1. Introduction — A Constitution That Must Live and Breathe
Imagine writing a set of rules in 1950 to govern a country of 350 million people — rules meant to last not just for that generation, but for every generation that follows. How do you write something permanent enough to provide stability, yet flexible enough to accommodate changes in society, economy, technology, and values that nobody in 1950 could have anticipated?
This is the fundamental challenge every constitution faces. A constitution that is too rigid becomes irrelevant — frozen in time while the country moves on. A constitution that is too easy to change becomes worthless — a piece of paper that any temporary majority can rewrite to suit its own interests. The Indian Constitution’s framers tried to find a middle path. They gave India a constitution that can be amended, but not too easily — one that can grow and adapt, but not be dismantled.
Article 368 contains the power and procedure for constitutional amendment. But Article 368 alone tells only part of the story. The Supreme Court’s Basic Structure doctrine in Kesavananda Bharati (1973) added a further limit — Parliament can amend the Constitution, but it cannot destroy what the Constitution fundamentally is. Together, these two elements define the space within which India’s constitutional text can change.
Total 106 : Constitutional amendments made since 1950 as of 2024 — averaging roughly one every seven months. India has amended its Constitution far more frequently than most democracies, reflecting both the flexibility built into the procedure and the ambition of successive governments to use constitutional amendment as a tool of governance.
2. Why Do We Need Constitutional Amendments?
Before getting into the procedure, it is worth pausing on the more fundamental question — why do we need to amend a constitution at all? Why not just write a perfect document and leave it alone?
- Social change
Society evolves : Society’s values, norms, and needs change over time. Practices considered acceptable in 1950 may be unconstitutional today. The right to privacy (2017) and right to education (2002) reflect evolved social understanding that required constitutional recognition.
- Policy needs
Governance challenges : Governance challenges not foreseen by the framers require constitutional solutions. The GST amendment creating a new tax architecture, amendments expanding reservation categories — these respond to real challenges that required constitutional change.
- Judicial decisions
Overriding court rulings : When the Supreme Court interprets the Constitution in a way that frustrates important policies, Parliament can amend. The First Amendment (1951) was enacted specifically to override Supreme Court decisions on land reform and free speech.
Territorial changes
Integration and reorganisation : India’s territorial and political integration after 1947 required continuous amendments — incorporating princely states, reorganising states on linguistic lines, creating new Union Territories, and (in 2019) reorganising Jammu and Kashmir.
- Correcting errors
Fixing drafting gaps : No document as complex as a constitution is drafted perfectly. Some provisions prove ambiguous, some create unintended consequences, some fail to anticipate important situations. Amendments correct these before they create long-term governance problems.
- External obligations
International commitments : India’s international treaties sometimes require constitutional adjustments. Territorial cession treaties, international court obligations, and trade agreements have prompted amendments to align the domestic framework with international commitments.
3. Article 368 — The Amendment Provision
Article 368 — Power of Parliament to Amend the Constitution:
- Article 368(1): Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
- Article 368(2): An amendment may be initiated only by the introduction of a Bill in either House of Parliament. When 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 the members present and voting (and, where the amendment seeks to change certain specified provisions, it must also be ratified by the Legislatures of not less than one-half of the States), it shall be presented to the President who shall give his assent and thereupon the Constitution shall stand amended.
4. Three Methods of Amendment — Not All Changes Are Equal
This is one of the most important aspects of constitutional amendment law. The Constitution does not treat all its provisions the same way. There are effectively three methods of amendment, each requiring a different quantum of support.
