Amendment of the Constitution (Article 368) — Procedures, Limitations

Article 368 of the Constitution of India confers on Parliament the power to amend the Constitution and lays down the procedure for doing so. It is the only article in the document that the framers themselves marked as the engine of constitutional change. The Twenty-fourth Amendment (1971) re-cast it to expressly call this a constituent power, and to make the President's assent obligatory; the Forty-second Amendment (1976) added clauses (4) and (5) seeking to put amendment Acts beyond all judicial review, both substantive and procedural; the Forty-fourth Amendment (1978) trimmed back parts of the 1976 changes. Each layer matters because the article today reads as a palimpsest of those interventions.

For the exam-aspirant, the architecture has three moving parts: (i) the kinds of amendment the Constitution recognises, (ii) the procedure Parliament must follow under Article 368 itself, and (iii) the limitations on the amending power, of which the basic-structure doctrine is the most consequential. This chapter walks through (i) and (ii) in detail and sketches (iii) — the doctrinal deep-dive on basic structure sits in a separate chapter on the basic-structure doctrine after Kesavananda Bharati.

Constituent power and ordinary law-making distinguished

The first thing to internalise is that amending the Constitution is not the same exercise as making a statute under Articles 245-246. When Parliament legislates, it acts within the four corners of the legislative lists in the Seventh Schedule, and its product is a 'law' subject to Article 13. When Parliament amends, it acts in exercise of constituent power, and clause (3) of Article 368 — read with Article 13(4), inserted by the same Twenty-fourth Amendment — keeps the resulting Constitution Amendment Act outside the Article 13 net. The Supreme Court in Sasanka Sekhar Maity v. Union of India, AIR 1981 SC 522, expressly held that Parliament, while acting under Article 368, is not subject to the limits that fence in its ordinary legislative power.

This is, however, a derivative constituent power, not a plenary one. In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, the Supreme Court drew a sharp line: a Constitution framed by a constituent assembly is unconstrained because there is no touchstone outside it; an amending body created by the Constitution can only operate within the four corners of the document that creates it. The addition of the words 'constituent power' in 1971 did not convert Parliament into a fresh constituent assembly — it remains, in the Court's phrase, 'a Parliament under a controlled Constitution'. The implication is direct: even a textual licence as broad as 'addition, variation or repeal' in Article 368(1) is read subject to the implied limit that the basic structure must survive.

Three procedural routes for altering the Constitution

Despite the impression Article 368 gives, the Constitution actually contemplates three different modes by which its provisions may be altered. Two of them sit within Article 368. One lies entirely outside it.

Route 1 — Simple majority of Parliament (outside Article 368)

A surprisingly large set of provisions can be altered by Parliament by an ordinary simple-majority law passed in the same way as any other Bill. These changes are not treated as 'amendments of the Constitution' for the purposes of Article 368 at all. The textual hooks are scattered:

• Articles 2-4 — admission, establishment and reorganisation of States and the consequential alteration of Schedules I and IV.
• Article 169 — abolition or creation of Legislative Councils in the States.
• Article 240 — laws for certain Union Territories.
• Schedules V and VI — administration of Scheduled Areas and Tribal Areas, where the relevant paragraphs themselves authorise Parliament to amend by ordinary law.

This route is sometimes overlooked because students assume Article 368 has a monopoly. It does not. Reorganisation of the Union and its territory under Articles 2-4 is a textbook example: the States Reorganisation Act, 1956 and the more recent Andhra Pradesh Reorganisation Act, 2014, both proceeded by simple majority. The First Schedule and the Fourth Schedule changed in their wake, but the Constitution was not 'amended' in the Article 368 sense.

Route 2 — Special majority of Parliament (Article 368(2), main part)

This is the default route under Article 368. The Bill must be passed in each House by:

1. a majority of the total membership of that House (i.e., more than 50% of the House strength, irrespective of vacancies); and
2. a majority of not less than two-thirds of the members present and voting.

