Amendment of the Constitution and Basic Structure

The Indian Constitution is neither too rigid like the American Constitution nor too flexible like the British. Its genius lies in Article 368, which prescribes three different routes to change the basic text — each route gets harder as the subject becomes more federal. This graded difficulty is among the most asked themes in UPSC Prelims.

Definition: Article 368 of the Indian Constitution lays down the procedure for amendment of the Constitution by Parliament and recognises Parliament's "constituent power" — distinct from its ordinary law-making power.

Definition: A special majority under Article 368 means a majority of the total membership of each House AND a two-thirds majority of the members present and voting in each House — both conditions must be met simultaneously.

Why three routes, and not one?

A Constitution that is too easy to amend invites political mischief; one that is too hard becomes obsolete. The framers, led by Dr Ambedkar, settled on a three-track system depending on what is being amended. Provisions that are trivial or administrative (like the name of a state) can be changed by an ordinary simple majority. Provisions that touch the rights or duties of citizens require a special majority. And provisions that affect the federal balance between the Centre and the states require both a special majority of Parliament and the consent of at least half the state legislatures. This graded structure is the formal answer to the question "How rigid is the Indian Constitution?" — it is partly flexible and partly rigid.

Method 1 — Amendment by simple majority of Parliament

Several provisions can be changed by a simple majority of each House — that is, more than 50% of the members present and voting, same as for an ordinary law. These amendments lie outside the scope of Article 368 and are not even called constitutional amendments in the formal sense. Examples include:

• Admission or establishment of new states (Article 2)
• Formation of new states and alteration of areas, boundaries or names of existing states (Article 3)
• Abolition or creation of Legislative Councils in states (Article 169)
• Citizenship — acquisition and termination (Articles 5–11)
• Salaries and allowances of MPs, Speaker, Deputy Speaker etc.
• Quorum in Parliament, rules of procedure, privileges of Parliament

Real-world example: The bifurcation of Andhra Pradesh to create Telangana in 2014 was done by an ordinary law (the Andhra Pradesh Reorganisation Act, 2014) passed under Article 3 — by simple majority. It changed the political map of India without invoking Article 368.

Method 2 — Amendment by special majority of Parliament

This is the default Article 368 route. The amendment bill must be passed by each House by a special majority: majority of total membership of that House (>50% of the total strength, not just those present), and a two-thirds majority of members present and voting.

This route is used for the bulk of constitutional amendments — including those touching Fundamental Rights, the Directive Principles of State Policy, and any provision not covered by Methods 1 or 3.

Example: The 44th Amendment Act, 1978, which removed the right to property from the list of Fundamental Rights, was passed by this route.

Method 3 — Special majority of Parliament PLUS state ratification

For provisions that affect the federal structure, a more stringent process applies. After the bill is passed by a special majority of each House of Parliament, it must be ratified by the legislatures of at least half of the states by a simple majority. There is no time limit within which states must ratify, and a state's silence does not count as ratification.

The provisions requiring this dual approval include:

• Election of the President (Articles 54 and 55)
• Extent of executive power of the Union and the states (Articles 73 and 162)
• Provisions dealing with the Supreme Court and High Courts
• Distribution of legislative powers between the Centre and states (Seventh Schedule)
• Representation of states in Parliament (Fourth Schedule)
• Article 368 itself
• Any of the Lists in the Seventh Schedule
• The GST Council provisions (Article 279A) — added by the 101st Amendment

Real-world example: The 101st Constitutional Amendment Act, 2016, which introduced the Goods and Services Tax (GST), was ratified by more than half of the state legislatures because it altered the Centre–state taxation balance — a textbook federal provision.

Procedural rules common to all amendment bills

A few procedural points are favourites of question-setters:

• An amendment bill can be introduced in either House of Parliament — Lok Sabha or Rajya Sabha.
• It can be introduced by a Minister or a private member.
• It does NOT require the prior permission of the President.
• There is no provision for a joint sitting of the two Houses on an amendment bill. (Joint sitting under Article 108 is for ordinary bills only.)
• The President is bound to give assent to an amendment bill that has been duly passed — the 24th Amendment, 1971 made this assent mandatory.
• The State Legislatures cannot initiate an amendment to the Constitution.

The Basic Structure doctrine — the silent fourth check

Even an amendment passed by the most stringent route is not above judicial review. In Kesavananda Bharati v. State of Kerala (1973), a 13-judge bench of the Supreme Court held that Parliament's amending power under Article 368 does not extend to altering the "basic structure" of the Constitution. Features like the supremacy of the Constitution, the rule of law, judicial review, federalism, secularism and free and fair elections are part of this basic structure and cannot be amended away.

Why it matters: This doctrine is why the Indian Constitution has survived 100+ amendments without losing its identity. It is the unwritten boundary on Article 368.

