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Amendment is Law or not? Critical Analysis

HomeAmendment is Law or not? Critical Analysis

“Amendments to the Constitution are not just legal adjustments; they are a testament to the evolving values and priorities of our society.”

Justice Sonia Sotomayor

[A] Introduction

  • What if I told you that from tomorrow ownward your right to life, right to vote and many other such rights are going to confiscate. Isn’t that thought even scary but why I am saying this you know because of term added by our constitution maker “AMENDMENT”—- The Amendment of the Constitution refers to the process of making changes such as the addition, variation, or repeal of any provision of the Constitution in accordance with the procedure laid down for the purpose  —- to ensure that the constitution would not only aid the country to grow but it would also grow alongside it. . This term gives powers to our legislature to amend any part of our constitution under Article 368 which we can see as our legislature previously tried to use this power in its favour through 24th amendment and 39th amendment.
  • So, my question here is, whether our legislature has such a huge power that even can amend any part of constitution? Is there any limit to this power? What’s the stand of judiciary in such a situation? To know all answer. let’s dive deep into all information related to this concept.

[B] Amendment - Provision in Constituion of India:-

First, let’s know that particularly where the provision of amendment given and what it is saying and what it’s really means in dictionary.

The Parliament derives its authority to amend the Constitution under Article 368. The term ‘amendment’ is derived from the Latin term amendere’ which means to change or correct any fallacy. Black’s Law Dictionary defines amendment as ‘a formal revision or addition proposed or made to a statute, construction, pleading, order or other instrument, a change made by addition, deletion or correction specially an alteration of wording. There are two methods of amendment, formal and informal. Informal amendment exists in the form of conventions and other methods while formal method is followed in countries having a written Constitution such as India and U.S.A., and provides the method of amendment in the Constitution itself through the interpretation of judiciary. The framers of our Constitution have made the document in such manner which could change according to the changing times as well as the way nation is growing. So you can say that it is mixture of both the rigidities and flexibilities of the major democracies in the world. As of September 2023, there have been 106 amendments of the Constitution of India since it was first enacted in 1950.

Basically, there are three types of amendments to the Constitution of India of which the second and third types of amendments are governed by Article 368.

  1. The first type of amendment includes that can be passed by a “simple majority” in each house of the Parliament of India.
    • (The amendments contemplated in Articles 4, 169, and 239-A and paras 7 and 21 of the Fifth schedule escluded from the purview of Article 368 fall within this class.)
  2. The second type of amendments includes that can be effected by the parliament by a prescribed “special majority” in each house; and
    • (All constitutional amendments other than those referred in simple majority come within this category and must be effected by majority of the total membership of each House of Parliament as well as by a majority of not less than two-thirds of the members of that House present and voting)
  3. The third type of amendments includes those that require, in addition to such a “special majority” in each house of the parliament, ratification by at least one half of the State Legislatures.
    • This class comprises amendments that seek to make any change in the provisions referred to in the proviso to Article 368(2)
    • Amendments in the following provisions require such ratification:
    • The election and manner of election of the President [Articles 54 and 55];
    • The extent of executive power of the Union [Article 73];
    • The extent of executive power of a State [Article 162];
    • Provisions dealing with the Supreme Court [Chapter IV of Part V];
    • Provisions dealing with the High Courts in the States [Chapter V of Part VI);
    • High Courts for Union territories [Article 241];

[B.1] Power and procedure for amending the constitution

Article 368 Power of Parliament to amend the Constitution and procedure therefore:-

  1. “Notwithstanding anything in this Constitution, 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.
  2. An amendment of this Constitution may be initiated only by the introduction of a Bill ,
    1. 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 present and voting,
    2. it shall be presented 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:
    3. Provided that if such amendment seeks to
      • Article 54, Article 55, Article 73, Article 162 or Article 241, or
      • chapter IV of Part V, Chapter V of Part VI, or Chapter 1 of Part Xl, or;
      • Any of the Lists in the Seventh Schedule, or;
      • The representation of States in Parliament, or;
      • The provision of this article
      • the amendment shall also require to be ratified by the Legislature 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
  3. Nothing in Article 13 shall apply to any amendment made under this article;
  4. No amendment of this Constitution (including the provisions of Part 111) 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 the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article”

This procedure of amendment has differentiated Indian Constitution from other written constitution as it not as rigid as them. Hence, it is characterized as partly rigid partly flexible. There are certain parts that can be changed in an easier manner but for some other parts, a certain process has to be complied with.

