Article 368 of Indian Constitution empowers the Parliament to amend the Constitution by following a defined procedure. It involves introducing a Constitution Amendment Bill in either House of Parliament, securing a special majority in both Houses and for certain amendments, obtaining approval from at least half of the State Legislatures. Explore in-depth analysis of other Constitutional Articles.

Article 368 of Indian Constitution

Power of Parliament to amend the Constitution and procedure therefor 

(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. 

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and 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 of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in-- 

(a) article 54, article 55, article 73, article 162 or article 241, or 

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or 

(c) any of the Lists in the Seventh Schedule, or 

(d) the representation of States in Parliament, or 

(e) the provisions of this article. the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. 

(3) Nothing in article 13 shall apply to any amendment made under this article. 

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground. 

(5) For the removal of doubts, it is hereby declared that 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.

Note: “The information provided above has been sourced from the official website, i.e., Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders.”

Download Free PDF Article 368 of Indian Constitution Notes

Article 368 of Indian Constitution confers upon the Parliament of India the constituent power to amend the Constitution. It enables changes by way of addition, variation or repeal of any constitutional provision. The procedure for amendment is defined:

• Initiation: Only the Parliament of India can initiate an amendment by introducing a Constitutional Amendment Bill in either House.
• Procedure: The Bill must be passed in each House by
  • A majority of the total membership of the House and
  • At least a two-thirds majority of members present and vote.
• Presidential Assent: After being passed by both Houses, the Bill is sent to the President, who must give assent. The Constitution then stands amended.
• State Ratification (in special cases): If the amendment affects any federal structure such as the election of the President, executive powers of states and the Union, Judiciary or distribution of legislative powers then it must also be ratified by at least half of the State Legislatures.
• Exclusion from Article 13: Amendments under Article 368 of Indian Constitution are not treated as laws under Article 13. It means that they cannot be invalidated for violating fundamental rights.
• Judicial Review Bar: As per Article 368 of Indian Constitution no court can question the legality of a constitutional amendment including changes to Part III.
• Unlimited Amending Power: Article 368 of the Indian Constitution expressly declares that the amending power of the Parliament is not subject to any limitations.

Article 368 of Indian Constitution Power to Amend the Constitution

Article 368 (1) of Indian Constitution empowers the Parliament to amend the Constitution including provisions related to fundamental rights. However, this amending power is not without limits. The authority of the Parliament under Article 368 of Indian Constitution is subject to constitutional safeguards intended to protect the foundational values of the Constitution. 

The Basic Structure Doctrine explicitly states that certain essential elements such as the supremacy of the Constitution, India’s sovereignty, democratic governance, federal structure and safeguarding of fundamental rights cannot be altered even through constitutional amendments.

Moreover, amendments that impact the federal distribution of powers between the Centre and the states require not only a special majority in both Houses of Parliament but also ratification by at least half of the state legislatures under Article 368 of Indian Constitution.

In essence, the Parliament holds wide powers to amend the Constitution, these powers are confined by judicially recognized and constitutionally embedded limitations that aim to preserve the integrity and fundamental spirit of the Constitution.

Procedure for Amendment of the Constitution of India

The process for amending the Indian Constitution is governed by Article 368 of Indian Constitution enshrined in Part XX. The provision empowers the Parliament the authority to alter the Constitution through addition, modification or repeal of any part, following a specified procedure. However, the ‘basic structure’ of the Constitution identified by the Supreme Court in the landmark Kesavananda Bharati case (1973) cannot be amended even by Parliament.

The following are the types of constitutional amendments:

• By Special Majority under Article 368: According to Article 368 of Indian Constitution certain provisions can be amended by securing a special majority in both Houses of Parliament.
• By Special Majority and Ratification by States: It also states that some amendments, especially those impacting the federal structure require not only a special majority in Parliament but also the approval of at least half of the state legislatures by a simple majority.

