Amendment Procedure
Constitutional Amendment Procedure
Article 368 of the Constitution provides for the power and procedure to amend the Constitution. The Indian Constitution is neither fully rigid (like the US) nor fully flexible (like the UK) — it combines features of both, with different amendment methods for different categories of provisions. The Constituent Assembly deliberately designed this graduated flexibility: some provisions changeable by simple majority (quasi-flexible), most by special majority, and a select few by special majority plus state ratification (quasi-rigid). This design reflects K.C. Wheare's classification of the Indian Constitution as "quasi-federal with strong unitary features." The amendment power has been at the center of the most significant constitutional battles in India — the tension between parliamentary sovereignty and judicial review, culminating in the Basic Structure Doctrine (Kesavananda Bharati, 1973).
Key Dates
First Amendment — added Art 15(4) enabling reservations for SCs/STs, restricted Art 19(1)(a) (reasonable restrictions on free speech), inserted Ninth Schedule to shield land reform laws from judicial review
Shankari Prasad v. Union of India — SC held Parliament's constituent power under Art 368 includes power to amend Fundamental Rights; "law" in Art 13(2) does not include constitutional amendments
7th Amendment — comprehensive reorganization of states (States Reorganisation Act, 1956); abolished Part B and Part C states; introduced Union Territories
Golaknath v. State of Punjab — SC (6:5) reversed Shankari Prasad; held Fundamental Rights are "transcendental and immutable" and Parliament cannot amend them; applied prospective overruling
24th Amendment — restored Parliament's power to amend any provision including FRs; amended Art 13 and Art 368 to clarify that constitutional amendments are not "law" under Art 13; President must give assent (no discretion)
25th Amendment — replaced "compensation" with "amount" in Art 31(2) for property acquisition; amended Art 31C to give primacy to Art 39(b) and (c) DPSPs over Art 14 and 19
Kesavananda Bharati v. State of Kerala — 13-judge bench (7:6) upheld 24th and 25th Amendments but introduced the Basic Structure Doctrine; Parliament can amend any provision but cannot destroy the basic structure of the Constitution
42nd Amendment ("Mini Constitution") — most comprehensive single amendment; added "Socialist, Secular, Integrity" to Preamble; Fundamental Duties (Part IVA); curtailed judicial review (Art 368(4) and (5)); transferred 5 subjects to Concurrent List; barred courts from questioning constitutional amendments
44th Amendment — reversed many 42nd Amendment excesses; deleted Art 368(4) and (5); emergency safeguards; removed Right to Property from Part III (made Art 300A — legal right); restored judicial review of amendments
52nd Amendment — added Tenth Schedule (Anti-Defection Law); defection = disqualification; decision by Speaker (later subject to judicial review per Kihoto Hollohan, 1992)
86th Amendment — inserted Art 21A (Right to Education for children 6-14 years as a Fundamental Right); modified Art 45 (early childhood care from 0-6 years as DPSP); added Art 51A(k) (parental duty to provide education)
101st Amendment — introduced GST (Goods and Services Tax); added Art 246A (concurrent taxing power), Art 269A (IGST), Art 279A (GST Council); subsumed multiple indirect taxes into "One Nation One Tax"
103rd Amendment — 10% reservation for Economically Weaker Sections (EWS) in education and public employment; added Art 15(6) and Art 16(6); upheld by SC in Janhit Abhiyan v. Union of India (2022) by 3:2
106th Amendment (Nari Shakti Vandan Adhiniyam) — 33% reservation for women in Lok Sabha and state legislative assemblies; to be implemented after delimitation post-2026 Census; added Art 330A and 332A
Three Methods of Amendment — Graduated Flexibility
The Constitution provides three distinct methods of amendment, reflecting K.C. Wheare's observation that the Indian Constitution is "quasi-federal" — neither purely rigid nor purely flexible. Method 1: Simple Majority of Parliament (like ordinary legislation) — these provisions are not technically amendments "under Art 368" and include: Art 2 (admission of new states), Art 3 (formation/alteration/boundary changes of states — requires prior Presidential recommendation and reference to affected state legislature, but state's opinion is not binding), Art 4 (consequential changes to Schedules I and IV), Art 169 (creation or abolition of state Legislative Councils — requires state assembly resolution by special majority), Second Schedule (salaries and allowances of President, Governors, Speaker, judges, CAG, etc.), Art 105/194 (parliamentary/state legislature privileges), Art 11 (citizenship), quorum rules, salaries of MPs, rules of procedure, use of English in Parliament (Art 348), and delimitation of constituencies. These are significant changes effected by ordinary legislative process, making the Constitution partly flexible. Method 2: Special Majority of Parliament — majority of the total membership of each House AND at least 2/3 of members present and voting. This is the standard method for most constitutional provisions, including Fundamental Rights, Directive Principles, and all provisions not covered by Methods 1 or 3. Method 3: Special Majority + Ratification by at least half of the state legislatures (by simple majority) — required for provisions affecting the federal balance: election of President (Art 54-55), extent of executive power of Union and states (Art 73, 162), Supreme Court and High Courts (Art 124-147, 214-231), distribution of legislative powers between Union and states (Seventh Schedule), representation of states in Parliament, and Article 368 itself. The ratification must be by resolution, no time limit specified.
