Article 368 of the Constitution of India – Contours, Constraints, and Contemporary Relevance

Article 368 of the Constitution of India – Contours, Constraints, and Contemporary Relevance

1. Introduction

Article 368 vests in Parliament the “constituent power” to amend the Constitution. Although the text appears plenary—“Parliament may … amend by way of addition, variation or repeal any provision of this Constitution”— judicial interpretation has super-imposed substantive and procedural limits, ensuring that the amending power does not metamorphose into a power of destruction. This article critically analyses the constitutional architecture and jurisprudential evolution of Article 368, drawing principally upon seminal Supreme Court decisions such as Kesavananda Bharati[1], Minerva Mills[2], and Waman Rao[3], while situating recent controversies (e.g., the National Judicial Appointments Commission) within the established doctrinal matrix.

2. Constitutional Framework

2.1 Textual Scheme

Article 368 is located in Part XX titled “Amendment of the Constitution,” itself signalling that the provision deals with both power and procedure. The Article contains:

  • Clause (1) – conferring constituent power.
  • Clause (2) – prescribing the special majority plus presidential assent.
  • The Proviso – mandating ratification by not less than one-half of State Legislatures where federal features are implicated.
  • Explanations and ancillary clauses (inserted over time), including the now-invalidated Clause (4) and Clause (5) introduced by the Forty-second Amendment.

2.2 Procedural Distinctiveness

While ordinary legislation is enacted under Articles 107–111, a constitutional amendment Bill is introduced under Article 368 alone, underscoring the sui generis character of the constituent function.[4]

3. Evolution of Judicial Interpretation

3.1 The Early Era: Unlimited Plenary Power (1951 – 1966)

In Sankari Prasad (1951) the Court upheld the First Amendment, holding that “law” in Article 13(2) does not include a constitutional amendment.[5] Sajjan Singh (1965) reaffirmed this view, yet Justice Hidayatullah’s obiter foreshadowed future constraints.[6]

3.2 Interregnum: Fundamental Rights as Immutable (1967)

The eleven-judge Bench in Golak Nath (1967) prospectively ruled that Parliament had no power to amend Part III, treating amendments as “law” under Article 13.[7] The decision generated a constitutional impasse, prompting the Twenty-fourth Amendment (1971) which explicitly restored Article 368’s supremacy by adding the non-obstante clause vis-à-vis Article 13.

3.3 Constitutional Synthesis: The Basic Structure Doctrine (1973)

The thirteen-judge Bench in Kesavananda Bharati (1973) produced the most enduring doctrinal milestone: Parliament’s amending power is broad but not omnipotent; it cannot abrogate the “basic structure” of the Constitution.[1] Chief Justice Sikri identified elements such as supremacy of the Constitution, republican and democratic form of government, separation of powers, and judicial review as inviolable.

3.4 Reinforcement and Clarification (1975 – 1981)

(a) Indira Nehru Gandhi v. Raj Narain (1975) struck down Article 329-A(4) for violating free and fair elections—an essential feature.[8]
(b) The Forty-second Amendment (1976) sought to extinguish judicial review through Article 368(4)–(5).
(c) Minerva Mills (1980) invalidated these clauses, reiterating that limited amending power itself forms part of the basic structure; judicial review is a “corner-stone” of the Constitution.[2]
(d) Waman Rao (1981) upheld pre-1973 Ninth Schedule insertions but subjected post-1973 additions to basic-structure scrutiny, thereby “time-stamping” the doctrine.[3]

3.5 Post-Liberalisation Trajectory

Subsequent judgments have applied the doctrine to diverse spheres:

  • Kihota Hollohon (1992) — Paragraph 7 of the Tenth Schedule violated Articles 136, 226, 227 and required ratification.[9]
  • I.R. Coelho (2007) — Reaffirmed that Ninth Schedule laws inserted after 1973 are open to basic-structure review.[10]
  • SC Advocates-on-Record Association (2015) — Struck down the Ninety-ninth Amendment (NJAC) for impairing judicial primacy in appointments.[11]
  • Rajendra N. Shah (2021, following the Gujarat High Court view of 2013) — Part IX-B held unconstitutional for bypassing federal ratification, reinforcing procedural limits.[12]

4. Doctrinal Architecture

4.1 Basic Structure as an Implied Substantive Limit

The doctrine functions as a meta-constitutional principle balancing rigidity with flexibility. It is neither textually explicit nor judicially invented ex nihilo; rather, it derives from the supremacy clause (Article 367 read with the Preamble) and the structural logic of a controlled Constitution.

