Article 368

Article 368 of the Constitution of India provides the constitutional framework for amending the Constitution, empowering Parliament to modify, add to, or repeal any of its provisions. This article defines the extent, procedure, and limitations of Parliament’s constituent power, thereby balancing flexibility in governance with the protection of the Constitution’s fundamental principles.

Constituent Power of Parliament

Article 368(1) explicitly vests the constituent power—a special form of legislative authority—in Parliament to amend the Constitution. This power is distinct from ordinary law-making under Article 245. While Parliament exercises legislative powers to make ordinary laws, its constituent power under Article 368 enables it to alter the very framework of the Constitution, subject to certain procedural and substantive limitations.
This power extends to every provision of the Constitution, including the Preamble, Fundamental Rights, Directive Principles of State Policy, and provisions relating to the Union and the States.

Procedure for Constitutional Amendment

The process of amendment under Article 368 ensures a deliberate and rigorous legislative approach. The key procedural stages are as follows:
1. Initiation of Amendment Bill

• An amendment can be introduced only in either House of Parliament (Lok Sabha or Rajya Sabha).
• A State Legislature has no authority to introduce a Constitutional Amendment Bill.
• The Bill can only be introduced by a Minister; private members cannot introduce such Bills.

2. Passing of the Bill

• The Bill must be passed in each House by:
  • A majority of the total membership of that House, and
  • A two-thirds majority of the members present and voting.
• There is no provision for a joint sitting if the two Houses disagree.

3. Presidential Assent

• After both Houses pass the Bill, it is presented to the President of India for assent.
• Under Article 368(2), the President must give assent; he has no veto power over constitutional amendments.
• Upon receiving assent, the amendment becomes law and forms part of the Constitution.

Special Procedure: Ratification by States

Certain amendments that affect the federal structure of the Constitution require ratification by at least half of the State Legislatures before receiving the President’s assent. These include amendments that affect:

• The election or powers of the President (Articles 54 and 55);
• The extent of executive power of the Union and States (Articles 73 and 162);
• The distribution of legislative powers between the Union and the States (Seventh Schedule);
• The powers and jurisdiction of the Supreme Court and High Courts;
• Representation of States in Parliament; and
• Articles dealing with the Goods and Services Tax Council (Article 279A).

There is no time limit for the ratification by State Legislatures, and such ratification is expressed through a resolution passed by a simple majority.

Types of Amendments

The Constitution of India prescribes three methods of amendment:

1. By Simple Majority: Certain provisions can be amended by a simple majority of Parliament, outside the purview of Article 368. These include changes in:
   • Formation of new States (Article 3),
   • Names or boundaries of States,
   • Quorum in Parliament,
   • Salaries of Members of Parliament, and
   • Fifth and Sixth Schedules (relating to Scheduled Areas).
2. By Special Majority: Most provisions are amended by the special majority mentioned in Article 368—i.e., a two-thirds majority of members present and voting and a majority of the total membership of each House.
3. By Special Majority with State Ratification: Amendments that affect the federal character of the Constitution require ratification by at least half of the States, in addition to the special majority in Parliament.

Nature of the Amending Power

The amending power under Article 368 is sovereign but not absolute. It allows Parliament to make necessary constitutional changes to adapt to evolving socio-economic and political conditions while preserving the basic structure of the Constitution.
In Sankari Prasad Singh Deo v. Union of India (1952), the Supreme Court upheld the validity of Parliament’s power to amend Fundamental Rights. However, this position evolved through subsequent judicial interpretations, culminating in the establishment of the basic structure doctrine.

Judicial Review and the Basic Structure Doctrine

The judiciary has played a pivotal role in defining the limits of Parliament’s amending power. The evolution of this doctrine can be traced through key Supreme Court judgments:

• Sankari Prasad Singh Deo v. Union of India (1952): The Court upheld Parliament’s unrestricted power to amend any part of the Constitution, including Fundamental Rights.
• Golak Nath v. State of Punjab (1967): The Court ruled that Parliament cannot amend Fundamental Rights, treating the amending power as part of ordinary legislative power.
• Kesavananda Bharati v. State of Kerala (1973): This landmark judgment reconciled the two earlier positions. The Supreme Court held that:
  • Parliament has wide powers to amend any part of the Constitution, including Fundamental Rights.
  • However, it cannot alter or destroy the basic structure or essential features of the Constitution.The basic structure doctrine thus became a permanent limitation on the constituent power of Parliament.
• Indira Nehru Gandhi v. Raj Narain (1975) and Minerva Mills Ltd. v. Union of India (1980): These cases reaffirmed that judicial review, democracy, rule of law, and separation of powers constitute parts of the basic structure that cannot be amended or abrogated.

Components of the Basic Structure

Although the Supreme Court has never given an exhaustive list, the following principles are commonly recognised as forming the basic structure of the Constitution:

• Supremacy of the Constitution;
• Sovereign, democratic, and republican form of government;
• Separation of powers;
• Judicial review;
• Federalism;
• Rule of law;
• Free and fair elections;
• Secularism;
• Fundamental Rights;
• Harmony between Fundamental Rights and Directive Principles.

Notable Amendments under Article 368

• 1st Amendment (1951): Introduced the Ninth Schedule and curtailed the right to property.
• 24th Amendment (1971): Explicitly affirmed Parliament’s power to amend any part of the Constitution and made it mandatory for the President to give assent to amendment Bills.
• 42nd Amendment (1976): Expanded Parliament’s powers, attempted to make amendments beyond judicial review; later curtailed by the Supreme Court in Minerva Mills.
• 44th Amendment (1978): Restored the balance between Fundamental Rights and Directive Principles and reaffirmed judicial supremacy.

Amendment of Article 368 Itself

Amending Article 368 requires the same special procedure and State ratification, as it directly affects the federal distribution of power. The 24th Amendment Act, 1971 amended Article 368 to explicitly affirm Parliament’s authority to amend any provision, thus removing ambiguities raised by earlier judicial interpretations.

Doctrine of Prospective Overruling

Introduced in Golak Nath and later applied in Kesavananda Bharati, this doctrine allows the Supreme Court to declare that a judgment will apply only to future cases, not to past actions. This approach prevents legal chaos when constitutional interpretations change.

Limits on the Amending Power

While Article 368 allows Parliament wide latitude, certain limits apply:

• Procedural limits: The amendment must follow the prescribed process of passage and ratification.
• Substantive limits: The amendment must not alter the basic structure.
• Judicial review: Courts can review whether the amendment violates the Constitution’s basic structure or procedural requirements.

Significance and Purpose

Article 368 ensures a balance between rigidity and flexibility in the Constitution. It allows necessary changes to reflect India’s evolving democratic, economic, and social needs while safeguarding the fundamental framework of governance.It reflects the framers’ intent that the Constitution should be dynamic—capable of adaptation without undermining its foundational principles.