CHAPTER III

AMENDING PROCEDURE UNDER THE CONSTITmTON

OF INDIA : ANALYSIS OF THE NATURE AND SCOPE
OF ARTICLE 3 6 8

I. General Observations

The Constitution of India, like other Constitutions is in the

form of written document. We all know that the moment the
Constitution of a state is reduced to writing, the amending
provision assumed great importance because very object of writing
a Constitution depend on it. The essence of a written Constitution
lies in its mode of amendment. In a democratic country like India
the Constitution is described as superior or supreme law with
greater efficiency and authority and higher sanctity and greater
permanence than ordinary legislation. In principle, the nation's
ideology and the aspirations of the constituent masses in
democracy are capitulates in their Constitution. The Constitution
may be divided into two categories controlled and uncontrolled
Constitution. Where the Constitution is supreme and the
Legislature is a creature of the Constitution with limitations on its
competence, its laws being liable to be stucked down as ultra vires
if they breach the constitutional law it may be called a 'controlled
constitution'.! In such a Constitution the Legislature's power to
gilter the Constitution is either limited or non-existent.^ On the
other hand in an 'uncontrolled Constitution' like that of the United

1 This distinction of controlled and uncontrolled Constitution is described by

Lord Birkenhead in McLaw Ley v. The King, AIR 1920 PC 91 (96)
2 K. C. Wheare, Modem Constitution, 31 (1952)
 118

Kingdom where the Parliament is supreme and has unlimited

jurisdiction, Constitutional Law can be altered merely by enacting
legislations in consistent with it.^ The Indian Constitution being a
controlled Constitution, the power to amend it require a lot of
wisdom and restricted effort because the cases where the
amending power vests with the people in whom the ultimate
sovereignty resides are quite different from cases where the
amending power resides in a functionary under the Constitution
e.g. the Indian Parliament. Keeping in mind the above proposition
we can say that the amending procedure of the written
Constitution implies certain inherent limitations in its. In this
chapter an attempt is made to analyse the procedure by which
Constitution of India can be amended.

(A) Nature of Amending Procedure

The Indian Constitution being a Controlled Constitution

implies that it cannot be amended by the ordinary procedure of law
making. There exist a basic distinction between Constitution and
ordinary law. A Constitution once adopted is gdways valid whereas
a law is valid only if it is in conformity with the Constitution. J u s t
as an ordinary law derived its validity from its conformity with the
Constitution so edso an Amendment of the Constitution derives its
validity from the Constitution.'*

Speaking about the nature of the amending procedure there

can be two ways or words to define it. First flexibility and other one
is rigidity. The Federal Constitutions are as a rule rigid where the
procedure of Amendment is entrusted to a body other than the

3 N. A. Palkhivala, Our Constitution Defaced and Defiled, 112 (1974)

4 Paras Diwan, Indian Constitutional Amendment, 6 (1980)
 119

Legislature like constitutional conventional or special procedure is

prescribed for such amendment. The Constitutions of USA,
Australia and Switzerland are classic examples of rigid federal
Constitutions where the procedure of Amendment is both difficult
and dilatory. Our Constitution on the other hand, though federal is
partly rigid and partly flexible. Although the amending procedure
appears complicated, it is merely diverse, providing three ways of
ascending difficulties for altering the Constitution. Certain
provisions of the Constitution may be amended by simple majority
in Parliament and in this respect our Constitution is flexible. Other
provisions may be amended by as special majority. Amendment to
a third category of provisions has to be ratified by one half of the
State. In this respect, our Constitution is rigid. The consideration
of flexibility should also take into account the changes which can
be brought in a Constitution by a custom and usage, without
resorting to amendment. By this yardstick too, the Indian
Constitution h a s proved flexible as the effects of the National
planning on federal structure would show. In actual practice, the
ease with which constitutional changes have been made proves
that our Constitution has been every flexible, Dr, Ambedkar
observed, "one can therefore safely say that the Indian federation
will not suffer from the faults of rigidity and legalism its
distinguishing feature is that it is a flexible federation."^

(B) Variants of Amending Procedure

If we observe the various amending procedures of different

Constitutions,6 we find in the ultimate analysis that it is not so

5 Kaxiahaiya Lai Sharma, The Constitution of India, 444 (2002)

6 A Comparative Study of Amending Procedure in India, USA and Australia
is done in Chapter V.
 120

easy to find out any common principles behind this, There are too
many variations in detail. However, an analysis of the various
modem Constitutions'^ would show that they aim at safeguarding
one or more of four objectives. The first and foremost objective is
that constitutional changes should not be effected in a light
hearted manner of purposely to satisfy the whims of a particular
party in power or vested interest but only after mature thought,
deep deliberation and as the last resort. The second objective is the
ascertainment of the popular will or in other words the people
should be given an opportunity of expressing their views before a
change is made. The third objective is, particular applicable to the
federal system, that matter concerning the common concern of the
units and of the central government as also their distinctive feature
should not be altered by either party acting unilaterally. It is
usually considered best that some form of Amendment which
involves joint action by the Central Government and the
constituent units should be adopted. The last but not the least
objective is the protection that is to be afforded, in a general way,
to the language, religion or culture of minorities and less privileged
clas in society i.e. the ensuring of communal rights and social
justice. To a varying degree and extent the different Constitutions
of the world have sought to implement the above objectives.^

Further, the ingenuity of man has produced so many specific

modes of Amendment and revision that it is difficult to categorise
them into specific groups. There are many variations in detail. Yet
the amending procedure is characterized by the following feature.
Firstly, the establishment arrangements almost always are more

7 See, infra Chapter V.

8 K. C. Markandan, The Amending Procedure and Constitutional Amendments
in the Indian Constitution, 27 (1972)
 121

difficult and involve more delay than the procedure of ordinary law
- making, secondly the function of proposing changes is assigned
to one agency and the power of ratification to another. This is done
primarily for two reasons, namely to prevent hasty action and to
enable the sharing of power and responsibility among different
interests within the body politic. Thirdly, the right to make
proposals is usually granted to an ordinary organ of government,
normally the legislative authorities.^

Apart from the above mentioned features in a large number

of modem Constitutions it is deemed proper that the people or the
electorate should have some say in deciding whether an
Amendment should be made or not. This is based on the principle
that any government founded on the democratic principles of
popular sovereignty must make possible the fresh assertion of the
popular will as that will changes. The people's will, however, is
discovered in a variety of way, it may be a n 3 ^ i n g between vesting
in the people the power of initiating constitutional amendments to
popular approval after it has been passed by the Legislature. Thus
for example, under the Swiss Constitution and quite a few of the
American States, constitutional Amendment is vested in the
people. On the other hand the Constitution of Republic of Ireland
of Denmark and the Commonwealth of Australia and of practically
of all American States require the Amendment proposed to be
actually referred to the people after it h a s been passed by the
Legislature. The Swiss Constitution, it is to be noted at this
juncture, not only vests the power of initiative of constitutional
amendments in the Swiss people but also makes it obligatory to
refer amendment, proposals to the people. Yet a different way of

9 . Ibid.
 122

ascertaining popular will on revisional proposals is adopted in the

Constitution of Belgium, Denmark, Holland, Sweden, Norway,
Columbia, Ecuador and such other. In these Constitutions
although the Legislature is given the power to make the
amendment, its final passage is deferred till the general election
when people may, if they choose express their views upon the
proposal in voting for candidates at the election. Certain
Constitutions such as the Constitution of French Fourth Republic,
the Italian Constitution of 1948 and the 1920 Constitutions of
Chile require reference to a popular vote under certain
circumstances the common on being the lack of requisite majority
in the Legislatures. 1° Generally speaking, the type of amending
procedure required for a country should satisfy three tests,
namely:

(1) Will the article or articles meant for the Amendment of the
Constitution works? Can practical use be made of it, so that
actual changes in the fundamental law may be secured?
(2) Does the amending procedure designed recognize and tend
to maintain the distinction between ordinary law on the one
hand and the fundamental law of the Constitution on the
other? If not again the procedure is defective.
(3) Is the amending procedure of such a nature as to be
reasonably responsive to be popular will? This does not
mean that the initiative proposal should be there for there
are methods of legislative proposal in connection with which
effective popular control is possible. But this does not mean
that a procedure under which popular control is impossible
or ineffective is a poor one.

10 Id., at 28
 123

Having considered the necessity, the variety and the place of

amending procedure in the constitutional document, it now
requires to be seen as to what a constitutional Amendment
procedure involves or in other words, the different stages or steps
that must be accomplished before an Amendment could be added
to a Constitution. ^ i

(C) Selection Criteria

Having discussed the nature and variants of the amending

procedure, the next step is to find out the criteria by which the
Parliament selects the mode of Amendment to be adopted from
time to time in accordance with the contemporary national needs.
These modes may either be (i) Informal method or (ii) Formal
methods. Informal methods are judicial interpretations and
conventions. The formal method is the constituent procedure.

(D) Informal Methods

(a) Judicial Interpretation

Most of the modern Constitutions due to considerations of

expediency and national growth, contain provision for their
amendment. Even though Constitutions do contain provisions for
their amendment, still some times informal methods, such as
judicial interpretation are adopted. 12 in such cases the
constitutional text does not change but its interpretation
undergoes a change. The worlds in the Constitution having one
meaning in one context may be given a somewhat different
meaning in another context, while the language of the Constitution

11 Id., at 30
12 Justice V. Madhava Rao, Constitutional Amendments Lawyer Citation, Vol.
12, No. 5, May 1980, at 68
 124

does not change. The changing circumstances of a progressive

society for which it was designed yield new and fuller import to its
meaning. 13 Judicial interpretation is a procedure of slow and
gradual metamorphosis of constitutional principles, and is
somewhat invisible. For the changes h a s to be deciphered by an
analysis of body of judicial precedents. In this procedure the courts
play a dominant role, for it is their functions to interpret the
Constitution. The procedure is slow for it develops from case to
case over length of time if may take long for a view to crystalise.
The court only decides on the points revised before it. This
informal method is used when the language used in the
Constitution is general. In the United States the Supreme Court
has from time to time given a new meaning to phrases and words
in the Constitution so as to make the 18*^^ centuries, Laissez-Faire
Era, documents subserve the needs of a vast, expanding and
highly industrialized civilization of the 20^^ centuries without any
formal amendments being effectuated in its text.^'* The U. S.
Constitution being skeletal and brief and couched in general
language, offers a vast scope for judicial creativity for e.g. the first
amending to the U. S. Constitution guarantees freedom of speech
in very broad terms. The Amendment says, "Congress shall make
no law abridging freedom of speech or of the press." The provision
lays down no limits or restrictions on the fundamental rights to
freedom of speech. But there can be no unlimited rights, therefore,
the U. S. Supreme Court h a s taken upon itself to spell out the
restrictions on this right likewise in Canada and Australia also the
Judiciary has adopted the Constitution to the changing

13 K. C. Wheare, Modem Constitutions, 146 (1964)

14 Ibid.
 125

circumstances. 15 fhe procedure of judicial interpretation is in

progress in India as well. The Supreme Court by holding that it can
consider its decisions from to time h a s kept the way open for
adjustment in constitutional interpretation so as to adopt the
Indian Constitution to new situations. ^^ One special feature,
however, of the Indian Constitution is that it being very detailed
and its language being rather specific and not general
opportunities available to mould Constitution by judicial
interpretation procedure are somewhat limited. ^'^

(b) Conventions and Constitutional Usages

The operation of constitutional provisions may be modified

by the growth of conventions, practices and observances. This
another procedure of slow metamorphosis, or imperceptible cheinge
where the constitutional text retains its original form and
phraseology, where there is no visible modification on the face, but
where, underneath the surface, a change has come about so far as
the working and operation of the provision is concerned. The
conventions and usages, though operating within the framework of
the provision of the Constitutions, nevertheless, do modify their
content and effect. One way to distinguish between rules and
conventions may be to say that while rules are made, conventions
are not made, conventions evolve out of practices followed over a
period of time.

15 M. P. Jain, Indian Constitutional Law, 612 (2007)

16 Ibid.
17 See, supra note 12 at 68
 126

Conventions operate in several ways

One, a convention may nullify a constitutional provision in

practice without formal abolishing it. A well known example of this
is to be found in the fact that in source countries, the legal power
of the head of the state to veto a bill passed by the Legislature is
never exercised by him except on the advice of the ministry.

Two, a convention may work by transferring powers granted

to the authority in the Constitution to another authority. This is
what usually happens in a country with a parliamentary form of
government where legal power formally vested in the head of the
state are effectively by the ministry.

Three, a convention may affect the Constitution by

supplementing a provision therein, i^ British affords by for the best
example of this procedure where conventions play a very important
role in the constitutional procedure. Conventions have made it
possible for a monarchical Constitution to work on democratic
lines. The prerogative power of the British crown to veto a bill
passed by House of Parliament has disappeared through destitute.

The Indian Constitution is very detailed and comprehensive.

Some of the conventions of the British Constitution have been
expressly incorporated in the text of the Constitution. Still there
remains scope for the grown of conventions. Reference may be
made in this connection to the foregoing discussion on the
following topics. Council of Ministers, cabinet and Minister's
responsibility for his subordinate actions summoning prorogation
and dissolution of Lok Sabha and State Legislative Assembly.

18 See, supra note 13 at 178-201

 127

Governor's relations with his Council of Ministers and with the

Central Government assent by the President or the Governor to
Bills passed by the Parliament or the State Legislature respectively
acceptance of the Finance Commission's recommendations by the
Central government.

Under the stresses of planning have arises in India to take

only two examples (1) the Planning Commission, an extra-
constitutional statutory body, has come to have a good deal of
control over Central-State policies. (2) The National Development
Council is another extra-constitutional body, the power and
functions of which are regulated not by law but by conventions.

Conventions have often been characterized as non-legal-

rules - *non legal' because the court do not apply them - 'rules'
because they are regarded as binding and are observed in practice.
In this connection, it had to be pointed out that there are cases
where the courts have recognised conventions. Thus blurring the
distinction, to some extent, between legal' and 'non-legal' rules. ^^
Some Supreme Court judges have even gone to the extent of
denying that there is any distinction between constitutional law
and an established constitutional convention. For example Kuldip
Singh Judge has observed^o "we are of the view that there is no
distinction between 'constitutional law' and an established
'constitutional convention' and both are binding in the field of their
operation. Once it is established to the satisfaction of the court
that a particular convention exists and is operating then the

19 See U. N. Rao v. Indira Gandhi, AIR 1971 SC 1002; Shamsher Singh v. State
of Punjab, AIR 1974 SC 2192
20 S. C. Advocates on Record Association v. Union of India, AIR 1994 SC 405.
 128

convention becomes a part of the constitutional law of the land and

can be enforced in the like manner."

(E) Formal Method

The other one is the formal method. Practically every

Constitution has some formal methods of constitutional
amendment, which consists of changing the language of a
constitutional provision so as to adopt it to the changed context of
social need. In some countries the procedure may be easier than in
others, and accordingly. The Constitutions are classified into
flexible or rigid. A flexible Constitution is one in which Amendment
can be effected rather easily as enacting an ordinary law. The best
example of such a Constitution is the British Constitution which
can be amended by an ordinary Act of Parliament, and there is no
distinction between ordinary legislative procedure and constituent
procedure. The rigid Constitution is the fundamental law of the
country which lays down the basic principles for country's
governance. It is, therefore, thought the method of constitutional
Amendment should ensure that the basic principles are changed
only after thorough consideration and deliberations and that, hasty
and ill-considered changes under political pressures of the day are
avoided.2i Usually a written Constitution is of rigid type. Even a
federal Constitution is rigid, for it seeks to achieve a balance of
powers between the centre and states and it ensures that this
balance is not disturbed lighdy or unilaterally. Formal Amendment
is perhaps the most significant way of adopting the Constitution to
changing circumstances. The judicied interpretations may help to
some extent in this respect. But it cannot change the wordings of

21 See, supra note 12 at 69

 129

the basic law and certain desired changes may not be attainable
without verbal changes in the constitutional text. A formal
amending procedure is as important as the procedure of
Constitution making and so it may rightly be characterized as the
constituent procedure. If we talk about India where the
Constitution is in written form, the formal method of Amendment
is laid down under Article 368 of the Constitution which will be
discussed in the next head.