Procedure under Article 368 — Step by Step
The amendment procedure under Art 368 involves several steps with specific constitutional requirements. Step 1 — Introduction: An amendment bill can be introduced in EITHER House of Parliament (Lok Sabha or Rajya Sabha) — unlike Money Bills which must originate in the LS. It can be introduced by a Minister or a private member. No prior permission of the President is required for introduction — unlike Money Bills which require Presidential recommendation under Art 117. Step 2 — Passage: The bill must be passed in each House SEPARATELY by a special majority — majority of total membership of that House AND 2/3 of members present and voting. There is NO provision for a joint sitting of both Houses in case of disagreement (unlike ordinary bills under Art 108). This means if either House rejects the bill or fails to pass it by special majority, the amendment fails. Step 3 — State Ratification (if required): For Method 3 amendments, after passage by both Houses, the bill must be ratified by the legislatures of at least half of the states (currently 14 out of 28 states). State ratification is by simple majority. There is no time limit specified in the Constitution for state ratification — unlike the US where proposed amendments can have time limits. Step 4 — Presidential Assent: After passage (and ratification if needed), the bill is presented to the President, who SHALL give assent — there is no discretion to withhold assent or return the bill (clarified by the 24th Amendment, 1971). The amendment comes into force from the date of Presidential assent or from a date specified in the amendment itself.
Evolution of the Amendability Debate — From Shankari Prasad to Kesavananda
The question of whether Parliament can amend Fundamental Rights has been the most contested constitutional issue in Indian history, decided through a series of landmark cases spanning two decades. Shankari Prasad v. Union of India (1951): The SC unanimously held that Parliament's constituent power under Art 368 is different from its ordinary legislative power under Art 245. The word "law" in Art 13(2) (which says "the State shall not make any law which takes away or abridges FRs") refers to ordinary laws, not constitutional amendments. Therefore, Parliament CAN amend FRs under Art 368. Sajjan Singh v. State of Rajasthan (1965): Reaffirmed Shankari Prasad by a 3:2 majority. But Justice Hidayatullah's dissent hinted at limits: "if the amendment power is unlimited, it could be used to destroy the very Constitution." Golaknath v. State of Punjab (1967): An 11-judge bench reversed Shankari Prasad and Sajjan Singh by a narrow 6:5 majority. Chief Justice Subba Rao held that Fundamental Rights are "transcendental and immutable" and Parliament cannot amend them under Art 368. The court applied the doctrine of "prospective overruling" — the ruling would not invalidate amendments already made (1st, 4th, 17th) but would prevent future amendments to FRs. This created a constitutional crisis: agrarian reform and social justice legislation were blocked because land reform laws couldn't be immunized from FR challenges. The political response was the 24th Amendment (1971), which expressly restored Parliament's power to amend any provision including FRs, and the 25th Amendment (1971), which modified Art 31C.
