Article 368's amendment procedure: special majority, state ratification for federal provisions, mandatory presidential assent, and the basic structure doctrine.
At a glance
Article 368 (Part XX) gives Parliament constituent power to amend, add to, or repeal any part of the Constitution through a defined bill procedure.
Amendment bill needs a special majority (total membership + 2/3 present and voting) in each House; no joint sitting if Houses disagree.
Kesavananda Bharati (1973) held Parliament's amending power cannot destroy the Constitution's basic structure.
Balances a rigid, federal core (state ratification for key provisions) with a flexible process for most of the Constitution's text.
Timeline
Amendment procedure under Article 368 is the constitutional mechanism by which Parliament can add, vary, or repeal provisions of the Constitution of India. Placed in Part XX, Article 368 lays down who can propose a change, the majority required to pass it, and when the consent of state legislatures is additionally needed before the change takes effect.
What Article 368 Provides
Article 368(1), inserted by the 24th Amendment Act of 1971, expressly recognises that Parliament possesses "constituent power" — a power distinct from its ordinary law-making power — to amend the Constitution by way of addition, variation, or repeal, following the procedure the article itself sets out. Article 368(2) then lays down that procedure: an amendment bill can be introduced in either House of Parliament, and once passed by each House and assented to by the President, the Constitution stands amended according to the terms of the bill. Article 368(4), added by the same amendment, clarifies that this power does not take away Parliament's ordinary legislative competence to make laws under the Union, State, or Concurrent Lists, even where such a law incidentally amends the Constitution.
Steps in the Amendment Procedure
- An amendment bill can be introduced only in Parliament — never in a state legislature — by a minister or a private member, without needing the President's prior permission.
- The bill must clear each House separately; there is no joint-sitting provision to resolve disagreement, unlike for an ordinary law.
- Passage requires a "special majority": a majority of the total membership of that House, and not less than two-thirds of members present and voting.
- If the amendment touches specified federal provisions, it additionally needs ratification by not less than half the state legislatures, by simple majority, before going to the President.
- Once passed (and ratified where required), the bill is presented to the President, who must give assent — the Constitution then stands amended in the bill's terms, with no other authority empowered to alter it.
Types of Constitutional Amendments
Not every change to the Constitution's text is an "amendment" for the purposes of Article 368. Several provisions can be altered by Parliament through ordinary legislation passed by a simple majority, entirely outside Article 368's scope; such changes are not treated as constitutional amendments at all.
| Method | Majority needed | Illustrative matters |
|---|---|---|
| Simple majority (outside Article 368) | Majority of members present and voting in each House | Admission/formation of new states, alteration of state boundaries, creation or abolition of legislative councils, salaries and privileges of members of Parliament, quorum and rules of procedure |
| Special majority (Article 368) | Majority of total membership + two-thirds of members present and voting, in each House | Most provisions of the Constitution, including Fundamental Rights |
| Special majority + state ratification (Article 368, proviso) | As above, plus ratification by not less than half the state legislatures by simple majority | Provisions affecting the federal structure |
Federal Provisions Requiring State Ratification
The proviso to Article 368(2) lists the amendments needing ratification by at least half the states before presidential assent: the manner of the President's election (Articles 54 and 55); the extent of Union and state executive power (Articles 73 and 162); provisions on the Supreme Court and High Courts, including Article 241 on High Courts in Union territories and Article 279A on the GST Council; any List in the Seventh Schedule; representation of states in Parliament; and Article 368 itself. No time limit is prescribed for states to complete ratification.
The 24th Amendment and Mandatory Presidential Assent
Before 1971, it was debated whether the President could withhold assent to a duly passed constitutional amendment bill. The 24th Amendment Act of 1971 settled the point by rewriting Article 368(2) to state that the bill "shall be presented to the President who shall give his assent to the Bill," making presidential assent obligatory once the bill has cleared the required parliamentary (and, where applicable, state) process.
Basic Structure Doctrine: Judicial Limits on Article 368
Although Article 368's text does not itself carve out any subject as unamendable, the Supreme Court has read implied limits into the amending power through a line of cases.
