Preamble amendment explains if the Preamble can be changed under Article 368, the ratification rule, and the basic structure limit from Kesavananda Bharati.
At a glance
The question of whether the Preamble can be altered under Article 368, and if so, under what constraints.
Kesavananda Bharati (1973) held Parliament cannot use Article 368 to destroy the Constitution's basic structure.
Article 368(2) proviso requires state ratification only for a defined list of federal provisions; the Preamble is not on it.
Settles that the Preamble is amendable like any other part, but its core values cannot be erased even by amendment.
Timeline
Preamble amendment is the constitutional question of whether the Preamble — the introductory statement that declares the source of the Constitution's authority and the values it embodies — can be altered through the amending process set out in Article 368. Because the Preamble opens with "We, the People of India" and sets out the philosophy the rest of the document is meant to serve, courts have had to decide whether it stands outside the amending power or is subject to it like any other provision. The settled position treats the Preamble as part of the Constitution, amendable under Article 368, but bound by the same substantive ceiling that applies to every amendment — the basic structure doctrine.
The Preamble as Part of the Constitution
The Preamble is often described as a summary of the vision behind the Constitution: it records that the Constitution is not handed down by any authority but is "prepared and adopted" by the people themselves, and it points to the values Indian democracy is meant to be judged against. Because of this declaratory character, an early question before the courts was whether the Preamble could be touched by Parliament's amending power at all, or whether it stood outside the document as a standalone statement of intent. The law eventually treated the Preamble as woven into the Constitution rather than separate from it — which brings it within the scope of Article 368, and within the reach of the same limits that apply to every other amendment.
How Article 368 Works
Article 368 gives Parliament the power to amend any provision of the Constitution "by way of addition, variation or repeal," but only by following the procedure the article itself prescribes. An amendment can be initiated only by introducing a Bill in either House of Parliament — not in a state legislature. Once the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, it goes to the President for assent, and the Constitution stands amended in the Bill's terms. No other authority has the power to amend the Constitution outside this route.
Constitutional provisions fall into three broad categories depending on how they may be amended:
| Route | Majority required | What it covers |
|---|---|---|
| Simple majority | Ordinary majority of members present and voting in each House | Provisions outside Article 368 altogether — treated as ordinary legislative business |
| Special majority under Article 368 | Majority of total membership of each House, plus two-thirds of members present and voting | Most provisions, including Fundamental Rights and Article 368 itself |
| Special majority plus state ratification | Special majority in Parliament, followed by ratification by not less than half the state legislatures | Provisions that touch the federal structure |
Ratification of Federal Provisions
Certain amendments cannot rest on Parliament's special majority alone. Where a Bill changes matters such as the President's election, the executive and legislative powers of the Union and the states, the Supreme Court and the High Courts, the Seventh Schedule lists, the representation of states in Parliament, or Article 368 itself, the proviso to Article 368(2) requires ratification by not less than half the state legislatures before Presidential assent. No time limit is prescribed for such ratification, and — unlike an ordinary Bill — there is no joint-sitting mechanism if the two Houses disagree.
The Basic Structure Doctrine
The outer limit on all of this was laid down by a thirteen-judge bench of the Supreme Court in Kesavananda Bharati (1973). The Court held that while Parliament's amending power under Article 368 is wide, it does not extend to destroying what it called the "basic structure" of the Constitution — features such as its sovereignty and territorial integrity, the federal character of the polity, the system of judicial review, and parliamentary government. An amendment that damages these features is treated as beyond the amending power conferred by Article 368, regardless of the procedure followed. The Court also held that judicial review of amendments is itself part of the basic structure, so Parliament cannot use Article 368 to shield future amendments from court scrutiny.
Minerva Mills: Reinforcing the Limit
Parliament's response to Kesavananda came through the 42nd Amendment Act (1976), which inserted clauses (4) and (5) into Article 368 declaring that there was no limitation on Parliament's constituent power and that no amendment could be questioned in any court on any ground, including breach of Fundamental Rights. In Minerva Mills v. Union of India (1980), the Supreme Court struck down these two clauses. It reasoned that Parliament had been given a limited amending power, and a body holding a limited power cannot use that very power to convert itself into a body with unlimited power — doing so would let Parliament use Article 368 to repeal or abrogate the Constitution outright. The Court held that a limited amending power, judicial review, and the balance between Fundamental Rights and the Directive Principles are themselves basic features, and struck down the offending clauses for destroying that balance.