II. Vesting of the power of Constitutional Amendment

Articles 368 (Power of Parliament to Amend the Constitution and

Procedure thereof)

(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 tot£il membership of that House and by a
majority of not less than two-third 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 -
 130

(a) Articles 54, Article 55, Article 73, Article 162 or Article
242 or
(b) Chapter IV of par 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 resolution to
that effect passed by those Legislature 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 provision
of Part II) 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 provision of this Constitution under this Article.

After going through the wordings of Article 368 as provided

under the Constitution, it is worth mentioning that Parliament is
vested with very important power of amending the fundamental
law of the land. It is the parliament who plays a lead role in the
procedure of amendment. As our Constitution it is in written form
 131

and we all know that the moment the Constitution of the State is
reduced to writing, its amending provision assumes great
importsince because, the very object of writing a Constitution
depends upon it in fact the essence of a written Constitution lies in
its mode of amendment. According to J o h n Burgess, the amending
procedure envisaged in a Constitution is the first of the three
fundamental parts of a Constitution; the second and third being
the Constitution of liberty and Constitution of Government. "A
complete Constitution may be said to consist of three fundamental
parts. The first is the organisation of the State for accomplishment
of future changes in the Constitution. This is usually called the
amending clause, and the power which it describes and regulates
is called the amending power. This is the most important part of a
Constitution."22

Coming back to the power of Parliament to amend the

Constitution it can be said that the real analysis or evaluation of
such an important power of parliament can be done only after
discussing in detail the procedure for constitutional Amendment
which is our next head of research.

III. The Procedure for Constitutional Amendment

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

22 John W. Burgess, Political Science and Constitutional Law, 137 (1891)

 132

assent to the Bill and thereupon the Constitution shall stand

amended in accordance with the terms of the Bill.23

IV. Amendment Procedure

By bare reading of Article 368, Clause (2) it is remarkable to

note that one of the outstanding feature of the Indian Constitution
is that different procedures have been laid down for amending
different provisions of the Constitution, though in all cases and
Amendment has to be moved in Parliament.^^ That is, for the
purposes of Amendment the provisions of the Constitution fall
under three categories. The procedure for each category is laid
down in the Constitution.

Firstly, those that can be effected by a simple majority,

required for the passing of an ordinary law. The amendments
contemplated in Articles 4, 169 and 239-A fall within this class.^s
They are specifically excluded from the preview of Article 368.

Secondly, those that can be effected by a special majority as

laid down in Article 368(2). Constitutional amendments other than
those referred to above come within this category and must be
effected by a majority of the total membership of each House of
Parliament as well as by a majority of not less than two-third of the
members of that House present and voting.

Thirdly, that those require, in addition to the special majority

as described above, ratification by resolution passed by not less
than one-half of the State Legislatures. This class comprises

23 Article 368, Clause (2)

24 Paras Diwan, Amending Power and Constitutional Amendment, 118 (1990)
25 Article 4 - Creation of new states or re-constitution of exiting states; Article
169(3) - creation or abolition of upper chambers in the States; Article
239- A Constitution of Centrally Administered Areas.
 133

amendments which 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:

(i) The election and manner of election of the President;^^

(ii) The extent of Executive power of the Union;^^
(iii) The extent of Executive power of a state,28
(iv) Provisions dealing with Supreme Court;^^
(v) Provisions dealing with the High Courts in the states;3o
(vi) High Courts for Union Territories;^^
(vii) Distribution of legislative powers between the Union and
the state.32
(viii) The representation of States in Parliament;33
(ix) Seventh Schedule to the Constitution;3''
(x) Article 368 i.e. the power and procedure of amending of
the Constitution.

Speaking about the uniqueness of the procedure for

Amendment of the Constitution the following observation was
made by Pandit Nehru, "while we want this Constitution as solid
and permanent as we make it. There is no permanence. In the
permanent you stop the nation's growth of living, vital organs of
the people in the changing conditions, when the world is in a

26 Articles 54 and 55
27 Article 73
28 Article 162
29 Articles 124 to 147
30 Articles 214 to 233
31 Article 241
32 Part XI, Articles 245 to 255
33 Fourth Schedule
34 List 1, II, III Schedule VII
 134

period of transition. What we may do today may not be wholly

applicable tomoiTow"^^

In the same context Dr. Ambedkar observed, "the provision

relating to Amendment of the Constitution have come in for a
virulent attack at the hands of the critics of the Draft Constitution.
It is said that the provisions contained in the Draft make
Amendment difficult. It is proposed that the Constitution should
be amendable by a simple majority at least for some years. The
argument is subtle and ingenious. It is said that this Constituent
Assembly is not elected on adult suffrage while the future
Parliament will be elected on adult suffrage and yet the former ahs
been given the sight to pass the Constitution by simple majority
while the letter has been designed the same right. It is paraded as
one of the absurdities of the Draft Constitution. I must repudiate
the charge because it is without foundation. To know how simple
are the provisions for Amendment contained in the American and
Australian Constitutions. Compared to them those contained in
the Draft Constitution will be found to be the simplest. The Draft
Constitution has eliminated the elaborate and difficult procedures
such as a decision by a convention or a referendum. The powers of
Amendment are left with the Legislature central and provincial. It
is for amendments of specific matters and they are only few - that
ratification of the state Legislatures is required. All other Articles of
the Constitution are left to be amended by Parliament. The only
limitation is that it shall be done by a majority of not less than
two-third of the members of each House present and voting and a
majority of the total membership of each House.

35 J. N. Pandey, Constitutional Law of India, 648 (2000)

 135

What is said to be the absurding of the amending provision

is founded upon a misconception of the position of the Constituent
Assembly and of the future Parliament elected under the
Constitution. The Constituent Assembly in making a Constitution
has no partisan motive. Beyond securing a good and workable
Constitution it has no axe to grind. In considering the Articles of
the Constitution it has no eye on getting through a particular
measure. The future Parliament, if it met as a Constituent
Assembly, its members will be acting as partisans seeking to c a n y
amendments to the Constitution to facilitate the passing of party
measures which they have failed to get through Parliament by
reasons of some Article of the Constitution which has acted as an
obstacle in their way. Parliament will have an axe to find while the
Constituent Assembly has none. That is the difference between the
Constituent Assembly and the future Parliament. That explains
why the Constituent Assembly though elected on limited franchise
can be trusted to pass the Constitution by simple majority and
why the Parliament though elected on adult-suffrage cannot be
trusted with the same power to amend it. "36

In U. S. A. Amendment of the Constitution may be proposed

only by Congress with the approval of two-third of majority of both
Houses or conventions summoned on an application from two-
third of the members of both Houses. The proposed amendments
must subsequently be ratified by at least three-fourth of the total
members of the state Legislatures or by conventions of three-fourth
of the total members of the state.

36 Constituent Assembly Debates, Vol. VII, 43-44

 136

In Switzerland no alteration of the Constitution can be

effected without resorting to a referendum. In Australia, the
Constitution can be altered only by an Act passed by an absolute
majority in both Houses, or in case one House refused to pass it by
an Act passed by an absolute majority in either House, for the
second time, after an interval of three months. But in either case,
the Act must be subjected to a referendum in each state. If in a
majority of the states, a majority of the voters approve the
Amendment and if a majority of all the voters also approves, it
shall be presented to the Governor-General for the Royal assent.37

(A) Initiation of the Procedure

The right to initiate the procedure of Amendment has been

given only to the House of the People (Lok Sabha) or Council of
State (Rajya Sabha) and not to the people as in the Constitution of
Sv^dtzerland or to Congress and the States as in the Constitution of
the Fifty, French Republic 1958. Indirectiy, of course, the States of
India can initiate the procedure of Amendment through their
representatives in the Council of States. Since the initiation of the
procedure of Amendment is to be done by introducing a Bill to that
effect in either House of Parliament, the rules regarding the
introduction, consideration and passing of Bills are applicable to
the amending Bills also. The Lok Sabha has framed its rules of
procedure and conduct of business of the House under Article 118
of the Constitution. Rules 155 to 159 of the R. P. C. B. 1957 relate
to a Bill seeking to amend the Constitution. It has been provided
therein that the rules of procedure applicable to ordinary Bill will

37 V. N. Shukla, Constitution of India, 883-84 (2001)

 137

also apply to the constitutional Amendment Bills.38 This means

that Article 368 is not a complete code in respect of the procedure
provided by it. The procedure prescribed in Article 368 is to be
supplemented by the rules made by each House for regulating its
procedure and the conduct of its business.^^ This procedure of
Amendment has come in for trenchant criticism on various
grounds. Unlike the Constitutions of United States, Weimar,
Germany, Switzerland and Australia the people of India have not
been given any opportunity for expressing themselves about
constitutional Amendment either at the stage of initiation or in
that of ratification. They have to entrust the future of their
Constitution entirely to the members of Parliament and in some
cases to those of their respective state Legislatures also. This is
rather reactionary in as much as the people has played no role at
the time of framing of the Constitution. Proposal for constitutional
amendments are usually not included in the election manifestoes
presented to the people at the time of general election, and the
British convention of dissolving the Lower House has not
developed. Not even a single time while amending the Constitution
the Parliament had gone before the people. It is one of the basic
reasons which is responsible for derogation from the sanctity of the
Constitution for lack of constitutional consciousness among the
people. In a country like India where monolithic party system has
developed and where one party namely the Congress has inherited
extra-ordinary political and psychological influence, complete
subordination of the Constituent powers of the people to the
excessive authority of the Legislatures leaves the Constitution at
the tender mercies of one party only and that party continued in

38 Rule No. 159

39 Hari Chand, The Amending Procedure in the Indian Constitution, 19 (1972)
 138

power in Parliament in all the state Legislatures. In Shankari

Prasad v. Union of India,"^^ it was contented that the legislative
procedure prescribed in Article 107, which specifically provides for
a Bill being passed with amendments, was not applicable to a Bill
for amending the Constitution under Article 368. The argument
was further supported by pointing out that Article 108, which
provides for a joint sitting of both Houses, was inapplicable to a
Bill under Article 368. The Supreme Court, however, rejected the
argument and held that "having provided a certain procedure for
the conduct of its ordinary legislative business to be supplemented
by rules made by each House (Article 118), the makers of the
Constitution must be taken to have intended to follow that
procedure, so far as it may be applicable, consistently with the
express provisions of Article 368.""*^

(B) Introduction of the Bill

The wording of Article 368 (2) providing procedure for

Amendment states that any Amendment in the Constitution can
only be initiated by introduction of Bill in either House of
Parliament. Therefore, the question arises as what is the meaning
of or what do we understand by the term 'introduction of the Bill?"
The detailed procedure providing answer to this question is laid
down in Lok Sabha that is, the procedure as to how and after what
notice a Bill is to be introduced has been laid down in the rules
and procedure for the conduct of business in the Lok Sabha 1957.
A private member's Bill has to undergo a special procedure. Rule
294 (1) of the RPCB provides that the committee on private
members Bill shall examine every Bill seeking to amend the

40 D. D. Basu, Constitution of India, 837 (1970)

41 AIR 1951 SC 462
 139

Constitution, notice of which has been given by a private member

before a motion for leave to introduce the Bill is introduced in the
list of business. There is convention in the both the House of
Parliament, that a Bill is not to opposed at the introduction stage.
But sometimes this convention is not observed. Many times a Bill
seeking to amend the Constitution has been opposed at the time of
introduction.'*^ In this context there is one Article i.e. Article 117
which require a special mention. This Article forbids the
introduction of money Bills unless they have received residential
recommendation prior to their introduction. Article 117 ((3) is still
wider, it reads as follows : "a Bill which if enacted and brought into
operation would involve expenditure from the consolidated fund of
India shall not be passed by either House of Parliament unless the
President has recommended to that House the consideration of the
Bill." This Article has been made applicable to Bills seeking to
amend the Constitution.

On 26*11 May, 1967 Mr. Madhu Limaye introduced a Bill^^ in

the House of the People (Lok Sabha). His Bill purposed to amend
Articles 37, 45 and 47 so as to make the provisions of Article 45
and 47 obligatory on the state. In short, he intended to make
Articles 45 and 47 enforceable'^'* against the State j u s t like the Part
III rights. The nature of the Bill was certainly such as to involve
expenditure from the consolidated funds of India, if it had been
passed. When the Bill was to be taken into consideration, a

42 The Constitution Ninth, Seventeenth, Eighteenth (which was ultimately

withdrawn) and Twentieth Amendment Acts.
43 Bill No. 45 of 1966. The Govt, of India Gazette extra-ordinary, Part 2, July
29, 1966.
44 Article 44 relates to free and compulsory education for children and Article
47 directs the state to raise the level of the nutrition and the standard of
living and to improve public health.
 140

member pointed out that the Bill could not be proceeded with
because it required the recommendation of the President. There
were two opinions regarding the interpretation of Article 117 (3) the
proponents of the Bill argued that Article 117 (3) does not say that
a Bill cannot be considered, it says that it cannot be passed. The
whole point was whether introduction, consideration and passing
on transaction or different transactions,'*^ jf these stages of the Bill
are regarded as different then Bill requiring prior recommendation
of the President under Article 117(3) can be introduced and
considered but not passed. Ultimately the Speaker followed a
previous ruling that "there is no good embarking upon an
enterprise which will end in nothing.'*^ Therefore, the Bill was not
taken u p for discussion.

It is submitted that the ruling obliterates the distinction

between Article 117(1) and 117(3) a regard the introduction of the
Bill. Article 117(1) applies to a money Bill as defined in Article 110
whereas Article 117(3) is in respect of a financial Bill other than a
money Bill and therefore, a Bill under the former can be
introduced only in the House of the People (Lok Sabha) but a Bill
under the letter can be Article 117 (1) requires the
recommendation of the President even for its introduction. But
Article 117(3) does not forbid expressly the introduction of a Bill
which has not received a prior recommendation of the President,
what it forbids is the passing of it. V. N. Shukla commands on the
Bill under Article 117(3) as follows, "they are different from Bill
given in Article 117(1) in as much as such Bill can be introduced
in the Council of State and need the recommendation of the

45 L.S.D. 4*h Series, Vol. Ill, Col. 1259

46 Id., Col. 1263
 141

President not at the time of introduction but only at the time of

passing of the Bill, technically speaking before the motion for
passing is made.'^'^ It is obvious that the ruling on Article 117(3)
deprives private member of their right of introduction of a
constitutional Amendment which is likely to be caught by the
mischief of Article 117(3) because they are not in a position to
secure the presidential recommendation unless the Council of
Minister patronizes the Bill. In other words amendments to the
Constitution involving expenditure from the consolidated fund of
India cannot be moved by private members of the House without
governments support. It is noteworthy that a member intended to
get Article 117(3) and 207(3) amended in order to do away with the
requirement of a prior recommendation of the President for a
motion for circulation of a Bill for the purpose of eliciting public
opinion, because such a motion does not bind the Legislature on
way or the other.'^^

It is submitted that irregularity in the procedure prescribed

in Article 117(1) or Article 117(3) is not fatal to the validity of
legislation because Article 225 cures the want of previous
recommendation provided the Bill in question received the assent
of the President afterwards. Therefore, it seems that a Bill lacking a
prior recommendation of the President under Article 117(3) is
permissible for introduction and consideration but not for the final
stage of passing it.

