Criticism of the Amendment Procedure (Article 368) - UPSC

Amendment procedure criticism refers to the set of objections scholars and constitutional commentators have raised against the process laid down in Article 368 for altering the Constitution of India. While Article 368 is widely credited with striking a workable balance between a rigid document like the American Constitution and a flexible one like Britain's unwritten arrangement, critics point to specific gaps — from the exclusion of state legislatures at the initiation stage to the absence of a dedicated constituent body — that they say weaken the process. This article sets out those criticisms and the judicial correctives, chiefly the basic structure doctrine, that have grown up around them.

How Article 368 Works, in Brief

Article 368, placed in Part XX of the Constitution, gives Parliament the power to amend any provision by addition, variation, or repeal, following the procedure it prescribes. A bill can be introduced only in either House of Parliament, by a minister or a private member, without needing prior presidential recommendation. It must clear each House separately by a special majority — a majority of the total membership of that House, and a majority of not less than two-thirds of the members present and voting. There is no joint-sitting mechanism if the two Houses disagree, unlike for ordinary legislation. Where the bill touches federal provisions — such as the manner of electing the President, the distribution of legislative powers, or Article 368 itself — it additionally needs ratification by resolutions passed in not less than half the state legislatures, before going to the President for assent. Since the 24th Amendment of 1971, presidential assent to a duly passed amendment bill has been obligatory rather than discretionary.

The Main Grounds of Criticism

Criticism	What it means
No dedicated constituent body	Unlike the USA, which can use a Constitutional Convention, India vests constituent power in the ordinary Parliament, with state legislatures involved only for ratification.
States cannot initiate amendments	A state legislature cannot move a bill or proposal to amend the Constitution; its only initiating role is passing a resolution asking Parliament to create or abolish a legislative council in that state, and even this leaves the final call to Parliament.
Most provisions need only Parliament, not the states	A large part of the Constitution can be amended by Parliament through the special majority route alone, without any state involvement, which critics say concentrates constituent power narrowly.
Amendment process mirrors ordinary law-making	Apart from the special majority requirement, a constitutional amendment bill travels through Parliament much like an ordinary bill, which some see as too undemanding a process for changes to the country's fundamental law.
No joint sitting for deadlocks	If the two Houses disagree on an amendment bill, there is no joint-sitting mechanism to resolve the impasse, unlike the procedure available for ordinary legislation.
Sketchy drafting	The provisions governing the amendment procedure are considered thinly worded, leaving considerable room for disputes that end up before the courts.
No time limit on state ratification	Article 368 does not fix any period within which state legislatures must ratify an amendment requiring their approval, leaving the ratification stage open-ended.

Judicial Response: The Basic Structure Doctrine

The most consequential check on Parliament's amending power did not come from the text of Article 368 itself but from judicial interpretation. In Kesavananda Bharati v. State of Kerala (1973), a 13-judge bench held that while Parliament's constituent power under Article 368 is wide, it cannot be used to destroy the "basic structure" of the Constitution. The Court treated sovereignty and territorial integrity, the federal character of the polity, parliamentary government, and judicial review as part of this unamendable core; an amendment damaging these features is beyond Article 368 even if it otherwise follows the correct procedure.

Parliament pushed back through the 42nd Amendment Act of 1976, inserting clauses (4) and (5) into Article 368 to declare there was no limitation on its constituent power and that no amendment could be questioned in any court. In Minerva Mills v. Union of India (1980), the Supreme Court struck down both clauses, holding that a Parliament with a limited amending power cannot use that power to enlarge itself into one with unlimited power, and that excluding judicial review was itself an attack on a basic feature.

The procedural rigour of Article 368 has also mattered in practice. In Kihoto Hollohon v. Zachillhu (1993), the Supreme Court declared Paragraph 7 of the Tenth Schedule — which had tried to bar court jurisdiction over disqualification decisions under the anti-defection law — invalid, since that provision effectively amended provisions requiring ratification by half the states under the proviso to Article 368(2), and no such ratification had been obtained. The case shows that skipping the ratification safeguard can undo even a substantive part of an amendment.

Separately, laws inserted into the Ninth Schedule through amendments made on or after 24 April 1973 are open to being tested against the basic or essential features of the Constitution, so the schedule no longer offers blanket protection for later insertions.

Weighing the Criticism

Despite these objections, the amendment procedure has generally been regarded as workable rather than broken. It has allowed the Constitution to be amended repeatedly since 1950 to meet changing circumstances, without letting a ruling party alter it at will, since the special majority requirement — and state ratification for federal provisions — sets a real threshold. At the same time, the basic structure doctrine developed since Kesavananda Bharati has supplied much of the substantive check that the bare text of Article 368 was criticised for lacking, without needing a separate constituent body. The textual gaps — states excluded from initiation, no joint-sitting mechanism, thin drafting — remain valid criticisms, but judicial interpretation has, in practice, filled much of the missing rigidity.

UPSC Relevance

Prelims

Article 368 falls under Part XX and lays down the amendment procedure; know the three routes — simple majority, special majority, and special majority with state ratification.
The 24th Amendment (1971) made presidential assent to an amendment bill obligatory.
Kesavananda Bharati (1973) and Minerva Mills (1980) are the two landmark cases most frequently tested on the basic structure doctrine.

Mains

Discuss the criticisms of the amendment procedure under Article 368 and evaluate how far the basic structure doctrine has addressed them.
Explain the significance of Kihoto Hollohon v. Zachillhu in illustrating the ratification safeguard under Article 368(2).
Assess whether the amendment process reflects a good balance between flexibility and rigidity.

FAQ

Q1. What is the main criticism of India's constitutional amendment procedure? That it lacks a separate constituent body as in the USA, excludes state legislatures from initiating amendments, lets Parliament alone amend most provisions, has no joint-sitting mechanism for deadlocks, is thinly drafted, and sets no time limit for state ratification.

Q2. Can state legislatures propose a constitutional amendment? No. A state legislature cannot introduce an amendment bill. Its only initiating role is a resolution requesting Parliament to create or abolish a legislative council in that state, and Parliament may accept, reject, or ignore it.

Q3. What is the basic structure doctrine and how does it relate to this criticism? Laid down in Kesavananda Bharati (1973), it holds that Parliament cannot use Article 368 to destroy features fundamental to the Constitution, such as judicial review and federalism. It answers the criticism that the bare text of Article 368 places few substantive limits on Parliament.

Q4. Why was the 42nd Amendment's change to Article 368 struck down? It had added clauses (4) and (5) claiming unlimited amending power and barring judicial review. In Minerva Mills (1980), the Supreme Court struck these down as an attack on the basic structure, since judicial review is itself a basic feature.

Q5. What did the Kihoto Hollohon case establish about the amendment procedure? That Paragraph 7 of the Tenth Schedule, which tried to oust court jurisdiction, was invalid because it amended provisions requiring state ratification under the proviso to Article 368(2), which had not been obtained.

Quick Revision

Article 368 (Part XX): Parliament's power to amend the Constitution and its procedure.
Three amendment routes: simple majority, special majority, special majority plus ratification by half the states.
24th Amendment (1971): made presidential assent to amendment bills obligatory.
Key criticisms: no constituent body, states excluded from initiation, no joint sitting, sketchy drafting, no ratification time limit.
Kesavananda Bharati (1973): originated the basic structure doctrine.
Minerva Mills (1980): struck down unlimited-amending-power clauses added by the 42nd Amendment.
Kihoto Hollohon (1993): invalidated Tenth Schedule Paragraph 7 for want of state ratification.

Sources

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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Criticism of the Amendment Procedure

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