Kesavananda Bharati v. State of Kerala (1973) — The Basic Structure Doctrine
Kesavananda Bharati is the most important constitutional case in Indian history. A 13-judge bench (the largest ever assembled by the SC) heard the case for 68 working days. The question was the validity of the 24th and 25th Amendments, and more broadly, whether there are any implied limitations on Parliament's amending power. By a razor-thin 7:6 majority, the bench held: (a) Parliament has the power to amend any provision of the Constitution, including Fundamental Rights (upholding the 24th Amendment and overruling Golaknath); (b) HOWEVER, Parliament cannot use this power to destroy or abrogate the "basic structure" or "basic features" of the Constitution — this is an implied limitation derived from the Constitution's design; (c) Art 31C as amended by the 25th Amendment (giving blanket primacy to all DPSPs over Art 14 and 19) was struck down — only the original Art 31C (primacy limited to Art 39(b) and (c) over Art 14 and 19) survived; (d) the power of judicial review itself is part of the basic structure. The judgment runs to over 700 pages with 11 separate opinions. There was no single "opinion of the court" — the doctrine emerged from the convergence of the majority opinions. Chief Justice Sikri identified 5 basic features: supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, and federal character. Other judges added: rule of law, judicial review, FR essence, dignity of the individual, unity and integrity. The list was explicitly left open-ended — to be developed case by case.
Post-Kesavananda — Application and Expansion of Basic Structure
After Kesavananda, the Basic Structure Doctrine was tested and expanded through multiple landmark cases. Indira Nehru Gandhi v. Raj Narain (1975): The 39th Amendment placed the PM's election beyond judicial challenge. The SC struck it down — free and fair elections are part of the basic structure. This was the first time an amendment was actually struck down using the doctrine. The 42nd Amendment (1976) attempted to override Kesavananda by inserting Art 368(4) — "No amendment shall be called in question in any court on any ground" — and Art 368(5) — "there shall be no limitation on the constituent power of Parliament." Minerva Mills v. Union of India (1980): The SC struck down Art 368(4) and (5) inserted by the 42nd Amendment. Justice Bhagwati held that "limited amending power is itself a basic feature" — if Parliament could amend without limits, it would cease to be a constitutional body and become a sovereign constituent assembly. The balance between Fundamental Rights and Directive Principles was also declared a basic feature. Waman Rao v. Union of India (1981): The SC held that all amendments made before 24 April 1973 (date of Kesavananda judgment) are valid and cannot be challenged on basic structure grounds. However, amendments made after that date can be tested against the basic structure. This established the "Waman Rao line" dividing pre- and post-Kesavananda amendments. I.R. Coelho v. State of Tamil Nadu (2007): 9-judge bench held that laws placed in the Ninth Schedule after 24 April 1973 can be challenged if they violate the basic structure — including the essential features of Fundamental Rights. This closed the "Ninth Schedule loophole" that had been used since 1951 to immunize laws from judicial review.
Important Constitutional Amendments — Phase 1 (1950s-1960s)
First Amendment (1951): The very first amendment, within 15 months of the Constitution's adoption. Added Art 15(4) enabling special provisions for advancement of socially and educationally backward classes, SCs, and STs — basis for reservation policies. Inserted Art 19(2) ground of "reasonable restrictions" on free speech including "public order" and "relations with friendly states." Added the Ninth Schedule (originally 13 laws, mostly land reform) to shield laws from FR-based judicial challenges. Modified Art 31 (right to property) to facilitate land acquisition for agrarian reform. Fourth Amendment (1955): Further modified Art 31 to strengthen the state's power of compulsory acquisition; no law providing for acquisition shall be questioned on the ground of inadequacy of compensation. Seventh Amendment (1956): Comprehensive reorganization of states following the States Reorganisation Commission (Fazl Ali Commission) and the States Reorganisation Act, 1956. Abolished the four-fold classification of states (Part A, B, C, D); created 14 states and 6 Union Territories. Introduced provisions for Union Territory administration. Made changes to SC and HC jurisdiction to accommodate the new state structure. Thirteenth Amendment (1962): Created the State of Nagaland with special provisions (Art 371A) — the first of the special status provisions for northeastern states. Seventeenth Amendment (1964): Added 44 Acts to the Ninth Schedule (mostly land ceiling laws); modified Art 31A to include "estate" defined more broadly.