Both thresholds must be cleared in each House separately. Joint sittings under Article 108 are not available for Constitution Amendment Bills — the special-majority requirement is House-by-House. After the Twenty-fourth Amendment, the President is bound to give assent; the discretion to withhold or return the Bill that exists for ordinary Bills under Article 111 has been removed for Article 368 Bills. The vast majority of provisions of the Constitution — the Fundamental Rights chapter, the Directive Principles, most of the parliamentary and executive provisions — fall in this band.

Route 3 — Special majority plus ratification by half the States (Proviso to Article 368(2))

Where the amendment touches the federal balance, the proviso superimposes an additional requirement. Apart from the special-majority vote in each House, the Bill must be ratified by the Legislatures of not less than one-half of the States by resolution before the Bill is presented to the President for assent. The proviso applies to amendments seeking to change:

1. The manner of election of the President — Articles 54 and 55.
2. The extent of the executive power of the Union and the States — Articles 73 and 162; and Articles 241 and 279A as added by later amendments.
3. The Supreme Court (Chapter IV of Part V) and the High Courts (Chapter V of Part VI) — for example, any amendment of the writ jurisdiction under Articles 32, 226 and 227.
4. Distribution of legislative powers between the Union and the States — Chapter I of Part XI; and any of the Lists in the Seventh Schedule.
5. The representation of States in Parliament — touching the Fourth Schedule and Article 80(1)(b).
6. The provisions of Article 368 itself.

The object of the proviso, as the Supreme Court explained in Kihota Hollohan v. Zachilhu, (1992) Supp. (2) SCC 651, is to give effect to the federal principle. Federalism is a basic feature; amendments that re-write its terms must therefore command not just two-thirds of Parliament but also the consent of half the constituent units.

What counts as a 'change' attracting the proviso?

The proviso uses the word 'change' at the head of the list. The Supreme Court has read it broadly. A change need not be a textual rewrite of one of the listed articles; it can be a change 'in effect'. Kihota Hollohan remains the leading illustration. Paragraph 7 of the Tenth Schedule, inserted by the Constitution (Fifty-second Amendment) Act, 1985, did not in terms touch Articles 136, 226 or 227; it merely declared that no court shall have jurisdiction over disqualification matters under that Schedule. The Constitution Bench held that the practical effect was to oust the writ jurisdiction of the High Courts and the special-leave jurisdiction of the Supreme Court in those matters — and that effect attracted the proviso. Because the Bill had not been ratified by half the States, Paragraph 7 was severed and struck down. The rest of the Fifty-second Amendment, including the anti-defection scheme in Paragraphs 1 to 6, was upheld.

The boundary, however, is not infinite. Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, and Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, both held that the proviso is not attracted merely because some classes of cases are taken out of the High Courts' jurisdiction; nor where a Fundamental Right itself is curtailed and the field of Article 32 and Article 226 consequently narrows. The impact in such cases is incidental, not direct. The line is between an amendment whose object is to reduce the constitutional courts' jurisdiction (proviso applies) and one whose object is something else but which has a downstream effect on jurisdiction (proviso does not apply).

Procedure step by step

Strip the article down to its operative steps and the picture is straightforward:

1. Initiation. A Bill seeking to amend the Constitution may be introduced in either House of Parliament — there is no House-of-the-People monopoly. Government Bills are the norm but a private member's Bill is competent.
2. No prior Presidential recommendation needed in the way Money Bills require one under Article 117(1).
3. Passage in each House. The Bill must clear the special-majority threshold in each House separately. Joint sittings under Article 108 are not available — Article 368 mentions only the two Houses voting separately.
4. State ratification, if proviso attracted. Where the Bill falls within the proviso, it must be ratified by the Legislatures of not less than one-half of the States. The Constitution prescribes no time limit for ratification, but the resolution must precede presentation to the President.
5. Presidential assent. After the Twenty-fourth Amendment, the President shall give assent — there is no discretion to withhold or return.
6. Coming into force. Ordinarily the Constitution stands amended on the date of assent; an Amendment Act may, however, fix a different commencement date. Section 1(2) of the Forty-fourth Amendment, 1978 famously deferred several of its provisions to a date to be notified — and the substituted clauses (4) and (7) of Article 22 were never notified, leaving the words 'shall stand amended' in clause (2) substantially nugatory on that point, as the Supreme Court noted in A.K. Roy v. Union of India, AIR 1982 SC 710.