Indian federation is different from other as the states do not play significant role in the bigger picture in this matter because our constituion is quasi-federal in nature. In case of normal legislations, if both Lok Sabha and Rajya Sabha are in a Deadlock, a joint session is held. But in case of constitutional amendment, it cannot pass till both Houses agree, and there is no provision for clearing the deadlock in this case

[B.2] Article 368 and related amendment:-

Position of article 368 is changed and challenged by mainly through 24th amendment which added word power in article 368 and 42nd  amendments which protect article 368 from judicial review. But there was other some important amendment which brought major change in thr constitution of our India empowered by this article . Above mention judgement and some other judgement can be seen below as :-

Changes brought about by the Constitution 1st Amendment Act, 1951

      1. Addition of Article 31A– This was done by the Union Government to bring into effect the zamindari abolition programme that was endangered by various States passing Acts to abolish zamindari and acquire property for public purposes, and those being subsequently declared unconstitutional by Courts for violation of Article 14. For example, the Bihar Land Reforms Act, 1950 which provided for acquisition by the State of the estates and tenures of the three leading zamindars of the Bihar Province was declared unconstitutional by the Patna High Court as it contravened the provisions of Article 14. [Kameshwar Singh v. State of Bihar, AIR 1951]
      2. New Grounds added as reasonable restrictions in Article 19(2)– ‘Friendly relations with States, Public Order and incitement to an offence’ were added to operate as restrictions against Freedom of Speech and Expression under Article 19(1)(a). This was done after the judgement in Romesh Thapar v. State of Madras (AIR 1950).
      3. Addition of Article 15(4)– In State of Madras v. Champakam Dorairajan, 1951, the provision of reservation of seats in public institutions for backward classes and members of the SCs and STs giving effect to Articles 37 and 46 of the Constitution (under Part W-Directive Principles of State Policy) was declared invalid by the Supreme Court for violation of Fundamental Rights conferred under Article 15(1) and Article 29(2). Article 15(4) which provides for permitting special provisions for the advancement of socially and educationally backward classes of citizens or for the SCs and STs was added by the Pt Amendment Act to nullify the decision of the Champakam case.
      4. Addition of Article 31B and the 9th Schedule- The Article was inserted to immunize all acts and regulations put under the 9th Schedule from being declared unconstitutional for bring inconsistent with Fundamental Rights.
      5. Addition of Article 19(6)(ii)- The Clause empowers the State to carry any trade, business, industry or service, to the partial or complete exclusion of all others. It acts as a reasonable restriction to the freedom to practice any profession or to carry on any trade or business conferred under Article 19(1)(g).

Changes brought about by the Constitution 17th Amendment Act, 1964:

      1. Modification of the definition of ‘estate’ under Article 31A : This amendment refined Article 31A to provide better clarity and protection regarding land acquisition laws. It ensured that the government must provide compensation equal to  the market value before acquiring any land used for personal cultivation .
        • The term “estate” was redefined to cover a wider range of land    types, including those used for personal cultivation. This was aimed at balancing state power and individual rights in land acquisition.
      2. Expansion of 9th Schedule- 44 Acts enacted by different States were inserted in the 9th Schedule thus being immunised from being declared unconstitutional on grounds of violation of Fundamental Rights.

Changes brought about by the Constitution 24th Amendment Act, 1971: key changes are :

    1. Amendment of Article 13: A new clause (4) was added to Article 13, stating that nothing in this article shall apply to any amendment of the Constitution made under Article 368.
    2. Amendment to Article 368 :
      1. New heading given to Article 368– It was changed from ‘Procedure for amendment of the Constitution’ to ‘Power of the Parliament to amend the Constitution and procedure therefor’.
      2. Addition of Article 368(1)- This Article provides the Parliament with the constituent power to amend any provision in the Constitution in accordance with the laid down procedure.
      3. Article 368(2)- This makes it obligatory for the President to assent to any Constitutional Amendment Bill placed before him, after being passed by both the Houses of the Parliament.
      4. Addition of Article 368(3)- It provides that ‘Nothing in Article 13 shall apply to an amendment made under this Article’.