To begin the amendment process under Article 368 of the Indian Constitution, a Constitution Amendment Bill can be introduced in either the Lok Sabha or the Rajya Sabha. This bill does not require prior presidential approval and can be introduced by either a minister or a private member.

The bill must be passed in each House by either:

• Simple Majority of Parliament

A simple majority means more than 50% of the members present and voting support a decision. It is commonly used for passing ordinary bills in Parliament.

• Special Majority of Parliament Article 368

A majority of the total membership of the House and two-thirds of those present and voting depending on the nature of the amendment. There is no provision for a joint sitting if the bill is rejected in either House.

A special majority is required to amend the Constitution and includes the following two conditions:

1. Support of a majority of the total membership of each House
2. Backing by two-thirds of the members present and voting

Once both Houses pass the bill, it is sent to the President who must give their assent. After the approval of the President, the bill becomes a Constitutional Amendment Act.

• Special Majority with State Ratification This dual process ensures federal balance and consensus between the Centre and states. Special Majority with State Ratification states that some amendments also require approval from at least half of the state legislatures, in addition to a special majority in Parliament. It is applied to the provisions impacting the federal structure such as:
• Election of the President
• Powers of the Supreme Court and High Courts
• Representation of states in Parliament
• Division of legislative powers
• Amendments to Article 368 itself

The Basic Structure Doctrine under Article 368 of Indian Constitution covers essential constitutional principles that act as the bedrock of the Constitution of India. The doctrine ensures that its foundational values remain preserved even through amendments. Although the Parliament holds the authority to amend most parts of the Constitution, it cannot modify the basic framework of the Constitution. The Supreme Court has not provided a fixed list, various landmark judgements have consistently recognized the following as important components of the basic structure of the Constitution:

• Secular character of the State
• Constitutional supremacy
• Sovereign, democratic and republican form of government
• Judicial independence
• Federal character of the Constitution
• National unity and integrity
• Individual freedom and dignity
• Jurisdiction and powers of the Supreme Court under Articles 32, 136, 141, and 142
• Establishment of a welfare state
• Equality as a constitutional principle
• Primacy of the rule of law
• Powers of High Courts under Articles 226 and 227
• Judicial review mechanism
• Conduct of free and fair elections
• Harmonious relationship between Fundamental Rights and Directive Principles
• Parliament’s limited amending power
• Separation of powers among the legislature, executive, and judiciary
• Parliamentary form of governance
• Fundamental Rights and the principles they embody

Article 368 of Indian Constitution Significance

Article 368 of Indian Constitution under Part XX holds immense constitutional importance as it provides a structured yet adaptable structure for amending the Constitution. It balances the necessity for legal continuity with the necessity for progressive change.

• Balance Between Flexibility and Rigidity: Article 368 of the Indian Constitution allows for constitutional evolution and imposes strict procedures to prevent misuse of the amending power.
• Protection of Federal Structure: By mandating ratification from half of the State Legislatures for certain amendments Article 368 of Constitution preserves the federal balance.
• Clear Separation from Ordinary Legislation: The requirement of a special majority differentiates constitutional amendments from routine legislative actions.
• Judicial Limitations and Parliamentary Supremacy: Article 368 of Indian Constitution shields amendments from judicial scrutiny under Article 13 and reinforced the constituent supremacy of the Parliament.
• Empowerment with Responsibility: The Parliament has wide authority, elaborate procedure and ensures that amendments are thoughtful and supported.

Article 368 of Indian Constitution Criticisms

The amendment procedure under Article 368 of Indian Constitution has been subject to many criticisms as mentioned below:

• Absence of a Distinct Constitutional Body: Unlike some countries that employ a Constitutional Convention or Assembly, India has entrusted the task of amending the Constitution to the ordinary legislative bodies namely, Parliament and in some instances, State Legislatures.
• Similarity to Legislative Process: Except for the requirement of a special majority, the procedure for constitutional amendment closely mirrors the ordinary legislative process and lacks any specially tailored mechanism for such an important function.
• Exclusive Power with Parliament: The initiation of a constitutional amendment is only within the domain of Parliament. The States have no independent authority to propose or initiate amendments under Article 368 of Indian Constitution.
• Limited Role of States: Most parts of the Constitution can be amended without involving the States. Even in matters requiring their consent and only half of the State Legislatures need to ratify the amendment.
• Vagueness Leading to Judicial Interventions: The provisions regarding the amendment procedure under Article 368 of the Indian Constitution are considered vague and open-ended, often leading to disputes that must be settled by the judiciary.

