Article 368 (Power of Parliament to Amend the Constitution)

Article 368, located in Part XX of the Constitution of India, confers on Parliament the constituent power to amend the Constitution and prescribes the procedure for doing so. The provision was part of the original Constitution that came into force on 26 January 1950, drafted to balance rigidity and flexibility — a deliberate departure from the near-unamendable American model and the easily-amendable British arrangement. Dr B. R. Ambedkar defended this middle path in the Constituent Assembly, arguing that the document must adapt to changing circumstances while resisting transient majorities. The marginal heading was amended by the Constitution (Twenty-fourth Amendment) Act, 1971, to read "Power of Parliament to amend the Constitution and procedure therefor," explicitly clarifying that the amending act is an exercise of constituent power and not ordinary legislative power, a response to the Supreme Court's ruling in Golak Nath v. State of Punjab (1967).

The procedural mechanics under Article 368 begin with the introduction of a Bill in either House of Parliament — the Lok Sabha or the Rajya Sabha. Unlike ordinary legislation, a constitutional amendment Bill requires no prior recommendation of the President for introduction. Under Article 368(2), the Bill must be passed in each House by a special majority: a majority of the total membership of that House and a majority of not less than two-thirds of the members present and voting. There is no provision for a joint sitting under Article 108 to resolve a deadlock between the two Houses on an amendment Bill; each House must pass it independently in identical terms. Once both Houses have passed the Bill, it is presented to the President, who, following the Twenty-fourth Amendment, is obligated to give assent and possesses no power to withhold it or return it for reconsideration.

A second, more demanding track applies to amendments touching the federal structure. The proviso to Article 368(2) enumerates entrenched provisions — including the election of the President (Articles 54 and 55), the extent of executive and legislative power of the Union and States, the Seventh Schedule, the representation of States in Parliament, and Article 368 itself — that require, in addition to the special majority, ratification by the legislatures of not less than one-half of the States. This state ratification requirement protects the federal compact from unilateral central alteration. A third category of changes, such as creating or abolishing States or altering boundaries under Article 4, the creation of legislative councils, and matters expressly excluded, can be effected by simple majority and are not deemed amendments for the purposes of Article 368.

Concrete instances illustrate the range. The First Amendment (1951) inserted the Ninth Schedule and Articles 31A and 31B to shield land-reform laws from judicial review. The Forty-second Amendment (1976), enacted by the Indira Gandhi government during the Emergency, was the most sweeping single amendment, inserting "socialist," "secular," and "integrity" into the Preamble and adding clauses (4) and (5) to Article 368 that purported to bar judicial review of amendments and declare Parliament's power unlimited. The Forty-fourth Amendment (1978), passed under the Janata Government led by Morarji Desai, repealed much of the Forty-second's excesses. More recently, the One Hundred and First Amendment (2016) introduced the Goods and Services Tax and required state ratification; the One Hundred and Third Amendment (2019) added economically weaker section reservations.

Article 368 must be distinguished from ordinary legislative power under Articles 245 and 246. An amendment is an exercise of constituent power that alters the supreme law itself, whereas ordinary statutes operate within the constitutional framework and remain subordinate to it. It is also distinct from the basic structure doctrine, which is not textual but a judicial gloss limiting the scope of Article 368. The doctrine was established in Kesavananda Bharati v. State of Kerala (1973), where a thirteen-judge bench held by a 7–6 margin that Parliament may amend any provision but cannot alter or destroy the Constitution's basic structure or essential features.

The central controversy has been the contest between parliamentary supremacy and judicial review. Sankari Prasad (1951) and Sajjan Singh (1965) upheld Parliament's plenary amending power; Golak Nath (1967) reversed course by holding that fundamental rights could not be abridged by amendment. Kesavananda Bharati overruled Golak Nath while imposing the basic structure limit. In Indira Nehru Gandhi v. Raj Narain (1975) and Minerva Mills v. Union of India (1980), the Supreme Court struck down clauses (4) and (5) of Article 368 themselves, holding that the power of amendment is conferred by the Constitution and is therefore inherently limited; an unlimited amending power would itself violate the basic structure. The 1980 ruling settled that limited amending power is a basic feature. The National Judicial Appointments Commission, introduced by the Ninety-ninth Amendment (2014), was struck down in 2015 for violating judicial independence.

For the practitioner — the UPSC aspirant, the constitutional litigator, the parliamentary draftsman — Article 368 is the operative bridge between political will and the supreme law, and the basic structure doctrine is the perpetual constraint on that bridge. Understanding which of the three procedural tracks applies, whether state ratification is engaged, and whether a proposed change risks judicial invalidation on basic-structure grounds is indispensable. The provision remains the most consequential expression of Indian constitutionalism's effort to reconcile democratic majoritarianism with the entrenchment of foundational commitments.