47 V.N. Shukla, The Constitution of India, 4^ ed., 221 (1964)

48 Bill No. 52 of 1965, The Gazette of India, Extraordinaiy, Part II, Sec. 2,
August 19, 1965
 142

For the purpose

These words under Article 368 are of great importance as

they embody an essential principle of constitutional amendments.
They are designed to emphasize the serious and important
character of an alteration of the Constitution. A Bill which seeks to
amend the Constitution is required to disclose its purpose clearly
and specifically. In some Constitutions it is expressly provided that
a Bill amending the Constitution shall be expressed a Bill to
amend the Constitution'*^ and shall contain no other provisions.
This is to protect members of Parliament from being caught
unawares. The Constitution Amendment Bill should not spring a
surprise on the members, moreover the members must apply their
minds to the Amendment sought and its effect on the Constitution
as a whole. Therefore, it is necessary that the purpose of the Bill
seeking to amend the Constitution should be made as clear as
possible.

In either House of Parliament

As we know that Constitution provides for a bicameral

Legislature which consists of two Houses. They are House of People
(Lok Sabha) and Council of States (Rajya Sabha). A Bill providing
for Amendment of Constitution under Article 368 can be
introduced in either of these two Houses of Parliament. Although
Article 368 confer parallel power to both of these Houses with
regard to the introduction of a Bill. But if we trace the history of
amendments done by the Indian Parliament, one thing which is
visible or which attracts out attention is that most of the

49 For instance sec. 210 of the Constitution of Burma, 1961 and Art. 20(2) of
the Republic of Ghana, 1960.
 143

amendments were introduced in the Lok Sabha and only few

amendments were introduced in the Rajya Sabha. However, private
members have been introducing constitutional amending Bills in
the Rajya Sabha from time to time. It is to be noted that the
Constitution (First Amendment) Act, 1951 was passed by
provisional Parliament which consisted of only one House. It was
contended in the Shankari Prashad case^o that Article 368
postulates the existence of two Houses of Parliament. The
contention was repealed by pointing out that the defect was
removed by the Presidential order under Article 392^1 of the
Constitution.

(C) Approval by the Parliament

As discussed earlier, a Bill providing Amendment of the

Constitution is introduced in either House of Parliament and the
passage of a Bill from its introduction to its final stage i.e.
becoming an Act, it has to be approved by the Parliament which as
per the wordings of Article 368 'passed by the Parliament'. It
means that the Bill is required to be passed in each House of
Parliament i.e. the House in which the Bill is introduced and the
House to which it is sent after being passed by the former House.
In this context one thing is to be noted that under the Constitution
there is no provision for the joint sitting of both the Houses in case
when the two Houses disagree on a particular amendment. There
can be two views on this provision. First that a joint sitting h a s
been impliedly ruled out by requiring that the Bill be passed in
each House of Parliament. Therefore, if the two Houses disagree on
a Bill seeking to amend the Constitution the Bill cannot be passed

50 AIR 1951 SC 462

51 Power of the President to remove difficulties.
 144

in a joint sitting and consequently such a Bill would lapse. This

view can be further supported by the argument that the number of
the members of the House of the People (Lok Sabha) being more
than double the members of the Council of the State (Rajya
Sabha). It is likely that in a joint sitting the Lok Sabha would
override the Rajya Sabha. Thus, the interest of the Rajya Sabha
can only be safeguarded by providing no facility for a joint sitting.
It can be said, in addition that the Constitution framers have been
guided by practical convenience in having separate sittings which
are conducive to good discussion and serious thinking on
constitutional amendment. The second view is that there is no
reason by a deadlock between the two Houses cannot be removed
by the President summoning a joint sitting under Article 108. It
can be argued that Article 368 merely emphasizes the requirement
of a special majority and is not complete code in the matter of
procedure. Parliament is competent to adopt its own rules of
procedure as long as these rules are consistent with the
requirement of Article 368. This view is fully supported by the
Shankari Parsad decision^^ {^ which the Supreme Court repealed
the argument that legislative procedure was not applicable to a Bill
under Article 368 and observed that, "assuming that Amendment
of the Constitution is not legislation even where it carried out by
the ordinary Legislature by passing a Bill introduced for the
purpose and that Articles 107 to 111, cannot be in terms apply
when Parliament is dealing with a Bill under Article 368, there is
no obvious reason why Parliament should not adopt on such

52 AIR 1951 SC 458

 145

occasions its own normal procedure so far as that procedure can

be followed consistently with statutory requirements."53

The argument that interest of the upper House are

jeopardized in a joint sitting, can be repelled by pointing out that
Lok Sabha represents the will of the people and will of the people
must prevail. The Upper House should not become an obstacle in
its way. Moreover, in case the Amendment relates to any of the
entrenched provisions, the interest of the states are not in danger
because the Amendment would require ratification by at least half
of the state Legislatures and the states can take care of their
interests better than the Upper House.

The second view seems to be more logical than the first view
which makes the Constitution unnecessarily rigid.^4

The Constitution lays down the following four Amendment

procedures :

(A) Amendment of certain provisions of the Constitution can be

made by simple majority of Parliament, in the same manner
as an ordinary statute is passed by parliament. Such
amendments may be moved -
(i) at the instance of a state government, or
(ii) at the instance of the Union government.
(B) Amendment of certain provisions of the Constitution may be
made by the simple majority of a state Legislature, in the
same manner as an ordinary enactment is passed.
(C) Amendment of certain provisions, sometimes called
entrenched provisions, can be made only by a special

53 Id., at 462
54 See, supra note 39 at 25.
 146

majority of Parliament, viz. by a majority of the total

membership of each House and by a majority of not less
than two-thirds of the member of each House present and
voting. No joint sitting of both the Houses can be held for the
purpose of Amendment of the Constitution.
(D) Amendment of certain provisions needs, in addition to the
special majority in parliament (as stated in B. above),
ratification by not less than half of the states.^s

(a) By simple majority

Some provisions of the Constitution can be amended by

simple majority as that is required for passing of an ordinary law.
The Parliament or the State Legislatures can amend these
provisions by simple majority, because they do not affect or disturb
the federal balance of power between the Union and the States.
Although admission and creation of new states do go to effect the
federal character of the Constitution. But since the Indian state did
not exist as independent entities before the adoption of the
Constitution, and since most of them were created by the British
rulers of India on the bases of administrative convenience, the re-
organisation of states is, in fact the culmination of the procedure of
Indian federalism.

The following Constitution provisions can be amended by a

simple majority at the instance of the Union government:

(i) Admission of a new state under Article 2 along with

consequential amendments in Schedule I (which defines the

55 Paras Diwan, Indian Constitution Amendments, 7-8 (1980)

 147

territory of a state) and Schedule IV (which deals with the

allocations of seats to a state in the Rajya Sabha).
(ii) Provisions relating to the citizenship of India. Article 11;
(iii) Provisions relating to exercise of Executive power by a state
or its officers in respect of a matter over which Parliament
h a s power to make laws, Article 73(2);
(iv) Provisions relating to salaries and allowances of Ministers,
Article 75(6) and consequential Amendment to Schedule II.
(v) Provision relating to salaries and allowances of the Speaker,
Deputy Speaker of the House of the People and the
Chairman and Deputy Chairman of the Council of States :
Article 97 and consequential amendments to Schedule II.
(vi) Provision relating to salaries and allowances of members of
Parliament: Article 106.
(vii) Provision relating to number of judge (power is confined t the
increase in number of judge : Parliament has no power to
decrease their number in the Supreme Court : Article 124
(1).
(viii) Provisions relating to privileges, allowances and right of the
judges of the Supreme Court (power relates to the increase in
salary, etc., and not the diminution of the same) Article 125
(2).
(ix) Provisions relating to appeals to the Supreme Court : Article
133(3).
(x) Provisions relating to a review of the judgement of the
Supreme Court: Article 137.
(xi) Provisions relating to salaries and allowances of the
Comptroller and the Auditor-General (power relates to the
 148

increase and not to decrease of ssdary etc.) : Article 148(3)

and consequential Amendment to Schedule II
(xii) Provisions relating to the composition of the Legislative
Councils : Article 172(2)
(xiii) Provision relating to salaries and allowances of the judge of
the High Court (power relates to the increase and not to
decrease salary, etc.) : Article 221(2) and consequential
changes in Schedule II;
(xiv) Provisions relating to English language : Art. 343 (3)
(xv) Provision relating to language to be used in the Supreme
Court and the High Court: Article 348 (1)
(xvi) Provision relating to creation of Legislature and Council of
Ministers for a Union Territory : Article 239 A;
(xvii) Provision relating to the administration and control of the
Scheduled Area and Scheduled Tribes Area: Para 1 of
Schedule V and
(xviii) Provision relating to the administration and control of Tribal
Areas : Para 21 of Schedule VI.

(b) Amendments at the instance of the State Governments

These falls under two categories (a) some of the provisions of

the Constitution can be amended at the instance of a State and (b)
some can be amended in Constitution with the States. Provision
relating to the Upper House in the State falls under the former
category whether or not a State will like to have an Upper House or
whether or not a State will like to abolish its Upper House entirely
depends on the will of the State concerned. When under Article
169, a State Assembly passes a resolution by a majority of not less
than two-thirds of the members of the Assembly present and
voting for having an Upper House or for abolishing its Upper
 149

House, Parliament may by law provide accordingly, such a law can

be made by simple majority. Once such a law is passed, the
Constitution stands amended. Provisions relating to formation of a
new State or alteration of areas, boundaries or name of any State
falls under the second category. Under Articles 3 and 4, Parliament
has power to formation of new States as well as of altering the
areas and boundaries of a State or of changing the names of
existing States and of making consequential changes in Schedules
I and IV. Parliament can do so by passing a law by simple majority.
But no such Bill can be introduced in Parliament except on the
recommendations of the President. If such a law is going to affect
the area, boundary or name of a State the Bill has to be referred to
the Legislature of the affected State for its views thereon within
such period as may be specified in the reference (this period may
be expanded by the President). The Bill can be moved only after the
expiry of the period (or extended period) stated in the reference.
Once such law is passed, the Constitution stands amended
accordingly.

(c) Amendment by the State Legislature by simple majority

The State Legislative Assembly have also the power to amend

Article 164(5) which relates to salaries and allowances of the
Ministers in the States and Article 186 which relates to the salaries
and allowances of the Speaker and Deputy Speaker and the
Chairman and Deputy Chairman. The salaries and allowances of
the State Ministers have been tentatively fixed in Second Schedule.
The State Legislatures have been empowered to fix salaries and
allowances of the Ministers by a law passed by it, and when this is
done, Second Schedule stands modified accordingly. Article 194(3)
lays down that the powers, privileges and immunities of a House of
 150

the Legislature of a State and of the member and the Committees

of the House shall be those of the House of Commons till such time
the State Legislature defines them by law. This was the text of this
Articles before the 42"'^ Amendment. Thus, State Legislature have
power to lay down by law their privileges etc. and once they do so,
Article 194 will stand amended.^^

(D) By special majority

(a) Amendments by two-thirds majority and with the

concurrence of half of the states
The provision of the Constitution other than those discussed
above can be amended by the procedure contained in Article 368.
The procedure is as follows:

(A) An Amendment of the Constitution may be initiated only by

the introduction of a Bill, for the purpose, in either House of
Union Parliament.
(B) After the Bill is passed in each House of Parliament by a
majority of total membership of that House and by majority
of not less than two-third of membership of the House
present and voting it shall be presented to the President for
his assent. It may be noticed that it is obligatory for the
President to give his assent to an Amendment Bill, having
been passed by either House of Parliament.
(C) After securing the assent of the President, the Constitution
stands amended in accordaince with terms of the Bill.^'^

All constitutional Amendment other than those referred to

above come within this category and must be effected by a majority

56 J. N. Pandey, Constitutional Law of India, 649 (2000)

57 Narender Kumar, Constitutional Law of India, 738 (2002)
 151

of total membership of each House of Parliament as well as by

majority of not less than two-thirds of the members of that House
present and voting, ^s These provisions of the Constitution affect
the deferral character of the Constitution and require in addition to
the special majority of the Parliament, concurrence of half of the
State.

(b) Ratification by the State

Article 368 provides that if the Amendment Bill mentioned

above, seek to make any change in the following provisions, thsm
such a Bill having passed by special majority in each House of the
Parliament shall not be presented to the President for his assent to
it until the Bill h a s been ratified by the Legislature of not less than
one-half of the state, by passing resolution to that effect.59 In case
of these Articles, which required in addition to special majority
mentioned above and ratification by not less than one-half of the
State Legislatures, the states are given an important voice in the
amendments of these matters. There are fundamental maters
where states have important power under the Constitution and any
unilateral Amendment by Parliament may vitally affect the
fundamental basis of the system built u p by the Constitution. The
following constitutional provisions can be amended by two-third
majority and with concurrence of half of the states:-

(a) Mode and Manner of the election of the President of India :

Articles 54-55.
(b) Extent of the Executive power of the Union : Article 73;
(c) Extent of the Executive power of the States : Article 162;

58 See, supra note 56 at 649

59 See, supra note 57 at 738.
 152

(d) Constitution of a High Court for a Union Territory : Article

241;
(e) Provisions relating to the Union - Judiciary - Chapter IV,
Part V of the Constitution : Articles 124 - 147;
(f) Provisions relating to the High Courts - Chapter V of Part VI
of the Constitution : Articles 2 1 4 - 2 3 1 ;
(g) Provisions relating to distribution of legislative powers
between the Union and the States - Chapter I of Part XI of
the Constitution of India : Articles 245-255;
(h) Provision relating to the three lists : Schedule VII
(i) Provisions relating to representation of States in Parliament :
Article 80 and Scheduled IV; and
(j) Provision relating to Amendment: Article 368.^°

For the Amendment of the aforesaid provisions of the

Constitution the procedure laid down in Article 368 has to be
followed:

Provisions other than those which have been discussed

under the previous heads can be amended by the special majority
vote in the Parliament, i.e. by a majority of the total membership of
each House of Parliament and by majority of not less than two-
third of the members of e^ch House present and voting. For the
Amendment of these provisions no ratification by the States is
necessary.^ ^

Dr. Ambedkar while summing up the provisions contained in

Article 368 observed that "the Assembly has not only refrained
from putting a seal of finality an infallibility upon this Constitution

60 See, supra note 4 at 11-12

61 Id., at 12.
 153

by denying the people the right to amend the Constitution as in

Canada or by making the Amendment of the Constitution subject
to the fulfillment of extra ordinary terms and conditions as in
America or Australia but has provided for a facile procedure for
amending the Constitution . . . if those who are satisfied with the
Constitution have only to obtain a two-third majority and, if they
cannot obtain even a two-third majority in the Parliament elected
on adult franchise in their favour their dissatisfaction with,
Constitution cannot be deemed to be shared by the general
public."62

If we read the procedure of Amendment as provided under

Article 368, there are certain words which are given a sole
importance in defining the procedure of constitutional amendment.
These words are 'majority', Tay a majority of total membership of
that House', and ^majority of not less than two-thirds of the
members of that House present and voting'. Therefore it is
necessary to interpret these words, so as to clearly understand and
analyse the procedure under Article 368.

Meaning of 'majority' in the expression by a majority of the

total membership of that House
The words majority of the total membership were regarded as
having a double import. One view was that majority here should be
construed as of the total number of members that should exist at a
particular time irrespective of the fact whether they in fact do exist
or not. The second view was that total membership mesms the total
number of members as they actually exist at a time. These two
views give different results e.g. supposing at a particular time total

62 Shri Raja Ram Agarwal, "Constitutional Amendment- A Legal Analysis",

sec (J) 1876 at 3.
 154

membership is 500. Supposing further that 10 seats are vacant.

