Part XX: Amendment of the Constitution
Contains the single but supremely important Article 368, which provides the procedure for amending the Constitution of India. This article establishes India's unique "flexible yet rigid" amendment process, balancing the need for constitutional evolution with the protection of its basic structure. The amendment process reflects India's middle path between a completely flexible constitution (like Britain) and an extremely rigid one (like the United States).
Article 368: Power of Parliament to amend the Constitution and procedure therefor
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 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, and the Constitution shall stand amended.
(3) Nothing in article 13 shall apply to any amendment made under this article.
(4) No amendment shall be called in question in any court on any ground.
(5) For the removal of doubts, it is 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.
24th Amendment (1971): Added clauses (1), (3), (4) and (5) to overcome the Supreme Court's judgment in Golaknath case. Established Parliament's unlimited power to amend any part of the Constitution.
42nd Amendment (1976): Added the words "and there shall be no limitation whatever on the constituent power of Parliament" in clause (5) during the Emergency.
44th Amendment (1978): Deleted clause (4) which prohibited judicial review of amendments, but the Supreme Court had already established the "basic structure doctrine" in Kesavananda Bharati case (1973).
📋 Three Categories of Constitutional Amendments
India's Constitution provides for three types of amendment procedures based on the nature of the provision being amended.
Simple Majority
Amendments that can be passed by simple majority of Parliament (more than 50% of members present and voting), similar to ordinary legislation.
Examples include:
- Admission/establishment of new states (Articles 2, 3)
- Abolition/creation of Legislative Councils (Article 169)
- Citizenship (Article 11)
- Quorum in Parliament (Article 100)
- Salaries of constitutional authorities
- Fifth & Sixth Schedule provisions
Special Majority (Article 368)
Amendments requiring special majority: Majority of total membership + 2/3 majority of members present and voting in each House of Parliament.
Examples include:
- Fundamental Rights (Part III)
- Directive Principles (Part IV)
- Union-State relations
- Judiciary provisions
- Election provisions
- Most constitutional provisions
Special Majority + State Ratification
Amendments requiring special majority in Parliament + ratification by half of State Legislatures (simple majority in at least 15 State Assemblies).
Examples include:
- Election of President (Article 54, 55)
- Extent of executive power (Article 73)
- High Courts (Articles 124-147, 214-231)
- Distribution of legislative powers (Article 245-255)
- Representation of States in Parliament
- Amendment procedure itself (Article 368)
📜 Landmark Constitutional Amendments
First Amendment (1951)
Key Features: Added Article 31A & 31B (Ninth Schedule) to protect land reform laws from judicial review.
Context: Response to Supreme Court decisions striking down land reform laws.
Significance: First of 127 amendments (as of 2024), established precedent for saving legislation.
Seventh Amendment (1956)
Key Features: Reorganization of states on linguistic basis, abolished Part B states.
Context: Implementation of States Reorganization Commission recommendations.
Significance: Created modern political map of India with linguistic states.
24th Amendment (1971)
Key Features: Explicitly gave Parliament power to amend any part of Constitution including Fundamental Rights.
Context: Response to Golaknath case (1967) which held Parliament couldn't amend FRs.
Significance: Major amendment to Article 368 itself, asserting Parliamentary supremacy.
42nd Amendment (1976)
Key Features: "Mini Constitution" - Added words "Socialist", "Secular" to Preamble; expanded Directive Principles.
Context: Enacted during Emergency, most comprehensive amendment.
Significance: 59 changes, attempted to shift balance toward Parliament supremacy.
44th Amendment (1978)
Key Features: Restored balance after Emergency; made Article 21 (life & liberty) non-suspendable.
Context: Post-Emergency reforms to prevent abuse of power.
Significance: Major democratic safeguards, judicial review of emergency.
73rd & 74th Amendments (1992)
Key Features: Constitutionalized Panchayati Raj and Municipalities (Parts IX & IXA).
Context: Implementation of grassroots democracy recommendations.
Significance: Major decentralization, third tier of government.
101st Amendment (2016)
Key Features: Introduced Goods and Services Tax (GST).
Context: Economic reform to create unified national market.
Significance: Most significant tax reform since independence, required State ratification.
⚖️ The Basic Structure Doctrine
The most important judicial limitation on Parliament's amending power, established in Kesavananda Bharati case (1973)
Kesavananda Bharati v. State of Kerala (1973)
Issue
Whether Parliament's power to amend the Constitution under Article 368 is unlimited, allowing it to alter or destroy the Constitution's basic structure.
Decision (7:6)
Parliament can amend any part of the Constitution but cannot alter its "basic structure" or "essential features."
Significance
Established judicial review of constitutional amendments. Basic structure is beyond Parliament's amending power.