Important Constitutional Amendments — Phase 2 (1970s)
Twenty-Fourth Amendment (1971): Restored Parliament's power to amend any provision including FRs (overriding Golaknath). Amended Art 13 to clarify that "law" does not include constitutional amendments. Amended Art 368 to explicitly state Parliament's "constituent power" to amend. Made Presidential assent mandatory (no discretion to withhold). This was upheld by Kesavananda. Twenty-Fifth Amendment (1971): Replaced "compensation" with "amount" in Art 31(2) — to prevent courts from evaluating adequacy of compensation for property acquisition. Amended Art 31C to give primacy to DPSPs under Art 39(b) and (c) over Art 14, 19, and 31. The Kesavananda court upheld the original Art 31C (Art 39(b)/(c) over Art 14/19) but struck down the 42nd Amendment's extension to all DPSPs. Thirty-Eighth Amendment (1975): Made President's satisfaction in declaring emergency "final and conclusive" — non-justiciable. Also applied to Governor's satisfaction under Art 356 and President's satisfaction under Art 360. Reversed by 44th Amendment. Thirty-Ninth Amendment (1975): Placed the election of the President, Vice-President, PM, and Speaker beyond judicial challenge. SC struck down the provision relating to PM's election in Indira Gandhi v. Raj Narain — first use of basic structure to strike down an amendment. Forty-Second Amendment (1976): The "Mini Constitution" — most sweeping single amendment. Added "Socialist, Secular, Integrity" to Preamble. Added Fundamental Duties (Part IVA, Art 51A). Curtailed judicial review (courts cannot question amendments). Extended Parliament and state assembly terms from 5 to 6 years. Transferred 5 subjects from State to Concurrent List (education, forests, weights & measures, wild animals, administration of justice). Reduced SC and HC powers. Made DPSP superiority over FRs explicit (Art 31C expanded to all DPSPs). Forty-Fourth Amendment (1978): The "corrective amendment" — reversed the worst excesses of the 42nd Amendment. Deleted Art 368(4) and (5) (restored judicial review of amendments). Emergency safeguards (written Cabinet advice, "armed rebellion" threshold, Art 20/21 non-suspendable, LS revocation power). Removed Right to Property from FR (Art 19(1)(f) and Art 31 deleted) — made it a legal right under Art 300A. Restored Parliament and assembly term to 5 years. Restored HC power under Art 226.
Important Constitutional Amendments — Phase 3 (1980s-1990s)
Fifty-Second Amendment (1985): Added the Tenth Schedule — Anti-Defection Law. A member is disqualified if they voluntarily give up party membership or vote/abstain contrary to party direction (without whip). Exception: merger (originally 1/3, raised to 2/3 by 91st Amendment, 2003). Speaker/Chairman decides disqualification — but decision is subject to judicial review (Kihoto Hollohan v. Zachillhu, 1992). Sixty-First Amendment (1988): Reduced the voting age from 21 to 18 years (Art 326). Made approximately 50 million new voters eligible. Came into effect for the 1989 general elections. Sixty-Fifth Amendment (1990): Established the National Commission for Scheduled Castes and Scheduled Tribes (Art 338) as a constitutional body (replacing the earlier non-statutory Special Officer for SCs/STs). Later bifurcated by the 89th Amendment (2003) into separate commissions for SCs (Art 338) and STs (Art 338A). Seventy-Third Amendment (1992): Panchayati Raj — added Part IX (Art 243-243O) and Eleventh Schedule (29 subjects). Three-tier system (village, intermediate, district). Mandatory Gram Sabha. Reservation for SCs, STs, and women (not less than 1/3). Five-year term, State Election Commission, State Finance Commission. Came into force on 24 April 1993. Seventy-Fourth Amendment (1992): Municipalities — added Part IX-A (Art 243P-243ZG) and Twelfth Schedule (18 subjects). Three types: Nagar Panchayat (rural-urban), Municipality (smaller urban), Municipal Corporation (larger urban). Similar framework as 73rd Amendment — reservations, 5-year term, SEC, SFC. Both 73rd and 74th required state ratification (Method 3).
