Article 368 is headed "Power of Parliament to amend the Constitution and procedure therefor". Its scheme is one of partial rigidity: some provisions may be altered by an ordinary law, most require a special majority of Parliament, and a small entrenched category requires in addition the concurrence of the States. The Indian Constitution is therefore neither as flexible as the British nor as rigid as the American, which is what commentators mean when they call it a judicious blend of flexibility and rigidity.
Legal Framework
| Provision | Subject | Key Rule |
|---|---|---|
| Art.368(1) | The power | 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 in this article |
| Art.368(2) | Procedure | A Bill may be introduced in either House; it must be passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members present and voting; it is then presented to the President, who shall give his assent |
| Proviso to Art.368(2) | Ratification | Where the amendment makes a change in specified provisions, it must also be ratified by the Legislatures of not less than one half of the States before the Bill is presented for assent |
| Art.368(3) | Art.13 excluded | Nothing in Art.13 applies to any amendment made under this article |
| Art.368(4) and (5) | Purported ouster | Inserted by the 42nd Amendment, 1976, and struck down in Minerva Mills (1980) |
The words "constituent power" in Art.368(1), the mandatory character of the President's assent, and the whole of Art.368(3) were inserted by the 24th Amendment, 1971, to overcome Golak Nath.
The Entrenched Provisions Requiring Ratification
| Clause of the proviso | Subject matter |
|---|---|
| (a) | Art.54 and Art.55, the election of the President |
| (b) | Art.73, Art.162 and Art.241, the extent of the executive power of the Union and of the States |
| (c) | Chapter IV of Part V (the Supreme Court), Chapter V of Part VI (the High Courts), and Chapter I of Part XI (legislative relations between the Union and the States) |
| (d) | Any of the Lists in the Seventh Schedule |
| (e) | The representation of States in Parliament |
| (f) | The provisions of Art.368 itself |
Two points on ratification. It requires the Legislatures of not less than one half of the States, not two thirds, and there is no time limit within which the resolutions must be passed. A State that has ratified cannot later withdraw its ratification. Failure to obtain ratification where the proviso applies is fatal, as Para 7 of the Tenth Schedule discovered in Kihoto Hollohan.
The Three Methods of Constitutional Change
| Method | Majority required | Examples |
|---|---|---|
| Outside Art.368, by ordinary law | Simple majority of each House | Formation of new States and alteration of boundaries (Art.4 read with Art.3); creation or abolition of Legislative Councils (Art.169); administration of Scheduled and Tribal Areas; citizenship; salaries and allowances of Judges; quorum; use of official languages |
| Art.368(2) main part | Special majority of each House | Fundamental rights, Directive Principles, and most other provisions |
| Art.368(2) proviso | Special majority plus ratification by half the States | The entrenched provisions listed above |
Why the first category is not an "amendment". Articles 4(2) and 169(3) expressly declare that a law made under them shall not be deemed to be an amendment of the Constitution for the purposes of Art.368, even though it alters the text of the Constitution and its Schedules. The consequence is that a State can be reorganised, or its second chamber abolished, by an ordinary majority.
The Course of the Litigation
Facts: The Constitution (First Amendment) Act, 1951 inserted Arts.31A and 31B and the Ninth Schedule, protecting agrarian reform legislation from challenge on the ground of inconsistency with fundamental rights. It was contended that Art.13(2), which forbids the State from making any law taking away or abridging the rights conferred by Part III, invalidated the amendment.
Issue: Whether a constitutional amendment is a "law" within the meaning of Art.13(2), so that it cannot abridge a fundamental right.
Held: The amendment was upheld. The word "law" in Art.13 refers to ordinary legislative law made in exercise of legislative power, and not to a constitutional amendment made in exercise of constituent power. The two are different in kind, and Art.368 contains no limitation on the subject matter of amendment. Fundamental rights were therefore amenable to amendment.
Relevance: The starting point, and the origin of the distinction between constituent and legislative power that the 24th Amendment later wrote into the text.
Facts: The Constitution (Seventeenth Amendment) Act, 1964 added a large number of State land reform statutes to the Ninth Schedule. It was argued that because the amendment affected the powers of the High Courts under Art.226, the proviso to Art.368 applied and ratification by the States was necessary, and that Shankari Prasad ought to be reconsidered.