Changes brought about by the Constitution 39th Amendment Act, 1975: key changes are :

In Indira Nehru Gandhi v. Raj Narain, AIR 1975, the Allahabad High Court had invalidated the election of Indira Gandhi in Lok Sabha for allegedly committing corrupt practices under the Representation of People Act, 1951. This decision was challenged by Indira Gandhi in the Supreme Court during the pendency of which the Parliament enacted the 39th Constitutional Amendment Act. It made the following changes-

    1. Insertion of Article 329A- It withdrew from the jurisdiction of all Courts, including the Supreme Court, disputes relating to the election of Speaker and Prime Minister. Thus, the Supreme Court could not decide on the pending appeal.
    2. Insertion of Article 329-A (4) which stated that-
      1. No law related to election petitions made prior to the commencement of the 39th Constitutional Amendment Act shall apply or would be deemed to have applied to election of the Prime Minister to either House of Parliament.
      2. Such election would not be deemed to be void or ever become void. Even if a decision of a Court before the 39th Constitutional Amendment Act declares such election to be void, such election would continue to be valid.

Changes brought about by the Constitution 42nd Amendment Act, 1976: key changes are :

To exercise the power of amendment without any kind of limitation, the Parliament enacted the 42nd Amendment Act to bring forth the following changes:

      1. Insertion of Article 368(4)– According to the new clause, no amendment made under the provisions of Article 368 could be challenged in a Court of Law on any ground.
      2. Insertion of Article 368(5).- According to the new clause, there was no limitation on the constituent power of the Parliament to amend the Constitution.
      3. Amendment of Article 31C– Article 31C now provided supremacy to all the Directive Principles contained in Part W over Fundamental Rights contained in Articles 14, 19 and 31.

As Above mentioned, amendment are most important amendment out of 106 amendments made in our constitution. Due to change they bring in Constitution of India which was later challenged by court from time to time.

[C] Limitation of Article 368 :-

As we get to know from above judgements that Article 368 provide immense power to our legislation to amend our constituion which can be prone to misuse as well said by Lord acton “Power tends to corrupt, and absolute power corrupts absolutely.”So to ensure that this condition should’nt be prevail in our democratic country  India .

Our court intervene through various judgement and clear the power of legislature under Article 368 “legislature has power to amend the  any part of constituion under  article 368 but this power is subject to basic structure doctrine.” The term basic structure doctrine is not defined by judiciary in explicitly but it can be drived from various judegments .“Basic structure are not articles mentioned in constitution but basic essence behind those article” .

By time on a case-to-case basis, the Supreme Court has expounded summary of the Basic Features of the Constitution.

Evolution of Basic structure doctrine:-

  1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461:

      • This case is seminal in the development of the Basic Structure Doctrine. The Supreme Court, in a landmark judgment, held that while Parliament has the power to amend the Constitution, it cannot alter the “basic structure” of the Constitution. The judgment, delivered by a 13-judge bench, listed the features considered as part of the basic structure, including:

      • Supremacy of the Constitution

      • Republican and democratic form of government

      • Separation of powers

      • Federal character of the Constitution

      • Secularism

      • Justice, liberty, equality, and fraternity

      • The Kesavananda Bharati case established that these features form the core framework of the constituion. Though Basic Structure Doctrine was propounded in this case, due to lack of consensus by Judges, the list of Basic features provided by the Judges does not form an obiter (Minerva Mills case)
  2. Indira Nehru Gandhi v. Raj Narain (1975)
      • This case challenged the validity of the 39th Amendment Act, which was enacted to validate the election of Prime Minister Indira Gandhi. The Supreme Court, in this context, discussed the implications of the Basic Structure Doctrine. The Court held that certain amendments made under the guise of constitutional amendments, if they violate the basic structure, can be struck down.
  3. Minerva Mills v. Union of India, AIR 1980 SC 1789:
      • Balance  between Fundamental Rights and Directive Principles of State Policy. Power of Judicial Review. Limited amending power of the Parliament.
  4. In Hollahan v. Zachillhu, AIR 1993 SC 412:
      • Free and fair elections.
  5. Sawhney v. Union of India, AIR 1993 SC477:
      • Rule of law.
  6. Nayar v. Union of India, AIR 1993 SC 412:
      • Parliamentary democracy and multi-party
  7. Bommai v. Union of India, (1994) 3 SCC 1:
      • Reiterated that judicial review is a basic feature.
      • Federal structure.
      • Unity and integrity of India.
      • Secularism Socialism.
      • Social justice
  8. Chandra Kumar v. Union of India, (1997) 3 SCC 261:
      • Power of judicial review of the High Courts under Article 226 and the Supreme Court under Article 32.
  9. R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1:
      • Articles 14, 19 and 21 represent the fundamental values and form the basis of rule of law, which is a basic feature of the Constitution.
  10. Supreme Court Advocates on Record Association v. Union of India, AIR 2016 SC 117:
      • Supremacy of the Constitution.
      • The republican and democratic form of Government.
      • The federal character of the distribution of powers. Separation of powers between the Legislatures, Executives and Judiciary.
      • Independence of the Judiciary.
  11. In State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501:
      • Whatever be the nature of the Indian Constitution, whether federal or quasi-federal, democracy is a part of the Basic Structure.
  12. Skill Lotto Solutions Pvt. Ltd. V. Union of India, Writ Petition (Civil) No. 961 of 2018:
      • Article 32 is an important and integral part of the basic structure of the Constitution.
  13. The NJAC case, also known as the Fourth-Judges case, is one of the recent cases on the Basic Structure Doctrine in India which mention that Independence of judiciary as basic structure doctrine.