Important Constitutional Amendments — Phase 4 (2000s-2020s)
Eighty-Sixth Amendment (2002): Inserted Art 21A — "The State shall provide free and compulsory education to all children of the age of six to fourteen years." Made RTE a Fundamental Right. Modified Art 45 (DPSP): state to provide early childhood care for children below 6 years. Added Art 51A(k) (Fundamental Duty for parents to provide education for children 6-14). The Right of Children to Free and Compulsory Education Act (RTE Act, 2009) was enacted to give effect to Art 21A. Eighty-Ninth Amendment (2003): Bifurcated the National Commission for SCs and STs into two separate commissions — National Commission for Scheduled Castes (Art 338, retained) and National Commission for Scheduled Tribes (new Art 338A). Ninety-First Amendment (2003): Capped the Council of Ministers at 15% of the total members of the lower house (LS for Union, state assembly for states). Strengthened anti-defection provisions — raised the merger threshold from 1/3 to 2/3 of the party's members. Ninety-Seventh Amendment (2011): Added Part IX-B (Art 243ZH-243ZT) — provisions for cooperative societies. Gave constitutional status to cooperative societies. In 2021, the SC in Union of India v. Rajendra N. Shah struck down a significant part of this amendment for violating the federal structure (cooperative societies being a state subject, ratification by states was required but not obtained for all provisions). Ninety-Ninth Amendment (2014): National Judicial Appointments Commission (NJAC) — sought to replace the collegium system for judicial appointments. SC struck it down in NJAC case (2015) — held that independence of judiciary is basic structure and NJAC would give government a role in appointments. One Hundredth Amendment (2015): Implementation of India-Bangladesh Land Boundary Agreement — exchange of 162 enclaves; approximately 51,000 people affected. Required state ratification as it involved cession of Indian territory. One Hundred and First Amendment (2016): GST (Goods and Services Tax) — India's biggest indirect tax reform. Added Art 246A (concurrent power for Union and states to levy GST), Art 269A (IGST on inter-state trade), Art 279A (GST Council — PM chairs, FM + all state FMs as members; decisions by 3/4 majority of weighted votes, Centre=1/3, states=2/3). One Hundred and Third Amendment (2019): 10% EWS reservation in education and public employment. Added Art 15(6) and Art 16(6). SC upheld in Janhit Abhiyan v. Union of India (2022) by 3:2 majority. Dissenters argued it breaches basic structure by using economic criteria alone for reservation. One Hundred and Fourth Amendment (2020): Extended reservation for SCs and STs in LS and state assemblies for another 10 years (until 2030). Removed reserved seats for Anglo-Indians in LS and state assemblies (Art 334). One Hundred and Sixth Amendment (2023): Nari Shakti Vandan Adhiniyam — 33% reservation for women in LS and state legislative assemblies. Implementation deferred until after delimitation exercise following the first Census conducted after the amendment's commencement (post-2026 Census).
Article 368 — Text, Structure, and Limitations
Article 368 is titled "Power of Parliament to amend the Constitution and procedure therefor." Art 368(1): Notwithstanding anything in the Constitution, 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 in this article. Art 368(2): An amendment may be initiated only by the introduction of a bill in either House. The bill must be passed by each House by a majority of the total membership of that House AND by a majority of not less than 2/3 of the members of that House present and voting. Key limitations: (a) No joint sitting — each House must independently achieve special majority; (b) Presidential assent is mandatory — President has no discretion (24th Amendment); (c) For federal provisions, additional ratification by half the states is required; (d) Basic structure cannot be destroyed (Kesavananda, judicially imposed limit). Art 368 does not define "amendment" comprehensively. The SC has held that the power to amend includes the power to add new provisions, delete existing ones, and substitute provisions — but NOT the power to rewrite the Constitution in its entirety (which would be the exercise of "constituent power" reserved for the people through a fresh Constituent Assembly). Art 368(3): Nothing in Art 13 (which prohibits laws that abridge FRs) shall apply to amendments made under Art 368. This was inserted by the 24th Amendment to override Golaknath.
