What is the procedure for amending the Constitution under Article 368, and how did the Kesavananda Bharati case (1973) define the basic structure doctrine?
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Below is a comprehensive legal analysis based on Indian law for your question.
The procedure for amending the Constitution of India is primarily governed by Article 368. This article lays down the framework for making changes to the Constitution, and amendments can be proposed either by Parliament or through a referendum in some cases. There are three types of amendments under Article 368:
1. **Simple Majority**: Some amendments can be passed by a simple majority of the members present and voting in both Houses of Parliament.
2. **Special Majority**: Others require a “special majority,” which means they need to be approved by a majority of the total membership of each House and also by a majority of the votes cast.
3. **Ratification by States**: Certain amendments—especially those that affect the federal structure (like the representation of States in Parliament, or the powers of the States)—must be ratified by at least half of the state legislatures after being passed by Parliament.
In the landmark case of **Kesavananda Bharati v. State of Kerala** (1973), the Supreme Court laid down the principle of the "basic structure doctrine." The court ruled that while Parliament has wide powers to amend the Constitution under Article 368, it cannot alter the "basic structure" of the Constitution. This means there are certain fundamental features—like the supremacy of the Constitution, the rule of law, the separation of powers, and the fundamental rights of citizens—that cannot be amended. The judgment was pivotal in establishing that the Constitution is a living document but retains core principles that safeguard democracy and the rights of individuals.
Practically, if one intends to propose an amendment, it is advisable to first engage in discussions within political circles to gauge support. The amendment must be drafted carefully, keeping in mind the basic structure doctrine. Once the proposal is ready, it should be introduced in either House of Parliament. If it is a constitutional amendment requiring ratification by states, after passing in Parliament, it must be sent to the states for their approval. Therefore, understanding both the procedural and substantive aspects of Article 368 is crucial for anyone seeking to amend the Constitution effectively.
Disclaimer: AI-generated for educational purposes only. Does not constitute legal advice. Consult a qualified practitioner.