Common misconception: Students often think state ratification means all states must agree, or that ratification needs a special majority in the state assembly. Neither is true — only half of the states must ratify, and a simple majority in the state assembly is enough. Also, the President's assent is mandatory; he has no power to return or withhold it for an amendment bill.

Question: Which of the following constitutional amendments would require ratification by at least half of the state legislatures? (i) Changing the salary of MPs (ii) Amending the Seventh Schedule (iii) Removing Right to Property from Fundamental Rights (iv) Altering the procedure for election of the President.
Solution:
Step 1: Salaries of MPs — simple majority (Method 1). No state ratification.
Step 2: Seventh Schedule — federal provision. Requires Method 3 (ratification).
Step 3: Fundamental Rights — special majority (Method 2). No state ratification.
Step 4: Election of President — federal provision (Articles 54, 55). Requires Method 3.
Conclusion: Only (ii) and (iv) require ratification by at least half the states.

Shankari Prasad (1951) & Sajjan Singh (1965): Parliament can amend any part including FRs (Art 368). Golaknath (1967): reversed — FRs cannot be amended/abridged. 24th Amendment (1971): asserted Parliament's power to amend any part. Kesavananda Bharati (1973): landmark — Parliament can amend any part INCLUDING FRs, but cannot alter the 'basic structure' (doctrine born here; 7-6 verdict, 13 judges). 42nd Amendment (1976): tried to make amending power unlimited and exclude judicial review (Sec 4 & 5). Minerva Mills (1980): struck this down; held judicial review and limited amending power are themselves basic features. Waman Rao (1981): basic structure applies to amendments after 24 April 1973. Basic features (illustrative, not exhaustive): supremacy of Constitution, rule of law, separation of powers, judicial review, federalism, secularism, free & fair elections, parliamentary system, harmony between FRs & DPSP.

Trap: only provisions affecting the federal structure require ratification by half the states. Examples REQUIRING ratification: changes to the manner of election of the President (Art 54, 55); extent of executive power of Union & States; Supreme Court and High Courts; distribution of legislative powers between Centre and States; any of the Lists in the Seventh Schedule; representation of states in Parliament; and Article 368 itself. Examples NOT requiring ratification (special majority alone suffices): amending Fundamental Rights, DPSP, or the Preamble. Note that the GST Amendment (101st, 2016) required state ratification because it altered Centre-State financial/legislative powers. Remember: the President MUST give assent to a Constitution Amendment Bill (he has no veto/return power after the 24th Amendment).

Cover the answer, recall, then check. 12 cards on Article 368, amendment types and the basic structure doctrine.

Q1. Which Article deals with the power and procedure to amend the Constitution?
A1. Article 368 (in Part XX). The amendment procedure is borrowed from South Africa.

Q2. What are the three modes of amending the Constitution?
A2. (i) By simple majority of Parliament (provisions outside Article 368), (ii) by special majority of Parliament, and (iii) by special majority plus ratification by half of the state legislatures.

Q3. What is a "special majority" under Article 368?
A3. A majority of the total membership of each House AND a majority of not less than two-thirds of the members present and voting.

Q4. Which type of amendment requires ratification by half the states?
A4. Amendments affecting federal provisions — e.g. election of the President, distribution of legislative powers, the Seventh Schedule, representation of states in Parliament, and Article 368 itself.

Q5. What did the Shankari Prasad (1951) and Sajjan Singh (1965) cases hold?
A5. That Parliament CAN amend any part of the Constitution, including Fundamental Rights, under Article 368.

Q6. What did the Golaknath case (1967) rule?
A6. That Parliament CANNOT amend Fundamental Rights, as an amendment under Article 368 is "law" within Article 13.

Q7. How did the 24th Amendment (1971) respond to Golaknath?
A7. It affirmed that Parliament can amend any part of the Constitution including Fundamental Rights, and made the President's assent to amendment bills obligatory.

Q8. What landmark doctrine did the Kesavananda Bharati case (1973) establish?
A8. The "basic structure" doctrine — Parliament can amend any part of the Constitution but cannot alter its basic structure.

Q9. What did the 42nd Amendment (1976) try to do to amending power, and what happened?
A9. It declared that there is no limit on Parliament's amending power and that amendments cannot be questioned in court; this was struck down in Minerva Mills (1980).

Q10. What did the Minerva Mills case (1980) contribute to the doctrine?
A10. It held that limited amending power and judicial review are themselves part of the basic structure, and struck down clauses (4) and (5) of Article 368.

Q11. Name four elements the courts have held to be part of the basic structure.
A11. Supremacy of the Constitution, rule of law, judicial review, secularism, federalism, separation of powers, free and fair elections, and independence of the judiciary (any four).

Q12. In which case was the basic structure doctrine used to strike down the National Judicial Appointments Commission?
A12. The Fourth Judges Case (2015), striking down the 99th Amendment and the NJAC Act as violating judicial independence.