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The Constitution is a dynamic document that must evolve with the changing needs and circumstances of society. At the same time, its fundamental identity and core constitutional values cannot be allowed to change beyond recognition. The Constitution, therefore, provides a mechanism for amendment under Article 368, balancing the need for constitutional flexibility with stability. While Parliament has wide powers to amend the Constitution, the Supreme Court has held that this power is subject to the Basic Structure Doctrine, which prevents the destruction or alteration of the Constitution’s essential features.

Amendment of the Constitution

No Constitution can remain completely static in a changing society. The Constitution of India therefore provides a mechanism through which its provisions can be modified to respond to changing social, political and economic conditions, while at the same time safeguarding its fundamental constitutional framework.

The Indian Constitution is often described as a blend of rigidity and flexibility. It is more rigid than the British Constitution, where Parliament can ordinarily alter constitutional arrangements through the normal legislative process, but less rigid than the American Constitution, which prescribes a more difficult amendment procedure.

The principal provision dealing with constitutional amendment is Article 368 in Part XX. It empowers Parliament, in exercise of its constituent power, to amend the Constitution by way of addition, variation or repeal of its provisions, subject to the procedure prescribed by the Constitution. However, this power is not unlimited. The Supreme Court in Kesavananda Bharati v. State of Kerala (1973) held that Parliament cannot use its amending power to destroy or alter the basic structure of the Constitution.

Thus, the Indian Constitution seeks to maintain a balance between constitutional stability and the need for change.

Procedure for Constitutional Amendment

The procedure under Article 368 may be understood as follows:

  1. Introduction of the Bill - A Constitutional Amendment Bill can be introduced in either House of Parliament. It cannot be introduced in a State Legislature.
  2. Who can introduce it - The Bill may be introduced either by a Minister or a private member. Unlike an ordinary Bill involving certain financial matters, it does not require the prior permission of the President for its introduction.
  3. No role for State Legislatures in initiating the amendment - State Legislatures cannot initiate a constitutional amendment. Their role arises only in those cases where the Constitution specifically requires ratification by at least half of the States.
  4. Special majority in Parliament - In cases falling under Article 368, the Bill must ordinarily be passed by a special majority in each House, namely:
  • a majority of the total membership of that House; and
  • a majority of not less than two-thirds of the members present and voting.

The two requirements operate cumulatively.

  1. Each House must pass the Bill separately - Both Houses must independently pass the Bill with the prescribed majority. There is no provision for a joint sitting to resolve a deadlock over a Constitutional Amendment Bill.
  2. Ratification by States, where required - Where the amendment affects specified federal provisions, it must additionally be ratified by the Legislatures of at least half of the States. Such ratification is by a simple majority of members present and voting. There is no constitutional requirement that every State must ratify the amendment.
  3. President’s assent - After the Bill has been duly passed by Parliament and, where necessary, ratified by the States, it is presented to the President. The President shall give assent to a Constitutional Amendment Bill. Thus, the President does not have the power to withhold assent or return the Bill for reconsideration. This mandatory wording was incorporated through the 24th Constitutional Amendment Act, 1971.
  4. Amendment takes effect - After the President's assent, the Bill becomes a Constitutional Amendment Act, and the Constitution stands amended in accordance with its provisions.

Types of Constitutional Amendments

The Constitution provides for three broad methods of amendment:

  1. By simple majority of Parliament
  2. By special majority of Parliament
  3. By special majority of Parliament and ratification by at least half of the State Legislatures

The first category technically falls outside Article 368, as the provisions concerned can be altered through the ordinary legislative procedure. The other two categories involve the constituent power under Article 368.

Amendment by Simple Majority of Parliament

Certain provisions of the Constitution can be altered by a simple majority of Parliament, that is, a majority of members present and voting in each House. Such amendments are not regarded as amendments of the Constitution for the purposes of Article 368.