The Ninth Schedule — Shield Against Judicial Review
The Ninth Schedule was added by the First Amendment (1951) as a mechanism to shield specific laws from challenge on the ground that they violate Fundamental Rights. Originally containing 13 land reform laws, the Schedule has expanded to 284 laws over time. The rationale was pragmatic: newly independent India needed aggressive land reform and zamindari abolition, but these laws were being struck down by courts for violating the Right to Property (then Art 19(1)(f) and Art 31). Adding laws to the Ninth Schedule was intended as a "constitutional shield" — Art 31B provides that no law in the Ninth Schedule can be deemed void on the ground that it is inconsistent with or abridges any of the rights conferred by Part III. Over the decades, the Schedule was misused to include laws unrelated to agrarian reform — including reservations, nationalization, and other controversial legislation. Waman Rao v. Union of India (1981): SC drew a temporal line — laws added before 24 April 1973 (Kesavananda judgment date) are immune from challenge, but laws added after that date can be tested against the basic structure. I.R. Coelho v. State of Tamil Nadu (2007): A 9-judge bench unanimously held that all laws placed in the Ninth Schedule after 24 April 1973 are subject to judicial review if they violate the basic structure including the essential features of Fundamental Rights. This effectively closed the Ninth Schedule "loophole" — the Schedule can no longer be used to shield laws from basic structure review. This is significant because 257 of the 284 laws were added after 24 April 1973.
Comparative Constitutional Amendment Procedures
The Indian amendment procedure is unique in its graduated flexibility, drawing from multiple constitutional traditions. United States: the most rigid amendment process. Proposal requires 2/3 majority in both Houses of Congress OR a Convention called by 2/3 of state legislatures (never used). Ratification requires 3/4 of state legislatures (38 out of 50) or ratifying conventions in 3/4 of states. Result: only 27 amendments in 235+ years. The US Constitution has no equivalent of India's "simple majority" category. United Kingdom: no written constitution, so Parliament can change any constitutional convention or statute by ordinary legislation — the most flexible system. Parliamentary sovereignty means no judicial review of legislation. Australia: Section 128 requires passage by absolute majority in both Houses + approval by majority of voters in a national referendum AND majority of voters in a majority of states (4 out of 6). Only 8 of 44 proposed amendments have been approved. South Africa: amendment of the Bill of Rights requires 2/3 in the National Assembly + 6 out of 9 provinces in the National Council of Provinces. Other provisions by 2/3 in NA only. Germany: Art 79 requires 2/3 in both Bundestag and Bundesrat. The "eternity clause" (Art 79(3)) prohibits amendments affecting human dignity, democratic principles, federal structure, and social state principle — similar to India's basic structure but textually explicit. Japan: Art 96 requires 2/3 in both Houses + approval by majority in a national referendum. Only 0 amendments in 75+ years (the most rigid constitution in practice). India's system is more flexible than the US, Australian, and Japanese models but more rigid than the UK. The Basic Structure Doctrine is India's equivalent of Germany's eternity clause, but judicially evolved rather than textually specified.
Constitutional Amendments — Statistics and Trends
As of 2024, 106 amendments have been enacted since the Constitution came into force on 26 January 1950 — an average of approximately 1.4 amendments per year (compared to the US average of about 1 amendment per 9 years). The 1970s saw the most amendments (16 amendments from 1971-1980), driven by the political turmoil of the Emergency era. The 42nd Amendment (1976) alone made more changes than most countries' entire amendment history. Key trends: (a) Early amendments (1950s-1960s) focused on agrarian reform and expanding state power over property — driven by the conflict between FRs and social reform; (b) 1970s amendments reflected the Emergency-era concentration and subsequent correction of power; (c) 1990s amendments focused on decentralization (73rd and 74th — local self-government) and anti-defection; (d) 2000s-2020s amendments addressed reservation, education rights, cooperative federalism (GST), and social justice (EWS, women's reservation). The Ninth Schedule has grown from 13 laws (1951) to 284 laws — reflecting continuous legislative-judicial tension. Proposed amendments that failed or were struck down: the 99th Amendment (NJAC, struck down 2015), the attempt to insert a right to property back into FRs (multiple private member bills, never passed), and the pending women's reservation bill (finally passed as 106th Amendment in 2023 after being introduced in 1996). Amendments requiring state ratification (Method 3) are relatively rare — the 7th, 24th, 73rd, 74th, 100th, and 101st are examples. Most amendments use Method 2 (special majority only).