Issue: Whether Shankari Prasad was correctly decided, and whether an amendment abridging fundamental rights indirectly affects Art.226 so as to require ratification.
Held: By majority the amendment was upheld and Shankari Prasad was affirmed. The effect on Art.226 was held to be incidental and not a "change in" that Chapter within the proviso, so ratification was unnecessary. Significantly, Hidayatullah J and Mudholkar J, though concurring in the result, expressed serious doubts as to whether fundamental rights were intended to be "the plaything of a special majority", and Mudholkar J raised the possibility that the Constitution has basic features which cannot be altered.
Relevance: Important chiefly for the doubts expressed, which are the recognisable ancestor of the basic structure doctrine. Also useful for the point that only a direct change in an entrenched provision attracts the proviso.
Facts: The validity of the First, Fourth and Seventeenth Amendments was again challenged before a Bench of eleven Judges.
Issue: Whether Parliament may amend the Constitution so as to take away or abridge fundamental rights.
Held: By a majority of six to five, Shankari Prasad and Sajjan Singh were overruled. The majority held that an amendment is "law" within Art.13, that Art.368 lays down only the procedure for amendment and confers no substantive power, the power being found in the residuary entry, and that fundamental rights occupy a transcendental position so that Parliament cannot abridge them. Recognising the chaos that would follow from invalidating past amendments and the transactions under them, the Court applied the doctrine of prospective overruling, so that the amendments already made were left undisturbed and the ruling operated only for the future.
Relevance: The high point of the rights based view. Note the three elements: amendment is law, Art.368 is procedural only, and prospective overruling. All three were rejected in Kesavananda, but the case remains essential to the narrative and is the reason the 24th Amendment was enacted.
The 24th Amendment, 1971 was Parliament's direct answer to Golak Nath. It inserted the words "in exercise of its constituent power" in Art.368(1), so that the power is substantive and not merely procedural; made the President's assent mandatory; and added Art.368(3) declaring that Art.13 does not apply to an amendment. The validity of that amendment fell to be decided in Kesavananda Bharati.
Facts: A Bench of thirteen Judges, the largest ever constituted, considered the validity of the 24th, 25th and 29th Amendments and reconsidered Golak Nath.
Issue: What is the extent of the amending power under Art.368?
Held: By seven to six, Golak Nath was overruled and the 24th Amendment upheld. An amendment is not "law" within Art.13, and Art.368 does confer substantive power, so fundamental rights are amenable to amendment. But the power is not unlimited: Parliament may amend any provision, including a fundamental right, provided it does not damage or destroy the basic structure or essential features of the Constitution.
Relevance: The pivot of the whole subject. It is treated in detail in Basic Structure Doctrine; for present purposes note only that it settled the validity of the procedure in Art.368 as amended, while subjecting its exercise to a substantive limit.
Facts: The 42nd Amendment, 1976 had inserted clauses (4) and (5) in Art.368. Clause (4) provided that no amendment shall be called in question in any court on any ground, and clause (5) declared that there shall be no limitation whatever on Parliament's constituent power to amend. The amended Art.31C, giving primacy to all Directive Principles over Arts.14 and 19, was challenged in the same proceedings.
Issue: Whether Parliament may by amendment confer on itself an unlimited amending power and exclude judicial review of amendments.
Held: Clauses (4) and (5) of Art.368 were struck down. The Court held that a limited amending power is itself a basic feature, and Parliament cannot use that limited power to enlarge it into an absolute power; to hold otherwise would allow the amending power to destroy the very Constitution from which it derives. Excluding judicial review would leave the basic structure doctrine without a means of enforcement and would make the limitation illusory. The amended Art.31C was also struck down for subordinating Arts.14 and 19 to the whole of Part IV, thereby upsetting the balance between Fundamental Rights and Directive Principles, itself a basic feature.
Relevance: Establishes that the amending power cannot be used to expand itself, and that judicial review of amendments cannot be taken away. It is the necessary complement to Kesavananda, since without it the doctrine would be unenforceable.