The procedure prescribed by clause (2) is mandatory: any amendment that fails to comply is invalid (Minerva Mills v. Union of India, AIR 1980 SC 1789).

The litigation chain — Shankari Prasad to Kesavananda

The scope of the amending power has been litigated in four major rounds, and the trajectory is essential context for the procedural rules above.

Shankari Prasad (1951). The First Amendment, 1951 inserted Articles 31A and 31B and the Ninth Schedule to insulate land-reform laws from Fundamental Rights challenges. Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, upheld the amendment, holding that the word 'law' in Article 13(2) referred to ordinary legislation, not a Constitution Amendment Act passed under the constituent power in Article 368. The Fundamental Rights, on this view, were as amendable as anything else.

Sajjan Singh (1965). The Seventeenth Amendment, 1964 enlarged the Ninth Schedule. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, reaffirmed Shankari Prasad by majority but two judges (Hidayatullah and Mudholkar JJ.) doubted the proposition obiter, planting the seed of basic-structure thinking.

Golak Nath (1967). An eleven-judge bench in Golak Nath v. State of Punjab, AIR 1967 SC 1643, reversed course 6:5. It held that the Fundamental Rights in Part III are unamendable: a Constitution Amendment Act is a 'law' within Article 13(2), and any amendment that abridges a Fundamental Right would therefore be void. Future curtailment of Fundamental Rights, the Court suggested, would require a fresh constituent assembly.

The Twenty-fourth Amendment (1971) and Kesavananda (1973). Parliament responded with the Twenty-fourth Amendment, inserting clause (4) of Article 13 ('nothing in this article shall apply to any amendment of this Constitution made under Article 368') and re-numbering Article 368 to introduce clause (1) recognising 'constituent power' and clause (3) ('nothing in Article 13 shall apply to any amendment made under this article'). It also made Presidential assent mandatory. The Twenty-fifth Amendment, 1971 inserted Article 31C, immunising laws giving effect to the directives in Article 39(b)-(c) from Article 14, 19 and 31 challenge — and the second part of Article 31C even ousted judicial review of whether a particular law genuinely served those directives.

A thirteen-judge bench in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, decided 7:6 that:

1. The Twenty-fourth Amendment was valid; Parliament can amend any provision of the Constitution including Part III.
2. However, the word 'amend' in Article 368 carries an implied limitation — an amendment cannot 'damage or destroy the basic structure' of the Constitution.
3. The first part of Article 31C was upheld; the second part, which made the legislative declaration conclusive, was struck down for excluding judicial review.

The doctrine has since become the spine of Indian constitutional law. Because Khanna J.'s opinion broke the tie, his formulation is the operative ratio. The full doctrinal story belongs in the basic-structure doctrine chapter; what matters here is that the basic structure operates as a substantive limit on the procedural powers conferred by Article 368.

Indira Nehru Gandhi, the Thirty-ninth Amendment, and Minerva Mills

The doctrine bit immediately. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, struck down clause (4) of Article 329A as inserted by the Thirty-ninth Amendment, 1975, because it sought to validate the Prime Minister's election by a constitutional fiat that deprived the Court of its judicial role — violating free and fair elections, rule of law and judicial review, all identified as basic features.

Parliament again pushed back, this time through the Forty-second Amendment, 1976. Section 55 of that Amendment Act inserted clauses (4) and (5) into Article 368: clause (4) declared that no amendment under the article 'shall be called in question in any court on any ground'; clause (5) declared that 'there shall be no limitation whatever on the constituent power of Parliament'. The intent was to undo Kesavananda by constitutional amendment.