| Method 1 — Simplest | Method 2 — Standard | Method 3 — Most difficult |
|---|---|---|
| Simple majority : Some provisions can be amended by a simple majority — same as ordinary legislation. These include admission of new states, formation of new states, alteration of boundaries and names, abolition or creation of Legislative Councils in states. These are amended under Articles other than Article 368 and are not technically “constitutional amendments” in the formal sense. | Special majority : Most constitutional amendments require special majority under Article 368 — majority of total membership of each House AND two-thirds of members present and voting. The Bill must pass both Lok Sabha and Rajya Sabha separately. There is NO provision for a joint sitting for constitutional amendments. | Special majority + state ratification : Certain entrenched provisions require special majority in Parliament AND ratification by at least half the state legislatures. States ratify by simple resolution — no special majority needed in state legislatures. |
| Examples: Articles 2, 3, 4, 169, 239-A | Applies to: Majority of constitutional provisions — Fundamental Rights, DPSPs, election provisions, etc. | Applies to: Arts 54, 55, 73, 162, 241, Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI, 7th Schedule, representation of states in Parliament, and Article 368 itself |
5. Step-by-Step Amendment Procedure
| 1 | 2 | 3 | 4 | 5 | 6 |
|---|---|---|---|---|---|
| Bill introduced | House 1 passes | House 2 passes | State ratification | Presidential assent | Amendment operative |
| In either House of Parliament (not in state legislatures) | Special majority — total membership AND 2/3 of present & voting | Same majority. No joint sitting possible if Houses disagree | At least half the state legislatures (for specified provisions only) | President MUST give assent — no power to withhold or veto | Constitution stands amended from date specified in Bill |
Important Procedural Points to Remember:
- No joint sitting: Unlike ordinary legislation, there is no provision for a joint sitting to resolve a deadlock. If one House disagrees, the Bill fails — this gives the Rajya Sabha a genuine veto over constitutional amendments.
- No Presidential veto: Once passed with the required majority (and ratified by states where required), the President must give assent. There is no power to withhold, return, or pocket veto a constitutional amendment Bill.
- No time limit for state ratification: There is no constitutional time limit within which states must ratify. The amendment Bill remains pending until the requisite number of states ratify.
6. Is It Easy to Amend the Indian Constitution?
This is one of the most interesting comparative constitutional law questions. Is the Indian Constitution easy or difficult to amend? The honest answer is: it depends on which provision you are looking at, and compared to which constitution.
6.1 India Is Neither Fully Rigid Nor Fully Flexible
Constitutional scholars classify constitutions as rigid (hard to amend — like the USA, which requires two-thirds of Congress plus three-fourths of states) or flexible (easy to amend — like the UK, which can change constitutional conventions by ordinary legislation). India’s Constitution sits firmly in the middle. Dr. Ambedkar called it “partly rigid and partly flexible.”
| Arguments for: relatively easy | Arguments against: not very easy |
|---|---|
| Why it is not very hardNo absolute veto for states — states ratify by simple majority and only for specified provisions. Presidential assent is automatic. Simple majority suffices for many provisions. The special majority threshold (2/3 of present and voting) is easier to meet than 2/3 of total membership. India has made 106 amendments in 74 years — a very high rate. The USA has had only 27 amendments in 235 years. A single-party majority in Parliament can comfortably amend most provisions alone. | Why it has real teethSpecial majority is genuinely demanding — more than a simple parliamentary majority. The Rajya Sabha has a real veto — a government with Lok Sabha majority but not Rajya Sabha majority cannot amend. Federal provisions require state ratification. The Basic Structure doctrine is the most powerful brake of all — certain amendments are simply unconstitutional regardless of how many votes they get. |
6.2 The Real Check — The Basic Structure Doctrine
The most significant limit on constitutional amendment in India is not procedural but substantive — the Basic Structure doctrine from Kesavananda Bharati (1973). Parliament can amend any provision of the Constitution, but it cannot amend or destroy the “basic structure” or essential features of the Constitution.
The Basic Structure — What Cannot Be Amended Away:
The Supreme Court has never provided a definitive list, but various judgments have identified: Supremacy of the Constitution | Republican and democratic form of government | Secular character | Separation of powers | Federal character | Judicial review | Sovereignty and integrity of India | Free and fair elections | Independence of the judiciary | Rule of law | Fundamental Rights (essential core) | Unity and integrity of the nation
The Basic Structure doctrine means that no amendment — however large the majority, however complete the procedure — can validly do certain things. An amendment that tried to abolish judicial review, or turn India into a monarchy, or eliminate elections, would be unconstitutional even if passed unanimously. This is an extraordinary judicial check that has no parallel in most democracies.
