The procedure to amend the Constitution of India is a unique blend of rigidity and flexibility, designed to ensure the document can evolve while protecting its foundational essence. This dual nature is primarily governed by Article 368 in Part XX of the Constitution.
1. The Procedure for Amendment (Article 368)
The process of amendment is strictly formal and involves three distinct pathways depending on the significance of the provision:
A. Amendment by Simple Majority
Certain provisions can be amended by a simple majority of the members present and voting in each House (similar to ordinary law-making).
Examples: Creation of new states, changes in citizenship rules, or salaries of judges.
B. Amendment by Special Majority (Article 368)
Most provisions are amended by a "Special Majority," which requires:
A majority of the total membership of each House (more than 50%).
A majority of not less than two-thirds of the members of that House present and voting.
Examples: Fundamental Rights and Directive Principles of State Policy (DPSP).
C. Special Majority + State Ratification
If the amendment seeks to change the federal structure of the Constitution, it requires the Special Majority mentioned above PLUS ratification by the legislatures of at least half of the states by a simple majority.
Examples: Election of the President, Supreme Court/High Court powers, or the Seventh Schedule (Lists of subjects).
2. Can Parliament change the "Basic Structure"?
The answer is a definitive No. While Parliament has broad powers to amend any part of the Constitution, it cannot destroy the Constitution's "identity."
The Kesavananda Bharati Case (1973)
This landmark judgment by a 13-judge bench established the Basic Structure Doctrine.
Parliament’s power to amend under Article 368 is not absolute.
The word "amend" implies making changes to the existing structure, not "abrogating" or "rewriting" it.
Parliament cannot touch the "basic features" that form the foundation of the Indian Constitution.
Legal Maxim: "The power to amend is not the power to destroy."
What constitutes the Basic Structure?
The Court has never provided a fixed list of these features, preferring to define them on a case-by-case basis. However, through various judgments (like Minerva Mills and I.R. Coelho), the following have been recognized as part of the Basic Structure:
Supremacy of the Constitution.
Republican and Democratic form of government.
Secular and Federal character.
Separation of Powers between the legislature, executive, and judiciary.
Judicial Review.
The balance between Fundamental Rights and DPSPs.
3. Significance of the Basic Structure Doctrine
The Basic Structure Doctrine acts as a "safety valve" against potential legislative tyranny.
Preserving Democracy: It prevents a ruling party with a massive majority from turning India into a totalitarian state or abolishing free and fair elections.
Judicial Oversight: It empowers the Supreme Court to strike down any constitutional amendment that violates these core principles (e.g., the striking down of the NJAC Act via the 99th Amendment).
Criticism: Some legal experts argue that this doctrine gives the judiciary "unelected power" to override the will of the people's representatives, as the term "basic structure" is not mentioned anywhere in the written text of the Constitution.
Despite the criticism, the doctrine has been the primary reason the Indian Constitution has survived for over seven decades without losing its original democratic and secular soul.
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