Important examples include provisions relating to:

  1. Admission or establishment of new States — Articles 2 and 3.
  2. Formation of new States and alteration of their areas, boundaries or names — Articles 3 and 4.
  3. Creation or abolition of Legislative Councils in States — Article 169.
  4. Citizenship — acquisition and termination of citizenship under the provisions referred to in Article 11.
  5. Administration of Scheduled Areas and Scheduled Tribes under specified provisions of the Fifth Schedule.
  6. Administration of tribal areas under specified provisions of the Sixth Schedule.
  7. Quorum and certain procedural matters of Parliament.
  8. Salaries, allowances and certain privileges of members of Parliament.
  9. Rules of procedure and conduct of business in Parliament.
  10. Delimitation and related electoral matters where the Constitution specifically permits alteration by ordinary legislation.
  11. Creation of certain Union Territory legislatures and related matters, where the Constitution expressly provides for parliamentary legislation.

The important point is that these changes can be made through the ordinary legislative process and do not require the special procedure under Article 368.

Amendment by Special Majority of Parliament

The majority of constitutional provisions can be amended through the special majority prescribed under Article 368.

The Bill must be passed by each House by:

  • a majority of the total membership of the House; and
  • a majority of at least two-thirds of the members present and voting.

This method applies to provisions including:

  • Fundamental Rights
  • Directive Principles of State Policy
  • Most other provisions not falling under the simple-majority category or the provisions requiring State ratification.

Thus, Parliament enjoys considerable flexibility in modifying the constitutional text, but this power remains subject to the basic-structure limitation.

Amendment by Special Majority of Parliament and Ratification by States

Certain provisions having a direct bearing on the federal structure cannot be amended by Parliament alone. Such amendments require Special majority of Parliament + Ratification by at least half of the State Legislatures.

The provisions requiring this additional ratification broadly relate to:

  1. Election of the President and the manner of his election.
  2. Extent of the executive power of the Union and the States.
  3. Supreme Court and High Courts.
  4. Distribution of legislative powers between the Union and the States.
  5. Any of the Lists in the Seventh Schedule.
  6. Representation of States in Parliament.
  7. Article 368 itself, dealing with the power and procedure for constitutional amendment.

The requirement of ratification by half of the States reflects the federal principle that changes affecting the constitutional position of the States should not be made solely by the Union Parliament.

Note: Ratification is required from at least half of the State Legislatures, not from all States. Once the required number of States has ratified the amendment, the constitutional requirement is satisfied; the Constitution does not prescribe a specific time limit within which the remaining States must act.

Amendment of Fundamental Rights and the Basic Structure Doctrine

The question whether Parliament can amend Fundamental Rights has been one of the most important constitutional controversies in India. The judicial position evolved through a series of landmark cases.