Provision of amendments in other country – Comparative analysis

United State of America

The United States of America has held a trailblazer reputation with regard to providing an amendment clause in its Constitution. The process for amending the U.S. Constitution is outlined in Article V. Here’s a brief overview: 

Following two ways:

      1. By a two-third vote of both Houses of the Congress, or ;
      2. By a Convention called together on application of the Legislatures of two-third of the States.
      3. The amendment after being proposed in either of the above two ways is then supposed to be

Ratified in following two ways:

      1. By the Legislatures of, or
      2. By Conventions of the States, – accordingly as one of the other method of ratification is Proposed by Congress.

Furthermore, ratification is carried out in the either of the above two mentioned ways and after Ratification, such proposal becomes a part of the Constitution. In all, there are two ways to Propose an amendment and two ways to ratify such proposal. Thus there are four possible approaches for amendment of the United States Constitution.

Amendability provision in some other countries:-

Two principles dominate the various procedures of amending the constitutions in most modern constitutions.

      1. One is the principle of special majority. For instance, the constitutions of U.S., South Africa,Russia, etc. have employed this principle: In the case of constitution of US, it is two-thirds majority, while in South Africa and Russia, for some amendments, three-fourths majority is required.
      2. The other principle that is popular among many modern constitutions is that of people’s participation in the process of amending the constitution. In Switzerland, people can even initiate an amendment. Other examples of countries where people initiate or approve amendment to the constitution is Italy, among others.

Other than it there are some instance of amendability which we grouped in rigidity and flexibility as :

    • Countries having rigid amendment provision are: United states    ,Japan, Belgium, Bolvia ,Australia etc.
    • Countries having flexible amendment provision : New Zealand,United Kingdom ,Canada etc.

By comparing above Amendable provision in different countries we get a clear idea that constituion of India is neither rigid nor flexible . Our constituion maker had been beautifully designed every provision of our constituion to fullfill every possible need  of Indian society even in future .

Position of Legislature and Judiciary:-

Legislature and judiciary power are that two of the three great departments into which the powers of the Government are distributed-Legislature, Executive and Judiciary, which are concerned with enacting or establishing and incidentally with repealing laws and interpreting constitution and deciding case law.

Position of parliament and judiciary in eye of constitution maker –As per the Constituent Assembly Debates, the framers of the Constitution did not envisage any Limitation on the amending power of the Parliament. Pandit Jawaharlal Nehru told the Constituent Assembly that “as solid and permanent as the Constitution must be it must also permit National Growth”.

He argued that “because the new Parliament would represent every adult in India, it is the right that the House elected so…should have an opportunity to make such changes as it wants to”.Needs that may arise as the nation progress amendment is not only permissible  removal of Difficulties experienced in the working of the Constitution but also needed for keeping up with the Growth of Constitutionalism in step with changing society and to fill in the generation gap between the values, ideologies, ideas, demands and objections of the present day modern society and those held by the framers of the Constitution.

An amendment can surpass changes required for the and even Amendment bring about changes keeping up with the new trends. 10 though the judiciary interprets The changes brought through, it may be too late for the- values to survive and save the original document in its sanctified state. Amendment bring about changes keeping up with the new trends.so, the reasoning can be drawn that the emphase amending power in hands of legislature.

Position of legislature and judiciary now –From above discussion we get to know that though Parliament has power to amend the constitution under art 368 but subject to basic structure doctrine.

