The Constitutional Amendment Process in India Explained

The constitutional amendment process in India is the formal procedure through which Parliament changes the text of the Constitution. It is laid down in Article 368 in Part XX and is designed to balance two needs: a Constitution that can adapt to new circumstances, and a Constitution that is not so easy to alter that its basic commitments can be swept away by a passing majority.

The framers deliberately placed India’s Constitution between the extremes of flexibility and rigidity. Some provisions can be changed by an ordinary law, some need a special majority in Parliament, and a few touching the federal structure also need the approval of State legislatures. On top of this, the Supreme Court has held in Kesavananda Bharati (1973) that Parliament cannot alter the basic structure. This article explains each layer and illustrates them with landmark amendments.

Quick Facts

Why a Constitution Needs an Amendment Procedure

No constitution can anticipate every future need. Social conditions change, new institutions are required, and experience reveals gaps. A procedure for amendment allows the founding document to evolve peacefully, without revolution or replacement. At the same time, a constitution that anyone can change at will would give little protection to rights, federalism or the rule of law.

The Constituent Assembly debated this tension. Leaders including Jawaharlal Nehru and Dr B. R. Ambedkar argued that the Constitution should be firm but not frozen. Ambedkar pointed out that, unlike many federal constitutions, most of India’s Constitution could be amended by Parliament alone, with a requirement of State ratification confined to a limited set of federal matters. This was intended to avoid the difficulty seen in some countries where changes require approval by a large number of units.

The result is often described as a combination of rigid and flexible features. The Constitution is not entirely rigid like that of the United States, which requires approval by three-fourths of the States, nor is it completely flexible like that of the United Kingdom, where Parliament can change fundamental laws by ordinary legislation.

Article 368: The Text and Its Evolution

Article 368 originally spoke of the “procedure for amendment of the Constitution”. It was revised by the 24th Amendment in 1971, which changed the heading to “Power of Parliament to amend the Constitution and procedure therefor”. It states that 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 laid down.

Under the Article, an amendment may be initiated only by the introduction of a Bill in either House of Parliament. It must be passed by each House by the required majority, and then it must receive the assent of the President. Since the 24th Amendment, the President “shall give” assent and has no power to withhold it.

Two more points matter. First, there is no provision for a joint sitting of the two Houses to resolve a deadlock on an amendment Bill, unlike the position for ordinary Bills under Article 108. Each House must pass the Bill separately. Second, a State legislature cannot initiate a constitutional amendment, apart from the narrow case of a resolution on creating or abolishing a Legislative Council, which Parliament then acts upon by ordinary law.

The Three Routes of Amendment

Indian constitutional law is usually described as providing three different methods, depending on the subject matter of the provision.

Route one: simple majority

Many provisions can be changed by Parliament in the same way as an ordinary law. Strictly, these are not treated as amendments under Article 368, because the Constitution itself says that such laws are not to be deemed amendments. This category includes changes to the boundaries and names of States, the creation of Legislative Councils, rules on citizenship, quorum in Parliament, salaries of certain officials, and the use of languages.

Route two: special majority

This is the most common route. The Bill must be passed in each House by a majority of the total membership of that House and also by a majority of not less than two-thirds of the members present and voting. This double test ensures that the amendment has broad support and that absentee members cannot easily alter the outcome.

Route three: special majority and State ratification

For provisions that affect the federal balance, the Bill, after being passed by the special majority in Parliament, must be ratified by the legislatures of at least half of the States, through resolutions passed by a simple majority in each of those legislatures. Only then can it be presented to the President. There is no deadline for State ratification in the text.

Step-by-Step: How an Amendment Bill Becomes Law

• Introduction: a Minister or a private member introduces the Bill in the Lok Sabha or the Rajya Sabha. No prior permission from the President is needed.
• Passage in the first House: the Bill is debated and passed by the required majority. Voting is by division, so that the majority of total membership can be verified.
• Passage in the second House: the other House also passes it by the same special majority. There is no joint sitting.
• State ratification, if required: for federal subjects, at least half of the State legislatures must approve it.
• Presidential assent: the President must give assent, and the Constitution stands amended from the date indicated in the Act.
• Gazette notification: the amendment is published and, where specified, brought into force through a notification on a particular date.

