Amendment of the Constitution

Amendment of the Constitution

Introduction

The Constitution of India is neither purely flexible (like the British Constitution) nor rigidly fixed (like the United States Constitution), but represents a pragmatic synthesis of both. This flexibility is provided through Article 368 in Part XX of the Constitution, which outlines the procedure for amending the Constitution to adjust itself to changing conditions and societal needs.

As observed by Dr. B.R. Ambedkar in the Constituent Assembly, the Constitution provides “a facile procedure for amending the Constitution,” ensuring it is neither “rigid and permanent” (which would stop a nation’s growth) nor excessively flexible (which would compromise constitutional stability).

Legal Framework: Article 368

Article 368 grants Parliament the constituent power to amend any provision of the Constitution through the following methods:

• Addition

• Variation

• Repeal

Key Limitation: The Basic Structure Doctrine

The Supreme Court in the Kesavananda Bharati v. State of Kerala (1973) landmark judgment established that while Article 368 grants Parliament broad amendment powers, Parliament cannot amend provisions that form the “basic structure” of the Constitution. This doctrine serves as a substantive check on constitutional amendments.

The “basic structure” includes:

• Sovereignty and democracy

• Federalism

• Separation of powers

• Judicial review

• Individual rights and freedoms

• The rule of law

Article 368: Power of Parliament to amend the Constitution and Procedure therefor

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is 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 of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in—

(a) article 54, article 55, article 73, article 162, article 241 or article 279A; or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or

(c) any of the Lists in the Seventh Schedule; or

(d) the representation of States in Parliament; or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3) Nothing in article 13 shall apply to any amendment made under this article.

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

Procedure for Constitutional Amendment

The amendment procedure laid down in Article 368 comprises eight sequential steps:

1. Initiation (Bills Source)

• Amendments can only be initiated by introducing a bill in either the Lok Sabha or Rajya Sabha

• State legislatures cannot initiate constitutional amendment bills

• Exception: States may pass resolutions requesting Parliament for creating or abolishing legislative councils, but Parliament retains discretion

2. Authority to Introduce

• Bills can be introduced by either a minister or a private member

• No prior permission of the President is required

3. Parliamentary Passage – First House

• The bill must be passed by a special majority, defined as:

  • A majority (>50%) of the total membership of the House

  • AND a majority of two-thirds of members present and voting

Note: “Total membership” refers to the prescribed strength of the House regardless of vacancies or absentees.

4. Parliamentary Passage – Second House

• Each House must pass the bill separately

• No joint sitting provision exists for resolving disagreements between the two Houses

  • This differs from ordinary legislation where a joint sitting can resolve deadlocks

  • If the two Houses disagree, the amendment fails

5. State Ratification (Where Applicable)

• If the bill seeks to amend federal provisions, it must be ratified by legislatures of at least half of the states

• Ratification requires a simple majority (members present and voting)

• No time limit is prescribed for state ratification

• Inaction by states is irrelevant; once half of states consent, the requirement is satisfied

6. Presidential Assent

• The bill is presented to the President for assent

• The President must give assent (by the 24th Amendment Act, 1971)

7. Presidential Powers (Limits)

• The President cannot withhold assent

• The President cannot return the bill for reconsideration

• This ensures amendments proceed once they meet constitutional requirements

8. Legal Effect

• Upon Presidential assent, the bill becomes a Constitutional Amendment Act

• The Constitution stands amended in accordance with the terms of the Act

Types/Categories of Constitutional Amendments

The Constitution provides three distinct categories of amendments, each requiring different procedural compliance:

Category 1: Amendment by Simple Majority of Parliament

Requirement: Simple majority of both Houses (members present and voting)

These amendments do NOT require:

• Special majority

• State ratification

• Formal invocation of Article 368 (hence, these are not technically “Article 368 amendments”)

Provisions Amendable by Simple Majority:

1. Admission or establishment of new states

2. Formation of new states and alteration of areas, boundaries, or names of existing states

3. Abolition or creation of legislative councils in states

4. Second Schedule (emoluments, allowances, privileges of President, Governors, Speakers, judges, etc.)

5. Quorum in Parliament

6. Salaries and allowances of Parliament members

7. Rules of procedure in Parliament

8. Privileges of Parliament, its members, and committees

9. Use of English language in Parliament

10. Number of puisne judges in the Supreme Court

11. Conferment of greater jurisdiction on the Supreme Court

12. Use of official language

13. Citizenship (acquisition and termination)

14. Elections to Parliament and state legislatures

15. Delimitation of constituencies

16. Union territories

17. Fifth Schedule (administration of scheduled areas and scheduled tribes)

18. Sixth Schedule (administration of tribal areas)

Examples: Creation of new states, alterations to electoral constituencies, changes to parliamentary procedures