In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, a Constitution Bench struck down both clauses 4:1. The reasoning: the limited nature of the amending power is itself a basic feature; Parliament, exercising a derivative power, cannot enlarge that power into an unlimited one or oust judicial review of whether the limits have been breached. The Court also struck down the wider version of Article 31C inserted by the same Forty-second Amendment, restoring the 31C of 1971. Crucially, the operative reasoning produced two basic features in one stroke — the limitation on amending power, and judicial review.

Article 368(4) and (5) today

Although clauses (4) and (5) of Article 368 still appear on the bare text of the Constitution as printed, they stand judicially neutralised after Minerva Mills. The position is therefore:

• Constitution Amendment Acts are open to judicial review on procedural grounds — non-compliance with the special-majority rule, or with the State-ratification requirement, can void the Act.
• They are also open to substantive review on the basic-structure ground, the foundation laid in Kesavananda and reinforced in Minerva Mills, Waman Rao and I.R. Coelho.
• The bar in clause (4) — 'on any ground' — is read down to the extent inconsistent with these two heads of review.

Ninth Schedule and the Coelho test

Article 31B and the Ninth Schedule were inserted by the First Amendment, 1951, to immunise listed laws from Fundamental Rights challenge. For decades the Schedule operated as a constitutional safe deposit. Waman Rao v. Union of India, AIR 1981 SC 271, fixed a critical date: amendments adding laws to the Ninth Schedule before 24 April 1973 (the date of Kesavananda) are immune from basic-structure challenge; those on or after 24 April 1973 are not.

A nine-judge bench in I.R. Coelho v. State of T.N., (2007) 2 SCC 1, completed the framework. After 24 April 1973, every law inserted into the Ninth Schedule must be tested on the basic-structure touchstone. If the law abrogates or abridges a Fundamental Right that forms part of the basic structure — or violates the essence of one — it is liable to be struck down despite Article 31B. The test is twofold: (i) does the law take away or abridge a basic-structure-grade right? (ii) if so, does it destroy or damage the essence of that right? The Schedule is no longer a sanctuary; every entry past the 1973 line is justiciable on this rights-essence test.

Examples of amendments held — and not held — to violate the basic structure

The case-by-case posture of the doctrine produces a useful reference list.

Held to violate the basic structure (or partly so):

1. Kesavananda Bharati — second part of Article 31C as inserted by the Twenty-fifth Amendment, 1971, struck down for excluding judicial review.
2. Indira Nehru Gandhi v. Raj Narain — Article 329A(4), inserted by the Thirty-ninth Amendment, 1975, struck down.
3. Minerva Mills — clauses (4) and (5) of Article 368, and the wider Article 31C, both inserted by the Forty-second Amendment, 1976, struck down.
4. Kihota Hollohan — Paragraph 7 of the Tenth Schedule, inserted by the Fifty-second Amendment, 1985, struck down for want of State ratification under the proviso.
5. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 — the part of Article 323A(2)(d) and Article 323B(3)(d) that excluded High Court writ jurisdiction over administrative tribunals struck down; tribunal decisions were brought back under Articles 226/227.

Held not to violate the basic structure:

1. Article 31A as inserted by the First Amendment, 1951 — Waman Rao held it strengthens, rather than damages, the principle of equality by removing inequalities in agricultural holdings.
2. Insertion of the Tenth Schedule (Paragraphs 1-6) by the Fifty-second Amendment — Kihota Hollohan upheld the anti-defection scheme; the immunities of legislators under Article 105(2) cannot be elevated into basic features so as to bar their containment.
3. The Twenty-sixth Amendment, 1971 abolishing the privy purses and the privileges of the ex-rulers — Raghunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267, upheld the abolition; the privileges were inconsistent with the republican-egalitarian spirit of the Constitution and were never part of the basic structure.
4. The Forty-fifth Amendment, 1978 extending reservation in legislatures for SC, ST and Anglo-Indians under Article 334 — upheld in Vichitra Banwarilal Meena v. Union of India, AIR 1982 Raj. 297.
5. The introduction of Article 323A by the Forty-second Amendment, 1976, replacing the High Court's service-matter jurisdiction with an administrative tribunal — upheld in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, on the gloss that an 'effective alternative institutional mechanism' for judicial review does not violate the basic structure (the position later refined in L. Chandra Kumar).