The Ninth Schedule
Article 31B, inserted by the First Amendment, provides that none of the Acts specified in the Ninth Schedule shall be deemed void on the ground of inconsistency with any fundamental right. The protection was designed for agrarian reform but the Schedule came to be used for a wide variety of laws.
| Case | Effect |
|---|---|
| Waman Rao v Union of India (1981) | The basic structure doctrine applies to amendments made after 24 April 1973, the date of Kesavananda. Laws placed in the Ninth Schedule before that date are protected |
| I R Coelho v State of Tamil Nadu (2007) | Laws added to the Ninth Schedule after 24 April 1973 are open to challenge on the ground that they violate the basic structure. Art.31B confers no blanket immunity, and the test is whether the amendment destroys the essence of the rights in Arts.14, 19 and 21 |
Illustrations
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Ordinary majority sufficient: Parliament abolishes a State Legislative Council following a resolution of the Assembly. Article 169(3) declares such a law not to be an amendment for the purposes of Art.368, so a simple majority suffices.
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Special majority only: Parliament amends a Directive Principle. Only the special majority in Art.368(2) is required, no entrenched provision being affected.
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Ratification required: Parliament transfers an entry from the State List to the Union List. This changes a List in the Seventh Schedule, so the proviso applies and ratification by the Legislatures of at least half the States is necessary.
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Ratification for changing Art.368 itself: Parliament amends the majority prescribed in Art.368(2). Clause (f) of the proviso applies, so ratification is required.
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Incidental effect insufficient: An amendment affects the workload of the High Courts without altering Chapter V of Part VI. Applying Sajjan Singh (1965), the effect is incidental and no ratification is needed.
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No ratification obtained: An amendment excludes the jurisdiction of the courts in a matter, thereby affecting Arts.136, 226 and 227, but is not ratified. It is void for want of ratification, as Para 7 of the Tenth Schedule was held to be in Kihoto Hollohan.
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Assent cannot be withheld: Parliament passes an amendment Bill by the requisite majority and presents it to the President. Since the 24th Amendment he shall give his assent and has no discretion.
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Art.13 not attracted: An amendment abridges a fundamental right. Article 368(3) makes Art.13 inapplicable, so the challenge must be brought on basic structure grounds and not under Art.13.
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Amendment excluding review: An amendment provides that no amendment shall be questioned in any court. Applying Minerva Mills (1980), it is void.
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Ninth Schedule law added in 1980: A law placed in the Ninth Schedule in 1980 is challenged. Applying Waman Rao (1981) and I R Coelho (2007), it may be tested against the basic structure, having been added after 24 April 1973.
Recall Check
- State the two majorities required in each House under Art.368(2), and note the difference between them.
- List the six clauses of the proviso requiring ratification.
- What three things did the 24th Amendment, 1971 do?
Key Cases
Shankari Prasad Deo v Union of India (1951) Shankari Prasad v Union of India 1951
Issue: Whether a constitutional amendment is "law" within Art.13(2).
Rule: "Law" in Art.13 means ordinary legislative law, not an amendment made in exercise of constituent power.
Held: The First Amendment was upheld and fundamental rights held amenable to amendment.
Sajjan Singh v State of Rajasthan (1965) Sajjan Singh v State of Rajasthan 1965
Issue: Whether Shankari Prasad was correct, and whether an incidental effect on Art.226 requires ratification.
Rule: Only a direct change in an entrenched provision attracts the proviso; an incidental effect does not.
Held: The Seventeenth Amendment was upheld, with Hidayatullah and Mudholkar JJ doubting whether fundamental rights could be the plaything of a special majority.
Golak Nath v State of Punjab (1967) Golak Nath v State of Punjab 1967
Issue: Whether Parliament may amend the Constitution so as to abridge fundamental rights.
Rule: An amendment is "law" within Art.13, Art.368 is merely procedural, and fundamental rights are beyond the amending power.
Held: By six to five the earlier cases were overruled, with prospective overruling applied to save past amendments.
Kesavananda Bharati v State of Kerala (1973) Kesavananda Bharati v State of Kerala 1973
Issue: The extent of the amending power under Art.368 as amended by the 24th Amendment.
Rule: Art.368 confers substantive constituent power and Art.13 does not apply, but the power cannot be used to damage or destroy the basic structure.
Held: By seven to six Golak Nath was overruled and the 24th Amendment upheld, subject to the basic structure limitation.
Minerva Mills Ltd v Union of India (1980) Minerva Mills v Union of India 1980
Issue: Whether Parliament may confer on itself an unlimited amending power and exclude judicial review of amendments.
Rule: A limited amending power is itself a basic feature, and the limited power cannot be used to enlarge itself; judicial review of amendments cannot be excluded.