According to the first view the majority is 251 but according to the
second view it is 246. The total number as it should be and the
actual number of members are not necessarily one and the same
and difference therefore, has some significance. The first Speaker
of the Lok Sabha, Mr. Mavlankar, requested for the advice of the
Attorney General who expressed the following opinion on this
question, "the expression by a majority of the total membership of
that House means that it is not the actual number of members
existing at a given point of time which has to be considered but the
membership meaning the totality of the member that should exist
whether they in fact do exist or not. This aspect is emphasized by
the use of the words the total and also by the omission qualifying
words present and voting."^^

In this context one instance deserves notice i.e. when the

Constitution Fifth Amendment Bill (under the heading Seventh
Amendment Bill) was voted at the consideration stage, it happened
that 246 members voted for 'ayes' and two members voted 'noes'.
At that time the total number of Lok Sabha was 499. The Speaker
declared the result of the voting. But wanted to reserve his opinion
as to what was to be declared in regard to the Bill. He was not sure
whether the total of actuaJ member as it exists should be taken or
total number of members as it ought to be counted.^^ if the total
number of members as they should exist is taken in the above
case, the Bill is not carried because in that case the 'majority'
required comes to 250. But if the actual number of members be
taken and if eight or more seats in the House are vacant, the Bill is

63 See, supra note 39 at 26

64 L.S.D. 1955, Vol. IX, Col. 887.
 155

carried. There was much argument that the toted membership

should be interpreted as the strength of the House for the time
being, that is, the total strength of the House minus the vacant
seats. When a member pointed out that rule 169 of the then rules
of the House required total membership, the Speaker announced
that the notion was not carried in accordance with rule 169. The
fact that he did not announce that the motion as not carried in
accordance with Article 368 shows that he was not convinced that
majority should be calculated as of the total membership.

In our opinion, Article 368 requires the majority of the total

membership of the House as it should be, and the interpretation of
the Attorney-General is correct. Rule 159 of the RPCB of the Lok
Sabha makes the point clear beyond any shadows of doubt by
providing an explsination to the effect that total membership meant
the total number of members comprising the House irrespective of
the fact whether there are vacancies or absentees on any
account.65

Majority of not less than two-third of the members of that

House present and voting
The majority of two-thirds of members present and voting is
to be calculated by taking into account the number of members
who are actually present at the time of voting. The Lok Sabha
observes a convention of ringing the division Bells for two minutes
so that those members who happen to be outside the House at the
time of voting may present themselves in the House and participate
in the voting. After the Bells have rang for two minutes the doors of
the House are closed. At the time, the Constitution Fifth
Amendment Bill was put to vote, the division bells were rung as

65 Rule 159, RPCB Lok Sabha, 1957.

 156

usual, the doors were closed. Unfortunately the motion was not
carried. An objection was raised that the doors of the House should
not be closed; otherwise the meaning of 'present' in Article 368
fails to take into account those members who are just at the doors
when these are closed. The Speaker rules it would be difficult to
keep the doors open and 'present' means those who are present in
the House when the doors are closed after ringing the bells for two
minutes. 66

The words 'present and voting' seem to have been inserted

on the basis of the American experience in this connection. Article
V of the Constitution of the United States provides for a majority of
two-thirds of both Houses of the Congress, for a proposal by the
Congress to amend the Constitution. The question arose in the
National Prohibition cases^'^ as to whether two-third means two-
thirds of the total number of the members present and voting. The
Supreme Court held that 'two-third' means 2.3 of the members
present, assuming the presence of quorum. Since Article 368
requires an absolute majority along with a two-thirds majority of
the members present and voting and the quorum of each House is
1/10 of the total strength of that House.^s it was unnecessary to
mention the presence of quorum in Article 368.

The use of the words 'not less than' before two-thirds shows
that the number of members may be exactly 2.3 of the members
present and voting i.e. it is not necessary that their number should
exceed the remaining 1/3. Supposing the present and voting
members are 450 and 300 are in favour of the Bill, 300 being

66 L.S.D. 1955, Vol. IX, Col. 886-87

67 1920 253 US 350
68 Article 100 (3)
 157

exactly 2.3 of 450 and it also makes an absolute majority, (taking

the total membership as 500), therefore, the Bill would be carried.
The words, 'not less than' signify that the majority required may be
exactly 2 / 3 or more than that, but not less than the number of the
members present and voting. It is observable that the words
'present' and 'voting' have been joined with the conjunction and
indicating that only those members are to be counted for the
purpose of 2.3 majority who are both present and also are actually
voting. In other words those members who are present but do not
vote in fact either way are not to be taken into account while
counting the number of those who are present and also vote. By
way of illustration, supposing at the time of voting on a Bill under
Article 368 the total number of members present in the House is
450. Supposing of these 450 members, 50 members do not
exercise their vote at all, 260 votes for 'ayes' and 140 for 'noes'. In
this case the 50 members who are present but who do not vote at
all are not to be counted for finding the total number of those who
are present and voting. Thus total number of those who are
present and voting would be 450-50= 400 and the requisite two-
third majority would be 2/3^^ of 400 i.e. at least 267, therefore, the
Bill will not be carried if falling short of seven votes.

The words 'present' makes it clear that physical presence of

the member of necessary and they cannot exercise their votes by
other means.69

(E) Presidential Assent

In each of the aforesaid cases, where a Bill is initiated or

introduced in either of the House and passed by both Houses of

69 See, supra note 39 at 27-28

 158

Parliament in accordance with the requirement of Article 368 (by

special majority). It is made imperative that such a Bill should be
sent to the President for his assent because without the assent of
the President the Constitution cannot be amended. This
requirement of presidential assent deserve a detailed discussion as
it is already mention that when a Bill has gone to through the
procedure prescribed in Article 368 in both the Houses, and it
relates to any of the provisions'^^ entrenched under Article 368. It
has also been ratified by at least half the state Legislatures, it is
mandatory that it be presented t the President for his assent. In
this context one thing that "is it necessary that before the
President give his assent it should be considered by all state
Legislatures." This question arose in reference to the 3^^
Amendment Bill. The Bill was passed by both the Houses of
Parliament in October 1954. Since, the Bill received the
concurrence of half of the States, the President gave his assent.
But the Bill was to come for consideration before the Mysore
Legislature two days later. As the provisions of the Constitution
stand at present the President can give his assent validity, and, it
seems, it would be highly improper for a state Legislature to
discuss a Constitutional Amendment Bill, once it has received the
assent of the President, even though it has no opportunity to
consider the measure earlier. Jain suggested, it is submitted
rightly, that a convention may be developed under which the
President will not give his assent unless all state Legislatures have
an opportunity to consider the Bill.'^i Another thing which requires
a special mention in the wording of Article 368 is that the words
used being shall be presented, it suggest that it is not directory

70 See, supra note under heading b. Special majority at 33

71 M. P. Jain, Indian Constitutional Law, 703 (1978)
 159

but mandatory that the Bill be presented to the President. In the

Constituent Assembly a member moved an Amendment to Article
368 which, if it had been accepted, would have made the assent of
the President mandatoryJ2 As to who shall present the Bill to the
President for his assent, we have to refer to the rules of the Houses
which provide that after a Bill is passed by the House the Presiding
officer of the House who is in possession of the Bill will
authenticate the Bill by his signature'^3 and then present it to the
President. In case of absence of the Presiding Officers, the
Secretary of each House is authorized to authenticate the Bill. So
the President can give his assent only to Bill which has been so
authenticated and presented.

V. Role of the President in Amending Procedure

According to Article 368, the presentation of a Bill, after it

has been passed by both Houses of Parliament in accordance with
the requirements of Article 368, to the President is imperative but
it is not made mandatory that he must give his assent to the Bill. If
the President gives his assent, the Bill amends the Constitution
immediately. Since it is not provided that the President must give
assent, it falls to be considered whether he can withheld his assent
or sent the Bill for reconsideration or whether he can cause delay
in the matter. It is also necessary to consider whether he can act
under Article 143."^"* In regard to such a Bill so that he may secure
the opinion of the Supreme Court. In this contrast, it is relevant to
note that the amending procedure in the Constitution of the United
States does not mention the President at all and the question arose

72 C.A.D. Vol. IX. P. 1649

73 Rule 128 of the Rules of House, 1957.
74 Article 143 provides that the President can seek the advisory opinion of the
Supreme Court.
 160

whether a proposal of Amendment of the Constitution under

Article V required the assent of the President or not.

The Supreme Court held that an Amendment of the federal

Constitution, being not a legislative Act does not require the assent
of the President.^5 justice Chase, as he then was observed, "the
negative of the President applies only to the ordinary cases of
legislation. He has nothing to do with the proposition or adoption
of the amendments to the Constitution." Therefore, Amendment of
the Constitution is outside the scope of the Presidential veto power.
It is to be noted that in some of the recently adopted Constitutions
it has been provided that the Amendment of the Constitution is
subject to the exclusive approval of the head of the state,'^^ or it is
mandatory for head of state to give his assent'^'^ or such assent h a s
been done away with.'^^

(A) Can the President withhold his assent?

The answer to the above question depends upon the position

and the power of the President as provided in the Constitution.
Three views about the position which the President occupies under
the Indian Constitution.

First, that his position corresponds to that of the sovereign

in England and, therefore, he is a mere nominal head of the State.
In fact his view is entirely based upon the parliamentary system

75 Hollingworth v. Virginia, (1978) 3 Dall 378

76 Sec. 126 (1) of the Constitution of Jordon, 1951.
77 Sec. 210 of the Constitution of Burma, 1948, Article 96 of the Constitution
of Japan, Article 1292) of the Constitution of Republic of Korea, 1946 and
Act 74 of the Constitution of Algeria, 1963.
78 Article 89 of the Constitution of the Fifty French Republic, 1958. It is to be
noted that het initiative for amending the Constitution belongs to the
President.
 161

envisaged in the Constitution. Since in the parliamentary type of

government the executives responsible to, and removal by the
Legislature, therefore. Head of the state is only symbolical and
represents the unity of the country and sole power lies in the
Council of the Ministers headed by the Prime Minister.'^^

The second view is that the President is not a mere figure

head but his position is one of great authority and dignity.^^ The
view is based upon the provisions of the Constitution. As a matter
of fact, the Constitution provides no where that the President is
bound by the advice of his Council of Ministers.^i So far as the
letter of the Constitution is concerned the President is not under
any legal obligation to act on the advices of his Council of Ministers
and he may not disregard the advice of his Council of Ministers
and he may not only disregard the advice given by the Ministers
but may act even contrary to it. When the position of the President
was discussed in the Constituent Assembly it was pointed out by
many members that it should be made clear that the President
shall be bound by the advice of the Council of Ministers. Even Dr.
Rajender Prasad, President of the Constituent Assembly expressed
the view that Article 7491) does not say that President shall be
bound to accept that advices.^^ HQ suggested that some provision
should be put in the Constitution to make the President bound by
such advice. Dr. Ambedkar felt that the expression aid and advice
would serve the same purpose as it serves in Section 11 of the
B.N.A. Act 1867, from where it has borrowed and embodied in
section 9 and 50 of the Government of India Act, 1935, and

79 B. N. Rao, Indian Constitution in the Making, 202-12 (1960)

80 K. M. Munshi, The President under the Indian Constitution, 121 (1963)
81 Articles 74, 75 and 78.
82 CAD. Vol. VII at 216.
 162

transposed form therein to the present Constitution of India.^^

Similarly, Alladi Krishna Sawami a great jurist and member of the
Drafting Committee held the opinion that expression aid and
advice used in Article 74 was an euphemism for act of the advice of
his ministers and that in all circumstances the President would be
bound by the advice of his Ministers. In the beginning, the
Constitution framers had in mind to express the binding nature of
the ministerial advice to the President, in the form of an
instrument of instructions but ultimately the idea was dropped.

It is true that that the members of the Constituent Assembly

referred to the position of the President as equivalent to that of the
British Monarch, but the written words of the Constitution, as
interpreted by accepted norms/canons of interpretation, do not say
so. In fact, the position of the President as it exists at present, was
expressed quite fairly by the President of the Constituent Assembly
himself as follows:

"Although there are no specific provisions, so far as I know,

in the Constitution itself making it binding on the President
to accept the advice of his ministers, it is hoped that
convention under which in England the King acts always on
the advice of his ministers will be established in this country
also and the President not so much on account of the written
word in the Constitution, but as the result of the very
healthy convention, will become a constitutional President in
all matters."84

83 CAD. Vol. VIII at 215-16.

84 C.A.D. Vol. XI at 988.
 163

It seems that the founding fathers in their wisdom left the

matter to be resolved by the conventions. The Supreme court
favoured the first view given above and expressed it in these words:

"In India, as in England, the Executive has to act subject to

the control of the Legislature, but in what way is the control
exercised by the Legislature. Under Article 53(1) of our
Constitution, the Executive power of the Union is vested in
the President but under Article 74 there is to be a Council of
Ministers with the Prime Minister at the head to aid and
advise the President in the exercise of his function. The
President has thus been made a formal or constitutional
head of the Executive and the real Executive powers are
vested in the Minister of the Cabinet. "^5

The third view is that the Constitution framers undoubtedly

preferred the first view but intended that the second view should
prevail in case of the circumstances and conditions in the country
frustrated the working the parliamentary system. Therefore, the
actual position and powers of the President depend more on the
conditions prevailing in the country rather than the cold letter of
the Constitution. As long as the parliamentary system works
satisfactorily on the whole, the President remains a figure-head.
The moment this system fails, the President becomes competent to
assume the maximum powers provided to him but he is expected
to restore the parliamentary system as soon as he can do so. Prof.
Gledhill, discuss, this scheme underlying the provisions relating to
the selectionship of the President and his Council of Ministers and
observed as follows:

85 Ram Jawaya v. State of Punjab, AIR 1955 SC 549 at 556

 164

"What the Constitution contemplates is that normally the

government shall be carried on by a committee of ministers
selected from the elected representatives of the people but
recognised that circumstances may arise in which that
system may break down. So it is desirable that there should
be some authority empowered to continue the government
and set about restoring parliament government as soon as
possible. It is for this reason that the Constitution legally
vests the Executive power in the President."^^

Thus, the Constitution framers have shown their depth of

wisdom and remarkable vision and farsightedness in providing the
position and power of the President in such a flexible and elastic
language as to meet adverse circumstances without having to
amend the Constitution or to violate its provisions. Indeed, this
device has achieved an appreciable amount of inherent flexibility
and inbuilt-viability for the Constitution. Had the Constitution
provided expressly that the President is a nominsd head and that
all Executive powers lies in the Council of Ministers, there might
perhaps have been created a power vacuum and situation arising
out of the failure of Cabinet government would have been
unprovided for, by clothing the President with legal powers,
political power (de facto power) has been saved from degeneration
and disintegration because in that eventuality, it passes on to the
President who h a s been sufficiently informed and instructed as to
what to do with it and in what manner and how to return it to
those to whom it belongs. It is to be noted that though the
constitutional provisions seem to make the President an autocrat
in fact his powers would remain unused unless the political

86 GledhUl, A., The Republic of India, 115 (1964)

 165

conditions warrant him to make any use of them. If the President

fails to sense the political condition correctly and acts indiscreetly
in regard to his powers, he would meet utter failure. Perhaps, the
position of the President can be described accurately in these
words:

"The President has practically no power when there is a

stable majority in the Lok Sabha to support of the Council of
Ministers headed by a Prime Minister who rules the country'
but these powers increase in proposition to the instability
and weakness of the Council. They will reach a maximum
when there is no party in a majority in the Lok Sabha and
the Union Government has to be carried on with shifting
coalition minorities.''^'^

It follows from the position and powers of the President that

though there is nothing in the Constitution which prevents him
from withholding his assent to an Amendment of the Constitution,
it is rarely that he would do so. This is so because an Amendment
of the Constitution, if it has gone through the procedure laid down
in Article 368, testifies that at least an absolute majority of each
House of Parliament has supported the Bill and in case he
withholds, his assent, the same absolute majority would fake his
decision with resentment. In other words he would be inviting a
direct conflict with Parliament, which no wise President would like
to do. The President, however, would be entitled to refuse assent if
he feels that the procedure laid down in Article 368 has not been
followed or that at least half the state legislations have not ratified

87 V. N. Srivastva, "The Indian President," The Journal of Parliamentary

Information, Vol. XII, 22 (1967)
 166

the Bill. In such circumstances, the Amendment can be declared

unconstitutional by the Supreme Court as well.