Catalogue of basic features identified by the Court

The Court has refused to close the list of basic features. New entries are recognised case by case. The following have been judicially identified across Kesavananda, Indira Nehru Gandhi, Minerva Mills, S.R. Bommai v. Union of India, (1994) 3 SCC 1, Kihota Hollohan, L. Chandra Kumar, M. Nagaraj v. Union of India, (2006) 8 SCC 212, Kuldip Nayar v. Union of India, (2006) 7 SCC 1, and others:

• Supremacy of the Constitution.
• Sovereign, democratic and republican character of the polity.
• Rule of law.
• Separation of powers.
• Federalism, including the federal balance of legislative powers.
• Secularism.
• Judicial review — the powers of the Supreme Court under Articles 32, 136, 141 and 142, and of the High Courts under Articles 226 and 227.
• The principles behind the Fundamental Rights, particularly the rights essential to dignity and liberty.
• The objectives in the Preamble.
• Free and fair elections.
• Independent and efficient judicial system.
• Parliamentary democracy and multi-party system.
• Limited nature of the amending power under Article 368 itself.
• The principle of equality — not every facet, but the essence of equal justice.
• The balance between Fundamental Rights and Directive Principles.

The list is illustrative. M. Nagaraj framed the underlying logic as 'constitutional identity': what makes the Indian Constitution this Constitution and not some other one. An amendment that preserves identity passes; one that destroys it fails. The Court borrowed from the same idea in Janhit Abhiyan v. Union of India, (2023) 5 SCC 1, where the Hundred-and-third Amendment, 2019 introducing reservation for economically weaker sections was tested on the basic-structure touchstone and upheld.

Power to cede territory and to validate State enactments

Two narrower questions tend to surface in objective papers. Re Berubari Union, AIR 1960 SC 845, held that cession of any part of the territory of India to a foreign power requires a constitutional amendment under Article 368, because Article 1 — which describes the territory of India — cannot be altered by an ordinary law made under Entry 14 of List I read with Article 253. An ordinary treaty implementing such a cession is insufficient.

On the validation question, the Supreme Court in Sasanka Sekhar Maity v. Union of India, AIR 1981 SC 522, held that Parliament, when acting in its constituent capacity under Article 368, may include a State enactment in the Ninth Schedule even though Parliament could not have legislated on the subject in its ordinary capacity (the subject falling in List II). The constituent power is not fenced in by the legislative-list distribution; but, as K. Damodarasamy Naidu & Bros. v. State of T.N., (2000) 1 SCC 521, clarifies, the inclusion does not amend the State Act itself — it merely shields it.

Distinctions to keep crisp for MCQs

The article-368 chapter generates a predictable set of objective-paper traps. Five distinctions are worth holding fast:

1. Special majority vs simple majority. Reorganisation of States under Articles 2-4 is by simple majority and is not an 'amendment' under Article 368; do not list it under the Article 368 routes.
2. Special majority vs special majority + ratification. Amendments to Article 368 itself, to Lists I-III of the Seventh Schedule, to the manner of Presidential election, and to the writ jurisdiction of the constitutional courts attract the proviso. Most other amendments — including those affecting the Fundamental Rights chapter — do not.
3. Joint sitting under Article 108 is not available for Constitution Amendment Bills. The two-thirds threshold must be met in each House separately.
4. Presidential assent. After the Twenty-fourth Amendment, the President must assent. He has no power to return the Bill or to veto it.
5. Clauses (4) and (5) of Article 368. They sit on the bare text of the Constitution but were struck down in Minerva Mills; both procedural and substantive (basic-structure) judicial review of Constitution Amendment Acts therefore survive.