Also position of  Judiciary can also be seen through various judgement passed to ensure the power of Legislature under Article 368 and validity of various amendment passed by Legislature. Impotant judgement passed by judiciary in this regard can be seen as :

  1. SHANKARI PRASAD V. UNION OF INDIA, AIR 1951
    • The Shankari Prasad v. Union of India case (AIR 1951 SC 458) is a landmark judgment in Indian constitutional law. Here are the key issues raised and the judgment delivered:
    • Issues Raised
      1. Validity of the First Constitutional Amendment Act, 1951: The main issue was whether the First Amendment, which added Articles 31A and 31B to the Constitution, was valid.
      2. Scope of Article 13(2): The petitioners argued that the term “law” in Article 13(2) includes constitutional amendments, and thus, any amendment that violates fundamental rights should be invalid.
    • Judgment
    • The Supreme Court, in a unanimous decision, upheld the validity of the First Constitutional Amendment Act. The key points of the judgment were:
      1. Parliament’s Power to Amend: The Court held that Parliament has the power to amend any part of the Constitution, including fundamental rights, under Article 368¹².
      2. Interpretation of “Law” in Article 13(2): The Court clarified that the term “law” in Article 13(2) refers to ordinary laws made by the legislature and does not include constitutional amendments made under Article 368²³.
    • This judgment established that constitutional amendments are not subject to judicial review under Article 13(2), thereby giving Parliament broad powers to amend the Constitution.
  2. SAJJAN SINGH V. STATE OF RAJASTHAN, AIR 1965
    • The Sajjan Singh v. State of Rajasthan case (AIR 1965 SC 845) is another significant judgment in Indian constitutional law. Here are the key issues raised and the judgment delivered:
    • Issues Raised
      1. Validity of the Seventeenth Constitutional Amendment Act, 1964: The main issue was whether the Seventeenth Amendment, which added several laws to the Ninth Schedule and amended Article 31A, was valid.
      2. Scope of Article 13(2): Similar to the Shankari Prasad case, the petitioners argued that the term “law” in Article 13(2) includes constitutional amendments, and thus, any amendment that violates fundamental rights should be invalid.
    •  Judgment
    • The Supreme Court, in a majority decision, upheld the validity of the Seventeenth Constitutional Amendment Act. The key points of the judgment were:
      1. Parliament’s Power to Amend: The Court reaffirmed that Parliament has the power to amend any part of the Constitution, including fundamental rights, under Article 368¹².
      2. Interpretation of “Law” in Article 13(2): The Court maintained that the term “law” in Article 13(2) does not include constitutional amendments made under Article 368²³.
    • However, there was a significant dissenting opinion by Justice J.R. Mudholkar, who hinted at the concept of the “basic structure” of the Constitution, which would later become a crucial doctrine in Indian constitutional law².
    • This judgment further solidified the broad amending powers of Parliament, but also set the stage for future debates on the limits of these powers.
  3. GOLAK NATH V. STATE OF PUNJAB, AIR 1967
    • The Golak Nath v. State of Punjab case (AIR 1967 SC 1643) is a landmark judgment in Indian constitutional law. Here are the key issues raised and the judgment delivered:
    • Issues Raised
      1. Validity of Constitutional Amendments Affecting Fundamental Rights: The primary issue was whether Parliament had the power to amend the Constitution in a way that affected the Fundamental Rights enshrined in Part III of the Constitution.
      2. Scope of Article 13(2): The petitioners argued that the term “law” in Article 13(2) includes constitutional amendments, and thus, any amendment that violates fundamental rights should be invalid.
    • Judgment
    • The Supreme Court, in a majority decision, ruled that Parliament does not have the power to amend the Fundamental Rights. The key points of the judgment were:
      1. Parliament’s Amending Power: The Court held that Parliament cannot amend the Fundamental Rights, effectively placing them beyond the reach of constitutional amendments.
      2. Prospective Overruling: The Court applied the doctrine of prospective overruling, meaning that the decision would not affect the validity of past amendments but would apply to future amendment
    • This judgment marked a significant shift from the earlier decisions in Shankari Prasad and Sajjan Singh cases, where the Court had upheld Parliament’s power to amend any part of the Constitution, including Fundamental Rights. The Golak Nath case set the stage for the development of the “basic structure doctrine” in the Kesavananda Bharati case in 1973.
  4. Kesavananda Bharati v. State of Kerala, AIR 1973
    • The Kesavananda Bharati v. State of Kerala case (AIR 1973 SC 1461) is one of the most significant judgments in Indian constitutional law. Here are the key issues raised and the judgment delivered:
    • Issues Raised
      1. Extent of Parliament’s Amending Power: The primary issue was whether Parliament had unlimited power to amend the Constitution under Article 368, including the power to alter or abrogate fundamental rights.
      2. Basic Structure Doctrine: The case questioned whether there were any inherent limitations on the amending power of Parliament, specifically whether certain fundamental features of the Constitution could not be altered.
    • Judgment
    • The Supreme Court, in a landmark 7-6 majority decision, held that while Parliament has wide powers to amend the Constitution, it cannot alter the “basic structure” or essential features of the Constitution. The key points of the judgment were:
      1. Basic Structure Doctrine: The Court introduced the doctrine of the basic structure, stating that certain fundamental features of the Constitution, such as the supremacy of the Constitution, the rule of law, and the principles of democracy, cannot be amended by Parliament¹².
      2. Validation of Amendments: The Court upheld the validity of the 24th, 25th, and 29th Constitutional Amendments, but with the caveat that they should not violate the basic structure of the Constitution²³.
    • This judgment significantly curtailed Parliament’s power to amend the Constitution and established the principle that the Constitution’s basic structure is inviolable. It remains a cornerstone of Indian constitutional law and has been cited in numerous subsequent cases.
  5. MINERVA MILLS LTD. V. UNION OF INDIA, AIR 1980.
    • The Minerva Mills Ltd. v. Union of India case (AIR 1980 SC 1789) is a landmark judgment in Indian constitutional law. Here are the key issues raised and the judgment delivered:
    • Issues Raised
      1. Validity of the 42nd Constitutional Amendment Act, 1976: The primary issue was whether Sections 4 and 55 of the 42nd Amendment, which amended Article 31C and introduced Articles 368(4) and 368(5), were valid.
      2. Primacy of Directive Principles over Fundamental Rights: The amendment to Article 31C gave primacy to all Directive Principles of State Policy (DPSP) over Fundamental Rights, which was challenged.
      3. Judicial Review of Constitutional Amendments: Articles 368(4) and 368(5) sought to bar judicial review of constitutional amendments, raising questions about the limits of Parliament’s amending power.
    • Judgment
    • The Supreme Court, in a majority decision, struck down Sections 4 and 55 of the 42nd Amendment. The key points of the judgment were:
      1. Basic Structure Doctrine: The Court reaffirmed the basic structure doctrine established in the Kesavananda Bharati case, holding that Parliament cannot alter the basic structure of the Constitution¹².
      2. Invalidation of Article 31C (as amended): The Court held that the extended scope of Article 31C, which gave primacy to all DPSPs over Fundamental Rights, was unconstitutional as it violated the basic structure²³.
      3. Invalidation of Articles 368(4) and 368(5): The Court struck down these provisions, stating that they violated the basic structure by removing the power of judicial review, which is an essential feature of the Constitution²³.
    • This judgment significantly strengthened the basic structure doctrine and ensured that the power of judicial review remains a fundamental aspect of the Indian Constitution.