Because the procedure is demanding, governments usually build consensus before bringing an amendment Bill. Major amendments are often debated in parliamentary committees or discussed with State governments, particularly where State ratification is involved.

The Basic Structure Doctrine: The Judicial Limit

Whether Parliament’s amending power had any limits was one of the great constitutional questions of the early decades. In Shankari Prasad (1951) and Sajjan Singh (1965), the Supreme Court held that Parliament could amend any part of the Constitution, including Fundamental Rights. In Golaknath (1967), an eleven-judge Bench reversed this and held that Fundamental Rights could not be amended.

Parliament responded with the 24th and 25th Amendments in 1971 to restore its power. The matter reached a thirteen-judge Bench in Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by a majority of seven to six. The Court held that Article 368 conferred wide power to amend, including Fundamental Rights, but that this power did not include the power to destroy or alter the basic structure or framework of the Constitution.

What counts as the basic structure?

The judgment did not give an exhaustive list. Judges mentioned items such as the supremacy of the Constitution, the republican and democratic form of government, the secular character of the State, the separation of powers, and the federal character. Later cases added judicial review, free and fair elections, the rule of law, the balance between Fundamental Rights and Directive Principles, and the independence of the judiciary.

Later reinforcement

• Indira Nehru Gandhi v. Raj Narain (1975): struck down a part of the 39th Amendment that sought to place the election of the Prime Minister beyond judicial review.
• Minerva Mills v. Union of India (1980): struck down clauses of the 42nd Amendment, stating that Parliament cannot give itself unlimited amending power.
• Waman Rao (1981) and I. R. Coelho (2007): held that laws added to the Ninth Schedule after 24 April 1973 may be reviewed for violation of the basic structure.
• Supreme Court Advocates-on-Record Association (2015): struck down the 99th Amendment on judicial appointments as violating judicial independence.

Landmark Amendments

Among the many amendments, a handful have had an exceptional impact on how India is governed.

First Amendment (1951)

Passed soon after the Constitution came into force, it added Articles 31A and 31B and the Ninth Schedule to protect land reform laws from challenge, added Article 15(4) to permit special provisions for socially and educationally backward classes, and widened the grounds for restricting free speech under Article 19(2) to include public order, friendly relations with foreign States and incitement to an offence.

42nd Amendment (1976)

Enacted during the Emergency, it is often called a “mini-Constitution”. It inserted the words “socialist”, “secular” and “integrity” in the Preamble, added the Fundamental Duties in Part IVA, extended the term of the Lok Sabha and State Assemblies to six years and sought to give Directive Principles priority over certain Fundamental Rights. Several provisions were later undone or struck down.

44th Amendment (1978)

Passed after the Emergency, it restored many safeguards. It removed the right to property from the list of Fundamental Rights and made it a legal right under Article 300A, restored the five-year term of legislatures, replaced “internal disturbance” with “armed rebellion” as a ground for emergency, and ensured that the rights under Articles 20 and 21 could not be suspended during an emergency.

73rd and 74th Amendments (1992)

These gave constitutional status to Panchayati Raj institutions and urban local bodies, through Parts IX and IXA and the Eleventh and Twelfth Schedules. They came into force in 1993 and provide for regular elections, State Finance Commissions and reservation of seats for Scheduled Castes, Scheduled Tribes and women.

101st Amendment (2016)

This amendment introduced the Goods and Services Tax. It inserted Article 246A and Article 279A, which created the GST Council, and was ratified by the required number of States before the GST came into effect on 1 July 2017.

More Notable Amendments at a Glance

• 7th Amendment (1956): reorganised States on linguistic lines following the States Reorganisation Commission.
• 52nd Amendment (1985): added the Tenth Schedule, the anti-defection law.
• 61st Amendment (1988): lowered the voting age from 21 to 18 years.
• 86th Amendment (2002): inserted Article 21A, making education a Fundamental Right for children between six and fourteen years.
• 91st Amendment (2003): limited the size of Councils of Ministers and tightened the anti-defection law.
• 103rd Amendment (2019): introduced reservations for economically weaker sections in general categories, upheld by the Supreme Court in 2022.
• 106th Amendment (2023): provided for reservation of seats for women in the Lok Sabha and State Assemblies.