Ratification as a Procedural Safeguard: Kihoto Hollohon
The importance courts attach to the ratification proviso is visible in Kihoto Hollohon v. Zachilhu (1993), concerning the anti-defection law in the Tenth Schedule. Paragraph 7 of that Schedule sought to bar court jurisdiction over the Speaker's or Chairman's disqualification decisions. The Supreme Court held this provision invalid because it fell within the category of amendments requiring ratification by half the states, and that ratification had not been obtained. Even a single clause within a larger amendment can fall if the mandated ratification step is skipped.
Where This Leaves the Preamble
Read together, these rulings settle the position for the Preamble specifically. As part of the Constitution, it can be amended by Parliament following the ordinary Article 368 procedure — a Bill, special majority in each House, and Presidential assent. It is not listed among the categories requiring state ratification, so an amendment confined to the Preamble would proceed through the special-majority route alone. What Parliament cannot do is use such an amendment to erase the basic features the Preamble itself proclaims — the sovereign, democratic and republican character of the state. Any such change would fall foul of the basic structure doctrine laid down in Kesavananda Bharati and reaffirmed in Minerva Mills, regardless of the procedural formality with which it was passed.
UPSC Relevance
Prelims
- Article 368 lays down the procedure for amending the Constitution and is itself amendable only by special majority.
- The proviso to Article 368(2) lists the categories of amendment requiring state ratification; the Preamble does not fall in this list.
- Kesavananda Bharati (1973) originated the basic structure doctrine before a thirteen-judge bench.
- Minerva Mills (1980) struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment.
Mains
- Examine whether the Preamble, as part of the Constitution, is subject to the same limits on amendability as other provisions. (GS2)
- Discuss how the basic structure doctrine constrains Parliament's constituent power under Article 368, with reference to Kesavananda Bharati and Minerva Mills. (GS2)
- Analyse the significance of the state-ratification proviso to Article 368(2) using the Kihoto Hollohon case. (GS2)
FAQ
Is the Preamble part of the Constitution? Yes. The Preamble is treated as an integral part of the Constitution, which is what brings it within the scope of Parliament's amending power under Article 368.
Can Parliament amend the Preamble under Article 368? Yes, by a Bill passed by special majority in each House followed by Presidential assent, subject to the basic structure limitation.
Does amending the Preamble require ratification by the states? No. The Preamble is not among the categories listed in the proviso to Article 368(2) that require ratification by half the state legislatures.
What is the basic structure doctrine and how does it apply here? Laid down in Kesavananda Bharati (1973), it holds that Parliament cannot use Article 368 to destroy core features of the Constitution — including values the Preamble proclaims, such as sovereignty, democracy and the republican character of the state.
What did Minerva Mills (1980) decide? It struck down clauses (4) and (5) of Article 368, inserted by the 42nd Amendment, which had tried to remove all limitations on Parliament's amending power and exclude judicial review.
Quick Revision
- Article 368: Bill in Parliament, special majority, Presidential assent.
- Three routes: simple majority, special majority, special majority plus state ratification.
- Preamble amendable as part of the Constitution; not in the ratification list.
- Kesavananda Bharati (1973): basic structure doctrine; 13-judge bench.
- Minerva Mills (1980): struck down Article 368(4)-(5); limited amending power is a basic feature.
- Kihoto Hollohon (1993): Tenth Schedule Paragraph 7 invalid for want of ratification.
Sources
- Constitution of India, Article 368 — legislative.gov.in
- Kesavananda Bharati v. State of Kerala, 1973 — Supreme Court of India
- Minerva Mills Ltd. v. Union of India, 1980 — Supreme Court of India
- Kihoto Hollohon v. Zachilhu and Others, AIR 1993 SC 412 — Supreme Court of India
Further Reference
For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:
- M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
- D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
- The Constitution of India — Bare Act — the official text.
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Constitutional provisions
Procedure for constitutional amendment: Bill in Parliament, special majority, Presidential assent
Requires ratification by not less than half the state legislatures for amendments touching federal provisions
Inserted by the 42nd Amendment to remove limits on amending power; struck down in Minerva Mills (1980)