India

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Article 368 of the Indian Constitution
 

368. Power of Parliament to amend the Constitution and procedure therefor.

(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 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 and by a majority of not less than two-thirds of the members of that House present and voting, 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:

Provided that if such amendment seeks to make any change in—

(a) article 54, article 55, article 73, article 162, article241 or article 279A or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions 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 III) 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.

(5) 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.

Source, evolution and application of the doctrine

 

Article 368 of the Indian Constitution, which empowers the parliament to amend the Constitution, does not impose any explicit limits on the parliament’s power. However, the Supreme Court of India has found certain implied limits.

 

Initially, the Court held that that there are no limits on the parliament’s constituent power and that the parliament can amend any provision of the Constitution: Sankari Prasad v Union of India (1952) and Sajjan Singh v State of Rajasthan (1965). Later on, in Golak Nath v State of Punjab (1967), the Supreme Court held that the parliament could amend any provision of the Constitution but not fundamental rights. Finally, the Supreme Court in Kesavananda Bharati v State of Kerala (1973) held that the parliament does not have the power to amend the “basic structure” of the Constitution, which may include certain fundamental rights.

 

Since the Kesavananda Bharati case, the Court has applied the doctrine in several subsequent cases to declare unconstitutional not only constitutional amendments but also ordinary laws and executive actions.  

 
Useful Resources

 

Articles

  • Chintan Chandrachud, ‘Constitutional Falsehoods: The Fourth Judges Case and the Basic Structure Doctrine in India’ in Richard Albert and Bertil Emrah Oder (eds.), An Unamendable Constitution? Unamendability in Constitutional Democracies (Springer, 2018) 149

  • Christopher J Beshara, ‘Basic Structure Doctrines and the Problem of Democratic Subversion: Notes from India’ (2015) 48:2 Verfassung und Recht in Übersee [Law and Politics in Africa, Asia and Latin America] 99  

  • Dietrich Conrad, ‘Constituent Power, Amendment and Basic Structure of the Constitution: A Critical Reconsideration’ (1978) 6 & 7 Delhi Law Review 1

  • Dietrich Conrad, ‘Limitations of Amendment Procedures and the Constituent Power’ (1970) Indian Yearbook of International Affairs 375

  • Madhav Khosla, ‘Constitutional Amendment’ in Sujit Choudhary, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016)

  • PK Tripathi, ‘Kesavananda Bharati v. The State of Kerala Who Wins?’ (1974) 1 SCC (Jour) 3

  • Rajeev Dhavan, The Supreme Court of India and Parliamentary Sovereignty (Sterling Publishers, 1976)

  • Raju Ramachandran, ‘The Supreme Court and the Basic Structure Doctrine’ in BN Kirpal et al (eds.), Supreme but not Infallible – Essays in Honour of the Supreme Court of India (Oxford University Press, 2000) 107

  • Rehan Abeyratne, ‘Upholding judicial supremacy in India: the NJAC judgment in comparative perspective’ (2017) 49 George Washington International Law Review 569

  • Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press, 2009)

  • TR Andhyarujina, Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament (Universal Law Publishing Co., 2011)

  • Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book Company, 1980)

  • Zaid Deva, ‘Basic Without Structure?: The Presidential Order of 1954 and the Indo-Jammu & Kashmir Constitutional Relationship’ (2020) 4:2 Indian Law Review 163

Cases

  • Golak Nath v State of Punjab (1967) 2 SCR 762

  • Indira Nehru Gandhi v Raj Narain (1975) Supp SCC 1

  • IR Coelho v State of Tamil Nadu (2007) 2 SCC 1

  • Ismail Faruqui v Union of India (1994) 6 SCC 360

  • Kesavananda Bharati v State of Kerala (1973) 4 SCC 225

  • Kihoto Hollohan v Zachillhu AIR 1993 SC 412

  • L Chandra Kumar v Union of India (1997) 3 SCC 261

  • Minerva Mills v Union of India (1980) 3 SCC 625

  • SR Bommai v Union of India AIR 1994 SC 1918

  • Sankari Prasad v Union of India (1952) SCR 89

  • Sajjan Singh v State of Rajasthan (1967) 2 SCR 762

  • Supreme Court Advocates on Record Association v Union of India (2016) 4 SCC 1

  • Supreme Court Advocates on Record Association v Union of India AIR 1994 SC 268

  • Waman Rao v Union of India (1981) 2 SCC 362