INDIAN

CONSTITUTION
Amendment Procedure of the
Indian Constitution – Article
368
Lecture 12 of the Indian
polity Series

By amit Varidhi kilhor

Amendment
Procedure of the
Indian
Constitution –
Article 368
•Article 368 in Part XX of the
Constitution deals with the powers of
Parliament to amend the Constitution
and its procedure. It states that the
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 for the purpose. However, the
Parliament cannot amend those
provisions which form the ‘basic
structure’ of the Constitution. This was
ruled by the Supreme Court in the
Kesavananda Bharati case.
The original constitution provided for three categories of amendments. The
first category of amendments are those contemplated in articles 4 (2), 169
etc.

Article 4 provides that laws made by Parliament under article 2 (relating to admission
or establishment of new States) and article 3 (relating to formation of new States and
alte ration of areas, boundaries or names of existing States) effecting amendments in
the First Schedule or the Fourth Schedule and supplemental, incidental and
consequential matters, shall not be deemed to be amendments of the Constitution for
the purposes of article 368. For example, the States Reorganisation Act, 1956, which
brought about the reorganization of the States in India, was passed by Parliament as
an ordinary piece of legislation.
The second category includes amendments that can be effected by Parliament by a
prescribed ‘special majority’; and the third category of amendments includes those
that require, in addition to such "special majority", ratification by at least one-half of
the State Legislatures. The last two categories are governed by article 368.
Article 368 has been
amended by the 24th
and 42nd Amendments
in 1971 and 1976
respectively.
• The procedure for the amendment of the
Constitution as laid down in Article 368 is as
follows:
• An amendment of the Constitution can be
initiated only by the introduction of a bill
for the purpose in either House of
Parliament and not in the state legislatures.
• 2. The bill can be introduced either by a
minister or by a private member and does
not require 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 of the
House present and voting.
• 4. Each House must pass the bill separately. In case
of a disagreement between the two Houses, there is
no provision for holding a joint sitting of the two
Houses for the purpose of deliberation and passage
of the bill.
• 5. If the bill seeks to amend the federal provisions
of the Constitution, it must also be ratified by the
legislatures of half of the states by a simple
majority, that is, a majority of the members of the
House present and voting.
• 6. After duly passed by both the Houses of
Parliament and ratified by the state legislatures,
where necessary, the bill is presented to the
president for assent
•7. The president must give his
assent to the bill. He can
neither withhold his assent to
the bill nor return the bill for
reconsideration of the
Parliament.. After the
president’s assent, the bill
becomes an Act (i.e., a
constitutional amendment act)
and the Constitution stands
amended in accordance with
the terms of the Act.
 Article 368 provides for two types of amendments, that is, by a special
majority of Parliament and also through the ratification of half of the states
by a simple majority.
But, some other articles provide for the amendment of certain provisions of
the Constitution by a simple majority of Parliament, that is, a majority of
the members of each House present and voting (similar to the ordinary
legislative process).
Notably, these amendments are not deemed to be amendments of the
Constitution for the purposes of Article 368.
Therefore, the Constitution can be amended in three ways:
(a) Amendment by simple majority of the Parliament,
(b) Amendment by special majority of the Parliament, and
(c) Amendment by special majority of the Parliament and the ratification of
half of the state legislatures.
 By Simple Majority of Parliament A number of provisions in the Constitution can be amended by
a simple majority of the two Houses of Parliament outside the scope of Article 368. These
provisions include:
1. Admission or establishment of new states.
2. 2. Formation of new states and alteration of areas, boundaries or names of existing states.
3. 3. Abolition or creation of legislative councils in states.
4. 4. Second Schedule–emoluments, allowances, privileges and so on of the president, the
governors, the Speakers, judges, etc.
6. Salaries and allowances of the members of Parliament.
7. Rules of procedure in Parliament.
8. Privileges of the Parliament, its members and its committees.
9. Use of English language in Parliament.
11. Conferment of more jurisdiction on the Supreme Court.
12. Use of official language
17. Fifth Schedule–administration of scheduled areas and scheduled tribes.
18. Sixth Schedule–administration of tribal areas.
 By Special Majority of Parliament The majority of the provisions in the
Constitution need to be amended by a special majority of the Parliament, that
is, a majority of the total membership of each House and a majority of two-
thirds of the members of each House present and voting. The expression
‘total membership’ means the total number of members comprising the
House irrespective of fact whether there are vacancies or absentees. ‘Strictly
speaking, the special majority is required only for voting at the third reading
stage of the bill but by way of abundant caution the requirement for special
majority has been provided for in the rules of the Houses in respect of all the
effective stages of the bill’ .
The provisions which can be amended by this way includes:
(i) Fundamental Rights;
(ii) (ii) Directive Principles of State Policy; and
(iii) (iii) All other provisions which are not covered by the first and third
categories.
•By Special Majority of Parliament and
Consent of States Those provisions of the
Constitution which are related to the
federal structure of the polity can be
amended by a special majority of the
Parliament and also with the consent of
half of the state legislatures by a simple
majority. If one or some or all the
remaining states take no action on the bill,
it does not matter; the moment half of the
states give their consent, the formality is
completed. There is no time limit within
which the states should give their consent
to the bill.
 The following provisions can be amended in this way:
1. Election of the President and its manner.
2. 2. Extent of the executive power of the Union and the
states.
3. 3. Supreme Court and high courts.
4. 4. Distribution of legislative powers between the Union
and the states.
5. 5. Goods and Services Tax Council3a .
6. 6. Any of the lists in the Seventh Schedule.
7. 7. Representation of states in Parliament. 8. Power of
Parliament to amend the Constitution and its procedure
(Article 368 itself)
• The Supreme Court first struck down a
constitutional amendment in 1967,
ruling in the case of I.C. Golak Nath
and Ors. vs. State of Punjab and Anr.
An amendment was struck down on the
basis that it violated Article 13: "The
State shall not make any law which
takes away or abridges the rights
conferred by [the charter of
Fundamental Rights]". The term "law"
in this article was interpreted as
including a constitutional amendment.
Parliament responded by enacting the
twenty-fourth Amendment of the
Constitution of India which declared
that "nothing in Article 13 shall apply
to any amendment of this Constitution".
• The current limitation on amendments
comes from Kesavananda Bharati vs. The
State of Kerala, where the Supreme Court
ruled that amendments of the constitution
must respect the "basic structure" of the
constitution, and certain fundamental
features of the constitution cannot be
altered by amendment. Parliament
attempted to remove this limitation by
enacting the Forty-second Amendment,
which declared, among other provisions,
that "there shall be no limitation whatever
on the constituent power of Parliament to
amend ...this Constitution". However, this
change was itself later declared invalid by
the Supreme Court in Minerva Mills v.
Union of India.