Constitutional Amendment Procedure (Article 368): Smart Notes for UPSC & UPPCS

🧭 INTRODUCTION

Like any living document, the Constitution of India needs to adapt to changing societal, political, and economic realities. Part XX, Article 368 grants Parliament constituent power to amend, vary, or repeal any provision of the Constitution according to the procedure laid down therein. Borrowed from the South African Constitution, India’s amendment framework synthesizes the rigidity of the US Constitution with the flexibility of the UK Constitution, guarding against both unyielding stagnation and hasty political tinkering.

🔥 Core Precedent & Boundary

While Article 368 confers wide amending power upon Parliament, it does not confer power to alter or destroy the "Basic Structure" of the Constitution (Kesavananda Bharati case, 1973).

Sub-clauses 368(4) and 368(5) attempted to grant unlimited amending power to Parliament, but were struck down as unconstitutional in the landmark Minerva Mills Case (1980).

1. ⚡ Three Types of Majorities for Amendment

Although Article 368 specifically mentions two types of amendment procedures, constitutional amendments in India effectively happen through three distinct majorities:

Type of Amendment	Scope & Key Applicable Provisions	Procedure & Threshold
1. By Simple Majority (Outside Art. 368 scope)	Ordinary legislative process under Articles 2, 3, 4, 169, etc. • Formation of new States or alteration of areas/boundaries. • Abolition or creation of State Legislative Councils (Art. 169). • Quorum in Parliament, official language use, salaries of MPs/Judges. • Citizenship acquisition and termination.	Requires a majority of the members of each House present and voting (50% + 1 of present members). These are NOT deemed to be amendments under Art. 368.
2. By Special Majority (Under Art. 368)	Core provisions not affecting federal structure: • Part III: Fundamental Rights. • Part IV: Directive Principles of State Policy (DPSP). • All other provisions not covered by simple majority or federal ratification.	Requires a dual threshold in each House separately: 1. Majority of the total membership of the House (50% + 1 of total strength); AND 2. Majority of 2/3rd of members present and voting.
3. Special Majority + State Ratification (Federal Scope under Art. 368)	Provisions directly impacting federal structure: • Election and manner of election of President (Arts. 54, 55). • Executive power extent of Union and States. • Supreme Court and High Courts. • Distribution of legislative powers (7th Schedule lists). • Goods and Services Tax (GST) Council (Art. 279A). • Representation of States in Parliament. • Article 368 itself.	Special Majority in each House of Parliament PLUS ratification by legislatures of at least 50% of the States by simple majority. (No time limit set for state ratification).

2. 📜 Step-by-Step Amendment Procedure under Article 368

Initiation: An amendment can be initiated ONLY by the introduction of a bill in either House of Parliament (Lok Sabha or Rajya Sabha). It CANNOT be initiated in State Legislatures.
Introduction Credentials: The bill can be introduced either by a Minister or by a Private Member.
Prior Recommendation: Does NOT require prior permission/recommendation of the President.
Separate Passage: The bill must be passed in each House separately by a Special Majority.
NO Joint Sitting: In case of a disagreement between the two Houses, there is NO provision for holding a Joint Sitting under Article 108. If either House rejects the bill, the amendment bill lapses.
State Ratification (If Federal): If the bill seeks to amend federal provisions, it must be ratified by legislatures of at least half of the states by simple majority before being presented to the President.
Mandatory Presidential Assent: The President MUST give assent to the bill. The President can neither withhold assent nor return the bill for reconsideration (made mandatory by the 24th Amendment Act, 1971).
Enactment: After assent, the bill becomes a Constitutional Amendment Act and the Constitution stands amended.

3. 🏛️ Provisions Requiring State Ratification (Federal Scope)

To preserve cooperative federalism, any amendment altering the constitutional division of power between the Centre and States requires approval from 50% of state legislatures:

Presidential Elections: Articles 54 and 55 (Electoral college and manner of election).
Executive Spheres: Articles 73 and 162 (Extent of executive power of Union and States).
Higher Judiciary: Chapter IV of Part V (Supreme Court) and Chapter V of Part VI (High Courts).
Legislative Lists: Any list in the Seventh Schedule (Union, State, or Concurrent List).
State Representation: Representation of States in Parliament (Rajya Sabha allocation).
Taxation & Fiscal Federalism: Article 279A (GST Council setup added by 101st Amendment).
Article 368: The amendment clause itself.