7. The Central Tension — Parliament vs Basic Structure
“The constituent power of Parliament under Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. The power to amend is not the power to destroy.”
— Justice H.R. Khanna, Kesavananda Bharati v. State of Kerala (1973)
The central tension in Indian constitutional amendment law is between two legitimate principles. On one side: Parliament, elected by the people, should have the power to reshape the Constitution as the people’s will changes. On the other side: a constitution’s whole purpose is to place certain things beyond the reach of temporary majorities — if everything can be changed by a sufficiently large vote, what is the point of constitutionalism at all?
India’s answer — shaped by the Basic Structure doctrine — is that most things can be changed but some things cannot. The identity of the Constitution as a democratic, federal, secular, rights-protecting document is non-negotiable. Within that identity, enormous flexibility exists.
8. Landmark Cases — The Cases That Shaped Amendment Law
1. Shankari Prasad v. Union of India (AIR 1951 SC 458)
Facts & Issue: The First Constitutional Amendment (1951) added Article 31A and the Ninth Schedule to protect land reform laws from Fundamental Rights challenges. This was challenged on the ground that Parliament cannot amend Fundamental Rights — ‘law’ in Article 13(2) must include constitutional amendments.
Held / Significance: The Supreme Court upheld the amendment. ‘Law’ in Article 13 means ordinary legislation, not constitutional amendments. Parliament’s power to amend under Article 368 includes the power to amend Fundamental Rights. This was the first major ruling on the amending power and gave Parliament virtually unlimited power to amend — later challenged and overruled.
2.Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)
Facts & Issue: The 17th Constitutional Amendment was challenged. The question was whether Parliament had unlimited amending power as held in Shankari Prasad.
Held / Significance: The Supreme Court by 3:2 reaffirmed Shankari Prasad. However, the two dissenting judges (Justice Mudholkar and Justice Hidayatullah) raised for the first time the possibility of implied limitations on the amending power — planting a seed that would bloom in Golaknath and then spectacularly in Kesavananda Bharati.
3. I.C. Golaknath v. State of Punjab (AIR 1967 SC 1643)
Facts & Issue: The Golaknath family challenged agrarian reform laws curtailing their landholding, arguing constitutional amendments placing such laws in the Ninth Schedule violated their Fundamental Rights. An 11-judge bench was assembled to reconsider Shankari Prasad.
Held / Significance: By 6:5, the Supreme Court reversed Shankari Prasad. Parliament has NO power to amend Fundamental Rights — constitutional amendments are ‘law’ within Article 13(2). This dramatic reversal created a constitutional crisis. Parliament responded with the 24th Amendment (1971) restoring its amending power. Golaknath was ultimately overruled in Kesavananda Bharati.
4. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 — The Most Important Constitutional Case in India
Facts & Issue: Swami Kesavananda Bharati challenged the Kerala Land Reforms Act and constitutional amendments placing it beyond judicial review. The 24th, 25th, and 29th Constitutional Amendments were challenged. A 13-judge bench — the largest in Supreme Court history — was assembled. The question: is Parliament’s power to amend the Constitution unlimited?
Held / Significance: By 7:6, the Supreme Court held: (1) Golaknath is overruled — Parliament CAN amend Fundamental Rights. (2) Article 368 does NOT give Parliament unlimited amending power. (3) Parliament CANNOT amend the Constitution in a way that destroys or damages its “Basic Structure.” This is the most important constitutional judgment in Indian history. It accepted Parliament’s amending power while simultaneously creating a judicial check that Parliament cannot override. Every constitutional amendment since 1973 must survive the Basic Structure test.
5. Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789)
Facts & Issue: The 42nd Constitutional Amendment (1976) — enacted during the Emergency — attempted to give Parliament unlimited amending power by inserting clauses into Article 368 stating that there would be no implied limitation on Parliament’s constituent power. It also sought to curtail judicial review of constitutional amendments.