There might be circumstances in which the Council of

Ministers may advise the President to withheld his assent, s for
instance if the Bill happens to be amended in the Rajya Sabha in
such a form that eh Council thinks it proper not to amend the
Constitution. Such a situation is possible because it is not
provided in the Constitution that the Amendment Bill should be
passed in identical terms i.e. the Rajya Sabha is entitled to pass it
with amendments. The Council of Ministers might also advise the
President to exercise his veto power if such circumstances have
taken place since the Bill was passed as to render the Amendment
unnecessary. If the President declares that he withholds his assent
from a Bill, there is a n end to it.^s

fB) Can the President use his suspensive Veto?

Article 111 provides that the President may return the Bill if
it not money Bill to the House for reconsideration in part or as a
whole, with or without his own suggestions. Therefore, except
money Bills all other Bills can be sent by him for reconsideration.
If a Bill introduced under Article 368 is sent for reconsideration
and is again passed with or without Amendment by each House by
an absolute majority of the House and also by a two-thirds
majority of the members present and voting and then presented to
the President for his assent, the President is bound to give his

88 D. D. Basu, Commentary on the Constitution of India, Vol. 2, 686 (1965)

 167

assent. He cannot withhold this assent this time,^^ otherwise he

might be impeached for violation of the Constitution.^o

It is interesting to note that the President's veto power in

regard to Bill under Article 368 is more in accord with the qualified
veto of the American President in that an extraordinary majority is
required in both the cases, but in respect of all other Bills remitted
for reconsideration only a bare majority required to re-pass the
Bill. It is to be noted that no time limit is prescribed in which the
President must assent or refuse to assent or return the Bill for
reconsideration. In this regard the only requirement is that if the
President wants to return the Bill he shall do it "as soon as
possible" after the Bill presented to him.^i Though the words (as
soon as possible) are indefinite and vague, the emphasis that there
should be no unreasonable delay. Therefore, if the President wants
to cause delay by keeping the Bill in his desk for an unduly long
time, he might find it difficult to justify his act in case he is
impeached under Article 6 1 .

(C) Who shall present the Bill after reconsideration?

The Constitution is silent as to who is responsible for

representing the Bill to the President. Both the House have framed
their rules. Rule 154 of the rules of the House and Rule 135 of the
rules of the Council provide that after the Bill h a s been passed
again by the Houses, the Presiding Officer of the House, which is in
the possession of the bill will authenticate the Bill by his signature
and then Present is to the President for his assent. In case of
absence of the Presiding Officer, the Secretary of each House is

89 Article 111
90 Article 61
91 Article 111
 168

authorised to authenticate the Bill on these behalf. In no

amendments to the Constitution enacted so far as the President
withholds his assent or return the Bill for reconsideration or kept it
on his desk for a long time.

(D) Can the President consult the Supreme Court before giving
assent?
The President is entitled to seek the advisory opinion of the
Supreme Court under Article 143(1) if it appears to him that a
question of law or fact has arisen or is likely to arise, which is of
such a nature and of such public importance that it is expedient to
obtain the opinion of the Supreme Court upon it. The Supreme
Court is not bound to give an opinion.92 The scope of Article 143 is
very wide. Amendment of the Constitution by its nature a matter of
importance. Moreover it is not necessary that question of law or
fact to be referred must cirise in fact. Even if it is likely to arise, it
can be refused. So, the President may refer to the Supreme Court
any question of law or fact in regard to a Bill which seeks to amend
the Constitution. Whether he would do so on the advice of his
Council of Ministers or act suo moto is beside the point. The
President may be having doubt as to whether the Amendment Bill
requires ratification of at least half of the State Legislatures or not.
In the present state of the case law on the point,93 it is not difficult
to conceive that such a doubt can arise in regard to a number of
Articles. The Supreme Court would apply the doctrine of pith and
substance^'* or see whether the Amendment of unentrenched

92 Re. Kerala Education Bill, AIR 1958 SC at 956

93 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 945 and Golak Nath v.
State of Punjab, AIR 1967 SC 1643
94 Ref Gajenderagodkar J. In Sajjan Singh case, AIR 1965 SC 845 (852)
 169

Article h a s 'direcf^s effect on the entrenched Article or not. If it has

'direct' effect it would require ratification under Article 368
otherwise not. It is only the Supreme Court who can decide finally
the question of 'direct' effect. Therefore, the President may proceed
under Article 143(1) to have the opinion of the Supreme Court in
the matter so that the government may act accordingly.^^
Sometimes a doubt might arise whether a constitutional
Amendment is necessary in order to enable an action to be taken.
Thus, the President referred these questions to the Supreme Court
in regard to the implementation of the agreement releasing to the
Berubari Union. After the Supreme Court had expressed its
opinionj^"^ the Constitution was amended under Article 368.^8

(E) Availability of the power of Amendment to the President

Article 386 gives the power of Amendment to the three

components of Parliament namely, the House of the People (Lok
Sabha), the Council of State (Rajya Sabha) and the President. But
in view of the fact that the Supreme Court h a s held^^ that Article
368 does not contained the power of Amendment but only laws
down a procedure of Amendment that such power lies in Article
248 read with List I, Item 97 in the Seventh Scheduled, the power
of Amendment becomes available to the President exclusively in
addition to his sharing it with both the Houses of Parliament. As
the power of Amendment of the Constitution h a s been regarded as
legislative' as opposed to constituent and therefore was placed
among the legislative powers of Parliament (List I). It can also be

95 Ref. Wanchoo J. in Golak Nath, AIR 1967 SC 1643 (1687)

96 The Advisory Opinion under Article 143 is not binding upon the referring
authority.
97 In Re. Berubari, 1960 3 SCR 250, AIR 1960 SC 845
98 The Constitution (Ninth) Amendment Act, 1960
99 Golak Nath v. State of Punjab, AIR 1967 SC 1643
 170

used by the President under Article 123 which empowers the

President to promulgate such Ordinances as the circumstances
appear to him to require at anytime except when both Houses of
Parliament are in session. Such Ordinance has the same force and
effect as acts of Parliaments. The duration of an Ordinance
depends upon the re-assembly of Parliament. Under Article 123
because his legislative power of co-extensive with power of
Parliament of course the duration of his Ordinance is supposed to
be temporary but it is not difficult to visualise a Union Government
which intends to amend any of the entrenched provisions of the
Constitution under Article 368, when lacking the support of half
the State Legislatures being tempted to amend Article 123 so as to
remove the restrictions. ^o° Regarding duration of an ordinance
and then advising the President to amend the entrenched provision
in question by em Ordinance during recess of Parliament.

To conclude it we can say that the President plays a very

important role in the amending procedure of Article 368 and serves
as the greatest and easiest amending agency. But one thing is to
be noted that this requirement of presidential assent has been a
subject of criticism. The criticism is both ideological and political.
Constituent powers are usually vested in the people or in their
representatives, they are the sole authority for effecting
amendments to the Constitution and no other intermediate
authority should have a position superior to popular sovereignty.
But in India, the President who himself derives his power from the
Constitution has been endowed with authority for imparting

100 Article 123 being not entrenched, it can be amended by a majority of the
total membership of each House and by a majority of two-thirds of the
members present and voting in each House of Parliament. It does not
require ratification under Article 368.
 171

validity to constitutional law. This is rather extra-ordinary

politically speaking the President is a functionary of the Union
though he owes his office to support of the states a s well as whose
elected legislators constitutes a part of the electorsd college. He is
also guided by the advice of his Council of Ministers if the Union
Cabinet through the President can exert and final influence on the
fate of an Amendment even after it was ratified by the states, lip-
service is not paid to the principles of federalism and states
autonomy. In cases of Bills other than money Bills, the President
has the power of sending them back to the Parliament for
reconsideration, 101 and this inevitably makes the President a
participant in legislation. Reljdng on the explicit provisions of the
Burmose and Eirean Constitution where such assent is merely
formal, some jurists are of the opinion that his assent is merely
formal, some jurists are of the opinion that his assent will be
equally formal in India and the President cannot refuse it, but
such a contention is not accepted in all quarters. 102

After the Presidential assent, the Constitution stand

amended in accordance with the terms of the Bill and there are no
large numbers of formalities which are usually observed in
incorporating the Amendment of the Constitution after it has been
passed by the House and assented to by the head of the State viz.
the requirement of its publication in the official gazette or Register
or the requirement of some interval between the passage and its
entry into the register. io3

101 Article 111 (as discussed earlier)

102 D. D. Basu, Constitution of India, 837 (1970)
103 See, S. 210 of the Burmas Constitution requires that an amending Bill
after going through the prescribed procedure shall be signed by the
President and then promulgated forthwith and Sec. 90(1) of Singapore's
 172

VI. The Limits of Amending Power

As already mentioned in the beginning of the chapter, our

Indian Constitution is a controlled Constitution. A controlled
Constitution is one which is supreme, and all organs of the
government as well as other institutions of the governance are in
its creature. The acts of the government can be struck down if they
are found to be ultra-vires of its Constitution. And, above all, in a
controlled Constitution, power of amending the Constitution is a
limited one. Federal constitution, such as that of the United States,
Dominion of Canada and the Commonwealth of Australia, falls
under this category. An uncontrolled Constitution, on the other
hand is one where Parliament is supreme and can make and
unmake the Constitution by the same procedure by which it can
make and repeal an ordinary statute. ^^"^ The Constitution of the
United Kingdom is an off-cited example of an uncontrolled
Constitution. Looked at in this perspective, the Indian
Constitution, it is submitted is partially controlled and partially
uncontrolled. In respect of these provisions of the Constitution
which can be amended by a simple majority vote in Pairliament, it
is uncontrolled Constitution, and in respect of those provisions
which need special majority vote, it is controlled Constitution. The

Constitution, 1963 provides that an Amendment Bill having been passed

in the manner laid therein and assented to by the President shall come
into operation on the date of its publication in the Gazette or on some
other date mentioned either in the Bill or any other law. Similarly, an
amending Bill in the Constitution of Algeria 1963, required promulgation
under Art. 74 by the President within eight day following the date of
referendum.
104 See, supra note 4 at 15.
 173

most vital question, then is - Is the amending power under the

Indian Constitution limitless within the limit?

Under the controlled Constitution, it is customary to divide

Parliament's legislative power under the following two heads:

(i) Ordinary legislative power under the power Parliament

enacts laws within its legislative competence, such as on
subjects of Union List and the Concurrent List.
(ii) Constituent power under this power Parliament makes
amendments to the Constitution.

It is an established rule of controlled Constitution that

legislation in ordinary legislative sphere can be held ultra-vires,
and so can be legislation enacted in the exercise of constituent
power. In a controlled Constitution, like the India, there is a
distinction between constitutional law and ordinary law. The
validity of former cannot be challenged, whereas of the latter can
be challenged on the touchstone of the Constitution. But
constitutional law is as much law as ordinary law. A Constitution
cannot consist of a string of isolated dooms-''^^^

Keeping these things in mind, now our next step is to find

out the answer to this question i.e. what are the limits of
Parliament's constituent power?

In answer to this question Shri Palkhivala in Keshvananda

Bharti v. State of Kerala,^^^ argued that there were and there are
certain inherent and implied limitations upon the power of
Amendment following from these basic features which must be

105 Ibi±
106 AIR 1973 SC 1461
 174

present in the Constitution of every republic. According to him,

these limitations flow from the fact that there the ultimate legal
sovereignty resides in the people, that Parliament is a creature of
the Constitution and not a constituent body, that if it has a power
to alter or destroy the essential features of the Constitution, it
would become its master; and that no Constituted body like the
amending body can radically change the Constitution in such a
way as to damage or destroy the basic constitutional structure, as
the basic structure was decided upon by the people, in the exercise
of their constituent revolutionary power, lo"^

However, even from a cursory perusal of the amending

provisions of the Constitution, it would be evident that in
accordance with the letter of the law, all and any of the provisions
of the Constitution can be amended provided the specific
procedure for the Amendment of the Constitution is followed. It
seems to be clear that the states, the units of the Indian federation,
can be amended out of, and amended in, the Constitution by
simple majority vote in Parliament. It is also clear that a state can
be deprived of its Upper House by a simple majority vote of
Parliament. But it is not equally clear whether a state can be
deprived of its High Court or its Assembly even with the special
vote in Parliament and with the concurrence of half of the States.
Similarly, can be Supreme Court be abolished by the special
majority of Parliament with the concurrence of the States. ^^^

Answer to these questions are none. As if we analyse the

wordings of Article 368, it shows that Article 368 is silent as to the
width of the amending power. The proviso enumerates the

107 See, supra note 4 at 14.

108 N. A. Palkhivala, Our Constitution Defaced and Defiled, 1133 (1974)
 175

constitutional provisions, the Amendment of which require the

concurrence of at least half the States. But as asked earlier, the
proviso does not indicate whether the institutions covered by it i.e.
state Legislature and High Court, can be abolished by Parliament
in exercise of its amending power with the concurrence of half of
the States. Palkhivala further emphasized that, "a power given by
the Constitution cannot be construed as authorising the
destruction of other powers conferred by the same instrument. If
there is no limit to the amending power, it can be used to destroy
the judicial power, the Executive power and even the ordinary
legislative power of Parliament and the state Legislatures. All the
other institutions and organs of the government would be entirely
at the mercy of a single institution viz. parliament. Logically,
Parliament could even abolish Parliament . . . A Power given by the
Constitution cannot be construed as authorizing the destruction of
that very power. . . if a party which believes in totalitarianism is in
power, it may defeat the entire chapter on fundamental rights,
establish one party rule." 1^9

In spite of all these contentions, it is no doubt but obvious

that although there are no express words of limitation in Article
368, it must be held that the amending power is not plenary but it
is limited in its scope. It does not comprise the power to alter or
destroy any of the feature basic elements or fundamental
principles of Constitution, iio

Therefore, in the present case its submitted that when once

it is decided that power of Amendment is limited (even though
within these limits it may be limitless) the next step is to spell out

109 See, supra note 108 at 1135

110 See, supra note 35 at 652
 176

these limits. And if we talk about our Constitution i.e. Indian

Constitution being controlled Constitution, limitation on
Parliaments power of amending the Constitution can be divided
into two different heads. They are : the expression limitation and
the implied limitations.