Category 2: Amendment by Special Majority of Parliament

Requirement:

• Majority (>50%) of the total membership of each House

• AND majority of two-thirds of members present and voting

These amendments encompass the majority of Constitutional provisions

Provisions Amendable by Special Majority Include:

1. Fundamental Rights (Part III) – Any restrictions or modifications to Articles 12-35

2. Directive Principles of State Policy (Part IV) – Articles 36-51

3. All other provisions not covered by Categories 1 or 3

Examples:

• Amendments to freedom of speech, expression, religion, equality

• Amendments to state’s directive principles

• Amendments to parliamentary composition or structure (where federal structure is not affected)

• 42nd Amendment Act (1976) – added “socialist,” “secular,” and “integrity” to the Preamble

• 44th Amendment Act (1978) – removed property rights from Fundamental Rights

• 86th Amendment Act (2002) – made elementary education a Fundamental Right

Category 3: Amendment by Special Majority + State Ratification

Requirement:

• Special majority in both Houses of Parliament (>50% of total membership + 2/3 of present and voting)

• AND ratification by legislatures of at least half the states by simple majority

• No prescribed time limit for state consent

These amendments affect the federal structure

Provisions Amendable by This Method:

1. Election of the President and its manner

2. Extent of executive power of the Union and states

3. Supreme Court and High Courts

4. Distribution of legislative powers between Union and states

5. Any of the Lists in the Seventh Schedule

6. Representation of states in Parliament

7. Article 368 itself (the amendment procedure)

Examples:

• 73rd Amendment Act (1992) – Added Part IX for Panchayati Raj Institutions

• 74th Amendment Act (1992) – Added Part IXA for Urban Local Bodies

• 101st Amendment Act (2016) – Introduced GST taxation framework

Major Constitutional Amendments 

Recent Constitutional Amendments & Developments (2024-2025)

1. 129th Constitutional Amendment Bill, 2024 (Simultaneous Elections)

Status: Introduced in Parliament; pending passage
Key Features:

• Amends Articles 83, 172, and 327

• Introduces new Article 82A

• Objective: Enable simultaneous elections to Lok Sabha and State Assemblies

• Concerns Raised:

  • Grants discretionary powers to President regarding election scheduling on ECI recommendations

  • Potential curtailment of state assembly tenures

  • May affect federal structure and state autonomy

  • Does NOT require state ratification (not presented for ratification), though it impacts federalism

• Procedural Note: The Supreme Court in Union of India v. Rajendra N. Shah clarified that “changes in effect” (indirect but significant impacts) to federal provisions may require state ratification consideration

2. 130th Constitutional Amendment Bill, 2025 (Removal of Ministers)

Status: Introduced in Lok Sabha on August 20, 2025
Key Features:

• Amends Articles 75 (Union Ministers), 164 (State Ministers), and 239AA (Delhi)

• Provision: Automatic removal of Prime Minister, Chief Minister, or any Minister if:

  • Arrested and held in custody for 30 consecutive days

  • Charged with serious criminal offences

• Extended to: Union Territories of Delhi and Puducherry

• Category: Special Majority (does not affect federal structure enumerated articles)

• Significance: Attempts to address accountability and constitutional morality in governance

3. Recent Amendment Trends:

• Focus on social representation: Gender (106th Amendment – women’s reservation)

• Economic inclusion: 103rd Amendment (EWS reservation)

• Social equity: 104th Amendment (extended SC/ST reservations)

• Governance mechanisms: 130th Amendment (ministerial accountability)

• Electoral processes: 129th Amendment (simultaneous elections under consideration)

Total Amendments as of 2025: 106 constitutional amendments (making the Indian Constitution the most amended constitution in the world)

Criticisms of the Amendment Procedure

Despite its utility, the amendment procedure has faced scholarly and legal criticism:

1. Absence of Constitutional Convention

• No provision for a special body (like the U.S. Constitutional Convention) to propose amendments

• Constituent power vests exclusively in Parliament and, in limited cases, state legislatures

• Lacks the deliberative body mechanism found in other democracies

2. Limited Role of States

• State legislatures cannot initiate constitutional amendments

• They can only request Parliament regarding legislative councils (non-binding)

• Unlike the U.S., where states can propose amendments through convention (2/3 of states required), Indian states are passive

3. Parliamentary Dominance

• Most of the Constitution can be amended by Parliament alone

• Only federal provisions require state consent, and even then only half of states (compared to 3/4 in the U.S.)