4.2 Limited Amending Power as a Basic Feature

Minerva Mills reconceptualised the power in Article 368 as itself conditioned: Parliament cannot expand its own competence to abrogate the Constitution.[2] This reflexive limit makes constituent power “derivative, not original,” distinguishing it from the authority of a Constituent Assembly.

4.3 Judicial Review: Procedural and Substantive Dimensions

Attempts to immunise amendments (e.g., Article 368(4) and the second limb of Article 31-C) failed because they foreclosed the judicial forum necessary to pronounce on basic-structure violation.[2]

5. Contemporary Issues

5.1 Federal Ratification under the Proviso

The invalidation of Part IX-B (co-operative societies) underscores that any amendment affecting “federal features” listed in the proviso—Articles 54, 55, 73, 162, etc.—must secure State ratification.[12]

5.2 Scope of “Constituent Power” Versus Ordinary Legislative Power

Courts have repeatedly emphasised that Article 368 cannot be utilised to enact ordinary legislation with constitutional rank (e.g., validating elections or creating tribunals), a principle discussed in Oberoi Hotels (Madras HC, 1994).[13]

5.3 Interplay with Directive Principles

Article 31-C (as amended by the Forty-second Amendment) attempted to subordinate Fundamental Rights to Directive Principles; its second limb was struck down in Minerva Mills, restoring the “harmony and balance” concept.[2]

5.4 Ninth Schedule Dilemma

The I.R. Coelho decision harmonises Article 31-B with Article 368 by applying basic-structure review to post-1973 insertions, thereby preventing the Ninth Schedule from becoming a constitutional “black hole.”[10]

6. Critical Appraisal

The Indian model showcases a dynamic equilibrium between parliamentary sovereignty and constitutional supremacy. Critics argue that excessive judicial intervention risks “government by judiciary,” yet the counter-factual—a Parliament with unfettered amending power—would permit abolition of core democratic guarantees. Comparative constitutionalism reveals analogous constraints in Germany (Article 79(3)) and South Africa (S.74(1)), bolstering the legitimacy of India’s unwritten limitations.

7. Conclusion

Article 368 epitomises the Constitution’s dual commitment to change and continuity. Through iterative judicial engagement, the provision has been transformed from a textual grant of plenary authority to a carefully cabined power, circumscribed by substantive and procedural fences. The basic-structure doctrine, far from being a judicial usurpation, operates as a constitutional sentinel, ensuring that amendments remain acts of “re-creation,” not “destruction.” As India navigates new socio-political challenges, adherence to these principled limits will remain essential for preserving constitutional identity while permitting calibrated evolution.

Footnotes

  1. His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225.
  2. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
  3. Waman Rao v. Union of India, (1981) 2 SCC 362.
  4. See also Article 107–111, Constitution of India (ordinary legislative procedure).
  5. Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.
  6. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
  7. C. Golak Nath v. State of Punjab, (1967) 2 SCR 762.
  8. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
  9. Kihota Hollohon v. Zachilhu, (1992) Supp 2 SCC 651.
  10. I.R. Coelho (Dead) v. State of Tamil Nadu, (2007) 2 SCC 1.
  11. Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 (NJAC case).
  12. Rajendra N. Shah v. Union of India, (2021) Supreme Court (Part IX-B case).
  13. Oberoi Associated Hotels Ltd. v. Commercial Tax Officer, (1994) 93 STC 401 (Madras HC).