Amendment Procedure and the Basic Structure
Article 368 for UPSC — simple, special and ratified majorities, the amendment procedure, and the basic structure doctrine from Shankari Prasad to NJAC.
SyllabusGS II · Indian Constitution — historical underpinnings, evolution, features, amendments, significant provisions and basic structure
Prerequisites: Preamble and Salient Features · Fundamental Rights — overview
The Hook: Seven Against Six
On 24 April 1973, the largest bench in the Supreme Court’s history — thirteen judges — decided Kesavananda Bharati v. State of Kerala. By 7:6, the Court held that Parliament can amend any part of the Constitution, including Fundamental Rights, but it cannot alter the Constitution’s “basic structure”.
Five decades on, the doctrine still decides cases. In October 2015 it was used to strike down the 99th Amendment, which had created the National Judicial Appointments Commission. In November 2022 it was the test applied — and passed — by the 103rd Amendment on EWS reservation.
The question this topic answers: if a two-thirds majority of Parliament can change the Constitution, who protects the Constitution from Parliament — and who protects Parliament from the Court?
The Core Concept
Article 368 in Part XX gives Parliament the power to amend “by way of addition, variation or repeal any provision of this Constitution”. The procedure is modelled on the South African Constitution. India’s Constitution is neither as rigid as the American nor as flexible as the British — it blends both.
Three ways to amend
| Method | Majority required | Examples |
|---|---|---|
| Simple majority of each House (outside Article 368 — not deemed an amendment for its purposes) | Majority of members present and voting | Admission or creation of new States (Art 2); formation of States and alteration of areas, boundaries or names (Arts 3–4); creation or abolition of Legislative Councils (Art 169); quorum in Parliament; salaries and allowances of MPs; Second Schedule; citizenship; delimitation of constituencies; Fifth and Sixth Schedules |
| Special majority of each House (Article 368(2)) | Majority of the total membership of each House and two-thirds of members present and voting | Fundamental Rights; Directive Principles; all provisions not covered by the first or third method |
| Special majority + ratification by half the States (proviso to Article 368(2)) | Special majority in Parliament, then resolutions by the legislatures of not less than one-half of the States, by simple majority | See the list below |
Provisions that need State ratification (the federal provisions):
- Election of the President and its manner (Articles 54 and 55)
- Extent of the executive power of the Union and the States (Articles 73 and 162)
- High Courts for Union Territories (Article 241)
- Goods and Services Tax Council (Article 279A, added by the 101st Amendment)
- The Supreme Court and the High Courts
- Distribution of legislative powers between the Union and the States
- Any of the Lists in the Seventh Schedule
- Representation of States in Parliament
- The power of Parliament to amend the Constitution — Article 368 itself
The procedure under Article 368
graph TD
A[Bill introduced in EITHER House of Parliament - by a minister or a private member] --> B[No prior permission of the President needed]
B --> C[Passed by special majority in EACH House separately]
C --> D{Does it touch federal provisions?}
D -->|Yes| E[Ratified by at least half the State legislatures - simple majority]
D -->|No| F[Presented to the President]
E --> F
F --> G[President MUST give assent - 24th Amendment, 1971]
G --> H[Constitution stands amended]Key features:
- A Bill can be introduced only in Parliament, never in a State legislature.
- There is no joint sitting if the two Houses disagree — the Bill fails.
- There is no time limit for State legislatures to ratify.
- The President can neither withhold assent nor return the Bill for reconsideration.
The basic structure doctrine — how it evolved
| Year | Case or amendment | What happened |
|---|---|---|
| 1951 | Shankari Prasad v. Union of India | Upheld the 1st Amendment; a constitutional amendment is not “law” under Article 13, so Fundamental Rights can be amended |
| 1965 | Sajjan Singh v. State of Rajasthan | Same view reaffirmed |
| 1967 | Golaknath v. State of Punjab (11 judges, 6:5) | Reversed: an amendment is “law”; Parliament cannot take away or abridge Fundamental Rights |
| 1971 | 24th Amendment | Declared that Parliament can amend any part including Fundamental Rights; inserted Articles 13(4) and 368(3); made Presidential assent compulsory |
| 1973 | Kesavananda Bharati (13 judges, 7:6) | Overruled Golaknath; upheld the 24th Amendment; but Parliament cannot alter the basic structure |
| 1975 | Indira Nehru Gandhi v. Raj Narain | Struck down clause (4) of Article 329A (39th Amendment), which had placed the election of the Prime Minister beyond judicial scrutiny; free and fair elections held to be basic |
| 1976 | 42nd Amendment | Inserted Articles 368(4) and 368(5): no amendment can be questioned in any court; no limit on Parliament’s amending power |
| 1980 | Minerva Mills v. Union of India | Struck down 368(4) and (5); limited amending power is itself a basic feature; so is judicial review and harmony between Parts III and IV |
| 1981 | Waman Rao v. Union of India | Amendments and Ninth Schedule additions made after 24 April 1973 (the Kesavananda date) are open to basic structure review |
| 1992 | Kihoto Hollohan v. Zachillhu | Struck down paragraph 7 of the Tenth Schedule for want of State ratification; upheld the rest of the anti-defection law |
| 1994 | S.R. Bommai v. Union of India | Secularism, federalism and democracy are basic features |
| 1997 | L. Chandra Kumar v. Union of India | Judicial review by High Courts (Arts 226, 227) and the Supreme Court (Art 32) is basic |
| 2007 | I.R. Coelho v. State of Tamil Nadu (9 judges) | Laws placed in the Ninth Schedule after 24 April 1973 can be tested against the basic structure, including the essence of Articles 14, 19 and 21 |
| 2015 | Supreme Court Advocates-on-Record Association v. Union of India (NJAC case, 4:1) | Struck down the 99th Amendment and the NJAC Act, 2014 — independence of the judiciary is basic |
What is part of the basic structure?