(a) Express limits

Constitution makes sometimes feel it imperative to impose

certain limitations on the power to amend and therefore, they
expressly lay down them in the Constitution. For instance, the
makers of the United States Constitution provides in Art. V that no
Amendment made prior to 1808 would affect the first and fourth
clause in the ninth section of the first Article and that no state
shall be deprived of its equsd suffrage in the senate without its
consent. The former restriction are unimportant, but the limitation
regarding a permanent prohibition against any Amendment
whereby a state is deprived of its equal sultrage in the senate
without its consent is still existing. It is needless to add that this
restriction is not absolute. If any Amendment eliminating
representation in the Senate were ratified by every state, it would
be perfectly valid because the only requirement of a state's consent
is satisfied in this way. Alternatively, the clause itself could be
repealed by an Amendment ratified by all the states. Therefore, in
practice this clause turns out to be 'a restriction on the method'
rather than the scope of amendment, m

Now, if we study the express limitations on the amending

power in Australia, section 128 of the Australian Constitution
1900 provides that no alteration diminishing the proportionate

111 See, supra note 39 at 86

 177

representation of any state in either House of the Parliament or the

minimum number of representatives of state in the House, or
increasing diminishing or otherwise altering the limits of the State
or in any manner altering the provisions of the Constitution in
relation thereto, shall become law unless the majority of the
electors voting in that state approve the proposed law.^^^ fhe
Canadian Constitution furnishes a rare example of express
limitation. The B. N. A. Act 1867 had no provision for its
Amendment save to the limited extent provided in section 92(1) in
which provincial Legislatures were empowered to alter the
Constitution of the province except the office of Lt. Governor. It
was only in 1949 that the Parliament of the United Kingdom gave
certain limited authority to amend the Constitution excepting the
distribution of legislative power and matters mentioned in section
91(1). Section 97(1) provides express limitation on the amending
power to be exercised by the Parliament. Theoretically, it is the
Imperial Parliament which has the power to amend the B. N. A. Act
but in practice that Parliament never exercised the power of
Amendment suo-moto but only on the suggestion of the Dominion
Parliament of Canada, i ^^

Position in India

In Indian context if we see the mentions of express

limitations than the most obvious outcome shows that the
wordings of Article 368 clearly suggests that the prescribed
procedure of the Article itself amounts to express or procedural
limitation on the amending power. It means that the procedure
prescribed under Article 368 must be followed i.e. to pass an

112 J. Brown, Australian Theory of Law, 162 (1920)

113 Bora Lasken, Canadian Constitutional Law, 37 (1966)
 178

Amendment to the Constitution validly, the Parliament must

observe the majority rule required by Article 368 and in case of
entrenched provisions, ratification of at least half the state
Legislatures must be obtained. Thereafter Presidential assent must
be given. It is of interest to note that the draft Constitution had
Article 305 which if adopted or implemented would have laid an
express limitation to the amending power in Article 368. Article
305 of the draft Constitution read as follows : "Notwithstanding
anything contained in Article 304 (now Article 368) of this
Constitution, the provisions of the Constitution relating to the
reservation of seats for the Muslims, the Scheduled Castes, the
Scheduled Tribes or the Indian Christians either in Parliament or
in the Legislature of any state for the time specified in Part I of the
First Schedule shall not be amended during a period of ten years
from the commencement of this Constitution and shall cease to
have effect on the expiration of that period unless continued in
operation by an Amendment of the Constitution." This draft Article
was later on dropped, but one thing that is unmistakably shown
indicated is that the Constitution framers were well aware of the
fact that amending power could be limited by providing an express
provision to that effect. Since they though it better to drop Article
305 of the Draft Constitution and replaced by Article 368 which is
free from any express limitations or exceptions and now the
present Article 368 as it stands requires only the observance of the
procedure (either simple majority or special majority plus
ratification by the State Legislature) and there exists no other
limitation on the exercise of amending power. In addition to the
above express limitation there are two other limitations which are
 179

expressly provided under the Constitution to limit the amending

power of Parliament under Article 368. These are as follows:

- The Legislature cannot encroach upon the judicial domain or

u s u r p the function of the Judiciary. In other words judicial
review being part of the basic structure of the Constitution,
constitutional Amendment cannot do it away.
- The Legislature cannot delegate the essential functions of
legislation i.e. to say the Legislature must specify the policy
within which the Executive can exercise the rule making
power, i'"^

(b) Implied Limits

By the word implied we mean something which is not

express and it arises by way of interpretation. Keeping in view the
context in which the interpretation is being done and if we ask a
question that is there any implied limitation to the amending
power of Parliament is provided under Article 368? The answer
would be yes, because the implied limitations arise because of
some provisions of the Constitution which call for such limitations.
They are the products of dialectical approach and arise through
the mode of interpretation. With regard to the implied limitation
under the Indian Constitution the most remarkable judgement ever
came in the Indian constitutional history is first in Golaknath v.
State of Punjab,^^^ followed by the landmark judgement of
Kesvanand Bharti v. State of Kerala.^^^ In Golaknath case the
minority opinion took the view that there were no inherent and
implied limitation and the amending power under the Indian

114 See, supra note 4 at 65-66.

115 AIR 1967 SC 1643
116 AIR 1973 SC 1461
 180

Constitution.ii'^ In the same case, Subba Rao, C. J., while

delivering the main majority judgement characterised the
argument that Parliament, while exercising the power of
Amendment cannot destroy the structure of the Constitution but it
can only modify the provisions as having considerable force. As the
question was not necessary for the decision of the case, he left it
open and suggested that the question may arise for consideration
only if Parliament seeks to destroy the structure of the
Constitution. 118 In separate judgement Bachawat and Ramaswami
J J . Also took this view, Hidayatullah, J. did not express himself in
favour of the Amendment of inherent and implied limitation. He
observed that "It is a duty of this court to find the limits which the
Constitution has set on the amendatory power and to enforce those
limits. This is what I have attempted to do in this judgement."^i^

In Golaknath Judgement, some important reasoning had

been given with regard to the implied limitation upon amending
pbwer of Parliament under Article 368. The judgement
incorporated that the Constitution, provides an implied limitation
that the fundamental rights are out of the reach of the Parliament.
It declares certain rights as fundamental rights; makes all the laws
of social control infringing rights void; preserves only the laws of
social control infringing the said rights and expressly confers
power on Parliament and the President to amend or suspend them
in specified circumstances. 120 it further laid down that the
contention that the power to amend is a sovereign power, that the
said power is superior to the legislative power, that it does not

117 AIR 1967 SC 1707

118 Id., at 1664
119 Id., at 1718
120 Id., at 1658
 181

permit any implied limitation and that amendments made in

exercise of that power involve a political question which is outside
the scope of judicial review cannot be accepted. One need not think
at the description of an amending power as sovereign power, for it
is sovereign only within the scope of the power conferred by a
particular Constitution when there are conflicting Articles couched
in the widest terms, the court has jurisdiction to construe and
harmonise them. The court does not decide any political question
at all in the ordinary sense of the term, but only ascertains
whether Parliament is acting within the scope of the amending
power. There is nothing in the nature of the amending power which
enables Parliament to override all the express or implied
limitations on that power. 121 in Kesavananda Bharti,i22 Palkhivala
vehemently argued that there were inherent and implied
limitations on Parliament's amending power in his work "Our
Constitution Defaced and Defiled". Palkhivala h a d . put this
argument thus : Parliament's power to amend the Constitution do
not comprise the power to alter or destroy any of the essential
features, basic elements and fundamental principles of the
Constitution.

The implied limitation is based on the deducing what is left

unsaid form what is said and perceiving what is implicit in the
express provision and the scheme of the instrument. The
Constitution is an organic instrument and in whole presents an
integrated structure. The ambit of any one power cannot be
ascertained without considering its effect on the other power,
institutions and rights. These principles of construction have been

121 Id., at 1669

122 (1973) 4 s e c 225
 182

put beyond the pole of controversy by pronouncement of the

highest court. ^23 The arguments of inherent and implied limitation
on amending power has been most effectively demolished by
Dwivedi J. In Keshavananda Bharti,i24 the learned judge said that
Palkhivala's arguments of inherent and implied limitation may be
seduced to the form of a syllogism thus all legislative powers are
subject to inherent and implied limitations. If the major or minor
premises in the syllagpism are valid the conclusion also must be
valid. But, both premises and fallacious, the same legislative
powers are not subject to any inherent and implied limitation. A
grant of power in general terms, standing by itself would no doubt
construed in the wider sense, but it may be qualified by other
express provisions in the same enactment, by the implication of
the context, and even by the consideration arising out what
appears to be the general scheme of the Act.125 7he question then
is one of the construction and in the ultimate resort must be
determined upon the actual words sued, but as occurring in a
single complex instruments, in which one pact throw light on
another. The Constitution has been described as the federal
compact and construction must hold a balsince between all its
pacts. A Good draftsman would realise that the mere generality of
the word must compel limitation in its interpretation. It must take
its colour from the context. On April 24, 1973 a special Bench
comprising of 13 judges of the Supreme Court of India rules by a
majority of 7 : 6 that Article 368 of the Constitution does not
enable the Parliament to alter the basic structure of framework of

123 See, supra note 108 at 115

124 See, supra note 4 at 67-68
125 See, supra note 108 at 116
 183

the Constitution. 126 Keshvannanda Barti case overruled the

decision of special bench of 11 judges by majority of 6 : 5 on
February 27, 1967^27 that Parliament h a s no power to amend Part
III of the Constitution so as to take away or abridge the
fundamental rights. The Parliament may amend the provisions
relating to the basic features without altering or destroying those
features. 128 ^^he restriction on Parliament amending power from
these basic elements present or implicit in our Constitution which
control Constitution:

(a) The Constitution has been given by the people to themselves

and ultimate legal sovereignty reside in the people.
(b) Parliament is only a creature of the Constitution. It means
periodically the Lok Sabha is dissolved and members of the
Rajya Sabha retire, while the Constitution continues to
remain supreme.
(c) The power to alter or destroy the basic feature of the
Constitution is an attribute of ultimate legal sovereignty if
the Parliament has the power to destroy the fundamental
principles of one polity, it would cease to be a creature of the
Constitution, the Constitution would cease to be controlled
Constitution and the Parliament would become supreme over
the Constitution. If there is no limit to the amending power,
it can be used to destroy the judicial power. Executive power
and even the ordinary legislative power of Parliament and the
State Legislature. 129 The court held that under Article 368

126 Id., at 118

127 Golak Nath v. State of Punjab, AIR 1967 SC 1643
128 See, supra note 108 at 122-23.
129 See, supra note 35 at 652
 184

the Parliament is not empowered to amend the basic

structure or framework of the Constitution.

In Keshwananda Bharti case five judges found inherent or

implied limitations on the power to amend the language of Article
368 (before 2 4 * Amendment).i30 According to Sikri C. J. powers
and limitations are implied in the necessity or scheme of the
Constitution and in that way the expression (amendment) of the
Constitution has a limited meaning. i3i Shelat and Grover J J .
Pointed out that the argument that there were no implied
limitations because there were no express limitations was a
contradiction in terms because implied limitation could only arise
where there were no express limitations. ^32 go also hedge and
Mukharjee J J . Said that it was a general feature of all statues
including the Constitution wherein a grant of power is qualified by
the implications of the context by considerations arising out of the
general scheme of the statutes, and in this respect there is no
distinction between other powers and amending power under the
Constitution. 133 According to these judges the inherent and implied
limitations on the power to amend under the unamended Article
368 would still hold true even after the Amendment of Article 368,
and the 24^ Amendment is valid by virtue of the exercise of power
to amend along with its implied or inherent limitations which
cannot be eliminated within the present constitutional structure or
framework for Jagan Mohan Reddy J. it was not necessary to
consider the question of existence of non-existence of implied or
inherent limitations. He explained that the word Amendment read

130 For complete details of 24'*' Amendment see infra chapter VI

131 Keshvananda Bharti v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC
225 at pp. 346, 365
132 /d., at 453
133 /d., at 482
 185

with other provisions indicates that it is sued in the sense of

empowering a change in contradiction to destruction which a
repeal or abrogation would imply, and Article 368 empowers only a
change in the Constitution. He agreed with the Chief Justice that
the amplitude of the power of Amendment in Article 368 cannot be
enlarged by amending the amending power, though for a different
reason. 134 Ray, J. observed that all provisions of the Constitution
are essential and no distinction can be made between essential
and non-essential features from the point of view of Amendment
unless the makers of the Constitution make it expressly clear in
the Constitution itself. In his view and Amendment of the
Constitution is to make fundamental and even radical changes in
the Constitution and the power of Amendment is unlimited so long
as the Constitution is an amended Constitution that is, an organic
instrument which provides for the making, interpretation and
implementation of the law. It means that short of withdrawing a
system according to which a state or a nation is governed, and
Amendment of the Constitution includes making fundamental
changes in the Constitution. 135 Palikar J. was of the opinion that
all provisions in a Constitution must be conceded the same
character and it is not possible to say that one is more important
and other is less important. He stated clearly that so far as the
wording of Article 368 itself is concerned, there is nothing in it
which limits the power of Amendment expressly or by necessary
implication, and it is not the function of the court to invent
limitations where there are none.^^e Mathew J. concluded that
there are no express or implied limitations upon the power of

134 Keshvananda Bharti v. State of Kerala, (1973) 4 SCC 225, 628-633.

135 Id., at 552, 557
136 Id., at 682-690
 186

Parliament to amend the fundamental rights in such a way was to

destroy or damage the core or essence of the rights, and the
twenty-fourth Amendment by its language makes it clear beyond
out. 137 Chanderchud J. say a clear distinction between the
constitutional law and an ordinary law and observed that a law
amending the constitutional law is made in the exercise of
constituent power and partakes fully the character of
constitutional law. He found it difficult to read inherent limitations
into the amending power in view of the rule of interpretation that if
the text explicit. It is conclusive alike in what it directs and what it
forbids. 138 ^^e have so far observed that the majority in Golak
Nath,i39 made attempt to find express limitations upon the power
of the Parliament who amend the Constitution. Their Lordships
were however at pain to point out that even independently of
Article 13(2), limitations upon the power of the Parliament to
amend the Constitution could be found, i^^o It was contained that
the power of Amendment envisaged only such addition and
alterations as were within the framework of the Constitution.
Parliament could not exercise its power to amend so as to change
or alter the basic structure of Constitution. The provisions such as
those relating to elections on the basis of adult-franchise,
parliamentary form of government, fundamental rights, office of
the President and the federal form of the government constituted
the basic features of the Constitution, i"*! Mr. Chief Justice Subba
Rao declines to express opinion on the validity of the amendments

137 /d., at 881

138 Id., at 1007
139 AIR 1967 SC 1643
140 If the world law Art. 139(2) is to include only the ordinary law and is to
exclude the constitutional law, there would be no conflict between Article
368 and Article 13(2)
141 AIR 1967 SC 1664
 187

seeking to destroy the feature of the Constitution embodied in the

provisions other than those guaranteeing fundamental rights. He
however, held that Parliament could not modify the provision
guaranteeing fundamental rights except for their better
effectuation.i'*^ Similarly, had been canvassed before the Supreme
Court in Sajjan Singh. i'*3 Chief Justice Gajendra Gadkar rejecting
it had observed that "the Amendment of a law may in a proper case
include the deletion of any one or more of the provisions of the law
and the substitution in their place of new provisions, i'*'* In Golak
Nath, Wanchoo, J. re-affirmed the above view but qualified it by
saying that "it is enough to say that it may be open to doubt
whether the power of Amendment contained in Article 368 goes to
the extent of completely abrogating the present Constitution and
substituting it by new one."!'*^

It is respectfully submitted that the power of constitutional

Amendment is different from the power of Amendment which a
Legislature exercises with respect to the laws that it enacts. The
Legislature which passes a law has also the power to repeal such
law. Such power exists independently of the statute which is
sought to be repealed. It is ancillary to the power of law making
which it possesses in the case of Constitution. However, the
Legislature does not have power to amend any of its provisions
except to the extent and in accordance with the procedure
prescribed by such Constitution. It is submitted that as the power
of constitutional Amendment cannot be exercised so as to
completely rob the Constitution of its spirit and purpose, the power