  1. Shankari Prasad v. Union of India (1951) - The constitutional validity of the First Constitutional Amendment Act, 1951 was challenged, particularly on the ground that it curtailed Fundamental Rights. The Supreme Court upheld Parliament's power to amend Fundamental Rights under Article 368. It distinguished a constitutional amendment from an ordinary law and held that the word “law” in Article 13 did not include a constitutional amendment made in exercise of the constituent power. Thus, at this stage, Parliament was considered competent to amend or abridge Fundamental Rights.
  2. Sajjan Singh v. State of Rajasthan (1965) - The Supreme Court reaffirmed the position adopted in Shankari Prasad and upheld Parliament's power to amend Fundamental Rights. However, some judges expressed concerns about whether there should be constitutional limitations on the amending power. These concerns later became important in the development of the basic-structure doctrine.
  3. Golak Nath v. State of Punjab (1967) - The Supreme Court took a different position and held that Fundamental Rights could not be amended by Parliament. The Court treated a Constitutional Amendment as “law” for the purposes of Article 13 and held that Fundamental Rights had a position of such importance that Parliament could not abridge or take them away through the amending process. Thus, Golak Nath temporarily placed Fundamental Rights beyond the amending power of Parliament.
  4. 24th Constitutional Amendment Act, 1971 - Parliament responded to Golak Nath through the 24th Amendment Act, 1971. The Amendment expressly affirmed Parliament’s power to amend any provision of the Constitution. It amended Article 13 to clarify that it would not apply to Constitutional Amendments made under Article 368. It also made the President’s assent to a Constitutional Amendment Bill mandatory.  The validity of the 24th Amendment subsequently came before the Supreme Court.
  5. Kesavananda Bharati v. State of Kerala (1973) - This is the landmark decision that settled the basic issue. The Supreme Court upheld Parliament’s power to amend any part of the Constitution, including Fundamental Rights, but imposed an important limitation, i.e., Parliament cannot alter or destroy the basic structure or essential features of the Constitution.  Thus, the judgment established the Basic Structure Doctrine. The Court did not provide an exhaustive list of basic features. Instead, the doctrine has been developed progressively through subsequent judgments.
  6. Indira Nehru Gandhi v. Raj Narain (1975) - The Supreme Court applied the basic-structure doctrine for the first time after Kesavananda Bharati. The Court invalidated a provision inserted by the 39th Constitutional Amendment Act, 1975, which sought to place the election of certain high constitutional functionaries, including the Prime Minister, beyond ordinary judicial scrutiny. The judgment recognised principles such as democracy, rule of law, judicial review and free and fair elections as part of the basic constitutional framework.
  7. 42nd Constitutional Amendment Act, 1976 - The 42nd Amendment attempted to give Parliament's amending power an unlimited character. It amended Article 368 to provide, among other things, that no Constitutional Amendment could be questioned in any court on any ground. This was an attempt to negate the limitations imposed by the basic-structure doctrine.
  8. Minerva Mills Ltd. v. Union of India (1980) - The Supreme Court struck down the provisions of the 42nd Amendment that sought to make Parliament's amending power unlimited. The Court held that limited amending power itself is a basic feature of the Constitution. Parliament, being the holder of a limited constitutional power, cannot use that power to transform it into an unlimited one. The Court also emphasised the importance of maintaining a balance between Fundamental Rights and Directive Principles. Giving absolute primacy to one over the other would damage the constitutional equilibrium. Thus, Parliament can amend the Constitution, but it cannot amend the Constitution so as to destroy the limitations on its own amending power.
  9. Waman Rao v. Union of India (1981) - The Supreme Court further clarified the application of the basic-structure doctrine to laws placed in the Ninth Schedule. It held that amendments placing laws in the Ninth Schedule after 24 April 1973, the date of the Kesavananda Bharati judgment, would be open to challenge if they damaged or destroyed the basic structure.
  10. I.R. Coelho v. State of Tamil Nadu (2007) - The Supreme Court reaffirmed and further developed the principle laid down in Waman Rao. It held that laws inserted into the Ninth Schedule after 24 April 1973 are not completely immune from judicial review. If such a law infringes rights that form part of the basic structure, it can be examined by the courts. Thus, Article 31B and the Ninth Schedule cannot be used as a device to destroy the basic structure of the Constitution.

Basic Structure Doctrine

The present constitutional position is that Parliament can amend any provision of the Constitution, including Fundamental Rights, but cannot alter or destroy its basic structure.

Importantly, the Supreme Court has not given a final or exhaustive list of basic features. The doctrine has evolved through different judgments, and additional features have been recognised depending upon the constitutional context.

The following have been recognised as elements of the basic structure in various judgments:

  1. Supremacy of the Constitution
  2. Republican and democratic form of government
  3. Secular character of the Constitution
  4. Federal character of the Constitution
  5. Separation of powers
  6. Rule of law
  7. Judicial review
  8. Independence of the judiciary
  9. Parliamentary system of government
  10. Free and fair elections
  11. Sovereignty, unity and integrity of India
  12. Principle of equality
  13. Dignity and freedom of the individual
  14. Harmony and balance between Fundamental Rights and Directive Principles
  15. Limited power of Parliament to amend the Constitution
  16. Effective access to justice
  17. Powers of the Supreme Court under Articles 32, 136, 141 and 142
  18. Powers of the High Courts under Articles 226 and 227
  19. The essence of certain Fundamental Rights
  20. Constitutional identity and essential features of the democratic system

The list should not be treated as exhaustive. The basic-structure doctrine is deliberately flexible because the Constitution does not itself enumerate what constitutes its “basic structure”; the Supreme Court determines this through constitutional adjudication.

Conclusion

The Indian approach to constitutional amendment seeks to strike a balance between constitutional adaptability and constitutional continuity.

Parliament has a wide constituent power to amend the Constitution, and the Constitution is therefore neither completely rigid nor completely flexible. However, the power of amendment is not a power to destroy. The basic-structure doctrine ensures that while the constitutional text may evolve with changing circumstances, its fundamental identity and essential principles remain protected.