The Court has never given an exhaustive list; it identifies features case by case. Commonly cited elements:
| Category | Elements recognised by the courts |
|---|---|
| The Constitution itself | Supremacy of the Constitution; limited power of Parliament to amend |
| Form of the State | Sovereign, democratic, republican character; secularism; federalism; unity and integrity of the nation |
| Institutions | Parliamentary system; separation of powers; independence of the judiciary; judicial review; free and fair elections |
| Rights and values | Rule of law; principle of equality; freedom and dignity of the individual; harmony between Fundamental Rights and Directive Principles; welfare State |
| Court powers | Powers of the Supreme Court under Articles 32, 136, 141 and 142; effective access to justice |
Landmark amendments
| Amendment | Year | Key change |
|---|---|---|
| 1st | 1951 | Ninth Schedule; Article 15(4); new restrictions on Article 19 |
| 7th | 1956 | Reorganisation of States; abolished Part A/B/C/D classification |
| 24th | 1971 | Parliament’s power to amend Fundamental Rights affirmed |
| 42nd | 1976 | “Mini-Constitution” — Preamble words, Fundamental Duties, new DPSP, 368(4)–(5) |
| 44th | 1978 | Right to property moved to Article 300A; “armed rebellion” replaced “internal disturbance” in Article 352 |
| 52nd | 1985 | Tenth Schedule — anti-defection |
| 61st | 1988 | Voting age reduced from 21 to 18 |
| 73rd / 74th | 1992 | Panchayats (Part IX) and Municipalities (Part IXA) |
| 99th | 2014 | NJAC — struck down in 2015 |
| 101st | 2016 | Goods and Services Tax; Article 279A (GST Council) |
| 103rd | 2019 | 10% EWS reservation — Articles 15(6) and 16(6) |
| 106th | 2023 | One-third reservation for women in the Lok Sabha, State Assemblies and the Delhi Assembly |
Memory Anchors
The three majorities: “Simple for States’ maps, Special for Rights, Ratified for Relations” → simple majority for creating or altering States; special majority for Fundamental Rights and most provisions; ratification for Centre–State relations.
Ratification list — “PEACH-7-RAG”: President’s election (54, 55) · Executive power (73, 162) · Amendment power (368) · Courts — Supreme Court and High Courts (incl. 241) · House representation of States · 7th Schedule and distribution of legislative powers · GST Council (279A)
Case chain: “Shy Singers Get Keen Mentors” → Shankari · Sajjan · Golaknath · Kesavananda · Minerva
Key date: 24 April 1973 — the Kesavananda cut-off for Ninth Schedule review.
One-line Mains hook: the basic structure doctrine makes the Constitution supreme over every organ — including the Parliament that amends it.
For Prelims
- An amendment Bill can be introduced in either House of Parliament, by a minister or a private member, without the President’s prior recommendation.
- It cannot be introduced in a State legislature.
- No joint sitting for constitutional amendment Bills.
- The President must give assent (24th Amendment, 1971).
- State ratification: one-half of the States, by simple majority, with no time limit.
- Changes under Articles 2, 3 and 169 are not amendments for the purposes of Article 368.
- Kesavananda Bharati: 13 judges, 7:6, 24 April 1973.
For Mains
- Dimensions: parliamentary sovereignty vs constitutional supremacy; democratic legitimacy of unelected judges vs protection of minorities and institutions; uncertainty from an open-ended list; comparative experience (other courts have borrowed or debated the idea).