142 Ibid.
143 Sajjan Singh v. State ofRajasthan, AIR 1965 SC 845
144 Id., at 854
145 AIR 1967 SC 1643, at 1680
 188

of constitutional Amendment cannot be exercised so as to change a

democracy into totalitarian government or to substitute a
theocratic rules in place of secular state. So long as a
constitutional Amendment does not tend to undermine the
enduring values enshrined in the Constitution, it is within the
scope of the power of constitutional Amendment given by Article
368. It is submitted that although Parliament can amend the
Constitution so as to take away or abridge the fundamental rights,
such Amendment must be consonant with enduring values such
as liberty, equality and justice which the Indian Constitution
proudly enshrines. To conclude the implied limitations we can say
that only limitation upon the power of Parliament to amend the
Constitution is that such Amendment cannot seek to destroy the
enduring values such as liberty, justice and equality enshrined in
the Constitution. This limitation is however only a rule of political
morality, its sanction lies not in the judicial procedure but in the
vigilance of public opinion and the working of the political
procedure and may observe that ultimate safeguards of these
enduring values must be founded in the good sense of the people
in the words of Judge learned Hand, " A society so given that the
spirit of moderation is gone no court can save : . . . a society where
that spirit flourishes, no court need save; . . . in a society which
evades its responsibility by thrusting upon courts the nurture of
that spirit is the end will perish." ^^^^

VII. An Analysis of the Basic Structure Theory

Whenever we look about basic structure theory, the one case

which strikes to our mind is the famous case of Keshvanand Bharti

146 The contribution of an independent Judiciary in the spirit of liberty, 172,

181 (1952)
 189

V. State of KeralaA'^'^ In this case tiie theory of preservation of

certain essential and basic features of the Constitution was
accepted by the majority. In the said case it was felt that a
constituted body even if Parliament, could not have the power of a
Constituent Assembly. Like the legislative power the amending
power too was derived from the Constitution albeit from its
different clauses. Parliament could have only such amending
power as was vested in it under Article 368. Like any power, it too
had its limits. By its use Parliament could not reframe the whole
Constitution, not abrogate it. The Supreme Court caught at the
basic structure and framework of the Constitution, while it
answered the contentions of arguments as to whether the
Constitution makers gave fully uncontrolled and unlimited
constituent power of Amendment of the Constitution to the
Parliament or Parliament or State Assemblies taken together. The
court looked into the working and methods adopted by the
Constituent Assembly. It found that while that body acted for or on
behalf of the people in the matter of Constitution making, the two
Houses of Parliament would not, according to the electoral date
and behavioural pattern of the voters in successive election, reflect
any social consensus necessary for any change in the law of the
Constitution. Therefore, the constituent power could not be
exercised by Parliament, with or without the State Assemblies, in
any revolutionary manner. The Constitution could not be so
changed or amended as to alter or disestablish its basic structure
and framework, or so as to impair its essential features. At the
same time court declared contrary to its earlier judgement of the

147 AIR 1973 SC 1461

 190

court I'^s that the amending power could not be assimilated to

legislative power of Parliament. It further declared that the
amendatory power could not be restricted by normal constitutional
limitation which operated upon the legislative power, but unlike
the full constituent power it was not without certain implied and
inherent limitations. It would be exercised by amending the
Constitution with or without the association of the states as
ordained in Article 368, by use of the established procedure. When
so exercised, it could be used to change, amend, alter, modify or
repeal any provision of the Constitution, insert a new provision, or
delete an existing provision. But it could not be used so as to
change its basic framework or its essential features. ^"^^ The basic
structure and framework and essential features of the Constitution
raised by the framers must be rigid. The perambulatoiy objectives,
ideas, values and ethos, by the framers could not be impaired. The
established institutions of national life, the fundamental rights and
duties and the directive principles of the state policy set out could
not be uprooted. The aspiration, inspiration, intendments and fear
of the framers and the spirit of reason, right and freedom
underlying the provisions of the Constitution must restrict and
regulate the exercise of amending power. The basic structure and
framework of the socio-political document must be maintained,
and the welfare edge of this instrument of social change must not
be blunted. The constitutionalism based by it and the machinery
and the procedure of the democratically controlled government
established for the people must not be destabilized. The basic
structure or framework of the Constitution and which if damaged

148 Golak Nath v. State of Punjab, AIR 1967 SC 1643

149 AIR 1973 SC 1461
 191

or destroyed would rob tJie Constitution of its identity so that it

would cease to be the Constitution, ^^o

VIII. The unresolved controversy

In Keshavananda case the majority i.e. Sirki C. J., Shelat,

Hegde, Grover, Jagan Moham Reddy, Khanna and Mukherrjee, J.J.
Khanna J. laid down is i that "the power of Amendment under
Article 368 does not include the power to abrogate the Constitution
nor does it include the power to alter the basic structure or
framework of the Constitution. Subject to the retention of the basic
structure or framework of the Constitution, the power of
Amendment is plenary and includes within itself the power to
amend the various Articles of the Constitution including those
relating to fundamental rights as well as those which may be said
to relate to essential features. No part of fundamental right can
claim immunity from amendatory procedure by being described as
the essence or core of that right. The power of Amendment would
also include within itself the power to add, alter or repeal the
various Articles. The majority of the Supreme Court this evolved
the theory of basic structure. The basic structure has been thus,
held to be a limitation on the amending power of the Parliament.
However, it is not possible to ascertain from the opinions they
delivered, as to what constituted the basic structure or which of
the provisions of the Constitution, framed parts of the basic
structure. Some of the judges made observations in this regard.
But these have been stated to be illustrative merely. Sikri C. J.
observed that basic structure was built on the basic foundation of
the individual. The basic foundation of the basic framers, in his

150 Id., at 1858

151 Id., Sit 1903-4
 192

opinion, could be easily discernible from the preamble as well as

the whole scheme of the Constitution. He articulated the following
features as to constitute the basic structure. i52

(1) Supremacy of the Constitution

(2) Republican and democratic forms of government.
(3) Secular character of the Constitution.
(4) Separation of powers between the Legislature, the Executive
and the Judiciary.
(5) Federal character of the Constitution.

Shelat and Grover J.J. held that the basic structure was not
vague concept. They maintained that basic feature could only be
illustrative and could not be catalogued. According to them the
following features constituted the basic structure. 1^3

(1) The supremacy of the Constitution

(2) Republican and democratic form of government and
sovereignty of the country.
(3) Secular and federal character of the Constitution
(4) Demarcation of power between the Legislature, the Executive
and the Judiciary.
(5) The dignity of the individual secured by the various freedoms
and basic rights in Part III and the mandate to build a
welfare state contained in Part IV
(6) The unity and integrity of the nation.

152 Id., at 1535

153 Id., at 1603
 193

Hedge and Mukherjee J. J. illustrated the following as the

fundamental features. ^^'^

(1) Sovereignty of India.

(2) The democratic character of a policy
(3) The unity of the country
(4) The essential features of the individual freedoms secure to
the citizens
(5) The mandate to build a welfare state and egalitarian society.

Jagan Mohan Reddy J. observed that the mere fact that the
essential elements constituting the basic structure could not be
enumerated exhaustively, was no ground to deny their existence.
In his opinion a sovereign, democratic, republic, parliamentary
democracy and the three organs of the State constituted the basic
structure. 155

Khanna J. by way of instance, held that the democratic

government could not be changed into dictatorship or hereditary,
monarchy, nor the Lx)k Sabha and the Rajya Sabha be abolished.
Likewise, the secular character of the state could not be done away
with. 156 Khanna J. however, categorically said that right to
property was not the basic structure or framework of the
Constitution. 157

From the above description, it would not be easy to identify

with certainty, the basic structure or the provisions of the
Constitution which constituted the basic structure or the
framework. It is therefore, for the Supreme Court to determine

154 Id., at 1628

155 Id., at 1753-54
156 Id., at 1860
157 Id., at 1904
 194

finally a s to what constituted the basic structure of what features

and the essentials features constituted the framework of the
Constitution. It may be stated that by laying down the concept of
basic structure, the Supreme Court has assumed to itself the
constituent power. Thus controversy which was raised by the
judgement of Golak Nath and settled by the landmark judgement
of Keshvananda Bharti still remained unsolved as to the prescribed
definition of the basic structure which is presumed to be implied
limitation on the unlimited power of the Parliament to amend the
Constitution. 158 However, the Supreme Court had an occasion to
refer to the doctrine of basic structure in number of cases followed
by Keshvananda i.e. in Indira Nehru Gandhi v. Raj Narain,^^^
Minerva Mills Limited v. Union of India, ^^^ Wamon Rao v. Union of
India,^^^ etc. But still 1^2 the clear cut definition of basic structure
could not be made out. ^^^

DC. Theoretical considerations

In our study till now the procedure of Amendment h a s

acquired major area of concentration and due consideration. It is
but obvious that whenever we talk about the topic of Amendment
of the Constitution its procedure is one of the most common thing
to be considered, but this study or analysis would be insignificant
if we did not take into consideration certain theoretical points
which have not received adequate attention in our research. It is
rarely realised that the power of Amendment is completely
associated with the theoretical consideration or in other words the

158 Narender Kumar, Constitutional Law of India, 393 (2007)

159 AIR 1975 SC 2299
160 AIR 19980 SC 1789
161 AIR 1981 SC 271
162 /. R. Coelho v. State of Tamil Nadu, AIR 2007 SC 891
163 For complete details of these cases see infra chapter VI
 195

major issues like concept of representative government, doctrine of

separation of power and judicial review deserve equal treatment in
any research work dealing with the topic of amendment. Therefore,
keeping these things in mind, out next head is to give a brief note
on the above issues, which are necessary for effective treatment of
our research i.e. procedure of Amendment under Indian
Constitution.

X. The Representative Government and Amending Power

The preamble of the Constitution sets out the aims and

aspirations of the people and these have been translated into the
various provisions of the Constitution. One of the key word in the
preamble is democratic. It means that the Constitution sets u p a
democratic government. The term democracy is commonly defined
as a government by the people, of the people and for the people.
However, in constitutional sense, it may be defined as a system of
government in the administration of which every adult citizen of
the country enjoys some direct or indirect share. The Constitution
has so provided that every citizen who attains the age of 18 years
is vested with the right to vote for electing his representatives,
constituting the organs of the government also the freedom to be
elected to any of these organs. 1^4 As said earlier that the
Constitution set u p in India is a democratic government. The term
democracy is derived from Greek word 'demos' which means the
people and Icratos' which means authority. It thus means
government by the people, or as that form of government in the
administration of which the mass of adult population has some

164 See, supra note 57 at 18

 196

direct or indirect share, i^s Democracy may be direct or indirect

democracy. In a direct democracy, every people exercised the
power of the government. The people as a whole not only carry on
the government but can even change the Constitution by their
direct vote. In direct democracy the people elect their
representatives who carry on the administration of the government
directly. It is also known as representative democracy. In India, our
Constitution provides for a representative democracyi^^ which is
incorporated under Article 326 of the Constitution, according to
which the system of uniform adult suffrage is recognised. This
system secures to every citizen in India, who attains the age of 18
years, the right to vote to elect representative to the Legislatures,
both central as well as state. ^^'^ It means that the Constitution
ensures the creation and existence of the government at the will of
the people through their participation in the formulation of the
government at regular intervals on the principle of universal adult
franchise. 168

In R. C. Poudyal v. Union of India, ^^9 the court says that

democracy denotes people's power and equal participation of all
citizens in the polity. This whole discussion points out at one thing
that is the representative form of government in the Indian
Constitution. In our country the Constitution is considered to be
sovereign and it is the supreme law of land. However, document
cannot be sovereign. If we interpret the word representative
government then the most obvious implication would be that what
is supreme in India. Constitution is the will of the people as source

165 D. D. Basu, Commentary on the Constitution of India, 144 (1982)

166 See, supra note 57 at 32
167 Id., at 20
168 V. N. Shukla, Constitution of India, A-20 (2004)
169 1994 Supp (1) s e c 324, 362
 197

of the Constitution is the people of India and people of India will

continue to be governed under the Constitution so long as it is
acceptable to them and its provisions promote their aims and
aspirations. I'^o j ^ a representative form of government the people
share the administration of government through their elected
representatives sitting in the Parliament and the state Legislatures.
Whenever the Parliament and the State Legislatures introduced a
Bill for Amendment of the Constitution under Article 368 by
implication it is presumed that the people of India are amending
the Constitution. But this implication is not at all viable and true
because most of the times the Amendment of the Constitution is
made as per the whims and caprices of the ruling party at the
centre. Although the procedure of Article 368 prescribed and
express limitation by way of special majority and ratification by the
state Legislatures, but all these requirements are just formality
and in the amending power general will of the people is not
exhibited or a common men who had made himself a party in the
State administration by way of casting his precious vote is not
having any direct say in the Amendment of the document i.e.
Indian Constitution which is basically mean for the common good
of the peoples of its country. The crux of our debate is that a
common man should have a role to play in the important
procedure of changing/amending the supreme law of land and the
Parliament is not at all authorized to encroach in the valuable right
of the people of the country. There cannot be a better way to
conclude other than by saying that the power of Amendment
should emanate from the people of India and ultimate authority to
amend the Constitution should lie with them.

170 See, supra note 168 at A - 25

 198

All governmental organs and institutions owe their origin to

the Constitution and derive their powers from its provisions. These
organs and institutions enjoy only such powers as are conferred on
them and functions within limited demarcated by the Constitution.
Parliament is no exception and unlike British Parliament cannot
claim unlimited powers. It must function within its limits and its
actions are subjected to judicial scrutiny. It is given the power to
amend the Constitution but the power to amend must be exercised
within the bounds of the Constitution. Besides conforming to the
procedure laid down for this purpose, the power to amend should
not be exercised so as to destroy or abrogate the basic structure or
framework of the Constitution, ^'^i

XI. Doctrine of Separation of Power and Judicial Review

(A) Separation of Powers

The doctrine of separation of powers stated in its rigid means

that each of the powers of government, namely Executive or
Administrative, Legislative and Judicial should be confined
exclusively to a separate department or organ of government. There
should be no overlapping either of function or of person. The
Constitution of the United States is usually quoted as the leading
example of a Constitution embodying the doctrine of separation of
power. While the Constitution of the USA does not expressly
provide for a separation of powers, the doctrine has been
incorporated into the Constitution by the provisions that "all
legislative powers shall be vested in a Congress." Article 1, section I
"the Executive power shall be vested in a President." Article 11,
Section 1, "The Judicial power shall be vested in one Supreme

171 Keshvannanda Bharti v. State of Kerala, (1973) 4 SCC 225

 199

Court, and in such inferior courts as Congress may from time to

time ordain and establish." Article III, Section U'^^

Under the Indian Constitution only Executive power is

vested in the President while provisions are simple made for a
Parliament and Judiciary without expressly vesting the legislative
and judicial powers in any person or body. Moreover, we have the
same system of parliamentary Executive as in England and the
Council of Ministers consisting as it does of the member of
Legislature is like the British Cabinet, "a hyphen which joins a
buckle which fastens the legislative part of the state to the
Executive part." Accordingly the Indian Constitution has not
recognized the doctrine of separation of powers in its absolute form
but the function of the different parts of branches of government
have been sufficientiy differentiated and consequently it can very
well be said that our Constitution does not contemplate
assumption by one organ or part of the state, of function that
essentially belong to another. The Executive indeed can exercise
the powers of departmental or subordinate legislation when such
power area delegated to it by the Legislatures. It can also when so
empowered, exercise judicial functions in a limited way.^'''^ Even
though the Constitution of India does not accept strict separation
of powers, it provides for an independent Judiciary with extensive
jurisdiction over the acts of the Legislature and the executive, i'^'* In
the context of the independence of the Judiciary the court h a s held
that separation of power is the basic feature of the Constitution. I'^s
After this discussion the next question is that whether separation

