Author name: Hardik Jharkharia, a law student from Lloyd Law College.
Abstract
In this article, we conduct a case study of Article 368 and landmark judgments in the legal history of India, where we try to understand the observations and marked words of the constitutional bench of the Supreme Court of India, also stating how laws are made in the Indian Parliament.
This is for educational purposes and to help understand in simple language. We also cited the judicial works that address the question of the validity of the law, and we also cited historical events that affect the Constitution and the fundamental rights of citizens. Lastly, we highlight the landmark judgment of Minerva Mills vs. Union of India, which discusses the main changes and loopholes left uncovered in the Minerva Mills case. The evolution does not stop here; in every landmark judgment, the court tries to provide new observations on how laws can be interpreted, which develops the legal framework of India. There are some basic concepts about the Indian parliamentary structure, such as how laws are made, how the houses work, and what the role of the president is in making laws because it helps to understand the fundamentals of the Indian legal system.
Parliament’s Power to Amend: An Analysis of Article 368″
The Constitution of India is one of the most legendary constitutions in the world. In nature, it is very flexible and vast compared to other statutes. It has many interpretations, which, from time to time, the Supreme Court of India provides. The Constitution of India balances power by stopping the one-power concept in the country. Article 368 of the Indian Constitution is the core regulating article of the Constitution, by which the Parliament has the power to amend the law for addition, variation, or repeal of any provision of this Constitution. We can also say that Article 368 is the most important article for the Parliament, where the ruling government enjoys the power to amend any law to meet the needs of the people of India.
The Constitution of India gives citizens the right to choose their government by voting in elections, which are conducted every five years. In historical events, it can be seen that by the demands of citizens, many changes have been made, which is the biggest advantage for politicians during elections. The politicians champion their winning promises to amend the article based on public demands. If we mention the recent events regarding amending Article 370, the Parliament removed Article 370 at the public’s demand by a majority in both houses of Parliament. Also, the Parliament has a concept of separation of powers where authority is divided for working by the Constitution. If we believe, the Parliament of India has the power to make laws, which is called the legislative body. After the law is made, the executive, also called the administration body, executes the law in the country. Lastly, we have a judiciary that interprets the law or makes variations in the law if there is any loophole. For example, if we say that the Parliament passed a law violating the fundamental rights of citizens, the judiciary has the power to declare that law unconstitutional. However, this does not mean that the Constitution of India has an absolute advantage in the welfare of the country.
The Constitution has advantages only when it is in the hands of good governance. Article 356 of the Constitution of India has a provision for emergencies, where if the President is satisfied that a grave emergency exists whereby the security of India or any part of its territory is threatened, whether by war, external aggression, or armed rebellion, he may, by
Proclamation, make a declaration to that effect in respect of the whole of India or such part of the territory as may be specified in the Proclamation. In 1975, on the advice of Prime Minister Indira Gandhi, President Fakhruddin Ali Ahmed proclaimed a state of national emergency. During this period, many fundamental rights were curtailed, and a large number of politicians were imprisoned on charges of sedition.
The Role of Parliament in Shaping Indian Legislation”
The law made by Parliament, which consists of both houses, Lok Sabha and Rajya Sabha, states that the bill introduced by the ruling party to convert the bill into an act. The first step is to claim a majority in Parliament. There are three types of majority in the constitution: 1. Simple majority, 2. Special majority, 3. The absolute majority, 4. Effective majority. Simple majority: – There is a provision in the constitution that a majority of more than 50% of the total members present and voting for the bill in Parliament. – It is used for the admission or establishment of a new state in a country or to make changes in the boundary of a state. Absolute majority: – A majority of the total membership of the House, or the majority comprising over 50% of the total number of members in the House. Special majority: – A special majority of 2/3 of the members present and voting in both houses, plus ratification by Legislative Assemblies of more than half of the states by a simple majority. – Provisions that can be amended by Special Majority are: – Fundamental Rights, – Directive Principles of State Policy, – All other provisions that are not covered by the first and third categories. Effective majority: – This means that 50% of the effective strength of the house is present and participates in the discussion and voting for the bill. Four types of majority are used to pass a bill in both houses of Parliament. There is also a provision for a joint session when the bill is introduced. If there is any deadlock between both houses, the president has the power to hold a joint session where the members of Lok Sabha and Rajya Sabha are present to decide on the bill. India is a nation with a federal structure, which says that all the states must give their consent to the bill.
Legal framework of Keshvananda Bharati v. State of Kerala
There is no doubt that before the landmark case of Keshavananda Bharati v. State of Kerala, there were many loopholes in the law. As highlighted in this landmark case, we try to understand the background and legal history of this case. The problem arose when the Government of Kerala introduced the Land Reforms Amendment Act in 1969, according to which the government body was entitled to acquire some of the sect’s land. Keshavananda Bharati filed the petition under Article 32 of the Indian Constitution to check the constitutional validity of this act and claim his fundamental right under Article 25: freedom of conscience and free profession, practice, and propagation of religion. This is a factual condition of this case, but there is also the legal background that any amendment made under Article 368 of the Indian Constitution is not a subjective action of Article 13. It also states that claiming property under Article 31 does not question the amount of compensation in a court of law. In the judgment of
Keshavananda Bharati v. State of Kerala, the court stated the relationship between the DPSP and Article 31C. The judgment of Keshavananda Bharati v. State of Kerala made many observations about Article 368 and the provisions of the amendment. The Constitution provides for the organs of the State, such as the judicature, legislature, and executive, for the governance of the country. The Supreme Court appreciates the authority of the three organs of the Constitution, which balance the power to regulate the country. Then, the Supreme Court states the electoral relationship between Parliament and state legislatures (Vidhan Sabha and Vidhan Parishad), by saying India is a sovereign democratic republic, which means that Parliament and state legislatures are elected by adult universal suffrage Well-settled principles of construction in interpreting Constitutions preclude limiting the language of the Constitution by political, juristic, or social concepts easy to interpret the language.