Held: Arts.368(4) and (5) were struck down, as was the amended Art.31C.
Distinctions
| Basis | Constituent power | Legislative power |
|---|---|---|
| Source | Art.368(1), as amended in 1971 | Arts.245 and 246 with the Seventh Schedule |
| Product | An amendment of the Constitution | An ordinary law |
| Art.13 | Does not apply (Art.368(3)) | Applies |
| Majority | Special majority, with ratification where required | Simple majority |
| Limit | The basic structure | The Constitution as a whole, including Part III |
| Basis | Shankari Prasad and Sajjan Singh | Golak Nath | Kesavananda |
|---|---|---|---|
| Is an amendment "law" under Art.13? | No | Yes | No |
| Nature of Art.368 | Confers power and procedure | Procedure only | Confers substantive constituent power |
| Fundamental rights amendable? | Yes | No | Yes, subject to the basic structure |
| Outcome | Amendments upheld | Earlier cases overruled, prospectively | Golak Nath overruled, 24th Amendment upheld |
| Majority | Unanimous and majority respectively | Six to five | Seven to six |
| Basis | Art.4 and Art.169 laws | Art.368 amendments |
|---|---|---|
| Majority | Simple | Special, with ratification where applicable |
| Deemed an amendment? | Expressly not, for the purposes of Art.368 | Yes |
| Alters the text of the Constitution | Yes, including Schedules | Yes |
| Examples | Formation of States, abolition of a Legislative Council | Amendment of a fundamental right or of the Seventh Schedule |
Flashcards
In exercise of what power does Parliament amend the Constitution?
Its constituent power, in the words inserted in Art.368(1) by the 24th Amendment, 1971.
What majority does Art.368(2) require?
A majority of the total membership of each House and a majority of not less than two thirds of the members of that House present and voting.
Can an amendment Bill be introduced in either House?
Yes, and there is no provision for a joint sitting if the Houses disagree.
Must the President assent to an amendment Bill?
Yes. Since the 24th Amendment his assent is mandatory.
How many States must ratify where the proviso applies?
The Legislatures of not less than one half of the States.
Is there a time limit for ratification?
No, and a State that has ratified cannot withdraw its ratification.
Name three matters in the proviso requiring ratification.
The election of the President, the Lists in the Seventh Schedule, and the provisions of Art.368 itself.
What does Art.368(3) provide, and why was it inserted?
That Art.13 does not apply to an amendment; it was inserted by the 24th Amendment to overcome Golak Nath.
What did *Shankari Prasad* (1951) decide?
That "law" in Art.13 does not include a constitutional amendment, so fundamental rights are amenable to amendment.
What was significant about *Sajjan Singh* (1965) beyond its result?
The doubts expressed by Hidayatullah and Mudholkar JJ, which anticipated the basic structure doctrine.
What did *Golak Nath* (1967) hold?
That an amendment is "law" within Art.13, that Art.368 is merely procedural, and that fundamental rights cannot be abridged. It applied prospective overruling.
What did the 24th Amendment do?
Inserted "constituent power" in Art.368(1), made the President's assent mandatory, and added Art.368(3) excluding Art.13.
What did *Minerva Mills* (1980) strike down?
Clauses (4) and (5) of Art.368, and the amended Art.31C.
Why could Parliament not confer unlimited amending power on itself?
Because a limited amending power is itself a basic feature, and the limited power cannot be used to enlarge itself into an absolute one.
What is the significance of 24 April 1973?
The date of Kesavananda. Waman Rao (1981) held the basic structure doctrine applies to amendments made after it, and Ninth Schedule laws added before it are protected.
Can a law in the Ninth Schedule be challenged?
Yes, if added after 24 April 1973, on the ground that it violates the basic structure (I R Coelho, 2007).
Exam Scenario
Problem: Parliament passes a single Constitution Amendment Act containing four provisions. Clause 1 transfers "public health" from the State List to the Union List. Clause 2 provides that no amendment of the Constitution shall be called in question in any court on any ground. Clause 3 amends Art.368 itself to reduce the majority required to a simple majority of each House. Clause 4 adds fifteen State statutes to the Ninth Schedule. The Bill is passed in each House by two thirds of those present, who number 300 in a House of 543, and receives the President's assent. No State Legislature has ratified it. Advise on the validity of each clause.
