Amendment process & basic structure doctrine

The constitutional text: Article 368

The power to amend the Constitution is conferred exclusively by Article 368, located in Part XX. It prescribes both the procedure and a partial classification of amendments. An amendment may be initiated only by introducing a Bill in either House of Parliament—not in a State legislature. The Bill must be passed in each House by a majority of the total membership of that House (an absolute majority) and by a majority of not less than two-thirds of the members of that House present and voting (a special majority). There is no provision for a joint sitting under Article 108 to resolve a deadlock; each House must pass it separately. On passage, it is presented to the President, who—after the 24th Amendment Act, 1971—is bound to give assent (Article 368(2) proviso).

Three categories of amendment

The Constitution is neither wholly rigid nor wholly flexible; it blends both methods.

1. Simple majority — Provisions amendable by an ordinary law outside Article 368: creation/abolition of States and alteration of boundaries (Articles 2, 3, 4), abolition or creation of Legislative Councils (Article 169), salaries of judges, citizenship, and the Fifth and Sixth Schedules. These are expressly excluded from being treated as 'amendments' for Article 368 purposes.

2. Special majority — The bulk of the Constitution, including Fundamental Rights and Directive Principles, requires only the Article 368 special majority described above.

3. Special majority plus State ratification — Provisions affecting the federal structure require the special majority and ratification by the legislatures of not less than one-half of the States by a simple majority, before the Bill is presented to the President. The entrenched list includes: election of the President (Articles 54, 55), extent of executive power of Union and States (Articles 73, 162), the Supreme Court and High Courts (Articles 124, 214), distribution of legislative powers (Chapter I of Part XI and the Seventh Schedule), representation of States in Parliament, and Article 368 itself.

The First Amendment and the early trajectory

The Constitution (First Amendment) Act, 1951—enacted by the Provisional Parliament under Nehru—inserted Articles 31A and 31B and the Ninth Schedule to immunise land-reform laws from judicial review, and added reasonable restrictions on free speech in Article 19(2). Its validity was upheld in Shankari Prasad v. Union of India (1951), where the Supreme Court held that the word 'law' in Article 13(2) means ordinary legislation, not a constitutional amendment, so Parliament could amend Fundamental Rights. This reasoning was reaffirmed in Sajjan Singh v. State of Rajasthan (1965), setting the stage for the doctrinal battle that followed.

Golak Nath and the 24th Amendment

In I.C. Golak Nath v. State of Punjab (1967), an eleven-judge bench reversed the earlier position by a 6:5 majority, holding that a constitutional amendment is 'law' within Article 13(2) and therefore cannot abridge Fundamental Rights; the Court invoked the doctrine of prospective overruling to save past amendments. Parliament retaliated with the 24th Amendment Act, 1971, amending Articles 13 and 368 to declare expressly that an amendment under Article 368 is not 'law' for Article 13 purposes and that Parliament may amend any provision, including Part III.

Kesavananda Bharati (1973): the basic structure doctrine

Kesavananda Bharati v. State of Kerala (24 April 1973) remains the most consequential decision in Indian constitutional history. A thirteen-judge bench—the largest ever—delivered eleven opinions, with the controlling 7:6 view, with H.R. Khanna casting the decisive swing vote. It held that Parliament's amending power under Article 368 is wide but not unlimited: it cannot alter the 'basic structure' or essential framework of the Constitution. Golak Nath was overruled to the extent that Parliament can amend Fundamental Rights, but it cannot destroy the Constitution's identity.

The Court did not give an exhaustive list. Illustrative features named across cases include: supremacy of the Constitution; republican and democratic form of government; secularism; separation of powers; federalism; judicial review; free and fair elections; independence of the judiciary; rule of law; and the harmony between Fundamental Rights and Directive Principles.

The doctrine applied

Indira Gandhi's government enacted the 42nd Amendment Act, 1976, which (via amended Article 368(4) and (5)) sought to bar judicial review of amendments and declare the amending power unlimited. In Minerva Mills v. Union of India (1980), the Court struck down clauses (4) and (5), holding that judicial review and the limited amending power are themselves part of the basic structure. Waman Rao v. Union of India (1981) fixed the cut-off date—amendments made after 24 April 1973 are open to basic-structure challenge.

The doctrine has since invalidated specific provisions: Indira Nehru Gandhi v. Raj Narain (1975) struck the 39th Amendment's bar on challenging the PM's election; L. Chandra Kumar v. Union of India (1997) protected judicial review by the High Courts and Supreme Court; I.R. Coelho v. State of Tamil Nadu (2007) held that laws placed in the Ninth Schedule after 24 April 1973 are subject to basic-structure scrutiny; and in 2015 the Court struck down the 99th Amendment and the NJAC Act to preserve judicial independence.

Why this matters for the exam

This topic sits at the intersection of Prelims GS Paper I and Mains GS-2 ('Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions'), and it is one of the single most reliably tested areas in UPSC polity. The basic structure doctrine is a perennial favourite precisely because it tests both factual recall and conceptual reasoning.

What Prelims tests

Prelims questions probe procedural precision and the catalogue of landmark cases. Expect statement-based MCQs on: the three categories of amendment and which provisions fall in each (a recurring trap is whether Article 3 boundary changes need State ratification—they do not); whether a joint sitting is available for amendment Bills (it is not); whether the President can withhold assent (after the 24th Amendment, no). The 2013, 2017 and 2021 papers carried items matching amendment numbers to their content—memorise the First (1951), 24th, 42nd (1976), 44th (1978), 73rd/74th (1992), 86th (2002), 101st (GST, 2016), 103rd (EWS, 2019).

What Mains tests

Mains demands a thesis. A 2014 PYQ asked candidates to discuss the basic structure doctrine and assess whether it provides a counter-balance to majoritarianism or amounts to judicial overreach. The 2019 paper linked it to the NJAC verdict and judicial appointments. A high-scoring answer must: (i) anchor the doctrine in Kesavananda Bharati (1973); (ii) trace its consolidation through Minerva Mills (1980) and Waman Rao (1981); (iii) cite at least one recent application (NJAC, 2015; I.R. Coelho, 2007); and (iv) offer a balanced evaluation—the doctrine guards constitutional identity but is criticised as a 'judicial veto' lacking textual basis.

High-yield facts to retain

• Article 368 is the sole amending provision; three procedural routes exist.
• Shankari Prasad (1951) → Sajjan Singh (1965) → Golak Nath (1967) → Kesavananda (1973) → Minerva Mills (1980) is the doctrinal chain you must be able to recite in order.
• The cut-off date for basic-structure challenge is 24 April 1973.
• The basic structure doctrine is judge-made; it appears nowhere in the constitutional text. India borrowed the amendment design partly from South Africa; the basic structure concept echoes German jurist Dietrich Conrad's 1965 lecture that influenced advocate M.K. Nambyar.