Held / Significance: The Supreme Court struck down Clauses (4) and (5) of Article 368 as inserted by the 42nd Amendment. Parliament CANNOT expand its own amending power to make it unlimited — that itself destroys the Basic Structure. Judicial review and limited amending power are parts of the Basic Structure. An amendment that attempts to remove the Basic Structure limitation is itself unconstitutional. This is the definitive affirmation that the Basic Structure doctrine is permanent and cannot be legislated away.
6. S.R. Bommai v. Union of India (1994) 3 SCC 1
Facts & Issue: While primarily about President’s Rule under Article 356, this case extensively discussed the Basic Structure doctrine in the context of federalism and secularism. The question was whether these are so fundamental that constitutional amendments violating them can be struck down.
Held / Significance: The Supreme Court confirmed that both federalism and secularism are essential features of the Basic Structure. Any constitutional amendment that destroys the federal character of the Constitution or turns India into a theocratic state would be unconstitutional. This judgment strengthened the Basic Structure doctrine by giving it specific content and showed it applies not just to formal amendments but to any exercise of state power that undermines constitutional essentials.
9. Some Important Amendments — What They Tell Us
Significant Constitutional Amendments — A Snapshot:
- 1st Amendment (1951) — Added Ninth Schedule; restricted right to property and free speech grounds. Parliament’s response to early Supreme Court judgments protecting zamindars from land reform.
- 42nd Amendment (1976) — “Mini Constitution” passed during Emergency. Added socialist, secular, integrity to Preamble; curtailed judicial review; tried to make Parliament supreme. Many provisions struck down later.
- 44th Amendment (1978) — Post-Emergency course correction. Restored rights curtailed during Emergency. Removed right to property from Fundamental Rights (Art 19/31) and made it a constitutional right (Art 300A).
- 73rd and 74th Amendments (1992) — Created constitutional framework for Panchayati Raj and Urban Local Bodies. Landmark devolution of power to the third tier of government.
- 86th Amendment (2002) — Added Article 21A making free and compulsory education a Fundamental Right for children aged 6–14.
- 101st Amendment (2016) — Introduced GST; created new constitutional framework for goods and services taxation.
- 103rd Amendment (2019) — Added 10% reservation for Economically Weaker Sections (EWS). Upheld 3:2 by Supreme Court in Janhit Abhiyan v. Union of India (2022).
10. Criticisms of the Amendment Process
| Too easy? | Too difficult? |
|---|---|
| The case that it is too easy | The case that it is too difficult |
| A party with a brute majority in both Houses can amend without any opposition support. India has amended 106 times in 74 years vs USA’s 27 in 235 years. The Ninth Schedule has been used to insulate hundreds of laws from constitutional challenge. The Emergency period (1975–77) showed how quickly a temporary majority could strip constitutional rights through formal amendments. | The Basic Structure doctrine — judicially created — gives unelected judges a veto over constitutional change that elected majorities cannot override. The Rajya Sabha can permanently block amendments with massive popular support. The doctrine is vague — nobody knows exactly what is in the Basic Structure until the Supreme Court tells us, creating legal uncertainty. |
11. Conclusion — A Living Constitution with Guarded Gates
The Indian Constitution’s amendment process reflects a careful constitutional philosophy: democracy requires that the people’s representatives can reshape their governing document, but constitutionalism requires that some things remain beyond the reach of temporary majorities.
The answer to “is it easy to amend the Indian Constitution?” is genuinely: it depends. For most provisions, a determined government with a comfortable majority in both Houses can amend relatively quickly. For federal provisions, state cooperation is needed. For the Basic Structure — the very soul of the Constitution — no majority, however large, can compel an amendment.
That last limitation is not found in the text of Article 368. It was created by judges in 1973. And that, perhaps, is the most remarkable feature of Indian constitutional law — the courts have given the Constitution a self-defending quality that the framers themselves did not fully build in. For law students, understanding Article 368, the three methods of amendment, and the Basic Structure doctrine gives you the tools to engage with the deepest questions of constitutional theory: Who owns the constitution? Can democracy be used to vote away democracy? Is judicial review of constitutional amendments guardianship or judicial imperialism? These are questions without easy answers — but they are the questions that make constitutional law endlessly fascinating.
