Constitution of India
Article 368: Power of Parliament to amend the Constitution and procedure therefor
Part XX — Amendment of the Constitution
Clause (1) — Inserted by 24th Amendment Act, 1971
WHAT IT SAYS: Notwithstanding anything in the Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation, or repeal any provision of the Constitution in accordance with the procedure laid down in this article. WHAT IT MEANS: Expressly grants Parliament constituent power (distinct from ordinary legislative power) to amend any provision, including Fundamental Rights. KEY DOCTRINE: Constituent Power Doctrine — Parliament's amending power under Art. 368 is a special 'constituent power', not mere 'legislative power' under Art. 245/246.
Clause (2) — Original provision, renumbered by 24th Amendment Act, 1971
WHAT IT SAYS: An amendment Bill can be introduced only in either House of Parliament; it must be passed in each House by (a) a majority of total membership AND (b) a two-thirds majority of members present and voting; the President SHALL give his assent. Proviso: If the amendment changes any of the following, ratification by legislatures of not less than half the States is also required: (a) Articles 54, 55, 73, 162, or 241 (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI (c) Seventh Schedule (Lists I, II, III) (d) Representation of States in Parliament (e) Article 368 itself WHAT IT MEANS: 1. Only Parliament can initiate amendments — not State Legislatures. 2. 'Special majority' = absolute majority + two-thirds of present-and-voting. 3. No joint sitting in case of disagreement between the two Houses. 4. President has NO veto — assent is mandatory (added by 24th Amendment). 5. Federal provisions need additional State ratification by simple majority. KEY DOCTRINE: Dual Amendment Procedure — balances flexibility (special majority only) with rigidity (special majority + State ratification) depending on whether federal structure is affected.
Clause (3) — Inserted by 24th Amendment Act, 1971
WHAT IT SAYS: Nothing in Article 13 shall apply to any amendment made under Article 368. WHAT IT MEANS: Constitutional amendments are NOT 'law' within the meaning of Art. 13(2), so they cannot be struck down merely for violating Fundamental Rights. This reversed the Golaknath ruling. KEY DOCTRINE: Constituent Power vs. Legislative Power — amendments under Art. 368 are exercises of constituent power, not ordinary law-making, and Art. 13's restrictions apply only to ordinary laws.
Clause (4) — Inserted by 42nd Amendment Act, 1976 [DECLARED INVALID]
WHAT IT SAYS: No amendment of this Constitution (including Part III provisions) made or purporting to have been made under this article shall be called in question in any court on any ground. WHAT IT MEANS: Attempted to completely bar judicial review of constitutional amendments. STATUS: STRUCK DOWN by the Supreme Court in Minerva Mills v. Union of India (1980) as violative of the basic structure — judicial review is a basic feature that cannot be excluded. KEY DOCTRINE: Basic Structure Doctrine — Parliament cannot destroy judicial review, which is itself part of the Constitution's basic structure.
Clause (5) — Inserted by 42nd Amendment Act, 1976 [DECLARED INVALID]
WHAT IT SAYS: For the removal of doubts, there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation, or repeal the provisions of this Constitution under this article. WHAT IT MEANS: Attempted to declare Parliament's amending power as absolute and unlimited. STATUS: STRUCK DOWN by the Supreme Court in Minerva Mills v. Union of India (1980) — limited amending power is itself a basic feature of the Constitution. KEY DOCTRINE: Limited Amending Power — Parliament's constituent power under Art. 368 is wide but NOT unlimited; it cannot alter the basic structure.
Constitutional Inspiration
SOURCE(S): 1. South Africa (Constitution of the Union of South Africa Act, 1909) — Section 152 provided for a blend of rigid and flexible amendment procedures requiring special majorities for entrenched clauses. Original provision: South Africa's constitution required a two-thirds majority for amending entrenched provisions, combining flexibility for ordinary matters with rigidity for fundamental ones. What India kept: The concept of a partly rigid, partly flexible amendment procedure requiring special majorities and, for certain provisions, additional ratification. 2. United States (Article V, U.S. Constitution) — Provided for ratification by State Legislatures. Original provision: U.S. amendments require two-thirds of Congress and ratification by three-fourths of States. What India kept: The requirement of State Legislature ratification for amendments affecting the federal structure, but lowered threshold to one-half of States. INDIA'S SPECIFIC ADAPTATIONS: 1. No convention/referendum mechanism — Ambedkar deliberately avoided US-style constitutional conventions and Swiss-style referenda, preferring a purely parliamentary method for speed and simplicity. 2. Three-tier amendment procedure (simple majority / special majority / special majority + State ratification) — India's diverse polity needed varying degrees of rigidity for different categories of provisions. 3. Compulsory Presidential assent with no veto (post-24th Amendment) — To prevent the Head of State from blocking the will of a supermajority in Parliament, unlike the US where Presidential role is absent in the amendment process. 4. No time limit for State ratification — Unlike the US where Congress may set deadlines, India imposes no time limit, reflecting practical difficulties of coordinating across many States.