Where the basic-structure doctrine fits in this chapter

This chapter has treated basic structure as the substantive limit that frames the procedural canvas of Article 368. The full doctrinal exposition — the Khanna J. ratio, the Granville Austin observations, the four-fold tests in M. Nagaraj, the rights-essence test in I.R. Coelho, and the more recent applications in Janhit Abhiyan — is reserved for the dedicated basic-structure doctrine chapter, which sits next in this Constitution of India sequence. For Article 368 itself, what matters in the exam hall is the clean separation between the three procedural routes, the proviso list, and the recognition that the amending power is constituent yet limited.

For context on the substantive provisions that the amending power has most often been wielded to alter, see the chapters on the Directive Principles of State Policy, on the emergency provisions reshaped by the Forty-second and Forty-fourth Amendments, and on the Fundamental Duties added by the Forty-second Amendment. The Preamble, too, was amended in 1976 and the Court in S.R. Bommai held it part of the basic structure for the purpose of testing later amendments.

Frequently asked questions

Is amendment by simple majority an 'amendment of the Constitution' under Article 368?

No. Provisions like Articles 2-4 (admission and reorganisation of States), Article 169 (Legislative Councils), Article 240 (UT laws), and the Fifth and Sixth Schedules can be altered by an ordinary Bill passed by simple majority. The Constitution itself excludes such changes from the definition of 'amendment' for Article 368 purposes. So when the States Reorganisation Act, 1956 redrew the State map and rewrote the First and Fourth Schedules, no Article 368 procedure was followed and none was needed.

Can a Constitution Amendment Bill be passed in a joint sitting under Article 108?

No. Article 368 requires the special-majority threshold to be met in each House separately. Article 108 allows a joint sitting only when an ordinary Bill has been rejected by, or is pending in, the other House for more than six months. Constitution Amendment Bills are not ordinary Bills; they require constituent power. If one House defeats the Bill or fails to muster two-thirds, the Bill lapses on that point and there is no Article 108 fallback.

Are clauses (4) and (5) of Article 368 still part of the Constitution?

They appear in the printed text but were struck down in Minerva Mills v. Union of India, AIR 1980 SC 1789. Clause (4) had purported to bar judicial review of Constitution Amendment Acts on any ground; clause (5) had declared that there is no limitation on the constituent power. The Constitution Bench held both clauses violate two basic features — the limited nature of the amending power and judicial review. Constitution Amendment Acts therefore remain open to judicial review on procedural and basic-structure grounds.

What kinds of amendments need ratification by half the State Legislatures?

The proviso to Article 368(2) lists them: amendments touching the manner of election of the President (Articles 54 and 55), the executive power of the Union and States (Articles 73 and 162), the Supreme Court and High Courts (Chapter IV of Part V and Chapter V of Part VI), Centre-State legislative distribution (Chapter I of Part XI and the Seventh Schedule Lists), the representation of States in Parliament, and Article 368 itself. The object, as stated in Kihota Hollohan v. Zachilhu, (1992) Supp. (2) SCC 651, is to give effect to the federal principle.

Does Parliament have power to cede Indian territory to a foreign country by ordinary law?

No. The Supreme Court in Re Berubari Union, AIR 1960 SC 845, held that Article 1 — which defines the territory of India — cannot be altered by an ordinary law made under Entry 14 of List I and Article 253. Cession of any part of the territory to a foreign State requires a Constitution Amendment Act passed under Article 368. An ordinary treaty implementing such a cession, even if ratified, is insufficient; the constitutional alteration must be carried out first.

Can a law placed in the Ninth Schedule still be challenged after I.R. Coelho?

Yes, if the law was inserted into the Ninth Schedule on or after 24 April 1973, the date of Kesavananda Bharati. The nine-judge bench in I.R. Coelho v. State of T.N., (2007) 2 SCC 1, held that such laws must be tested on the basic-structure touchstone. If the law abrogates or abridges a Fundamental Right that forms part of the basic structure, or violates the essence of one, it is liable to be struck down despite Article 31B. Pre-1973 entries, however, remain immune under Waman Rao v. Union of India, AIR 1981 SC 271.