• Concentration of amendment power may threaten federalism

4. Lack of Temporal Framework

• No prescribed time limit for state ratification/rejection

• No clarity on whether states can withdraw approval after granting it

• Creates ambiguity in legislative deliberation

5. Absence of Joint Sitting Provision

• Unlike ordinary legislation, constitutional amendment bills cannot be resolved via joint sitting of both Houses if there is disagreement

• Increases risk of amendment failure despite substantial parliamentary support

• Creates a unique deadlock situation

6. Procedural Similarity to Legislation

• Constitutional amendments follow the same procedural framework as ordinary bills

• Distinguished only by the special/simple majority requirement

• Lacks the ceremonial or deliberative gravitas of true constitutional reform

7. Skeletal and Ambiguous Provisions

• Article 368 is brief and leaves numerous questions unanswered

• Ambiguities regarding applicability of “basic structure” doctrine

• Time limits, sequencing, and procedural details left to interpretation

• Has led to significant judicial intervention and jurisprudence development

8. Potential for Majority Overreach

• Ruling majorities could theoretically use the procedure to push partisan amendments

• Limited protections against misuse compared to rigid constitutions

• Special majority requirement (though safeguarding) may not suffice against determined governments

Assessment: Balance Between Flexibility and Rigidity

Despite these criticisms, the amendment procedure has proven effective in practice:

“It strikes a good balance between flexibility and rigidity” – K.C. Wheare (Constitutional Scholar)

Striking the Balance

Preventing Excessive Rigidity:

• The special majority requirement (though demanding) is achievable, unlike the 3/4 majority in the U.S.

• Simple majority amendments allow quick adaptation to administrative needs

• Procedure has facilitated 106 amendments addressing evolving societal conditions

Preventing Excessive Flexibility:

• Constitutional provisions are not subject to ordinary legislation changes

• Basic structure doctrine prevents fundamental dismantling

• Federal features require state consent, protecting smaller states

• Most provisions require extraordinary majorities

Historical Perspective

Pandit Jawaharlal Nehru (Constituent Assembly):

“While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a Constitution. There should be a certain flexibility. If you make any Constitution rigid and permanent, you stop the nation’s growth, the growth of a living, vital, organic people.”

Dr. B.R. Ambedkar (Constituent Assembly):

“The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution… but has provided for a facile procedure for amending the Constitution.”

Scholarly Recognition

K.C. Wheare has specifically admired:

“This variety in the amending process is wise but rarely found.”

Granville Austin:

“The amending process has proved itself one of the most ably conceived aspects of the Constitution. Although it appears complicated, it is merely diverse.”

Key Takeaways for UPSC Preparation

1. Article 368 is the constitutional basis for all amendments

2. Three categories of amendments exist with distinct requirements (simple majority, special majority, special majority + state ratification)

3. Basic Structure Doctrine (post-Kesavananda Bharati) limits amendment scope

4. India’s most amended constitution globally, reflecting adaptability

5. Federal provisions (Articles 83, 172, 327, etc.) require state ratification, protecting federalism

6. Recent amendments reflect India’s commitment to social justice (reservations), gender equality (women’s reservation), and governance accountability

7. Balance achieved between constitutional stability and democratic flexibility through varied procedures

8. Judicial role significant in interpreting amendment validity (basic structure, scope of Article 368)

Practice Questions for UPSC Revision

1. Distinguish between amendments requiring special majority and those requiring state ratification. Why is this distinction significant for Indian federalism?

2. Explain the basic structure doctrine and its implications for constitutional amendment powers. Which Supreme Court case established this doctrine?

3. What are the key deficiencies in the amendment procedure, and how has the procedure nonetheless proved effective despite these criticisms?

4. How does the Indian amendment procedure compare to those in the United States and the United Kingdom in terms of flexibility and rigidity?

5. Analyze the implications of the 129th Constitutional Amendment Bill (simultaneous elections) on federalism and state autonomy.

6. Discuss the significance of the 104th Amendment Act in the context of social equity and political representation.

7. Explain why only Parliament can initiate constitutional amendments in India, and how this differs from the U.S. system.

8. What role does the President play in the constitutional amendment process? Can the President exercise discretionary powers over constitutional amendments?

Indian Polity