Constituent Assembly Debate
DEBATED ON: 17 September 1949 (CAD Volume IX) Draft Article Number: 304 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Defended the two-thirds majority requirement; argued the amendment procedure was simpler than in the US, Australia, or Canada; cited constitutions of Ireland, Switzerland, Australia, and the US to show no major constitution allowed all provisions to be amended by simple majority. 2. Shri Brajeshwar Prasad (Bihar) — Vehemently opposed the two-thirds majority as too rigid; argued it would act as a brake on progressive legislation and could provoke revolution, citing Dicey on the French experience. 3. Shri H.V. Kamath (Central Provinces) — Proposed several amendments including a definitional clause on 'amendment' and expressed concern over the Drafting Committee expanding the proviso at the last minute to include more chapters requiring State ratification. 4. Dr. P.S. Deshmukh — Proposed a simple majority norm for the first three years to allow correction of initial difficulties. 5. Acharya Jugal Kishore — Advocated simple majority for the first five years, noting Nehru's unsubmitted amendment (No. 3267) which would have allowed this. MAJOR DISAGREEMENTS: 1. Rigidity vs. Flexibility — Most members opposed the two-thirds majority requirement, favoring a simple majority; they feared the Constitution would become unworkable. 2. State involvement — Concern that requiring State ratification for certain amendments would weaken Union Parliament's supremacy and impede future federal restructuring. 3. Nehru's unsubmitted amendment — Several members expressed disappointment that Nehru did not move his amendment (No. 3267) for a simple majority during the initial years. FINAL OUTCOME: Ambedkar's substitute draft article was adopted with the three-tier amendment procedure (simple majority for some provisions outside Art. 304, special majority for most, and special majority plus State ratification for federal provisions); proposals for a blanket simple majority were rejected. AMBEDKAR'S KEY QUOTE: "The purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because, if no impediment was imposed upon the authority of the organs, there will be complete tyranny and complete oppression."
Landmark Judgments
LANDMARK JUDGMENTS: 1. Shankari Prasad v. Union of India (1951) — Parliament can amend Fundamental Rights under Art. 368; 'law' in Art. 13 means ordinary law, not constitutional amendments. 2. Sajjan Singh v. State of Rajasthan (1965) — Reaffirmed Shankari Prasad; but Justice Mudholkar's dissent first theorised that certain 'basic features' may be beyond amendment. 3. Golaknath v. State of Punjab (1967) — By 6:5 majority, held that Art. 368 only laid down procedure, not power; amendments are 'law' under Art. 13; Parliament cannot abridge Fundamental Rights. Applied prospective overruling. 4. Kesavananda Bharati v. State of Kerala (1973) — 13-judge bench, 7:6 majority. Overruled Golaknath. Upheld 24th Amendment. Parliament can amend any provision including Fundamental Rights BUT cannot alter the 'basic structure' of the Constitution. Birth of the Basic Structure Doctrine. 5. Indira Nehru Gandhi v. Raj Narain (1975) — Struck down Clause 4 of Art. 329A (inserted by 39th Amendment); reaffirmed basic structure limits on amending power. 6. Minerva Mills v. Union of India (1980) — Struck down Clauses (4) and (5) of Art. 368 (inserted by 42nd Amendment) as violative of basic structure. Held: limited amending power and harmony between FR and DPSP are basic features. 7. Waman Rao v. Union of India (1981) — Clarified that the basic structure test applies to all amendments made on or after 24 April 1973 (date of Kesavananda judgment). 8. I.R. Coelho v. State of Tamil Nadu (2007) — 9-judge bench, unanimous. Laws placed in Ninth Schedule after 24 April 1973 are subject to judicial review if they violate basic structure. Art. 368 does not confer power to make a 'different Constitution'. NOTABLE DISSENTS: 1. Justice J.R. Mudholkar in Sajjan Singh (1965) — First to suggest certain 'basic features' of the Constitution may be beyond Parliament's amending power under Art. 368. 2. Justice A.N. Ray and 5 others in Kesavananda Bharati (1973) — Held all parts of the Constitution are essential; no distinction between essential and non-essential parts; Parliament's amending power is plenary with no implied limitations. SCHOLARS & JURISTS: 1. Granville Austin — Described Art. 368 as creating 'one of the most ably conceived aspects of the Constitution' for its unique blend of rigidity and flexibility. 2. Sir Kenneth Wheare (Australian academic) — Commended India's varied amendment process, noting that uniformity in amending procedure imposed 'quite unnecessary restrictions'. 3. D.D. Basu — Argued the basic structure doctrine is the judiciary's essential safeguard against unlimited parliamentary sovereignty over the Constitution.