4. ⚖️ Evolution of Basic Structure Doctrine & Limits on Article 368

The tussle between Parliamentary Sovereignty and Judicial Supremacy over Article 368 evolved across four decades of jurisprudence:

1. Shankari Prasad v. Union of India (1951)

SC held that Parliament’s amending power under Art. 368 includes the power to amend Fundamental Rights.
The word 'law' under Article 13(2) refers only to ordinary laws, not constitutional amendments.

2. Sajjan Singh v. State of Rajasthan (1965)

SC reiterated Shankari Prasad ruling, holding that Parliament can amend any part of the Constitution including Part III.

3. Golak Nath v. State of Punjab (1967)

SC reversed its earlier stance (6:5 majority). Held that Fundamental Rights possess a "transcendental position."
Ruled that a Constitutional Amendment is a 'law' under Article 13(2), and therefore Parliament CANNOT abridge or take away Fundamental Rights.

4. 24th Constitutional Amendment Act (1971)

Parliament reacted to Golak Nath by amending Article 13 and Article 368.
Explicitly declared that nothing in Article 13 applies to amendments under Article 368, reaffirming Parliament's absolute right to amend any part of Part III. Made Presidential assent mandatory.

5. Kesavananda Bharati v. State of Kerala (1973) — The 13-Judge Bench Landmark

SC overruled Golak Nath and upheld the validity of the 24th Amendment.
Formulated the historic "Basic Structure Doctrine": Parliament can amend any part of the Constitution (including Fundamental Rights), but Article 368 does NOT empower Parliament to alter, abrogate, or destroy the basic foundation or essential features of the Constitution.

6. 42nd Amendment Act (1976) & Minerva Mills Case (1980)

Parliament inserted clauses 368(4) and 368(5), stating there shall be "no limitation whatever" on constituent power and barring judicial review.
In Minerva Mills (1980), SC struck down clauses 368(4) and (5) as unconstitutional, holding that Judicial Review and Limited Amending Power are themselves Basic Features.

5. ⚖️ Landmark Supreme Court Judgments Table

Case Name	Year	Key Ratio / Principle Declared as Basic Structure
Kesavananda Bharati	1973	Supremacy of Constitution, Secularism, Federalism, Separation of Powers, Republic & Democratic nature.
Indira Nehru Gandhi	1975	Free and fair elections, Rule of Law, Judicial Review.
Minerva Mills	1980	Harmonious balance between Fundamental Rights and DPSPs, Limited power of Parliament to amend.
S.R. Bommai	1994	Federalism, Secularism, Democracy, National Unity & Integrity.
L. Chandra Kumar	1997	Writ Jurisdiction of High Courts (Art. 226) and Supreme Court (Art. 32) is part of Basic Structure.
I.R. Coelho	2007	Laws placed in 9th Schedule after April 24, 1973 are open to Judicial Review under Basic Structure test.

6. 📜 Major Historical Amendments Master Summary

Amendment	Year	Core Significance & Changes Introduced
1st Amendment	1951	Added 9th Schedule to protect land reform laws from judicial scrutiny; placed reasonable restrictions on Art. 19(1)(a).
7th Amendment	1956	Reorganized States on linguistic basis (A, B, C, D categories abolished); allowed common High Courts for multiple states.
42nd Amendment	1976	'Mini-Constitution': Added 'Socialist, Secular, Integrity' to Preamble; added Part IV-A (Fundamental Duties); expanded DPSP.
44th Amendment	1978	Reversed emergency excesses: Right to Property deleted from Part III (moved to 300A); 'Internal Disturbance' replaced by 'Armed Rebellion' in Art 352; protected Arts 20 & 21.
52nd Amendment	1985	Added 10th Schedule (Anti-Defection Law).
61st Amendment	1988	Lowered voting age from 21 to 18 years for Lok Sabha and Assembly elections.
73rd & 74th	1992	Added Parts IX & IX-A granting constitutional status to Panchayats and Municipalities.
86th Amendment	2002	Added Article 21A (Right to Elementary Education) and 11th Fundamental Duty [51A(k)].
101st Amendment	2016	Introduced Goods and Services Tax (GST) and Article 279A (GST Council).
103rd Amendment	2019	10% Reservation for Economically Weaker Sections (EWS) under Arts 15(6) & 16(6).
106th Amendment	2023	Nari Shakti Vandan Adhiniyam: 33% reservation for women in Lok Sabha, Delhi Assembly, and State Assemblies.