Basic Structure Features — Comprehensive Catalogue
The Basic Structure Doctrine does not have an exhaustive list — it is an evolving, judicially developed catalogue. Features identified across multiple cases include: (1) Supremacy of the Constitution (Kesavananda, 1973); (2) Sovereign, democratic, republican form of government (Kesavananda); (3) Secular character of the Constitution (S.R. Bommai, 1994); (4) Separation of powers between legislature, executive, and judiciary (Kesavananda); (5) Federal character (Kesavananda, Kihoto Hollohan, 1992); (6) Unity and integrity of the nation (Kesavananda); (7) Fundamental Rights as forming the essence (Minerva Mills, 1980); (8) Rule of law (Indira Gandhi v. Raj Narain, 1975); (9) Judicial review (L. Chandra Kumar, 1997); (10) Independence of the judiciary (NJAC case, 2015); (11) Free and fair elections (Indira Gandhi v. Raj Narain); (12) Limited amending power (Minerva Mills); (13) Harmony and balance between FRs and DPSPs (Minerva Mills); (14) Effective access to justice (Anita Kushwaha v. Pushap Sudan, 2016); (15) Powers of SC under Art 32, 136, 141, 142 (L. Chandra Kumar); (16) Dignity of the individual (Puttaswamy, 2017); (17) Principle of equality (Art 14 — Indira Sawhney, 1992); (18) Right to life and personal liberty under Art 21 (Puttaswamy); (19) Welfare State (DPSP goal — Kesavananda); (20) Parliamentary system (Kihoto Hollohan). The SC has explicitly stated that the list is not closed: each new case can identify additional basic structure features. The doctrine has no textual basis in the Constitution — it is entirely judge-made law. Critics call it an "undefined restraint" that gives the judiciary veto power over Parliament. Defenders argue it prevents democratic majorities from destroying democracy itself — the "counter-majoritarian dilemma" at its sharpest.
Constituent Power vs Legislative Power — The Key Distinction
The distinction between Parliament's constituent power (under Art 368) and its ordinary legislative power (under Art 245-246) is fundamental to understanding the amendment procedure. Constituent power: the power to amend the Constitution. This is a higher-order power that changes the fundamental law itself. The 24th Amendment explicitly used the term "constituent power" in Art 368. Constituent power is subject only to the procedural requirements of Art 368 (special majority, ratification where required) and the Basic Structure limitation (Kesavananda). A constitutional amendment is NOT "law" within the meaning of Art 13(2) — this was the outcome of Shankari Prasad (1951) and was codified by the 24th Amendment adding Art 368(3). This means Art 13's prohibition on laws that abridge FRs does not apply to constitutional amendments. Legislative power: the ordinary law-making power under Art 245 and the Seventh Schedule. Ordinary legislation is subject to: (a) the distribution of powers in the three Lists; (b) Art 13 — it cannot violate Fundamental Rights; (c) other constitutional limitations. The SC in Kesavananda held that the constituent power under Art 368 is NOT unlimited — it cannot be used to destroy the basic structure. However, it is broader than legislative power in that it can modify any provision including Fundamental Rights (which ordinary legislation cannot). The distinction matters for two reasons: (1) different procedural requirements (special majority vs simple majority); (2) different substantive limits (basic structure doctrine vs FR compliance). The SC has warned that Parliament cannot use its ordinary legislative power to achieve what would require an amendment — such disguised amendments are unconstitutional.
The Preamble — Amendability and Status
The Preamble has been the subject of two important constitutional questions: can it be amended, and is it a part of the Constitution? In Berubari Union (1960), the SC held that the Preamble is NOT a part of the Constitution and cannot be used for interpreting provisions if the language is clear. However, in Kesavananda Bharati (1973), the SC overruled this and held that the Preamble IS a part of the Constitution and can be used as an aid to interpretation — it reflects the basic philosophy and fundamental values of the Constitution. Since the Preamble is part of the Constitution, it can be AMENDED under Art 368, subject to the Basic Structure limitation. The Preamble was actually amended by the 42nd Amendment (1976), which inserted three words: "SOCIALIST" (indicating the state's commitment to the elimination of inequality), "SECULAR" (indicating equal respect for all religions and no state religion), and "INTEGRITY" (emphasizing the unity and integrity of the nation). The original Preamble read "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC." After the 42nd Amendment, it reads "SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC." The question of whether the Preamble can be amended to delete "socialist" or "secular" (which would arguably violate the basic structure since secularism has been declared a basic feature in S.R. Bommai) remains an unresolved constitutional question. The Preamble is not enforceable in court (not justiciable) — it cannot be used to override express provisions of the Constitution.
