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Article 368 of the Indian Constitution – Constitutional Amendments

 1. Overview:

  • Article 368 of the Indian Constitution outlines the process for amending the Constitution.

  • It provides the Parliament with the power to amend the Constitution, subject to certain limitations to protect the basic structure of the Constitution.

2. Types of Constitutional Amendments:

There are three types of constitutional amendments based on the nature of the changes:

  1. Type 1: Amendment by a Simple Majority

    • Requires a simple majority of the Parliament (i.e., more than half of the members present and voting).

    • Example: Changes related to the regulation of parliamentary procedures (e.g., changing the name of a state).

  2. Type 2: Amendment by a Special Majority of Parliament

    • Requires:

      • A special majority in both Houses (i.e., at least two-thirds of the members present and voting).

      • The majority must also be more than half of the total membership of both Houses.

    • Example: Amendments to the fundamental rights or the distribution of powers between the Centre and the States.

  3. Type 3: Amendment with Ratification by Half of the State Legislatures

    • Requires:

      • A special majority in Parliament (as in Type 2).

      • Ratification by at least half of the state legislatures (i.e., at least 50% of the states must approve the amendment).

    • Example: Amendments related to the powers of the President, the representation of states in Parliament, or changes to the Federal structure.

3. Procedure for Constitutional Amendment:

  1. Initiation:

    • The amendment bill can be introduced in either the Lok Sabha or the Rajya Sabha.

    • The President's recommendation is not required for constitutional amendments.

  2. Parliamentary Approval:

    • The bill must be passed by:

      • A special majority in both Houses (for Types 2 and 3).

      • For Type 3 amendments, it also requires ratification by at least half of the state legislatures.

  3. Ratification (if required):

    • After being passed by Parliament, the amendment bill is sent to the state legislatures for ratification.

    • Once ratified, it is sent back to the President for assent.

  4. Presidential Assent:

    • The President must give assent for the amendment to become part of the Constitution.

    • The President cannot withhold assent to a constitutional amendment.

4. Key Features of Article 368:

  • Parliament's Power:

    • Parliament has the power to amend the Constitution, but not to alter the basic structure of the Constitution.

  • Basic Structure Doctrine:

    • Established in the Kesavananda Bharati case (1973), this doctrine limits Parliament’s power to amend certain fundamental features of the Constitution, like democracy, secularism, federalism, and the rule of law.

  • No Judicial Review (for Basic Structure):

    • The Supreme Court cannot review the validity of amendments that alter the basic structure.

5. Landmark Case Laws on Article 368:

a) Kesavananda Bharati v. State of Kerala (1973) – The Basic Structure Case

  • Facts:

    • The case challenged the validity of the Twenty-fourth Amendment to the Constitution, which gave Parliament the power to amend any part of the Constitution, including Fundamental Rights.

  • Issue:

    • Whether Parliament could amend the Constitution in a way that violated Fundamental Rights.

  • Judgment:

    • The Supreme Court ruled that Parliament cannot alter the basic structure of the Constitution, even if it has the power to amend it under Article 368.

    • Established the Basic Structure Doctrine: Certain features of the Constitution are inalterable.

  • Significance:

    • This judgment curbed the power of Parliament and ensured the protection of democratic principles.

b) Minerva Mills Ltd. v. Union of India (1980)

  • Facts:

    • The case dealt with the Forty-second Amendment, which restricted the power of judicial review and gave Parliament unchecked powers to amend the Constitution.

  • Issue:

    • Whether the amendment violated the basic structure of the Constitution.

  • Judgment:

    • The Supreme Court struck down parts of the amendment, reinforcing the basic structure doctrine.

  • Significance:

    • Reaffirmed the judicial review power to protect the Constitution’s basic features.

c) Golaknath v. State of Punjab (1967)

  • Facts:

    • The case challenged the Seventeenth Amendment, which curtailed the Fundamental Rights to property.

  • Issue:

    • Whether Parliament could amend Fundamental Rights under Article 368.

  • Judgment:

    • The Court ruled that Parliament could not alter Fundamental Rights through constitutional amendments.

  • Significance:

    • The judgment was later overruled in Kesavananda Bharati, but it was pivotal in shaping the debate over constitutional amendments.

6. Important Constitutional Amendments Under Article 368:

AmendmentYearKey Changes
First Amendment1951Curbed Fundamental Rights for public order.
Twenty-fourth Amendment1971Reaffirmed Parliament’s power to amend the Constitution.
Forty-second Amendment1976Added the word "secular" and "socialist"; curtailed judicial review.
Forty-fourth Amendment1978Restored the power of judicial review.
Eighty-sixth Amendment2002Made education a fundamental right.

7. Key Takeaways:

  • Article 368 gives Parliament the power to amend the Constitution, but with limitations.

  • The basic structure doctrine limits Parliament’s power to change essential features of the Constitution.

  • Judicial review plays a crucial role in ensuring that constitutional amendments do not violate fundamental principles.

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