7. 🗣️ Critical Assessment & Vulnerabilities of Amendment Process

No Power of Initiative for States: State Legislatures cannot propose amendments (unlike US where 2/3rd states can call a convention).
Absence of Joint Sitting Mechanism: Deadlock between Houses causes the bill to lapse, granting Rajya Sabha equal veto on non-financial constitutional changes.
Lack of Specific Time Frame: No time limit is prescribed for State Legislatures to ratify or reject a federal amendment bill.
Vagueness of Basic Structure: Basic structure is not defined in the Constitution; critics argue it grants subjective veto power to the Judiciary ("Judicial Tyranny").

8. 🎯 UPSC PRELIMS FACTS

📌 High-Yield Facts

Amendment procedure is in Part XX, Article 368 (borrowed from South Africa).
Constitutional amendment bills can originate ONLY in Parliament, not in State Legislatures.
Prior Presidential recommendation is NOT required for introducing an amendment bill.
Presidential assent is mandatory under the 24th Amendment Act 1971.
NO Joint Sitting (Art. 108) is allowed for Constitutional Amendment Bills.
State ratification requires approval by at least 50% of states by Simple Majority.
1st Amendment (1951) introduced the Ninth Schedule.
Basic Structure doctrine established on April 24, 1973 (Kesavananda Bharati case).
2/3rd of members present & voting PLUS 50% total strength = Special Majority under Art. 368.
Laws amending Art. 2, 3, 169 are passed by Simple Majority and NOT counted under Art. 368.

9. ✍️ UPSC MAINS VALUE ADDITION

💡 Analytical Anchor Points

Living Tree Doctrine vs. Original Intent: Article 368 prevents constitutional obsolescence. The SC views the Constitution as an organic, living document that expands rights alongside societal progression (e.g., Puttaswamy 2017 reading Privacy into Art 21).
Judicial Review as a Safety Valve: The Basic Structure doctrine strikes a delicate balance between democratic majoritarianism (Parliament) and constitutional supremacy (Judiciary), ensuring majority governments cannot abolish multi-party democracy or judicial independence.
Cooperative Federalism Benchmark: Inclusion of state ratification under Art. 368 guarantees that Parliament cannot unilaterally dilute state fiscal or administrative powers (demonstrated during 101st GST Amendment).

10. ❓ FREQUENTLY ASKED QUESTIONS (FAQ)

Which Part and Article of the Indian Constitution deal with the amendment procedure?

Part XX and Article 368 deal with the power of Parliament to amend the Constitution and the procedure therefor.

Can a Joint Sitting be called to resolve a deadlock over a Constitutional Amendment Bill?

No. Under Article 368, a Constitutional Amendment Bill must be passed by each House (Lok Sabha and Rajya Sabha) separately by a special majority. There is no provision for a Joint Sitting.

Can State Legislatures initiate a Constitutional Amendment Bill?

No. The power to initiate a Constitutional Amendment Bill vests exclusively in the Parliament of India. State Legislatures cannot introduce an amendment bill (except passing a resolution requesting the creation or abolition of a Legislative Council under Article 169).

Is the President bound to give assent to a Constitutional Amendment Bill?

Yes. The 24th Constitutional Amendment Act of 1971 made it mandatory for the President to give assent to a Constitutional Amendment Bill. The President can neither withhold assent nor return the bill for reconsideration.

📜 CONSTITUTIONAL AMENDMENT PROCEDURE (ARTICLE 368)