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Article 368 deals with the power of the Parliament to amend the Constitution and its procedure.

  • Parliament can amend by way of addition, variation, or repeal any provision.
  • Parliament cannot amend provisions that form the 'basic structure' of the Constitution.

Procedure for Amendment (Article 368) ​

  1. Initiation:

    • An amendment can only be initiated by introducing a bill in either House of Parliament. State legislatures cannot initiate.

  2. Introduction:

    • The bill can be introduced by a minister or a private member.
    • Prior permission of the President is not required.

  3. Passage in Each House:

    • Must be passed in each House by a special majority:
      • A majority of the total membership of the House.
      • A majority of two-thirds of the members of the House present and voting.

  4. Separate Passage:

    • Each House must pass the bill separately.
    • No provision for a joint sitting in case of disagreement.

  5. Federal Provisions:

    • If the bill seeks to amend federal provisions, it must also be ratified by the legislatures of half of the states by a simple majority.

  6. Presidential Assent:

    • After passage and ratification (if necessary), the bill is presented to the President.
    • The President must give his/her assent.
    • The President cannot withhold assent or return the bill for reconsideration. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his/her assent to a constitutional Amendment Bill.

  7. Enactment:

    • After the President's assent, the bill becomes an Act (a constitutional amendment act).
    • The Constitution stands amended.

Types of Amendments ​

The Constitution can be amended in three ways:

  1. Amendment by simple majority of the Parliament
  2. Amendment by special majority of the Parliament
  3. Amendment by special majority of the Parliament and the ratification of half of the state legislatures.

Simple Majority ​

  • A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament outside the scope of Article 368.
  • Provisions include:
    • Admission/establishment of new states.
    • Formation of new states and alteration of areas, boundaries or names of existing states.
    • Abolition/creation of legislative councils in states.
    • Second Schedule (emoluments, allowances, privileges).
    • Quorum in Parliament.
    • Salaries and allowances of MPs.
    • Rules of procedure in Parliament.
    • Privileges of Parliament, its members and its committees.
    • Use of English in Parliament.
    • Number of puisne judges in Supreme Court.
    • Conferment of more jurisdiction on the Supreme Court.
    • Use of official language.
    • Citizenship (acquisition and termination).
    • Elections to Parliament and state legislatures.
    • Delimitation of constituencies.
    • Union territories.
    • Fifth Schedule (administration of scheduled areas and tribes).
    • Sixth Schedule (administration of tribal areas).

Special Majority of Parliament ​

  • The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority of the total membership of each House and a majority of two-thirds of the members of each House present and voting.

    • 'Total membership' means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.

  • Provisions include:

    • Fundamental Rights.
    • Directive Principles of State Policy.
    • All other provisions not in categories 1 and 3.
  • Provisions related to the federal structure require a special majority in Parliament and consent of half of the state legislatures via simple majority.
  • No time limit is prescribed for state consent.
  • Provisions include:
    • Election of the President and its manner.
    • Extent of the executive power of the Union and the states.
    • Supreme Court and High Courts.
    • Distribution of legislative powers between the Union and states.
    • Goods and Services Tax Council.
    • Any of the lists in the Seventh Schedule.
    • Representation of states in Parliament.
    • Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

Criticism of the Amendment Procedure ​

  1. No special body: No Constitutional Convention or Assembly. Constituent power rests with Parliament.
  2. Parliament initiates: State legislatures cannot initiate amendments (except for requesting creation/abolition of legislative councils).
  3. Parliamentary dominance: Major part amended by Parliament alone. State consent required in few cases, only half of states needed.
  4. No time frame: No prescribed time frame for state legislatures to ratify/reject amendments. Silence on states withdrawing approval.
  5. No joint sitting: No provision for a joint sitting in case of deadlock.
  6. Legislative process similarity: Amendment process similar to legislative process.
  7. Sketchy provisions: Amendment procedure is too sketchy.

Despite the defects, the process has proved to be simple and easy and has succeeded in meeting the changed needs and conditions. The procedure is not so flexible as to allow the ruling parties to change it according to their whims. Nor is it so rigid as to be incapable of adopting itself to the changing needs. It strikes a good balance between flexibility and rigidity.