Article 368 of the Indian Constitution: Procedure and Power of Parliament to Amend

The Indian Constitution is often described as a “living document,” a metaphorical designation that underscores its organic capacity to evolve alongside the socio-political and economic aspirations of the nation. At the heart of this evolutionary capability lies Article 368, situated in Part XX, which serves as the formal mechanism for constitutional amendment. The architectural design of Article 368 reflects a sophisticated compromise between the flexibility required for a developing democracy and the rigidity necessary to preserve the foundational values of the Republic. This balance was not achieved instantly but emerged through a protracted and often turbulent dialogue between the Parliament and the Judiciary, a conflict that ultimately birthed the revolutionary Doctrine of Basic Structure. Understanding the power and procedure under Article 368 requires an exhaustive analysis of the text itself, the procedural hurdles established by the framers, and the monumental case laws that have redefined the limits of legislative authority.

The Textual and Structural Foundations of Article 368

Article 368 is the sole provision in Part XX of the Constitution, specifically titled “Amendment of the Constitution”. In its original 1950 form, it was titled “Procedure for the amendment of the Constitution,” a heading that would later become a focal point of judicial debate regarding whether the article merely prescribed a process or also conferred a substantive power. Following the legislative intervention of the 24th Amendment Act in 1971, the title was expanded to “Power of Parliament to amend the Constitution and procedure therefor,” explicitly acknowledging the substantive authority granted to the legislature.

The Clauses of Article 368

The article is currently divided into five clauses, though clauses (4) and (5) remain in the text despite being declared unconstitutional by the Supreme Court. Clause (1) establishes that Parliament may, in the exercise of its “constituent power,” amend by way of addition, variation, or repeal any provision of the Constitution in accordance with the prescribed procedure. This clause was a direct response to the Golak Nath judgment, seeking to clarify that the power to amend is not an ordinary legislative power but a higher, constituent one.

Clause (2) outlines the actual procedure, stating that an amendment may be initiated only by the introduction of a Bill in either House of Parliament. It specifies the “special majority” required for passage and the necessity of Presidential assent. The proviso to Clause (2) identifies specific “entrenched” provisions—largely those affecting the federal structure—that require ratification by the legislatures of at least one-half of the States.

Clause (3) was inserted to insulate constitutional amendments from the restrictions of Article 13, which prohibits the State from making any law that takes away or abridges Fundamental Rights. Clauses (4) and (5), added during the Emergency via the 42nd Amendment, attempted to bar judicial review of any amendment and declared that there shall be no limitation on Parliament’s constituent power. These two clauses were struck down in the Minerva Mills case as they were seen as an attempt by a limited power to grant itself unlimited authority.

The Procedural Modalities of Amendment

The procedure for amending the Indian Constitution is significantly more rigorous than that of ordinary legislation, reflecting the framers’ intent to ensure that changes to the nation’s fundamental law are the product of broad consensus rather than a fleeting parliamentary majority.

Initiation and Introduction

The process begins with the introduction of a Constitutional Amendment Bill. Unlike certain money bills or financial bills, such a bill can be introduced in either the Lok Sabha or the Rajya Sabha. It can be introduced by a Minister or a private member, and crucially, it does not require the prior recommendation or permission of the President. This highlights the independent constituent authority of the legislature at the initiation stage.

The Special Majority Requirement

To ensure the stability of the document, Article 368(2) requires a “Special Majority” for the passage of the bill in each House. This majority consists of two distinct components that must be satisfied simultaneously:

1. Absolute Majority: A majority of the “total membership” of the House (more than 50% of the total seats, regardless of vacancies or absentees).
2. Two-Thirds Majority: A majority of not less than two-thirds of the members of that House “present and voting”.

This “double majority” ensures that an amendment cannot be passed by a thin attendance or by a simple majority of those present, which is the standard for ordinary laws.

The Rule of Separate Passage and No Joint Sitting

A critical procedural distinction from ordinary legislation is the requirement that each House must pass the bill separately. If a deadlock occurs—where one House passes the bill and the other rejects it—there is no provision for a joint sitting under Article 368. In ordinary legislation, Article 108 allows the President to summon a joint sitting to resolve such a deadlock, but for constitutional amendments, the bill simply fails. This requirement grants each House of Parliament an effective veto over any proposed change to the Constitution.

State Ratification for Federal Provisions

The framers recognized that certain parts of the Constitution constitute the “federal compact” between the Union and the States. To protect these from unilateral alteration by the Union Parliament, the proviso to Article 368(2) requires that amendments to these specific provisions be ratified by the legislatures of not less than one-half of the States.