State Ratification — Process, Practice, and Controversies
Method 3 amendments (special majority + state ratification) represent the most rigorous form of constitutional change, reflecting the quasi-federal nature of the Constitution. Constitutional requirements: after passage by both Houses by special majority, the bill must be ratified by at least HALF of the state legislatures. Ratification is by SIMPLE MAJORITY in each state legislature. No time limit for ratification is specified (unlike the US 7th Amendment where Congress imposed a 7-year limit). Only the state LEGISLATURE votes — Governors play no role in ratification. Provisions requiring Method 3: election of President (Art 54-55); extent of executive power (Art 73, 162); Supreme Court and High Courts (Art 124-147, 214-231); distribution of legislative powers — Seventh Schedule (Lists I, II, III); representation of states in Parliament; Article 368 itself (the amendment article is self-referentially protected). Key amendments that required state ratification: 7th Amendment (1956 — states reorganization), 24th Amendment (1971 — amended Art 368 itself), 73rd and 74th Amendments (1992 — Panchayati Raj and Municipalities altered state-local government relations), 100th Amendment (2015 — India-Bangladesh territory exchange), 101st Amendment (2016 — GST altered Centre-State fiscal powers). Controversy: the 97th Amendment (2011 — cooperative societies) was partly struck down by the SC in 2021 because it dealt with cooperative societies (a state subject) and certain provisions were not ratified by states as required. This is the most significant instance of a ratification failure leading to judicial invalidation.
Key Exam Traps and Common Confusions
Several aspects of the amendment procedure are deliberately tested as "traps" in competitive exams. Trap 1: Art 3 (formation of new states) and Art 169 (creation/abolition of Legislative Councils) require only SIMPLE MAJORITY of Parliament — they are NOT amendments "under Art 368." Art 3 requires Presidential recommendation and reference to the affected state legislature, but the state's opinion is NOT binding on Parliament. Trap 2: Amendment bills can be introduced in EITHER House — this is different from Money Bills (Lok Sabha only). No prior Presidential permission is needed (unlike Money Bills which need Art 117 recommendation). Trap 3: NO joint sitting for amendment bills — if one House rejects, the amendment fails entirely. This is different from ordinary bills where Art 108 allows a joint sitting. Trap 4: President MUST give assent to amendment bills — no discretion to withhold or return (post-24th Amendment). This is different from ordinary bills where the President can return (except Money Bills). Trap 5: The Rajya Sabha CANNOT be bypassed for amendments — both Houses must independently pass by special majority. This is unlike Money Bills where the RS can only delay. Trap 6: State ratification is by SIMPLE majority (not special majority) of state legislatures. There is NO time limit for ratification. Trap 7: "Total membership" in special majority includes NOMINATED members and VACANT seats — not just elected members. So even if seats are vacant, the requirement is based on total sanctioned strength. Trap 8: Art 368 ITSELF requires Method 3 (the most stringent method) to amend — the amendment power is self-referentially protected. Trap 9: The Basic Structure Doctrine is NOT written in the Constitution — it is entirely judge-made. There is no Article that mentions "basic structure."
Relevant Exams
One of the most critical topics for all competitive exams. UPSC Prelims frequently tests: Basic Structure Doctrine and its evolution (Kesavananda, Minerva Mills, I.R. Coelho), three methods of amendment and which provisions fall under each method, specific amendment numbers and their provisions (1st, 7th, 24th, 25th, 42nd, 44th, 52nd, 61st, 73rd, 74th, 86th, 91st, 97th, 99th, 101st, 103rd, 104th, 106th), the Ninth Schedule and its judicial scrutiny, the distinction between constituent power and legislative power, and the comparative rigidity/flexibility of the Indian Constitution. SSC and banking exams test on amendment numbers and their specific provisions — the 42nd and 44th Amendments are the most frequently tested. State PSCs also test on amendments relevant to their state. The Kesavananda Bharati case is the single most frequently asked case in Indian polity across all exams.