Role of States, the President and the Judiciary

The States take part in the amending process only for matters that touch the federal structure. This ensures that a Union Parliament cannot unilaterally change the status of the States in the constitutional scheme. For the other provisions, Parliament acts alone, which has made it relatively simple to bring about large changes through a single Bill.

The President’s role has become formal, as assent is now obligatory. Even so, a Bill is not an amendment until it has been assented to and published, and the Supreme Court has said that the procedure required by Article 368, including the special majority, is mandatory. A failure to follow it may render the amendment void. In Kihoto Hollohan (1992), the Court held that a provision of the Tenth Schedule that barred courts from reviewing decisions of the Speaker affected the scope of High Court and Supreme Court powers and so required ratification by half the States, which had not been obtained, and therefore it struck down that provision.

The judiciary acts as a final check by testing amendments against the basic structure. In this way, the amending process in India has three distinct levels of control: the procedural limits within Article 368, the federal participation of the States, and the substantive limit set by judicial doctrine.

Comparison with Other Countries

Comparing India’s process with other systems helps place it in context.

• United States: an amendment must be proposed by two-thirds of both Houses of Congress or a convention called by two-thirds of the States, and ratified by three-fourths of the States. The process is very demanding, and amendments are few.
• United Kingdom: there is no single written constitution, and Parliament can change constitutional laws by ordinary legislation.
• Switzerland and Australia: constitutional changes require approval by the people in a referendum, in addition to legislative action.
• India: no referendum is needed, and State involvement is limited to defined federal subjects.

The comparison explains why India has seen frequent amendments. The relative ease of the special-majority route, together with the length and detail of the Constitution, which covers many matters that other countries leave to ordinary law, has meant that changes have been common. Whether this is a strength or a weakness is a matter of continuing debate.

Debates and the Road Ahead

Supporters of the present system say that it has allowed India to adapt to social change, to reorganise States, to introduce a new tax structure and to empower local governments, while the basic structure doctrine prevents abuse. Critics argue that the number of amendments shows that the Constitution has been altered too casually, and that the doctrine gives judges a role that is difficult to define precisely.

Periodic proposals for a comprehensive review have been made. The National Commission to Review the Working of the Constitution, chaired by Justice M. N. Venkatachaliah, submitted its report in 2002 and recommended a number of changes while cautioning against altering the basic features. What remains settled is that any change must follow Article 368 and respect the basic structure.

Conclusion

The amendment process in India reflects a carefully considered compromise. It gives Parliament the power to modernise the Constitution, requires broader consensus for major or federal changes, and leaves the final guarantee of constitutional identity to the courts. Understanding the three routes, the role of Article 368 and the limits drawn in Kesavananda Bharati makes it easier to follow any future debate about changing the Constitution.

Frequently Asked Questions

What does Article 368 of the Constitution provide?

Article 368 gives Parliament the power to amend the Constitution by addition, variation or repeal, and lays down the procedure. An amendment Bill must be passed by a special majority in both Houses, and in some cases ratified by half the States, before it receives the President’s assent.

What are the three ways of amending the Constitution?

The first is a simple majority, used for matters such as State boundaries and citizenship. The second is a special majority, meaning a majority of total membership and two-thirds of those present and voting. The third is a special majority plus ratification by at least half the State legislatures, for federal provisions.

Can the President refuse to sign a constitutional amendment Bill?

No. The 24th Amendment of 1971 provided that the President shall give assent to a constitutional amendment Bill, so the President cannot withhold or return it.

What is the basic structure doctrine?

It is the principle laid down in Kesavananda Bharati (1973) that Parliament can amend the Constitution but cannot destroy or alter its basic structure or framework. Features such as democracy, secularism, federalism, separation of powers and judicial review have been recognised as part of it.

Which amendment introduced the Goods and Services Tax?

The 101st Amendment Act, 2016 introduced the GST. It inserted Articles 246A and 279A and created the GST Council, and the tax came into effect on 1 July 2017.

Why is the 42nd Amendment called a mini-Constitution?

The 42nd Amendment of 1976 made a large number of changes in a single enactment, including to the Preamble, the Fundamental Duties and the powers of the judiciary and legislatures. Because of its scope, it is often described as a mini-Constitution, and parts of it were later reversed by the 44th Amendment and by court decisions.