172 See, supra note 168 at A-49

173 Ram Jawaya v. State of Punjab, (1955 ) 1 SCR 225
174 Chandra Mohan v. State ofU. P., AIR 1967 SC 1987, 1993
175 State of Bihar v. Bal Mukand Shah, (2000) 4 SCC 640, 685
 200

of power as said earlier is a basic feature of the Constitution or not

or in other words can the constituent body exercise legislative or
judicial power? Answer lies in the facts that until 1973, the
Supreme Court was anxious to establish that under the Indian
Constitution there was no rigid separation of powers in the
American sense. ^'^^ of course, the court also asserted that one of
the ingredients of the doctrine of separation of powers obtained in
India namely that - no organ could divest itself of or delegate to,
another organ, the essential functions which belonged to it under
the Constitution. 177 Here, the court was concerned primarily with
the delegation of legislative functions. The court, derived this
limitation not form the doctrine of separation of powers, but from
general principles, such as the doctrine of constitutional trust and
the common law principle of delegates non potest delegane. In
Kesavananda,i78 the majority held that from the very nature of
the constituent power conferred by Article 368, it could not be
delegated to some other body, and this limited nature of the
amending power has been labeled as basic feature of the
Constitution. But the other corollary from the doctrine, namely,
that no organ of government was entitled to u s u r p the functions or
powers which are assigned to another organ by the Constitution
expressly or by necessary implication, was not expressly referred to
in the Delhi Laws Act case.i^Q Presumably because the court was
influenced by its assumption that under the Indian Constitution
there was no rigid separation or demarcation of functions between
the three organs of government - e.g. that the Executive is
authorized by the Constitution to legislate in the form of

176 In Re. Delhi Laws Act, (1951) SCR 747 at 938-39

177 Ibid.
178 AIR 1973 SC 1461
179 See, supra note 18 at 179
 201

Ordinances, or that the judicial powers not being vested in the

courts exclusively, may be exercised also by lawfully constituted
tribunals, which are not courts. It was in Ram Jawaya's case,!^^
that Mukherje, C. J. speaking for a Constitution Bench, observed
that though the Indian Constitution did not recognise the doctrine
of separation of power in its absolute rigidity "the functions of the
different parts or branches of government have been sufficiently
differentiated" and consequently it can very well be said "that out
Constitution does not contemplate assumption by one organ or
part of the state, of functions that essentially belong to another.^si
In Kesavananda case, ^^2 sikri C. J. asserted the bold proposition
that one of the basic features of the Constitution was "separation
of powers between the Legislature, the Executive and the
Judiciary." It is striking that though Shelat and Grover J. J. in
their enumeration of basic features^sa did not include separation of
power. However, they meant the same thing by using the word
demarcation of powers between the Legislature, the Executive and
the Judiciary. They asserted the proposition that Legislature
cannot usurp the judicial power. Shelat and Grover J.J. however,
did not derive the foregoing proposition from the doctrine of
separation of power but from the assumption that Indian
Constitution "creates a system of checks and balances by reasons
of which powers are so distributed that none of the three organs if
sets u p can be so predominant as to disable the others from
exercising and discharging powers and functions entrusted to
them."i84 Palekar J. similarly held u p the balance between the

180 Ram Jawaya v. State of Punjab, (1955) 1 SCR 225 at 235-36

181 Ibid.
182 AIR 1973 SC 1463 (para 3302)
183 Id., para 599
184 Id., para 594
 202

Legislature, the Executive and the Judiciary as an essential feature

of the Constitution. 185 So also Chanderchud, J. and other judges
referred to the proposition that the Legislature could not intrude
upon the judicial power which had been established by several
decisions of the court.i^e in Indira Gandhi v. Raj Narain,^^"^ Ray, C.
J. held that the constituent power was sovereign and was not
therefore limited by the separation of functions. Parliament
exercising constituent power was entided to exercise judicial power
e.g. to decide an election petition, ^^s Mathew J. held that the
doctrine of separation of powers applied to the organs set up by the
Constitution and not the constituent body. He further held that the
constituent body could not pass a legislative judgement. ^^^
Khanna, J. also held^^o that though there was no rigid separation
of powers in the Indian Constitution but by and large the spheres
of judicial function and legislative functions have been demarcated
and it is not permissible for the Legislature to encroach on the
judicial spheres. Chanderchud, J. observed that though the
principle of separation of powers was not rigidly acknowledged by
the Indian Constitution, the system of checks and balances
underlying the principles applied under the Indian Constitution as
well, 191 hence Parliament could not pass a judgement which
required a hearing of the parties and compliance with the judicial
procedure. This limitation was binding upon the constituent body
as well, which could not be an amalgamation of all powers -

185 Id., para 1291

186 Id., 673
187 AIR 1975 SC 2299
188 /d., paras 60-61
189 Id., paras 232-23
190 Id., para 190
191 /d., para 688-89
 203

legislative. Executive and judicial, 1^2 it can be seen that amidst all
this diversity of views, all the judges agreed on one point viz., that
Parliament acting under Article 368 could not exercise judicial
power, so as to make a legislative judgement. To sum up the
following propositions may be formulated:

(i) Under the Indian Constitution, one organ cannot usurp the
functions that essentially belong to another.
(ii) Parliament even when exercising constituent power cannot
exercise judicial power.
(iii) An Amendment of the Constitution which seeks to encroach
u p on the essential functions of the Judiciary would be
invalid and in this sense separation of powers must be
regarded as a basic feature, because the annulment of a
constitutional Amendment could not possible by justified
under any substantive ground other than that of basic
structure or basic features.

(B) Doctrine of Judicial Review

In countries with written Constitution there prevails the

doctrine of Judicial Review. It means that the Constitution is the
supreme law of the land and any law inconsistent there with is
void. The courts performs the role of expounding he provisions of
the Constitution and exercise power of declaring any law or
administrative action which may be inconsistent with the
Constitution as unconstitutional and hence void.^^^ i^ exercising
the power of judicial review, the courts discharge a function which
may be regarded as crucial to the entire governmental procedure in

192 Id., para 699

193 S. P. Sathe, Judicial Activism in India, 727(2002)
 204

the country. The bare text of the Constitution does not separate in
itself the living law of the country. For that purpose, one has to
read the fundamental text along with the gloss put there on by the
courts. In this sense it can be stated that the study of
constitutional law may be described in general terms as a study of
the doctrine of judicial review in action. ^94 The Constitution of
India being a written Constitution explicitly established the
doctrine of judicial review in several Articles. ^^^ The doctrine of
judicial review is firmly rooted in India and h a s the explicit
sanction of the Constitution. Article 13(2) even goes to the extent of
saying that, "the state shall not make any law which takes away or
abridges the rights conferred by this par (Part III containing
fundamental rights) and any law made in contravention of this
clause shall, to the extent of the contravention be void," the courts
in India are thus under a constitutional duty to interpret the
Constitution and declare the law as unconstitutional if found to be
contrary to any constitutional provisions. The courts at as sentinel
on quivive so far as the Constitution is concerned.

XII. Application of Doctrine of Basic Features to Judicial

Review
As stated earlier, there are several Articles in the
Constitution such as Article 32, 136, 226 and 227 which
guarantee judicial review of legislation and administrative action. It
can be appreciated that protection of the institution of judicial
review is crucially interconnected with the protection of
fundamental rights. For depriving the court of its power of judicial
review would tantamount to making fundamental rights non-

194 Dowling, Cases and Materials on Constitutional Law, 19 (1965)

195 Articles 13, 32, 131-36, 143, 226 and 246.
 205

enforceable, "a mere adornment", as they will become rights

without remedy. In the absence of judicial review, the written
Constitution will be reduced to a collection of platitudes without
any binding force. Accordingly, judicial review has been declared to
be a basic feature of the Constitution. Khanna, J. has emphasized
in Kesavananda, ^^^ «as long as some fundamental rights exists and
are a part of the Constitution the power of judicial review has also
to be exercised with a view to see that the guarantees afforded by
these rights are not contravened . . . judicial review has thus
become an integral part of the Constitution system."

In Menerva Mills, i^? Chandrachud speaking on behalf of the

majority observed that, "it is the function of the judges, and their
duty to pronounce upon the validity of laws. If courts were totally
deprived of that power, the fundamental rights conferred on the
people will become a mere adornment because rights without writ
are meaningless. A controlled Constitution will then become
uncontrolled."

In the same case, Bhagwati, J. h a s observed that "it is for

the Judiciary to uphold the constitutional values and to enforce
the constitutional limitations. That is the essence of the rule of
law, which inter-alia requires that the exercise of powers by the
government whether it be the Legislature or the Executive or any
other authority, be conditioned by the Constitution and the law.
The power to judicial review is an integral part of our constitutional
system and without it, there will be no government of laws and the
rule of law would become a teasing illusion and a promise of
unreality. I am of the view if there is one feature of our

196 AIR 1973 SC 1461 at 1628

197 Minerva Mills v. Union of India, AIR 1980 SC 1789 at 1897
 206

Constitution which, more than any other, is basic and

fundamental to the maintenance of democracy and the rule of law,
it is the power of judicial review and it is unquestionably to my
mind, part of the basic structure of the Constitution."^^^

In Indira Nehru Gandhi v. Raj Narain,^^^ the Supreme Court

had an occasion to make reference to Kesavananda Bharti and
accepted the majority opinion on the doctrine of basic structure or
framework of the Constitution. In that case an appeal was filed by
the appellant against the decision of the Allahabad High Court
invalidating the election of them Prime Minister, Mrs. Indira
Gandhi on the ground of corrupt practice. In the mean while
Parliament enacted the thirty ninth Amendment to overcome the
effect of the High Court judgement by withdrawing the jurisdiction
of all courts over election disputes involving the Prime Minister
following Kesavannanda Bharti it was argued that the Amendment
effected free and fair elections and judicial review, these being
parts of the basic structure of the Constitution, and therefore, was
unconstitutional. It was further argued that Parliament in the
exercise of constituent power was not competent to exercise power
to validate an election declared void by the High Court. The
exclusion of judicial review in election dispute in this manner
damaged the basic structure. The inclusion of judicial review as a
part of the basic structure again came up for discussion before the
Supreme Court in Minerva Mills Limited v. Union oflndia.^^^

In this case clause (4) and (5) of Article 368 have been
declared to be invalid a s they destroy the basic structure of the

198 Md.
199 AIR 1975 SC 2299
200 AIR 1980 SC 1789
 207

Constitution. The Constitution (42»d Amendment) Act, 1976 clause

(4) provides that no Amendment of the Constitution (including the
provisions of Part III) made or purporting to have been made under
Article 368 whether before or after the commencement of section
55 of the Constitution (42n«i Amendment Act, 1976, shall be called
in question in any court on any ground. Clause (5) provides that
there shall be no limitation whatever on the constituent power of
the Parliament to amend by way of addition, variation or repeal the
provision of this Constitution under Article 368. The Supreme
Court declared the clause (4) of Article 368 as unconstitutional on
the ground that it took away the judicial review which is a part of
the basic structure of the Constitution. On the issue of exclusion of
judicial review, Bhagwati, J., explained "it is a cordial principle of
our Constitution that no one howsoever highly placed and to
authority. Howsoever lofty can claim to be the sole judge of its
power under the Constitution or whether its action is within the
confines of such power laid down by the Constitution. The
Judiciary is the interpreter of the Constitution and to the Judiciary
is assigned the delicate task to determine what is the power
conferred on each branch of government, whether it is limited, and
if so, what are the limits and whether any action of that branch
transgresses such limits. It is for the Judiciary to uphold the
constitutional values and to enforce the Constitution limitations
that is the essence of rule of law. "201

The next case questioning the judicial review is S. P.

Sampath Kumar v. Union of India,'^^'^ wherein the court upheld the
validity of Article 323-A which provides for Administrative

201 Id., (1980) 3 s e c 625 at p. 678 refer also Woman Rao v. Union of India, AIR
1981 SC 271 (for details see infra chapter VI)
202 (1987) 1 s e c 124
 208

Tribunals free from the jurisdiction of all courts except the

Supreme Court on the ground that Parliament can make effective
alternative institutional mechanisms or arrangements for judicial
review without violating the basic structure of the Constitution if
such arrangements or mechanisms are no less effective than High
Court. In P. Sambhamurthy v. State of A. P.,203 ^he court speaking
through Chief Justice Bhagwati unanimously invalidates clause (5)
of Article 371 D. This Article was introduced by Thirty-Second
Amendment of the Constitution with effect from l^t July, 1974. The
main part of clause (5) provides that the final order of the
Administrative Tribunal to be set up under clause (3) of that Article
shall become effective upon its confirmation by the government or
on the expiry of three months. The proviso to clause (5) authorizes
the government to modify or anuU any order of Tribunal. The court
held that the proviso was violative of the rule of law which is
clearly a basic and essential feature of the Constitution. If the
exercise of the power of the judicial review, the court added, "can
set out at naught by the state government by overriding the
decision given against it, it would sound the death-knell of the rule
of law. "204 However, in L. Chandra Kumar v. Union oflndia,^^^ the
seven members of the Constitutional Bench of the Supreme Court
unanimously struck down clause 2(d) of Article 323-A and clause
3(cl) of Article 323-B which provides for the exclusion of judicial
review by the High Court under Article 226 and 227 and by the
Supreme Court under Article 32 and emphasized that judicial
review is a basic feature of the Constitution which cannot be
diluted by transferring judicial power to the Administrative

203 (1987) 1 sec 362, AIR 1987 SC 663

204 Id., at 369
205 (1997) 3 sec 261
 209

Tribunals and excluding the review of their determinations under

Article 32 and 226. The Supreme Court h a s t h u s ensured that
judicial review is an inseparable part of the Constitution, and that
it cannot be excluded even by a constitutional amendment.

XIII. Summing up

After considering the whole procedure of Amendment of the

Constitution as prescribed under Article 368, it is submitted that
this power of Amendment of the Constitution is given to the
Legislature by the Constituent Assembly and assumed special
position to the Legislature while doing this precious task of
amending the supreme law of the land. As we know that a Bill of
the Amendment of the Constitution may be introduced in either
House of the Parliament which must be passed either by simple
majority or in some cases by special majority (majority of not less
than 2/3^^ of members present and voting and ratification by state
Legislature). Thus, if we see into the procedure laid down in Article
368 one thing which comes out before u s is that the Parliament
seems to have the sole power to amend the Constitution in either
way. But it is not correct to say that the Parliament is sovereign,
because as long as the procedure under Article 368 is there.
Parliament cannot be the deciding authority of constitutional
scheme as the procedure itself imposes a restriction on Parliament
with regard to the use of the power to amend the Constitution.
Moreover, with regard to the implied limitation on the Parliament's
power to amend the Constitution there is a Supreme Court to
check and to see that the procedure prescribed under Article 368
is fully complied with as well as the major limitations of judicial
decisions like Kesvananda Bharti laying down the doctrine of basic
structure keep a proper check on the unlimited power of the
 210

Parliament to amend the Constitution. Even after laying down the

full-fledged procedure of Amendment under Article 368, it is
sometimes argued that Article 38 does not constitute the complete
code. In our submission also, it is not correct to say that Article
368 is a complete code in respect of the procedure provided by it.
There are gaps in the procedure as to how and after what notice a
Bill is to be introduced. How it is to be passed by each House and
how President's assent is to obtained. Having provided for the
Constitution and prescribed a certain procedure for the conduct of
its ordinary legislative business to be supplemented by rules made
by each House (under Article 118) the makers of the Constitution
must be taken to have intended Parliament to follow that
procedures, so far as it may be applicable, consistently with
express provisions of Article 368, when they are entrusted to it the
power of amending the Constitution. Thus we conclude, it can be
said that whatever be the lacunas in the procedure of Article 368,
it cannot be overlooked that in any country having a written
Constitution, the procedure laying down the manner of amending
the Constitution acquires a great importance and in every case,
such procedure has to be followed strictly so as to abide by the
spirit of Constitution.