitution postulates the inviolability of part III thereof, article 368 shall not be so construed as to destroy the structure of our Constitution.”
• The following four major prepositions can be drawn from the majority opinion in this case :
  1. The substantive power to amend is not to be found in article 368, this article only contains the procedure to amend the Constitution;
  2. A law made under article 368 would be subject to article 13(2) like any other law;

• The word ‘amend’ envisaged only minor modifications in the existing provisions but any major alteration therein;

1. To amend the Fundamental Rights, a Constituent Assembly ought to be convened by Parliament.
2. Kesavananda Bharati :

• In 1971, Parliament enacted the Constitution (twenty-fourth) Amendment Act introducing certain modifications in article 13 and 368 to get over the Golak Nath ruling to assert the power of Parliament denied to it in Golak Nath, to amend fundamental rights.
• To undo the effect of this pronouncement, the following changes were sought to be made in article 13 and 368 :
  1. The marginal note of article 368 was changed from “Procedure for Amendment of the Constitution” to “Power of Parliament to amend the Constitution and procedure therefore”.
  2. As a matter of abundant caution, a clause was added to article 368 declaring that article 13 shall not apply to any constitutional amendment made under article 368.
• Along with the twenty-fourth amendment was also enacted the twenty-fifth amendment of the Constitution, the salient features of which are as follows :

1. The word “amount” was substituted for the word “compensation” in article 31(2). This was done to remove any contention that the Government was bound to give adequate compensation for any property acquired by it;
2. Article 19(1)(f) was delinked from Article 31(2);

• A new provision article 31C was added to the Constitution.
• As a result, the constitutional validity of both the amendments, viz., XXIV and XXV was challenged in the Supreme Court through a writ petition under article 32 in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.
• The matter was heard by a bench consisting of all the 13 judges of the court because Golak Nath, a decision by a bench of 11 judges was under review.

1. The court now held that the power to amend the Constitution is to be found in article 368 itself.
2. Further, the court recognized that there is a distinction between an ordinary law and a constitutional law.

• Kesavananda did not concede an unlimited amending power to Parliament under article 368. The amending power was now subjected to one very significant qualification, viz., that the amending power cannot be exercised in such a manner as to destroy or emasculate the basic or fundamental features of the Constitution. A constitutional amendment which offends the basic structure of the Constitution is ultra vires.

1. Some of the features regarded by the court as fundamental and thus, non-amendable are:
   1. Supremacy of the Constitution;
   2. Republican and democratic form of government;
   3. Secular character of the Constitution
   4. Separation of powers between legislative, executive and the judiciary;
   5. Federal character of the Constitution.
2. Thus, the power of Parliament to amend any constitutional provision is not absolute, unlimited and the courts can still go into the question whether or not an amendment destroys a fundamental or basic feature of the Constitution. If an amendment does so it will be constitutionally invalid.

In this seminal judgment, the judges mentioned the following as the “basic foundation and structure” of the Constitution:

1. Supremacy of the Constitution;
2. Separation of powers between the legislature, the executive and the judiciary;

• Republican and democratic form of government;

1. Secular character of the Constitution;
2. Federal character of the Constitution;
3. The dignity of the individual secured by various fundamental rights and the mandate to build a welfare state contained in the directive principles;

• The unity and integrity of the nation
• Parliamentary system.
• Thus Kesavananda constitutes the high water of judicial creativity.

1. Minerva Mills :

• In Minerva Mills Ltd. v. Union of India AIR 1980 SCC 625 the scope and extent of the doctrine of basic structure was again considered by the Supreme Court.
• The court again reiterated the doctrine that under article 368, Parliament cannot so amend the constitution so as to damage the basic or essential features of the Constitution and destroy its basic structure.
• The petition challenged the constitutional validity of clause (4) and (5) of article 368, introduced by section 55 of the 42^nd
• In this case, this section was held to be beyond the amending power of the Parliament and void since it sought to remove all limitations on the power of the Parliament to amend the Constitution and confer a power on the Parliament to amend the Constitution so as to damage or destroy its basic or essential features or its basic structures. The true object of these clauses was to remove the limitations imposed on Parliament’s power to amend the Constitution through the Kesavananda case.
• The court stated that a limited amending power is indeed one of the basic features of the Constitution.
• Therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to appeal or abrogate the Constitution or destroy its basic and essential features

1. Waman Rao :

• The proposition that Parliament cannot, under article 368, so amend the Constitution as to destroy its basic features was again reiterated and applied by the Supreme Court in Waman Rao v. Union of India AIR 1981 SC 271.
• The Supreme Court considered the constitutional validity of the Maharastra Agricultural Lands (Ceiling on Holdings) Act, 1961. The act imposed ceiling on agricultural holdings in the state. As, the act had been placed in the IX schedule, the constitutional validity of article 31A, 31B and the unamended article 31C (as it existed before the 42^nd amendment) was also challenged on the ground of damaging the “basic structure of the Constitution”.
• Accordingly, the court ruled that the first and the fourth amendment acts introduced in 1951 and 1955 did not damage any basic or essential feature of the constitution or its basic structure and were thus valid and constitutional being with the constituent power of the Parliament.
• The court declared that all acts and regulations included in the ninth schedule until the landmark case if Kesavananda (April 24, 1973) will receive the full protection of article 31B.

1. I R Coelho:

• The question before the constitution bench was whether inclusion of a Statute in the 9th Schedule will save it from being struck down as unconstitutional if it’s effect is to abridge or abrogate the fundamental rights guaranteed by Part III of and if such violation will violate the basic structure of the Constitution was raised in I R Coelho v. State of Tamil Nadu AIR 2007 SC 861.

 The court held that-

• 1. A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court.
  2. If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment.

• However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying there under.

1. It is permissible for the Legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31 but subject to right of citizen to assail it on the enlarged judicial review concept. The Legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the Court after the enunciation of the basic structure doctrine.

 CONCLUSION

 Provision for amendment of the constitution is made with a view to overcome the difficulties which may encounter in future in the working of the Constitution. If no provision made for the amendment of the Constitution, the people would have recourse to extra constitutional method like revolution to change the constitution. In the hindsight, it can be said that the safeguards to prevent the spirit of the constitution were not enough. Politicians have time and again shown that they can modify it easily to serve their vote based politics. This has been done deliberately to ensure that the constitution can be changed as per the needs of the times. However, to prevent excessive changes on the whims of the ruling party, sufficient safeguard shave been put.

 LAWZ MEDIA