‘Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution’. (UPSC CSE Mains 2016 - Political Science and International Relations, Paper 1)
Article 368 lays down the process by which the Parliament can amend the constitution. The process is as followed.
- The Bill is introduced in either house of the parliament.
- The Bill must be passed by a total majority (irrespective of vacancies or absentees) and by a majority, not less than 2/3rd of people present and voting by both the houses. There is no provision of joint sitting if there is a disagreement between both the houses.
- After acquiring the majority, the Bill is presented to the President who will then give his assent to the Bill.
- In the case of amendment of provisions mentioned in Article 368, It needs to be ratified by not less than half of the states. Ratification should be done by a resolution passed by the state legislature. However, this must be passed before the amendment Bill is presented to the President for his assent.
In 1973, a 13-judge Constitution Bench ruled in Kesavananda Bharati v. State of Kerala that Article 368 of the Constitution does not enable Parliament to amend the basic framework of the document. The historic ruling came to be known as the “basic structure” doctrine — a judicial principle that the Constitution has certain basic features that cannot be altered or destroyed by amendments by Parliament.
The then government enacted a series of constitutional amendments following successive rulings against it. The 24th Constitutional (Amendment) Act, 25th Constitutional (Amendment) Act and 29th Constitutional (Amendment) Act gave Parliament uncontrolled power to alter or even abolish any fundamental right.
The Kesavananda Bharati case was the culmination of a conflict between the judiciary and the then-Indira Gandhi-led government. In I.C. Golak Nath v. State of Punjab (1967), the Supreme Court held that Parliament could not curtail fundamental rights guaranteed under the Constitution. The term ‘basic structure’ was first used in this case, by lawyer M.K Nambyar. Basing his arguments off a principle expounded by German thinker Dieter Conrad, Mr. Nambyar contended that Parliament had no power to amend the fundamental rights under Part III of the Constitution. It was, however, a few years later that the concept was outlined in a Supreme Court ruling.
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