Elements of Basic Structure
- ✅ Supremacy of the Constitution
- ✅ Republican and democratic form of government
- ✅ Secular character of the Constitution
- ✅ Separation of powers between Legislature, Executive, Judiciary
- ✅ Federal character of the Constitution
- ✅ Unity and integrity of the nation
- ✅ Welfare state (socio-economic justice)
- ✅ Judicial review
- ✅ Freedom and dignity of the individual
- ✅ Rule of law
Key Cases Applying Doctrine
- Indira Gandhi v. Raj Narain (1975): Added free & fair elections to basic structure
- Minerva Mills v. Union of India (1980): Harmony between FRs & DPs is basic structure
- S.R. Bommai v. Union of India (1994): Secularism is basic structure
- Kihoto Hollohan v. Zachillhu (1992): Democracy is basic structure
- IR Coelho v. State of Tamil Nadu (2007): Ninth Schedule laws subject to basic structure test
- Justice K.S. Puttaswamy v. Union of India (2017): Right to privacy is part of basic structure
📊 Constitutional Amendment Statistics
Total Amendments
As of December 2024 (105th to 127th amendments are proposed)
Successful Amendments
Actually enacted and in force (as of 2024)
Failed Amendments
Failed to get required majority or State ratification
Requiring State Ratification
Amendments that needed approval from State Legislatures
Amendment Frequency by Decade
📋 Amendment Procedure Flowchart
Bill Introduction
Amendment Bill introduced in either House of Parliament (Lok Sabha or Rajya Sabha).
Special Majority
Passed by each House with: (a) Majority of total membership, AND (b) 2/3 of members present & voting.
State Ratification*
*If required: Ratified by at least half of State Legislatures (simple majority in 15+ states).
Presidential Assent
Bill presented to President who must give assent (no veto power over amendments).
Constitution Amended
Upon President's assent, the Constitution stands amended as per the Bill's provisions.
*Note: State ratification is only required for amendments affecting specific federal provisions listed in Article 368's proviso.
🗂️ Key Amendments by Category
Federal & State Relations
- 7th (1956): States reorganization on linguistic basis
- 73rd & 74th (1992): Local self-government (Panchayati Raj)
- 101st (2016): Goods and Services Tax (GST)
- Reorganization Acts: Created new states (Nagaland, Haryana, etc.)
Fundamental Rights & Social Justice
- 1st (1951): Ninth Schedule to protect land reforms
- 25th (1971): Property right removed from FRs
- 86th (2002): Education as fundamental right (Article 21A)
- 103rd (2019): EWS reservation (10% quota for economically weak)
Emergency & Democratic Safeguards
- 38th-42nd (1975): Emergency period amendments
- 44th (1978): Post-Emergency democratic restoration
- 52nd (1985): Anti-defection law (Tenth Schedule)
- 91st (2003): Strengthened anti-defection law
⚠️ Notable Unsuccessful Amendment Attempts
42nd Amendment (Parts Struck Down)
Year: 1976 (struck down in Minerva Mills, 1980)
Provisions: Gave Directive Principles precedence over Fundamental Rights; excluded judicial review of constitutional amendments.
Outcome: Supreme Court struck down these provisions as violating basic structure.
99th Amendment (NJAC)
Year: 2014 (struck down in 2015)
Provisions: Established National Judicial Appointments Commission to replace collegium system.
Outcome: Supreme Court (4:1) declared it unconstitutional for violating judicial independence (basic structure).
Failed Political Attempts
- 62nd Amendment (1989): To overturn Shah Bano judgment (withdrawn)
- 64th Amendment (1990): Panchayati Raj Bill (failed in Rajya Sabha)
- Recent proposals: Uniform Civil Code, simultaneous elections
📝 Constitutional Significance of Part XX
Part XX, through its single Article 368, represents one of the most sophisticated and balanced constitutional amendment mechanisms in the world. It establishes India as having a "flexible yet rigid" constitution—flexible enough to adapt to changing societal needs, yet rigid enough to protect its core values. The three-tiered amendment procedure reflects India's federal character, requiring greater consensus for changes affecting federal structure.
The Basic Structure Doctrine, developed by the Supreme Court, represents a unique Indian contribution to constitutional jurisprudence worldwide. It establishes that while Parliament has wide amending powers, it cannot destroy the Constitution's essential features. This delicate balance between parliamentary sovereignty and judicial review has allowed the Constitution to evolve through 105 amendments while maintaining its core democratic character.
The amendment process has enabled India to transform from a largely rural, agrarian society to a modern, industrializing democracy while maintaining constitutional continuity. From land reforms in the 1950s to economic liberalization in the 1990s to digital governance in the 2000s, Article 368 has provided the mechanism for constitutional evolution without revolution.
Comments
Post a Comment