| Case | Year | Holding |
|---|---|---|
| Golak Nath v. State of Punjab | 1967 | Held a constitutional amendment is "law" under Article 13, so Parliament could not use Article 368 to abridge Fundamental Rights |
| Kesavananda Bharati v. State of Kerala | 1973 | 13-judge bench overruled Golak Nath and upheld Parliament's power to amend any part, including Fundamental Rights, but held that this constituent power cannot be used to alter the Constitution's "basic structure" |
| Minerva Mills v. Union of India | 1980 | Struck down clauses (4) and (5) inserted into Article 368 by the 42nd Amendment Act, 1976, which had removed limits on amending power and barred judicial review of amendments; held that a limited amending power, judicial review, and the balance between Fundamental Rights and Directive Principles are themselves basic features |
| Kihoto Hollohon v. Zachilhu | 1993 | Held Paragraph 7 of the Tenth Schedule — which barred court jurisdiction over disqualification decisions — invalid for want of the state ratification required under the proviso to Article 368(2), since it affected the jurisdiction of the High Courts |
Through these rulings, the Supreme Court has held that Parliament's constituent power under Article 368, though wide, cannot destroy the Constitution's basic features — among them the supremacy of the Constitution, its sovereign, democratic and republican character, secularism, separation of powers, the federal structure, national unity and integrity, the welfare-state objective, judicial review, individual freedom and dignity, and the parliamentary system of government. The Waman Rao case (1980) later clarified that this basic-structure test applies to amendments enacted on or after 24 April 1973 — the date of the Kesavananda Bharati judgment — including laws inserted into the Ninth Schedule after that date, which no longer enjoy blanket immunity from judicial review.
Criticism of the Amendment Procedure
Commentators point to a few recurring weaknesses in the design of Article 368. Unlike the United States, India has no separate constitutional convention dedicated to amendments — the power rests almost entirely with Parliament. State legislatures cannot initiate an amendment on their own, barring one exception: a resolution asking Parliament to create or abolish a legislative council, which Parliament may accept, reject, or ignore. Because most of the Constitution can be amended by Parliament alone through the special-majority route, without any state ratification, the process is arguably more centralised than a strictly federal design would suggest.
UPSC Relevance
Prelims
- Article 368 falls under Part XX of the Constitution and deals with the power and procedure to amend the Constitution.
- Constitutional amendment bills cannot be introduced in a state legislature.
- There is no joint sitting provision for a constitutional amendment bill in case of disagreement between the two Houses.
- Amendments to federal provisions need ratification by not less than half the state legislatures.
Mains
- Explain the three ways in which the Constitution of India can be amended, with examples of each.
- Discuss the basic structure doctrine and its evolution through the Golak Nath, Kesavananda Bharati, and Minerva Mills judgments.
- Examine whether the amendment procedure under Article 368 strikes an appropriate balance between rigidity and flexibility.
FAQ
Q1. What is the amendment procedure under Article 368? It is the process by which Parliament, exercising its constituent power, adds to, varies, or repeals any provision of the Constitution — via a bill passed by special majority in each House, ratified by half the states where the federal provisions in the proviso are affected, and assented to by the President.
Q2. Can a state legislature introduce a constitutional amendment bill? No. Under Article 368, an amendment bill can be introduced only in Parliament, not in a state legislature.
Q3. Is presidential assent to a constitutional amendment bill discretionary? No. After the 24th Amendment Act, 1971, the President is obligated to give assent once the bill has been duly passed under Article 368.
Q4. What is the basic structure doctrine? It is the judicially evolved principle, laid down in the Kesavananda Bharati case (1973), that Parliament's amending power under Article 368 cannot be used to alter or destroy certain basic features of the Constitution, even though the text of Article 368 does not itself list any such features.
Q5. Which amendments require ratification by state legislatures? Amendments affecting matters such as the election of the President, the executive power of the Union and states, the Supreme Court and High Courts, the Seventh Schedule Lists, representation of states in Parliament, and Article 368 itself require ratification by not less than half the state legislatures.
Quick Revision
- Article 368 (Part XX): Parliament's constituent power to amend the Constitution.
- Introduction: only in Parliament, by minister or private member, no prior presidential permission needed.
- Passage: special majority in each House separately; no joint sitting.
- Federal provisions: need ratification by at least half the states (simple majority), no time limit.
- Presidential assent: mandatory since the 24th Amendment Act, 1971.
- Basic structure doctrine: Kesavananda Bharati (1973); reaffirmed and applied in Minerva Mills (1980).
- Kihoto Hollohon (1993): struck down Tenth Schedule Paragraph 7 for lack of required ratification.
Sources
- Constitution of India — Article 368, Ministry of Law and Justice
- Kesavananda Bharati v. State of Kerala, Supreme Court of India, 1973
- Minerva Mills Ltd. v. Union of India, Supreme Court of India, 1980
- 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
Recognises Parliament's constituent power to amend the Constitution by addition, variation, or repeal
Lays down the amendment procedure: bill, special majority, ratification where required, presidential assent
Lists federal provisions whose amendment needs ratification by not less than half the state legislatures
Preserves Parliament's ordinary legislative power under the Lists despite the amendment procedure
Basis of the Golak Nath holding that a constitutional amendment was "law" subject to Fundamental Rights limits