Amendment Procedure under Article 368 of the Indian Constitution

 

Amendment Procedure under Article 368 of the Indian Constitution

 

Introduction to Article 368

Article 368 of the Indian Constitution provides the procedure for amending the Constitution. The Constitution of India is designed to be rigid and flexible, meaning it can be amended but through a detailed and specific procedure, unlike ordinary laws. Article 368 ensures that any change to the Constitution maintains a balance between parliamentary sovereignty and constitutional supremacy.

 

 

Authority to Amend

• The Parliament of India has the power to amend the Constitution.
• State Legislatures may also be involved in the process if the amendment affects federal provisions (like representation of states, powers of the state, etc.).
• The President of India does not have the power to veto an amendment but must give assent after proper procedure.

 

 

Types of Constitutional Amendments

The Indian Constitution recognizes three types of amendments based on the procedure under Article 368:

A. Simple Majority Amendments (Ordinary Legislative Procedure)

• Applicable to non-fundamental provisions, such as:
• Creation of new states
• Subject-matter governed by ordinary law
• Passed by simple majority in both Houses of Parliament.
• No state ratification required.
• Example: Amendment related to salaries of High Court judges.

B. Special Majority Amendments (Special Legislative Procedure)

• Most constitutional amendments fall under this category.
• Requires special majority of Parliament:
• At least 2/3rd of members present and voting
• More than 50% of total membership of each House
• No state ratification needed if it does not affect federal provisions.
• Example: Forty-second Amendment (1976) involved several provisions altered by special majority.

C. Special Majority with State Ratification

• For amendments affecting federal provisions of the Constitution.
• Procedure:

1.    Passed by special majority in both Houses of Parliament.

2.    Ratified by at least half of the State Legislatures.

3.    Assent of the President is required.

• Matters requiring state ratification include:

• Election of the President
• Representation of states in Parliament
• Powers of Parliament and State Legislatures
• Distribution of legislative powers
• Any amendment affecting federal structure

• Example: 42nd Amendment, 44th Amendment.

 

 

Procedure under Article 368

The formal procedure can be summarized as:

1.    Introduction of Amendment Bill

o   Can be introduced in either House of Parliament.

o   Only Members of Parliament can introduce (not citizens).

2.    Discussion and Passing in Parliament

o   Bill must be passed by special majority:

§  2/3 of members present and voting

§  More than 50% of total membership

3.    State Ratification (if required)

o   Bill sent to State Legislatures.

o   Ratified by at least half of the states.

4.    President’s Assent

o   Bill presented to President of India for assent.

o   No power to withhold the assent.

o   Once assented, it becomes part of the Constitution.

 

Judicial Interpretation of Article 368

• Kesavananda Bharati Case (1973)
• Supreme Court ruled that Parliament can amend the Constitution, including Fundamental Rights.
• But Parliament cannot alter the “basic structure” of the Constitution.
• Basic Structure Doctrine:
• Includes features like:
• Supremacy of the Constitution
• Rule of law
• Fundamental Rights
• Separation of powers
• Federalism
• Minerva Mills Case (1980)
• Reinforced that amendments cannot destroy the balance between Fundamental Rights and Directive Principles.

 

Key Features of Article 368

1.    Flexible yet Rigorous

o   Certain provisions can be amended like ordinary law; others require special majority and state ratification.

2.    Parliamentary Sovereignty

o   Only Parliament has authority to initiate amendments.

3.    No Referendum

o   Unlike some countries (e.g., USA), citizens are not directly involved in constitutional amendments.

4.    President’s Role

o   Merely formal; no discretionary powers.

5.    Scope of Amendment

o   Can amend any part of the Constitution, but cannot alter the basic structure.

 

Examples of Important Amendments via Article 368

Amendment	Year	Significance
1st	1951	Reorganization of states
42nd	1976	“Mini-Constitution,” altered Fundamental Rights and Preamble
44th	1978	Repealed some 42nd Amendment provisions
73rd & 74th	1992	Panchayati Raj and Municipalities
86th	2002	Right to Education as Fundamental Right

8. Summary

• Article 368 empowers Parliament to amend the Constitution.
• Three types of amendments: simple majority, special majority, special majority with state ratification.
• President’s assent is mandatory.
• Judicial oversight ensures that amendments cannot violate the basic structure.
• Ensures a balance between flexibility and rigidity, allowing the Constitution to adapt while protecting its fundamental character.