Article 368 of Indian Constitution Evolution

Over the years, the Supreme Court of India has played an important role in defining the scope and limits of the Parliament power to amend the Constitution. With the aid of landmark judgments and consequential constitutional amendments, the balance between legislative authority and constitutional integrity has been rigorously tested and clarified.

Shankari Prasad v. Union of India

The Supreme Court upheld the First Amendment which introduced Articles 31A and 31B and held that Parliament has broad authority under Article 368 of Indian Constitution to amend any part of the Constitution including Fundamental Rights as long as the specified procedure is followed.

Sajjan Singh v. State of Rajasthan

The Seventeenth Amendment was questioned in this case. Although the Court did not address its effect on the jurisdiction of High Courts. The Court held that Parliament could amend Fundamental Rights even if Article 368 of Indian Constitution did not expressly say so.

Golaknath v. State of Punjab

A major shift happened in Golaknath v. State of Punjab when the Supreme Court ruled by a 6:5 majority that Parliament could not amend Part III of the Constitution regarding Fundamental Rights. The Court introduced the doctrine of prospective overruling. It means that past amendments would remain valid but future amendments could not violate Fundamental Rights.

24th Constitutional Amendment (1971)

Passed in response to the Golaknath decision, this amendment explained that Article 13 does not apply to Constitutional amendments made under Article 368 of Indian Constitution. It also expressly confirmed the power of the Parliament to amend any provision of the Constitution.

Kesavananda Bharati v. State of Kerala

A landmark case where the Supreme Court overruled Golaknath and introduced the basic structure doctrine. It held that while Parliament can amend the Constitution under Article 368 of Indian Constitution but it cannot alter or destroy its basic structure.

Indira Nehru Gandhi v. Raj Narayan

The Supreme Court in Indira Gandhi vs Raj Narayan struck down clause 4 of Article 329A which aimed to bar judicial review of the election of the Prime Minister. The decision reaffirmed that Parliament cannot use its amending power under Article 368 of the Indian Constitution to damage the basic structure of the Constitution.

42nd Constitutional Amendment

The 42nd amendment aimed to curtail the role of the judiciary by asserting the unlimited power to amend the Constitution. It added the terms “socialist” and “secular” to the Preamble and inserted clauses in Article 368 of Indian Constitution to negate the basic structure doctrine.

Minerva Mills v. Union of India and L. Chandra Kumar v. Union of India

The Supreme Court in Minerva Mills v. Union of India invalidated parts of the 42nd Amendment. The Court reaffirmed that Parliament’s power to amend the Constitution is itself limited by the basic structure.
The Supreme Court in L. Chandra Kumar v. Union of India struck down parts of Articles 323A and 323B and introduced the 42nd Amendment which barred the jurisdiction of High Courts and the Supreme Court. The Court held that judicial review under Article 32, Article 226 and Article 227 forms part of the basic structure under Article 368 of Indian Constitution and cannot be removed by amendment.

Constitutional Amendments in India

Over the years, several constitutional amendments have played a transformative role in reshaping India’s governance structure, rights framework, and institutional balance. The following table highlights some of the most significant amendments and their core provisions:

Conclusion

Article 368 of Indian Constitution is the bedrock of constitutional flexibility which grants the Parliament constituent power to amend the Constitution. However, this power is not absolute and owes to judicially evolved safeguards like the Basic Structure Doctrine. It ensures that the Constitution remains adaptable to changing times, its foundational principles like democracy, federalism, secularism and the rule of law remain inviolable.