Amendment of the Constitution (Article 368) and Landmark Amendments

Why a constitution must be amendable

A constitution must be stable enough to command respect and flexible enough to adapt to change. The framers chose a middle path: the Indian Constitution is neither as rigid as the American (which needs ratification by three-fourths of the states) nor as flexible as the British (where Parliament can change the constitution by ordinary law). Part XX contains a single Article – Article 368 – which gives Parliament the power to amend "by way of addition, variation or repeal" any provision of the Constitution, in accordance with the procedure laid down there. The procedure is borrowed from South Africa.

Procedure under Article 368

1. A bill can be introduced only in Parliament – in either House – not in state legislatures.
2. It can be introduced by a minister or a private member, and does not require the President's prior permission.
3. It must be passed in each House by a special majority: a majority of the total membership of the House and two-thirds of the members present and voting.
4. Each House must pass it separately; there is no provision for a joint sitting in case of disagreement.
5. If the bill seeks to amend federal provisions, it must also be ratified by the legislatures of half the states by a simple majority. There is no time limit for ratification.
6. The President must give assent – the 24th Amendment (1971) made assent obligatory; the President can neither withhold assent nor return the bill.

Three types of amendment

(a) By simple majority of Parliament – these are outside Article 368 (the Constitution says they are not "amendments" for Article 368 purposes). Examples: admission or establishment of new states; formation of new states and alteration of areas, boundaries or names (Articles 2–4); creation or abolition of legislative councils (Article 169); the Second Schedule (salaries and allowances of the President, Governors, Speakers and judges); quorum in Parliament; salaries and allowances of MPs; rules of procedure in Parliament; privileges of Parliament; use of English in Parliament; number of Supreme Court judges; conferment of more jurisdiction on the Supreme Court; citizenship; elections to Parliament and state legislatures; delimitation of constituencies; Union territories; the Fifth and Sixth Schedules.

(b) By special majority of Parliament – most of the Constitution, including Fundamental Rights, Directive Principles and all provisions not covered by (a) or (c).

(c) By special majority plus ratification by half the states – provisions relating to the federal structure:

• election of the President and its manner (Articles 54, 55);
• extent of the executive power of the Union and the states;
• the Supreme Court and High Courts;
• distribution of legislative powers between the Centre and states (the Seventh Schedule lists);
• the GST Council (Article 279A);
• representation of states in Parliament (Fourth Schedule);
• the power of Parliament to amend the Constitution and its procedure (Article 368 itself).

The 101st Amendment (GST) was ratified by more than half the states because it changed taxing powers and created the GST Council.

Criticism of the procedure

No special body (like a constitutional convention) is provided; the power is with Parliament and, in limited cases, the states. States cannot initiate amendments (except passing a resolution to create or abolish councils). Half the Constitution can be changed by Parliament alone. There is no time limit for state ratification, nor clarity on whether states can ratify with modifications. Deadlocks cannot be resolved by a joint sitting. In practice, though, the procedure has proved workable – flexible enough for over a hundred amendments, but with the basic structure doctrine as a judicial check.

Landmark amendments

Note on the 97th Amendment: in Union of India v Rajendra N. Shah (2021) the Supreme Court struck down Part IXB to the extent it dealt with state co-operative societies, because it was not ratified by half the states though co-operatives are a State List subject; it remains valid for multi-state co-operative societies.

Practice: Mains question

*"The Indian Constitution is a living document." Illustrate with the help of key amendments and judicial interpretation. (150 words)* Use examples – 73rd/74th (decentralisation), 86th (education), 101st (GST), 103rd (EWS) and 106th (women's reservation) – and the judicial role in Kesavananda, showing adaptation with stability.

Common traps

• An amendment bill can be introduced by a private member and needs no prior permission of the President.
• There is no joint sitting for amendment bills.
• State ratification by half the states, by simple majority, only for federal provisions.
• Changes to the Fifth and Sixth Schedules and Articles 2–4 need only a simple majority of Parliament.
• The 24th Amendment made the President's assent obligatory.

Amendment versus constitutional change by other means

Not every change in constitutional practice comes through Article 368. The Constitution also evolves through judicial interpretation (for example, Article 21 grew from a narrow guarantee into a source of the rights to privacy, livelihood, a clean environment and speedy trial), through conventions (such as the President inviting the leader of the largest party or coalition to form the government) and through ordinary legislation that fills in constitutional frameworks (the Representation of the People Acts, the Citizenship Act 1955, the States Reorganisation Act 1956). For examinations, remember that only formal amendments under Article 368 change the text; the other routes change its meaning or operation.

Analysis: frequency of amendments

India has amended its Constitution more than a hundred times, while the United States has added only 27 amendments in more than two centuries. Critics read this as a sign of executive dominance. Others point out that the Indian Constitution is far more detailed: it contains matters, such as service conditions, reservation and the structure of local bodies, that other countries leave to ordinary law. Detailed provisions need more frequent updating. Many amendments are technical, such as extending reservation deadlines or adding languages to the Eighth Schedule.

Only a small number have altered the constitutional balance (the 42nd being the clearest example), and the courts and the 44th Amendment corrected many of those changes.