Article 368 is restricted by raising the walls of essential features or core of essential features, the clear intention of the Constituent Assembly will be nullified and that would make a mockery of the Constitution and would lead to the destruction of the Constitution by paving the way for extra-Constitutional or revolutionary changes in the Constitution. The theory of implied and inherent limitations cannot be allowed to act as a boa constrictor to the unambiguous power of amendment. India has procedures established by system as compared to the United States of America due to the procedure of law, procedure established by law means India that Article 21 says
“No person shall be deprived of his life or personal liberty except according to procedure established by law and due procedure of law means that check the validity and fairness of law second comparing is the Indian constitution is a concept of parliamentary of government and untied state of America have a presedentary form of government in a judgment court have observation It was said that if our Parliamentary system was changed to a Presidential system it would be amending the core of our Constitution was the court describes the power of presently form of government was the power shifted one side of authority to decide constitutions matters also they stated that
The core of the federal form of Government in our country is greater power in the Union Parliament than States for preserving the the integrity of the country. If talk about article 13(2) is based on the Universal Declaration of Human Rights and are natural right, therefore, that’s the reason by they are not in the scope of the amendment. These all are some observations and legal background of the Keshvanand Bharati case but the main core and landmark judgment on basic structure doctrine put the limitation on parliament to not amend the basic structure of the constitution some compounds under basic structure are Supremacy of the Constitution Sovereign, democratic and republican nature of the Indian Secular character of the Constitution, Separation of powers between the legislature, the executive, Federal character of the Constitution and fundamental rights of Indian constitution in last we say they also highlighted the point Article 31B, which added in 9th Schedule of constitution which says any law which passed by the parliament of India does not challenge on the ground of violation of fundamental rights Well-settled principles of construction in interpreting Constitutions preclude limiting the language of the Constitution by political, juristic, or social concepts that are easy to interpret.
Article 368 is restricted by raising the walls of essential features or the core of essential features; the clear intention of the Constituent Assembly will be nullified, and that would make a mockery of the Constitution and lead to the destruction of the Constitution by paving the way for extra-constitutional or revolutionary changes in the Constitution. The theory of implied and inherent limitations cannot be allowed to act as a boa constrictor to the unambiguous power of amendment. India has procedures established by the system as compared to the United States of America. The procedure established by law in India means that Article 21 states, “No person shall be deprived of his life or personal liberty except according to procedure established by law,” and the due procedure of law means that it checks the validity and fairness of the law.
Secondly, the Indian Constitution, is a concept of parliamentary government, while the United States of America has a presidential form of government. In a judgment, the court observed that if our parliamentary system were changed to a presidential system, it would be amending the core of our Constitution. The court describes the power of the present form of government as one that shifts authority to decide constitutional matters. They also stated that the core of the federal form of government in our country is greater power in the Union Parliament than in the States for preserving the integrity of the country. If we talk about Article 13(2), is based on the Universal Declaration of Human Rights and natural rights; therefore, that is the reason they are not within the scope of amendment. These are some observations and the legal background of the Kesavananda Bharati case, but the main core and landmark judgment on the basic structure doctrine puts a limitation on Parliament to not amend the basic structure of the Constitution. Some components under the basic structure are the supremacy of the Constitution, the sovereign, democratic, and republican nature of India, the secular character of the Constitution, the separation of powers between the legislature and the executive, the federal character of the Constitution, and the fundamental rights of the Indian Constitution. In the end, we also highlight the point in Article 31B, which is added to the 9th Schedule of the Constitution, which states that any law passed by the Parliament of India cannot be challenged on the grounds of violation of fundamental rights.
Minerva Mills vs Union of India
The background of this case started by validating the first part of the 25th Amendment, which lessens the burden of the state by not questioning the compensation that the government gives to landlords. The government argues that it is important to work with the government to
fulfill their socio-economic duties. The court has to balance the government’s argument on socio-economic welfare and protect the rights of citizens from totalitarianism by striking down the second part of the amendment, which is a limitation or barrier for citizens in compensation remedies. The judgment states that Parliament can amend fundamental rights but without touching the doctrine of the basic structure. They have the power to make laws under Article 368 for social, economic, and political welfare, but they cannot curtail the fundamental rights of citizens by acting as totalitarians in Parliament. They have certain limitations on creating laws, but they have full freedom to regulate the country.
Conclusion
The legislature, under its power and authority, can enjoy the power to amend the law and make variations in the law, but it does not extend to certain rights of citizens. They have to balance socio-economic growth and the rights of citizens. By seeking the landmark judgment, some points are clear: Parliament does not have absolute power in matters of fundamental rights; they can do whatever they want, except concerning the barrier of the doctrine of basic structure. No organ of the Constitution has absolute judicial review; it also has some limitations on certain constitutional matters because judicial review does not apply to every law. That is why India has a concept of separation of powers. Additionally, we have many more judgments where the court states the wide scope of the Constitution and Article 368. The concept of the amendment provision of the Constitution of India was adopted from South Africa
