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Article 368 – Growing Abuse

Posted by Admin on July 21, 2014 | Read the First Comment

It’s a known fact that the Indian Constitution has been subjected to a series of amendments ever since it was adopted. In fact, the post- emergency period (1975–77) saw amendments being made more frequently. Questions were asked; issues were raised and doubts were expressed about the effectiveness of the amendments and the intentions behind them. Although Article 368 of the Constitution gives Parliament the power to make changes to the nation’s fundamental laws, a sense of arbitrariness could be felt in the way most of the amendments were made.

Article 368

Amendment Procedure under Article 368

As per article 368, for any amendment to be initiated, the Bill has to be introduced in either House of Parliament, which has to be then passed in each House by a majority of the total membership (at least two-thirds of the members of that House present and voting). Once the Bill is passed by the required majority, it is then presented to the President for his assent. In case of disagreement between the two Houses, the provision for joint sitting doesn’t exist.

For making any changes to the provisions mentioned in Article 368 or modifying an article related to distribution of powers between the Centre and the states, the same has to be ratified by the legislatures of at least one-half of the states.

What Rights does Article 368 give to the MPs?

Article 368 clearly states that Parliament has the right to exercise its constituent power to make “addition, variation or repeal any provision of the Constitution” as per the procedure mentioned.

What gives Parliament the supreme power is the clause mentioned under Article 368 that declares: “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” The 24th Amendment in 1971 enabled Parliament to dilute fundamental rights through changes in the Constitution. For the first time, it was made obligatory for the President to give his assent to Constitution Amendment Bill when it is presented to him.

The amendments to the Constitution have been made binding by a clause under the same article, which says, “No amendment of this Constitution made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution Act, 1976 shall be called in question in any court on any ground.”

Are our Politicians misusing the Article 368?

According to constitutional experts, most of the amendments made to the Constitution are “short-sighted”. and serve the purpose of politicians who have been “tampering with the laws”.

Back in 1971, when the then Law Minister introduced The Constitution Bill seeking amendment to Article 368 and empowerment of Parliament to curtail fundamental rights, there was widespread fear that Parliament would misuse this power. The succeeding days proved that the fear was not completely unfounded.

To highlight a classic example of how an amendment was brought in only to serve political interest, one must go back to June 1975 when the Allahabad High Court nullified Prime Minister Indira Gandhi’s election to Parliament. Within no time, her close aides proposed a Bill amending the Constitution. This prompted the birth of 39th amendment that placed restrictions on judicial scrutiny over the disputes regarding the election of a Prime Minister.

This knee-jerk reaction and its after-effects wouldn’t have been possible if Article 368 had not given MPs the unlimited power to alter the supreme laws of the country. These glaring examples certainly call for a re-look at the provisions of Article 368.