Abstract
To govern a country requires laws framed and followed. These laws which describe the power and limitations of Government and the principal functions of the organs of Government, set out the framework of Government, such laws are known as Constitutional laws, written in a Constitution.
As laws framed today may be good for the present situation but may not be good the for future, they lose their efficacy according to the changes in situation and time. Laws require changes according to time.
So, our Constitution provides the provisions to make amendments in our Constitution concerning time. What are those provisions, how do they come into force, and how does the Supreme Court interpret these laws? What is the theory of the Basic structure of the Constitution?
Introduction
Every law needs to be modified according to the requirements of time and situation. If laws are not changed according to time it will result in revolution and other illegal methods for changes in laws will be followed.
Art. 368 of the Constitution of India provides the provisions of amendment of the Constitution of India. As we know there are two kinds of Constitutions in the world. One is a Written Constitution and the other is an Unwritten Constitution.
Written constitutions are rigid and amendments are difficult. Whereas the Unwritten Constitution is not so rigid.
The Constitution of India is a written Constitution and a federal one. Provisions of amendment in the federal Constitution are more complex in comparison to the Unitary Written Constitution.
Our Indian Constitution provides unique provisions of the amendment. For amendment in the Union’s subject, the provisions are different from the provisions of amendment in the state’s subject.
The Constitution of India provides three different ways for the Amendment of the Constitution.
The Supreme Court has given the principle of basic structure concerning the amendment of the Constitution.
Necessity for Amendment of Constitution
The provisions for amendment of the Constitution are made to overcome the difficulties that may be encountered in the future in the working of the Constitution.
If no provisions were provided for the amendment of the Constitution, the people would have recourse to extra-constitutional methods like a revolution to change the Constitution.
As discussed above the federal written Constitution are rigid. The framers of the Indian Constitution were keen to avoid excessive rigidity and were anxious to have a document that could grow with the growth of the Nation and adapt itself to the changes in need and circumstances of a growing Nation.
But the framers of the Indian Constitution were also aware that if the Constitution was so flexible it would be a playing of whims and caprices of the ruling party. they adopted a middle course.
It is neither too rigid to admit necessary amendments nor too flexible for undesirable changes.
For amendment the various Articles of the Constitution are divided into three categories:
- Amendment by Simple
- Amendment by Special
- By Special Majority and Ratification of
Ways of Amendment of Constitution of India [Article – 368]
As discussed above our Indian Constitution provides three different ways to amend the Constitution of India. These are:
- Amendment by Simple
- Amendment by Special
- By Special Majority and Ratification of
1 – Amendment by Simple Majority:
The amendments contemplated in Articles 5, 169, and 239-A, can be made by a simple majority.
2 – Amendment by Special Majority:
Article of the Constitution which can be amended by Special Majority as laid down in Article 368. All Constitutional amendments, other than those referred to above, come within this category and must be effected by a majority of not less than 2/3 of the members of that House present and voting.
3 – By Special Majority and Ratification of States:
The States are given a special voice in the amendment of the State list subject to Schedule VII of the Constitution.
Procedure for Amendment of Constitution:
It must be passed by each House by a majority of the total membership of that house and by a majority of not less than 2/3 of the members of that House present and voting.
a Bill which seeks to amend the provisions mentioned in Article 368 which requires in addition to the special majority mentioned above the ratification by 1/2 of the States.
Article 368, however, does not constitute a complete code. The process of amending the Constitution is a legislative process governed by the rules of that process.
Amendment of Fundamental Rights and The Basic Structure of the Constitution
The question of whether fundamental rights can be amended under Art. 368 came for the Supreme Court in Shankari Prasad vs. the Union of India.
The Supreme Court held that fundamental rights can be amended by the use of Art. 368 of the Constitution of India.
In Sajjan Singh vs. State of Rajasthan, again this question arises as to whether fundamental rights can be amended by the procedure of Article. 368.
The Supreme Court approved the majority judgment of Shankari Prasad’s case and held that the word “amendment of Constitution” means an amendment of all the provisions of the Constitution.
Then, in Golak Nath vs. State of Punjab, the question arises, the Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision of Shankari Prasad’s case and Sajjan Singh’s case and held that Parliament had no power from the date of this decision to amend PART III of Constitution.
But after that, the Parliament brought the 24th Amendment Act, of 1971 which states that Parliament has the power to amend Part III of the Constitution of India.
Then came the famous case of Keshvananda Bharti vs. State Of Kerala also known as the Fundamental Rights case, in this case, the Supreme Court gave the famous theory of the Basic Structure of the Constitution.
The Supreme Court by majority overruled the Golak Nath’s case which denied the Parliament to amend Part III of the Constitution. The majority held that Article. 368 even before the 24th Amendment Act contained the power as well as the procedure of amendment.
The Supreme Court held that under Article. 368 Parliament is not empowered to amend the Basic Structure or Framework of the Constitution.
What is a Basic Structure?
They give coherence and durability to the Constitution. These principles are part of Constitutional law even if not expressly provided. The Basic Structure of the Constitution consists of the following features:
- Supremacy of the Constitution,
- Republican and democratic forms of the Government,
- Secular character of the Constitution,
- The federal character of the
And the Supreme Court in upcoming cases will decide more subjects of the basic structure of the Constitution.
Conclusion
No law can be good in all situations and they need to be modified or changed according to the requirements of time and situation.
The procedure for bringing that change or modification of Constitutional law is provided in Article. 368 of the Constitution of India.
The Constitution of India is written and federal and this kind of Constitution is rigid and difficult to amend.
The Constitution of India provides a unique method for amendment of the Constitution which is rigid for some matters and not rigid for others.
The Supreme Court interprets the scope of Parliament concerning the amending powers and provides the theory of the Basic Structure of the Constitution of India.