Federal Provision Subject to Ratification	Constitutional Domain
Election of the President	Articles 54 and 55
Executive Power of Union/States	Articles 73 and 162
Supreme Court and High Courts	Chapter IV of Part V, Chapter V of Part VI, Article 241
Legislative Lists (Seventh Schedule)	Distribution of power between Union and States
Representation of States in Parliament	Fourth Schedule
The Amending Procedure Itself	Article 368

This ratification is done by a simple majority in the State legislatures. Once the required number of states (currently 14 out of 28) passes a resolution to this effect, the bill proceeds to the President.

Mandatory Presidential Assent

Prior to 1971, the President could theoretically withhold assent to a constitutional amendment bill. However, the 24th Amendment modified the language of Article 368(2) to state that once the bill is passed and ratified (if necessary), it shall be presented to the President who “shall give his assent”. This amendment removed the President’s discretionary power to veto or return the bill for reconsideration, making the head of state’s role purely ministerial in this regard.

The Evolution of the Amending Power

The history of Article 368 is characterized by a “Great Debate” between the executive’s desire for social reform and the judiciary’s commitment to protecting individual rights. This struggle has passed through several distinct phases.

Phase I: Unfettered Power (1950–1967)

In the years following independence, the Indian government sought to implement massive land reforms and abolish the exploitative Zamindari system. When these laws were struck down by various High Courts for violating the “Right to Property” (then a Fundamental Right under Article 31), the Parliament enacted the First Amendment (1951), inserting Articles 31A and 31B to protect such laws from judicial review.

This led to the landmark case of Shankari Prasad v. Union of India (1951). The petitioners argued that an amendment is a “law” under Article 13(2), and since it abridged Fundamental Rights, it should be void. A five-judge bench of the Supreme Court rejected this, holding that the power to amend under Article 368 was a “constituent power” distinct from “legislative power.” Therefore, an amendment was not a “law” for the purposes of Article 13, and Parliament could amend any part of the Constitution, including Fundamental Rights.

This position was reaffirmed in Sajjan Singh v. State of Rajasthan (1965), where the Court upheld the 17th Amendment. However, a subtle shift began to appear; Justice Mudholkar, in his dissenting opinion, questioned whether the Constitution had “basic features” that should remain unchangeable. He mused that an “amendment” could not be used to rewrite the Constitution entirely or destroy its fundamental identity.

Phase II: The Retreat of Parliament (Golak Nath, 1967)

The judicial consensus shifted dramatically in I.C. Golak Nath v. State of Punjab (1967). An eleven-judge bench, in a narrow 6:5 majority, overruled the earlier decisions. The Court held that:

1. Fundamental Rights occupy a “transcendental” position and cannot be abridged by Parliament.
2. Article 368 merely provides the procedure for amendment but does not confer the power to amend, which flows from the residuary legislative powers of Parliament.
3. A constitutional amendment is a “law” within the meaning of Article 13(2), and thus any amendment taking away Fundamental Rights is unconstitutional.

This ruling created a constitutional impasse, as the government could no longer pass laws that conflicted with Part III of the Constitution, even for the purpose of socio-economic welfare.

Phase III: The Legislative Backlash (24th and 25th Amendments)

Parliament responded to Golak Nath by exercising its perceived supremacy. In 1971, it passed the 24th Amendment, which sought to neutralize the Golak Nath verdict by:

• Adding Clause (1) to Article 368 to explicitly mention “constituent power”.
• Inserting Clause (3) to exclude Article 13 from applying to amendments.
• Compelling the President to give assent to amendment bills.

Simultaneously, the 25th Amendment substituted the word “compensation” with “amount” in Article 31 to limit the judiciary’s power to review the adequacy of payments made for acquired property.

The Culmination: Kesavananda Bharati and the Basic Structure Doctrine

The conflict reached its zenith in Kesavananda Bharati v. State of Kerala (1973). A 13-judge bench, the largest in Indian history, sat for 68 days to determine the scope of Article 368.

The Compromise of 1973

By a razor-thin 7:6 majority, the Court delivered a nuanced judgment that balanced parliamentary power with constitutional integrity. The Court upheld the 24th Amendment, stating that Parliament can amend any part of the Constitution, including Fundamental Rights. However, it introduced the revolutionary Doctrine of Basic Structure. The Court held that the power to “amend” does not include the power to “destroy” or “abrogate” the essential features of the Constitution.

The word “amend” in Article 368 was interpreted to mean “change” while preserving the fundamental identity of the document. Thus, any amendment that alters the basic structure of the Constitution is ultra vires and invalid.

Elements of the Basic Structure

While the Court did not provide a definitive list, several judges identified key pillars that form this unalterable core.