- Keywords: constituent power, implied limitations, constitutional identity, counter-majoritarian check, judicial review of amendments.
- Value-addition: Kesavananda (1973), Minerva Mills (1980), I.R. Coelho (2007), the NJAC case (2015) and Janhit Abhiyan (2022) as a recent application where the amendment survived.
Common Traps
In the News
- September 2023 — the 106th Amendment (Nari Shakti Vandan Adhiniyam) provided one-third reservation for women; it takes effect after a delimitation based on the first census held after its commencement.
- December 2024 — the Constitution (One Hundred and Twenty-ninth Amendment) Bill, 2024, for simultaneous elections, was introduced in the Lok Sabha and referred to a Joint Parliamentary Committee.
Practice
Prelims
Consider the following statements regarding the amendment of the Constitution under Article 368:
- A Bill to amend the Constitution can be introduced by a private member.
- A Bill to amend the Constitution can be introduced in a State Legislative Assembly if it relates to federal provisions.
- The President cannot withhold assent to a duly passed Constitution Amendment Bill.
Which of the statements given above is/are correct?
Solution
Statement 1 is correct — a minister or a private member can introduce it. Statement 2 is incorrect — such a Bill can be introduced only in either House of Parliament; States only ratify. Statement 3 is correct — since the 24th Amendment (1971), the President must give assent.
Answer: B
How many of the following require ratification by the legislatures of at least half of the States?
- Amendment of the Fundamental Rights
- Change in the manner of election of the President
- Change in any List of the Seventh Schedule
- Amendment of provisions relating to the Goods and Services Tax Council
Solution
The manner of election of the President (Articles 54–55), any List in the Seventh Schedule, and the GST Council (Article 279A) are federal provisions needing ratification. Fundamental Rights need only a special majority of Parliament. So three.
Answer: C
In which case did the Supreme Court hold that amendments to the Constitution, and laws added to the Ninth Schedule, after 24 April 1973 would be open to challenge on the ground of violating the basic structure?
Solution
Waman Rao (1981) fixed 24 April 1973 — the date of Kesavananda — as the cut-off. I.R. Coelho (2007) later confirmed and elaborated the position. Golaknath barred amendment of Fundamental Rights; Minerva Mills struck down 368(4)–(5); Bommai concerned Article 356.
Answer: A
Mains
“The basic structure doctrine is a judicial creation that has strengthened, rather than weakened, Indian democracy.” Critically analyse.
Solution
Introduction: Article 368 empowers Parliament to amend the Constitution. In Kesavananda Bharati (1973), the Supreme Court held that this power does not extend to altering the Constitution’s basic structure — a limit found nowhere in the text.
Body:
- How it strengthened democracy:
- Prevented the use of amendments to entrench power — Indira Gandhi v. Raj Narain (1975), Minerva Mills (1980).
- Protected judicial review and independence — L. Chandra Kumar (1997), NJAC case (2015).
- Preserved federalism and secularism — S.R. Bommai (1994).
- Kept the Ninth Schedule from becoming a blanket shield — I.R. Coelho (2007).
- Criticisms:
- Not in the text; an unelected body overriding a special majority.
- Open-ended list creates uncertainty.
- The NJAC judgment left judicial appointments to a collegium that is itself criticised for opacity.
- Balance: the doctrine has been used sparingly; most amendments, including the 103rd (Janhit Abhiyan, 2022), have survived.
Conclusion: The doctrine acts as a constitutional safety valve. Its legitimacy rests on judicial restraint — invoking it only to protect the Constitution’s core, not to second-guess policy.
Quick Revision
| Point | One-liner |
|---|---|
| Article / Part | Article 368, Part XX; procedure from South Africa |
| Special majority | Majority of total membership + two-thirds present and voting |
| Ratification | Half the States, simple majority, no time limit |
| Joint sitting | Not available |
| Presidential assent | Compulsory (24th, 1971) |
| Golaknath | 1967, 6:5 — FRs unamendable |
| Kesavananda | 1973, 7:6 — basic structure |
| Minerva Mills | 1980 — 368(4)–(5) struck down |
| Ninth Schedule cut-off | 24 April 1973 (Waman Rao, I.R. Coelho) |
| NJAC | 99th Amendment struck down, 2015 |
Key Takeaways
- Article 368 offers two methods (special majority; special majority plus State ratification); simple-majority changes lie outside it.
- Only Parliament can initiate an amendment; there is no joint sitting; the President must assent.
- Parliament can amend any provision, but not the basic structure — a doctrine built case by case since 1973.
Related Topics
- Amendment and the Basic Structure — quick revision
- Amendment and the Basic Structure — practice questions
- Directive Principles and Fundamental Duties
- Supreme Court and High Courts
- Law-Making in Parliament