Step 1: Test the majority under Art.368(2) first
The majority point affects the whole Act, and Art.368(2) requires two things cumulatively.
- A majority of the total membership of the House. The total membership is 543, so 272 are needed. Not satisfied, only 200 having voted for the Bill.
- A majority of not less than two thirds of the members present and voting. Two thirds of the 300 present is 200. Satisfied.
The first condition fails, so the Bill was not validly passed at all and the entire Act is void. The two requirements are easily conflated, and that is where most answers go wrong.
Step 2: Test each clause against the proviso on ratification
| Clause | What it changes | Clause of the proviso | Ratification |
|---|---|---|---|
| 1. "Public health" moved to the Union List | A List in the Seventh Schedule | (d) | Required, none obtained |
| 2. No amendment questionable in any court | Powers of the Supreme Court and the High Courts under Arts.136, 226 and 227 | (c) | Required, none obtained |
| 3. Majority in Art.368 reduced | Art.368 itself | (f) | Required, none obtained |
| 4. Fifteen statutes added to the Ninth Schedule | The Ninth Schedule, not an entrenched provision | None | Not required |
Clauses 1, 2 and 3 each required ratification by the Legislatures of at least half the States, and none was obtained, so each is independently void on that ground alone.
On clause 2 the reasoning is exactly that which invalidated Para 7 of the Tenth Schedule in Kihoto Hollohan.
Step 3: Test clauses 2 and 3 against Minerva Mills
Clause 2 is in terms indistinguishable from Art.368(4), which Minerva Mills Ltd v Union of India (1980) struck down. Excluding judicial review of amendments would leave the basic structure limitation without any means of enforcement and would make it illusory, and judicial review is itself a basic feature. The clause is void quite apart from the ratification defect.
Clause 3 falls on the other limb of Minerva Mills. A limited amending power is itself a basic feature, and Parliament cannot use that limited power to enlarge it.
Reducing the special majority to a simple majority would convert the Constitution into an ordinary statute alterable by the government of the day, removing the rigidity that protects every other provision. It is void on basic structure grounds.
Step 4: Test clauses 1 and 4 substantively
Transferring a single entry is not by itself destructive of federalism, so clause 1 would ordinarily be a valid exercise of the amending power. The objection to it is purely the want of ratification, which is fatal but curable if the process is repeated properly.
Contrast the position if the clause had abolished the State List altogether, which would attract the Kesavananda limitation, federalism being a basic feature.
On clause 4, apply Waman Rao v Union of India (1981) and I R Coelho v State of Tamil Nadu (2007). The addition is well after 24 April 1973, so Art.31B confers no blanket immunity and each of the fifteen statutes may be tested against the basic structure.
The enquiry is whether the statute destroys the essence of the rights in Arts.14, 19 and 21 rather than merely abridging them. The clause is not void as such, but the protection it purports to give is conditional.
Step 5: Frame the challenge on the right footing
Art.368(3) means none of these clauses can be attacked under Art.13, so the challenge must be framed on basic structure grounds.
The President's assent affords no protection, being mandatory since the 24th Amendment and not an act of judgment.
The two limbs of Art.368(2) are cumulative. Two thirds of those present and voting is not enough. A majority of the total membership is also required, and 200 out of a House of 543 fails it.
Clause 4 attracts no ratification requirement. The Ninth Schedule is not among the entrenched provisions in the proviso, so only clauses 1, 2 and 3 engage it.
The clauses do not all fail for the same reason. Clauses 2 and 3 are void on basic structure grounds and cannot be re-enacted. Clauses 1 and 4 fail on procedure only and can be.
Clause 4 is not void merely for being a Ninth Schedule entry. Coelho makes the immunity conditional rather than the entry void, so each of the fifteen statutes must be examined separately.
Art.13 is not available. Art.368(3) excludes it, and the President's mandatory assent cures nothing.
Conclusion. The entire Act falls for want of the required majority. Clauses 1, 2 and 3 fail additionally for want of ratification. Clauses 2 and 3 are void on basic structure grounds and cannot be re-enacted. Clause 1 and clause 4 could be validly re-enacted, with clause 4's protection remaining subject to Coelho.
See Also
- Basic Structure Doctrine : the substantive limit on the power described here, and its content.
- National Emergency (Article 352) : the 42nd and 44th Amendments in their historical setting.
- Federalism under the Indian Constitution : the ratification requirement as a federal safeguard.