Article 368 — Procedure for Amendment of the Constitution

Article 368 of the Constitution of India, situated in Part XX, confers on Parliament the constituent power to amend the Constitution and prescribes the procedure for doing so. As originally enacted in 1950, the article carried the marginal heading "Procedure for amendment of the Constitution"; the Constitution (Twenty-fourth Amendment) Act, 1971, recast it as "Power of Parliament to amend the Constitution and procedure therefor," explicitly affirming Parliament's amending power in response to the Supreme Court's ruling in I.C. Golak Nath v. State of Punjab (1967). The article distinguishes the constituent power of amendment from ordinary legislative power, drawing the framers' design from a study of the United States, Australian, and South African constitutions, and reflecting the Constituent Assembly's intent — articulated by B.R. Ambedkar — to create a document neither rigidly unalterable nor casually mutable.

The procedure under Article 368 begins with the introduction of a Bill for the purpose of amendment in either House of Parliament — there is no requirement that it originate in the Lok Sabha, nor does it require the President's prior recommendation (except where Article 117 or money-bill provisions are independently engaged). The Bill must be 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. This "special majority" must be satisfied in both Houses separately; there is no provision for a joint sitting under Article 108 to resolve a deadlock on an amendment Bill, meaning each House holds an effective veto. Once both Houses pass the Bill in identical terms, it is presented to the President.

A second, more demanding track applies to amendments touching the federal structure. Under the proviso to Article 368(2), where the amendment seeks to change the election of the President (Articles 54 and 55), the extent of executive or legislative power of the Union or the States, the distribution of legislative powers (the Seventh Schedule and Chapter I of Part XI), the representation of States in Parliament, or Article 368 itself, the Bill must additionally be ratified by the legislatures of not less than one-half of the States by resolution before being presented to the President. The President, following the Constitution (Twenty-fourth Amendment) Act, 1971, which inserted clause (2), is bound to give assent and possesses no power to withhold or return such a Bill. The Constitution thus recognises three amendment modes: by simple majority outside Article 368 (e.g., admission of new States under Article 4), by special majority, and by special majority plus State ratification.

Contemporary practice illustrates each track. The Constitution (One Hundred and First Amendment) Act, 2016, which introduced the Goods and Services Tax by amending the distribution of taxing powers, required State ratification under the proviso and was assented to in September 2016 after the requisite legislatures concurred. The Constitution (One Hundred and Third Amendment) Act, 2019, providing reservation for economically weaker sections, was enacted by special majority alone. The Constitution (One Hundred and Sixth Amendment) Act, 2023, the Nari Shakti Vandan Adhiniyam reserving seats for women, was passed by Parliament in September 2023. The Ministry of Law and Justice's Legislative Department drafts and pilots such Bills through Parliament in New Delhi.

Article 368 must be distinguished from ordinary legislative procedure under Articles 107–111 and from the basic structure doctrine, which is a judicially created limitation rather than a textual one. It is also distinct from Article 4 and Article 169 amendments, which Parliament effects by simple majority and which are expressly deemed not to be amendments "for the purposes of Article 368." The doctrine of basic structure, by contrast, is not found in the article's text at all; it is an implied limitation read into the amending power by the judiciary.

The defining controversy concerns the scope of the amending power. In Kesavananda Bharati v. State of Kerala (1973), a thirteen-judge bench held that while Parliament may amend any provision, it cannot alter the "basic structure" of the Constitution — features such as federalism, secularism, judicial review, and the rule of law. Indira Nehru Gandhi v. Raj Narain (1975) and Minerva Mills v. Union of India (1980) applied the doctrine to strike down portions of the Thirty-ninth and Forty-second Amendments respectively, the latter invalidating clauses (4) and (5) of Article 368 — inserted by the Constitution (Forty-second Amendment) Act, 1976 — which had purported to bar judicial review of amendments and declare the amending power unlimited. The doctrine remains contested in scholarly and political debate, with critics arguing it transfers constituent power to an unelected judiciary.

For the working practitioner — the civil servant drafting policy, the UPSC aspirant mastering Polity for General Studies Paper II, or the analyst tracking constitutional reform — Article 368 is the operative gateway through which every structural change to Indian governance must pass. Mastery requires holding three threads together simultaneously: the precise majority and ratification mechanics of the text, the catalogue of subjects triggering the federal proviso, and the judicially enforced ceiling of basic structure. The article thereby embodies the framers' equilibrium between flexibility and entrenchment, and the judiciary's insistence that constituent power, however broad, stops short of self-destruction.