The Amendment Process (Article 368)
The Constitution of India provides for its amendment to adjust itself to changing conditions and needs. However, the procedure is neither as easy as in Britain nor as difficult as in the USA. It is a synthesis of both.
Types of Majority Required
Amendments can be made in three ways:
- Simple Majority: (Not under Art 368) A simple majority of the two Houses of Parliament (e.g., formation of new states, abolition of state legislative councils).
- Special Majority: Majority of the total membership of each House and a majority of two-thirds of the members present and voting (e.g., Fundamental Rights, DPSP).
- Special Majority + State Ratification: Requires a special majority of Parliament plus ratification by half of the state legislatures by a simple majority (e.g., Election of the President, Supreme Court and High Courts, distribution of legislative powers).
The Kesavananda Bharati Case (1973)
This is arguably the most important constitutional case in Indian history.
The 13-judge bench established the Basic Structure Doctrine. It ruled that while Parliament has vast powers to amend the Constitution under Article 368 (including Fundamental Rights), it cannot use this power to alter or destroy the "basic structure" or framework of the Constitution.
Elements of the Basic Structure
The Supreme Court has not provided an exhaustive list of what constitutes the basic structure. Instead, it is decided on a case-by-case basis. However, over the years, the following have been identified as components of the basic structure:
- Supremacy of the Constitution
- Sovereign, democratic, and republican nature of the Indian polity
- Secular character of the Constitution
- Separation of powers between the legislature, executive, and judiciary
- Federal character of the Constitution
- Judicial Review
- Rule of Law
- Free and fair elections
The 42nd Amendment Act (1976) attempted to establish the supremacy of Parliament by stating there is no limitation on its amending power. However, the Supreme Court struck this down in the Minerva Mills case (1980), reiterating that Judicial Review is a basic feature.