Article 368 of Indian Constitution: Procedure for Constitutional Amendments

No constitution is ever a finished document. As societies evolve and political realities shift, the supreme law of the land needs mechanisms to accommodate change—without becoming so flexible that it loses meaning, or so rigid that it loses relevance. Article 368 of the Indian Constitution stands as a careful answer to this exact challenge. It enshrines the process by which India’s constitution can be amended, balancing democratic flexibility with necessary stability.

Since its promulgation in 1950, the Indian Constitution has seen over a hundred amendments. Each amendment navigated the detailed procedures and checks designed within Article 368, illustrating how this provision acts as both facilitator and gatekeeper of change.

The Text and Core Mechanism of Article 368

Article 368 is embedded in Part XX of the Constitution. It lays down the power and procedure for amending the Constitution and stands out as one of the more intricate provisions of Indian law.

Powers Granted by Article 368

At its heart, Article 368 gives Parliament the authority to amend the Constitution by adding, varying, or repealing any provision. However, the method is far from simple majority rule. Depending on the nature of the amendment, the threshold and process can be considerably rigorous:

• Most amendments require a “special majority”—that is, adoption by a two-thirds majority of members present and voting, and by a majority of the total membership of each House of Parliament.
• Certain amendments—those affecting federalism’s architecture, like the election of the President, the powers of the Supreme Court and High Courts, or changes to the representation of states—require, in addition, ratification by at least half of the state legislatures.

Step-by-Step Procedure

1. Introduction: An amendment bill may be introduced in either House of Parliament.
2. Special Majority Passage: The bill must be approved in each House by a special majority.
3. State Ratification (if required): If the proposed amendment concerns matters listed in the proviso to Article 368(2), it must be ratified by the legislatures of not less than half the states.
4. Presidential Assent: After passage and, if needed, ratification, the bill is sent to the President, who is constitutionally bound to give assent.

This intricate process ensures both federal and democratic legitimacy for any constitutional change.

Evolution Through Landmark Amendments and Judicial Interpretation

The application of Article 368 has been shaped not only by Parliament but also by India’s judiciary and historical events.

Early Amendments and Expanding Social Justice

In the initial decades post-independence, amendments focused primarily on land reforms and the expansion of social rights. The First, Fourth, and Seventeenth Amendments are celebrated for pushing the boundaries of property rights and reimagining the state’s role in economic justice.

The Kesavananda Bharati Verdict and the “Basic Structure” Doctrine

A seismic moment for Article 368 arrived in 1973 with the Supreme Court’s judgment in Kesavananda Bharati v. State of Kerala. In response to attempts by Parliament to assert almost unlimited power of amendment, the Court ruled that Parliament’s authority under Article 368 does not extend to altering the “basic structure” of the Constitution.

“Article 368 gives Parliament wide powers to amend, but these are not absolute. The Constitution’s basic structure—its foundational principles—cannot be abrogated or destroyed.”
— Chief Justice S.M. Sikri, Kesavananda Bharati case

This doctrine, though not defined exhaustively, has come to include features like democracy, the rule of law, separation of powers, secularism, and judicial review.

Emergency Era and Its Aftermath: The 42nd and 44th Amendments

During the Emergency (1975-77), the 42nd Amendment—a controversial and sweeping rewrite—attempted to further curb judicial review and cement parliamentary supremacy. However, the subsequent 44th Amendment rolled back several excesses, reinforcing the checks on parliamentary authority under Article 368 and restoring confidence in constitutional balance.

Key Features and Safeguards of Article 368

The procedure laid out in Article 368 is meticulous, reflecting the complex nature of constitutional engineering in a pluralistic democracy like India.

Role of Special Majority

Unlike ordinary laws, constitutional amendments require heightened consensus—both a majority of total membership and two-thirds of those present and voting. This hurdle is designed to ensure that changes to the basic legal framework reflect broad agreement across political divides.

Federal Safeguards Through State Ratification

For provisions impacting India’s federal structure, the requirement for ratification by at least half the states inserts an additional layer of deliberation. This provision acknowledges the layered sovereignty present in India’s union, and empowers the states as key stakeholders.

Presidential Duties

While the President’s role post-parliamentary approval is largely formal, the necessity of assent serves as a final constitutional checkpoint, ensuring procedural compliance.

Real-World Impact and Notable Amendments

The reach of Article 368 is evident in its impact on pivotal milestones in Indian constitutional and political history.

Abolition of “Right to Property” as a Fundamental Right

The 44th Amendment (1978) exemplifies how Article 368 was used to recalibrate fundamental rights with evolving national priorities. By shifting the right to property from a fundamental right to a constitutional/legal right, Parliament redefined the contours of individual rights and social justice.

GST and Fiscal Federalism

A landmark in contemporary times, the 101st Amendment (2016) introduced the Goods and Services Tax (GST)—a unified indirect tax structure. Its passage, necessitating broad federal consensus, highlighted both the procedural demands and collaborative spirit embedded in Article 368.

103rd Amendment and Reservation Policies

The 103rd Amendment (2019) ushered in 10% reservation for Economically Weaker Sections (EWS) in educational institutions and government jobs. This controversial amendment showcases how Article 368 remains a living instrument, central to India’s socio-political evolution.

Ongoing Debates: Rigidity vs. Flexibility

India’s amendment process is often analyzed in comparison to other constitutions. Unlike the U.S.—where amendments require supermajorities in Congress and ratification by three-fourths of state legislatures—India’s process is considered relatively flexible, though not without rigorous checks.

Legal and political scholars debate whether Article 368 is too permissive, risking frequent or politically expedient amendments, or whether the basic structure doctrine provides enough insulation for constitutional stability. Each major amendment invites renewed scrutiny of this balance.

Conclusion: Article 368’s Enduring Importance

Article 368 stands as a carefully calibrated bridge between constitutional permanence and healthy adaptability. By requiring both supermajorities and—in key cases—federal ratification, it ensures that amendments reflect genuine, broad-based consensus rather than the fleeting will of narrow majorities. Judicial oversight, particularly the basic structure doctrine, provides a safety valve against misuse.

As India continues to grow and change, Article 368 will remain crucial—forging a dynamic, yet secure, constitutional order. Understanding its safeguards and legacy is essential for anyone interested in the world’s largest democracy and the endurance of its constitutional framework.

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FAQs

What is Article 368 of the Indian Constitution?
Article 368 provides the procedure by which the Indian Constitution can be amended. It lays out the necessary steps and majorities required to make constitutional changes.

Does Article 368 allow Parliament to change any part of the Constitution?
While Article 368 grants Parliament wide amending powers, the Supreme Court’s basic structure doctrine restricts amendments that would destroy or alter the Constitution’s essential features.

Which amendments require state ratification under Article 368?
Amendments affecting federal matters—like the powers of state governments, the judiciary, or the election of the President—require ratification by at least half of India’s state legislatures in addition to parliamentary approval.

How is a “special majority” defined in Article 368?
A special majority means approval by at least two-thirds of members present and voting in each House of Parliament, and a majority of the total membership of each House.

Can the President refuse to sign a constitutional amendment bill?
No, the President is bound to give assent once the bill has cleared all constitutional requirements under Article 368.

Why is the basic structure doctrine important in the context of Article 368?
The basic structure doctrine, established by the Supreme Court, acts as a safeguard by preventing amendments that would fundamentally alter the core principles of the Constitution, maintaining its integrity over time.

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