Procedure for Constitutional Amendment (Article 368)

At a Glance

• What it is The procedure by which Parliament amends the Constitution
• Article Article 368 in Part XX
• Initiated by A bill in either House of Parliament, never in a state legislature
• Limit Parliament cannot alter the basic structure (Kesavananda Bharati, 1973)
• Exam link UPSC Prelims, Polity: Constitutional Amendment

Where Does It Fit?

This is the first topic of the category on Constitutional Amendment. Like any written Constitution, the Indian Constitution provides for its amendment so that it can adjust to changing conditions. The procedure is neither as easy as in Britain nor as difficult as in the USA; the Constitution is a synthesis of flexible and rigid.

What Does Article 368 Say?

Article 368 in Part XX deals with the power of Parliament to amend the Constitution and its procedure. It says that Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down. However, Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution, as ruled by the Supreme Court in the Kesavananda Bharati case (1973).

The Procedure Step by Step

1. An amendment can be initiated only by the introduction of a bill in either House of Parliament and not in the state legislatures.
2. The bill can be introduced by a minister or a private member and does not require the prior permission of the President.
3. The bill must be passed in each House by a special majority, that is, a majority of the total membership of the House and a majority of two-thirds of the members present and voting.
4. Each House must pass the bill separately. If the two Houses disagree, there is no provision for a joint sitting.
5. If the bill seeks to amend the federal provisions, it must also be ratified by the legislatures of half of the states by a simple majority of members present and voting.
6. After being passed by both Houses and ratified by states where necessary, the bill is presented to the President for assent.
7. The President must give assent; he can neither withhold assent nor return the bill for reconsideration. The 24th Amendment Act of 1971 made it obligatory for the President to give assent.
8. After assent, the bill becomes an Act and the Constitution stands amended according to its terms.

Three Types of Amendments

Article 368 provides for two types of amendment: by a special majority of Parliament, and by a special majority with ratification by half the states by a simple majority. But some other Articles provide for amendment of certain provisions by a simple majority of Parliament, which is not deemed an amendment of the Constitution for the purposes of Article 368. Therefore the Constitution can be amended in three ways.

Criticism and Defence of the Procedure

Critics point out that there is no special body like a Constitutional Convention for amendments; the power to initiate an amendment lies with Parliament and the state legislatures cannot initiate a bill, except by passing a resolution requesting Parliament to create or abolish a legislative council. A major part of the Constitution can be amended by Parliament alone. There is no time frame for states to ratify and no provision for a joint sitting in case of deadlock. The procedure is similar to a legislative process and too sketchy, leaving wide scope for litigation.

Despite these, the process has proved simple and easy and met the changed needs. K.C. Wheare said it strikes a good balance between flexibility and rigidity. Nehru said in the Constituent Assembly that while we want the Constitution to be as solid and permanent as possible, there is no permanence in a Constitution and there should be a certain flexibility. Dr Ambedkar said the Assembly had provided a facile procedure for amending the Constitution.

Why Is This Topic Important?

• Procedure questions Steps and majorities are asked directly
• Basis of the next topics The three types are explained in 9.2 to 9.4
• Basic structure limit Article 368 and Kesavananda are linked

What Came Next?

The next topic covers amendment by a simple majority of Parliament.

Key People and Terms

• Constituent power The power of Parliament to amend the Constitution
• Special majority A majority of total membership plus two-thirds of members present and voting
• Total membership The full number of members of the House, regardless of vacancies or absentees
• Ratification Approval by state legislatures where required
• Joint sitting Not available for constitutional amendment bills

Exam Corner

Mains Angle

Questions on this topic usually ask about the amendment procedure and its fairness. Use these points to add depth.

• Synthesis The procedure is neither flexible like Britain nor rigid like the USA
• Parliament-centred Only Parliament can initiate; states have a limited role
• Judicial limit The basic structure doctrine restricts the power
• Gaps No time frame for states and no joint sitting