Conclusion

Our constitution maker kept Constitution of India flexible as well as rigid by keeping in mind the destructable history of India as well changing nature of the society – though introduce concept of amendibility . As India is a result of union of various states .This amendment provision was provided so as to imbibe changes that are taking place in Indian society and globally in order to keep the nation on the same pace as other developed countries.This very vision was being blurred by parliament going to the extent of saving the election of Prime Minister by being a judge in its own cause. A totalitarian regime was on the rise in the 1970’s when the Indira Gandhi government did everything possible in order to remain in power. So, the power given in article 368 is too wide which can be easily ,misused by legislature in its favour .SO,the concept of basic structure doctrine bring by judiciary play an important role to protect the basic essence of our constituion.

Also from above discussion we can conclude that the article 368 can’t be included in article 13(3) of the constituion or in another word amendment is not a law.

References:

  1. https://papers.ssrn.com
  2. http://student.manupatra.com
  3. CONSTITUTIONAL AND ADMINISTRATIVE LAW BY JASBIR SINGH BAJAJ IAS(Retd.)
  4. https://lawrato.com
  5. INDIAN POLITY,LAXMIKANT
  6. https://en.wikipedia.org

Written by

Himanshi Tyagi

7th Semester/4th Year Student of B.A., LL.B (2021-2026), from Chanderprabhu Jain college of higher studies and school of Law, Narela, Delhi.

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