Element of Basic Structure	Source Case (First Identified/Reaffirmed)
Supremacy of the Constitution	Kesavananda Bharati (1973)
Republican and Democratic Form	Kesavananda Bharati (1973)
Secular Character	Kesavananda Bharati (1973)
Separation of Powers	Kesavananda Bharati (1973)
Federal Character	Kesavananda Bharati (1973)
Judicial Review	Indira Gandhi v. Raj Narain (1975)
Free and Fair Elections	Indira Gandhi v. Raj Narain (1975)
Rule of Law	Indira Gandhi v. Raj Narain (1975)
Limited Amending Power	Minerva Mills (1980)
Harmony between FRs and DPSPs	Minerva Mills (1980)

Consolidation of the Doctrine through Subsequent Cases

Following Kesavananda, the Basic Structure Doctrine was tested and strengthened through several high-profile challenges.

Indira Nehru Gandhi v. Raj Narain (1975)

This case arose from the invalidation of Prime Minister Indira Gandhi’s election by the Allahabad High Court. In response, Parliament passed the 39th Amendment, which inserted Article 329A, stating that the election of the Prime Minister and Speaker could not be challenged in any court. The Supreme Court struck down Clause (4) of Article 329A, ruling that “free and fair elections” and “judicial review” are part of the Basic Structure. This was the first time an amendment was struck down using the new doctrine. 

The Minerva Mills Case (1980)

During the Emergency, the 42nd Amendment added Clauses (4) and (5) to Article 368, essentially declaring that no amendment could be challenged in court and that Parliament’s power was unlimited. In Minerva Mills v. Union of India (1980), the Court struck down these clauses. Chief Justice Y.V. Chandrachud observed that the “limited amending power” itself is a basic feature. Parliament cannot use its limited power to grant itself absolute power. 

The Court also emphasized the “Golden Triangle” of Articles 14, 19, and 21, and held that the balance between Fundamental Rights and Directive Principles is a cornerstone of the Constitution. 

Waman Rao v. Union of India (1981)

In this case, the Court clarified the “temporal scope” of the Basic Structure Doctrine. It held that all amendments made before April 24, 1973 (the date of the Kesavananda verdict) are valid. However, all amendments made on or after that date are open to challenge on the grounds that they violate the Basic Structure. 

I.R. Coelho v. State of Tamil Nadu (2007)

Commonly known as the “Ninth Schedule Case,” this judgment addressed the practice of placing laws in the Ninth Schedule to make them immune to judicial review. A nine-judge bench ruled that the Ninth Schedule is not a “safe haven”. If a law placed in the Ninth Schedule violates a Fundamental Right that is part of the Basic Structure (the “Impact Test”), it can be struck down. This ensures that Article 31B cannot be used to bypass the limitations of Article 368. 

The Theory of Constituent Power

The concept of “constituent power” used in Article 368(1) is a derivative power. While the original Constituent Assembly possessed “Primary Constituent Power” (unlimited power to create a new constitution), the Parliament under Article 368 possesses “Secondary Constituent Power”. Because this power is given by the Constitution, it is necessarily limited by the framework of that Constitution. This logic was central to the Minerva Mills and Kesavananda decisions: a creature of the Constitution cannot be more powerful than its creator. 

Flexibility vs. Rigidity

The Indian Constitution is described as a “harmonious blend” of flexibility and rigidity. 

Why Flexibility?

The framers, including Dr. B.R. Ambedkar, argued that a rigid Constitution would hinder progressive legislation and prevent the document from adapting to social changes. For example, simple majorities allow for the reorganization of states or the changing of salaries without the cumbersome special majority process. 

Why Rigidity?

Rigidity ensures that the “rules of the game” (federalism, democracy, judiciary) cannot be changed at the whim of a temporary majority. The special majority and state ratification requirements prevent “parliamentary tyranny” and protect the rights of political and state minorities. 

The Role of Judicial Review

The Supreme Court serves as the “guardian” of Article 368. By asserting the power of judicial review over amendments, the Court ensures that the amending power is used for preservation rather than destruction. Judicial review itself was declared a basic feature in Indira Gandhi v. Raj Narain and Minerva Mills.

Conclusion: 

Article 368 represents the most vital “balancing act” in the Indian constitutional setup. Through its various clauses and the interpretive gloss provided by the judiciary, it ensures that the Constitution remains a “living document” that can respond to the needs of each generation while remaining anchored to the eternal values of justice, liberty, and equality.

The evolution of Article 368 from the absolute supremacy seen in Shankari Prasad to the restricted authority defined in Kesavananda Bharati and Minerva Mills marks the maturity of Indian democracy. It has established that the Constitution is supreme, not the Parliament. The Basic Structure Doctrine acts as a “safety valve,” allowing for constitutional growth while preventing a collapse into authoritarianism. For students and citizens alike, Article 368 is not just a technical provision of law; it is the mechanism that ensures the survival of the Republic’s fundamental identity. The dialogue between the legislature and the judiciary over the scope of this article continues to shape the contours of Indian governance, proving that in a vibrant democracy, the fundamental law is never static, yet its soul remains inviolate.