Article 368 of the Indian Constitution

0 0 RABI KR. PANDIT Tuesday, June 16, 2026 Edit this post

Article 368 of the Indian Constitution: The Complete Guide to How India Amends Its Supreme Law

If you have ever wondered how the world's largest democracy updates its rulebook, the answer lies in Article 368 of the Indian Constitution. This single article is the engine room of constitutional change in India. It tells Parliament how to add new ideas, remove outdated ones, or modify existing rules in the nation's most sacred document. But Article 368 is not just a dry legal procedure. It is a story of power struggles, landmark court battles, and the delicate balance between flexibility and stability. In this detailed guide, we will walk through everything you need to know about Article 368—its text, its history, the dramatic court cases that shaped it, and why it matters to every citizen today. Let us dive in.

What Is Article 368 and Why Does It Matter?

Imagine the Constitution of India as a living tree. Like any living thing, it must grow, adapt, and respond to changing seasons. Article 368 is the watering can that helps this tree grow. Without it, the Constitution would remain frozen in 1950, unable to address modern challenges like digital privacy, new states, or evolving social justice needs.

Article 368 sits in Part XX of the Constitution and is titled "Power of Parliament to amend the Constitution and procedure therefor." In simple words, it gives Parliament the authority to change the Constitution, but only if it follows a strict recipe. The founding fathers of India did not want the Constitution to be too easy to change—that would make it unstable. But they also did not want it to be impossible to change—that would make it rigid and useless. So they designed a middle path, a blend of the flexible British system and the rigid American system. Article 368 is the heart of that middle path.

The article begins with a powerful statement: "Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article." This means Parliament can add new provisions, change existing ones, or even delete them entirely. But—and this is a big but—it must follow the special procedure written in Article 368. The phrase "constituent power" is important here. It means Parliament is acting not just as a regular law-making body, but as a body with the higher authority to change the Constitution itself.

The Exact Text of Article 368: Breaking It Down Clause by Clause

To truly understand Article 368, we need to look at its actual words. The article has five clauses, each playing a distinct role. Let us break them down in plain language.

Clause (1): The Power to Amend

Clause (1) declares that Parliament has the power to amend any provision of the Constitution. It uses the words "addition, variation or repeal," which means Parliament can:

Add new articles or schedules
Vary or modify existing provisions
Repeal or remove provisions entirely

This clause establishes the scope of the amending power. It is broad and comprehensive. However, the phrase "in accordance with the procedure laid down in this article" is the gatekeeper. It means Parliament cannot just wake up one day and change the Constitution on a whim. It must follow the steps described in the rest of Article 368.

Clause (2): The Special Majority Procedure

This is the operational heart of Article 368. It describes exactly how a constitutional amendment bill must travel through Parliament. Here are the steps in bullet form:

The amendment process starts only in Parliament, not in state legislatures. A bill for constitutional amendment can be introduced in either the Lok Sabha or the Rajya Sabha.
The bill can be introduced by any minister or any private member. Unlike money bills, it does not need the prior permission of the President.
The bill must be passed by each House separately by a special majority. This means two things:
- A majority of the total membership of that House. If the Lok Sabha has 543 members, the bill needs at least 272 votes in its favor, regardless of how many members are present that day.
- A majority of not less than two-thirds of the members present and voting. So if 400 members are present and voting, at least 267 must vote yes.
There is no provision for a joint sitting of both Houses if they disagree. Each House must pass the exact same version of the bill.
Once passed by both Houses, the bill goes to the President of India. The President must give assent. Unlike ordinary bills, the President cannot withhold assent or return the bill for reconsideration. Once the President signs, the Constitution stands amended.

This special majority makes constitutional amendments harder than ordinary laws, which only need a simple majority of members present and voting. It ensures that changes to the Constitution have broad consensus.

The Proviso to Clause (2): When States Must Say Yes

The proviso to clause (2) adds an extra layer of protection for certain sensitive provisions. If an amendment seeks to change any of the following, it must also be ratified by the legislatures of at least one-half of the states by simple majority resolutions:

Article 54 or Article 55 — related to the election of the President
Article 73 — extent of executive power of the Union
Article 162 — extent of executive power of the States
Article 241 or Chapter IV of Part V — provisions related to the Supreme Court
Chapter V of Part VI — provisions related to High Courts
Chapter I of Part XI — distribution of legislative powers between Union and States
Any of the Lists in the Seventh Schedule — the Union List, State List, and Concurrent List
Representation of States in Parliament — how many seats each state gets
Article 368 itself — the amending power cannot be changed without states agreeing

This requirement exists because these provisions touch the federal structure of India. The founding fathers wanted the states to have a say when the balance of power between the Centre and the states is being altered. The ratification must happen before the bill is presented to the President for assent. Once half the states ratify, the process moves forward.

Clause (3): Article 13 Does Not Apply

Clause (3) says: "Nothing in article 13 shall apply to any amendment made under this article." Article 13 protects fundamental rights by declaring that any law inconsistent with them is void. Clause (3) means that constitutional amendments are not ordinary laws and are not subject to the same test under Article 13. This clause was added by the 24th Constitutional Amendment Act, 1971, to overturn the Supreme Court's decision in Golak Nath v. State of Punjab (1967), where the Court had held that amendments affecting fundamental rights could be challenged under Article 13.

Clause (4): The 42nd Amendment's Failed Shield

Clause (4) was added by the 42nd Constitutional Amendment Act, 1976. It stated: "No amendment of this Constitution... shall be called in question in any court on any ground." In other words, it tried to make constitutional amendments completely immune from judicial review. The Supreme Court struck down this clause in the Minerva Mills case (1980), holding that it violated the basic structure of the Constitution, specifically the power of judicial review.

Clause (5): The Claim of Unlimited Power

Clause (5), also added by the 42nd Amendment, declared: "There shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article." This was an aggressive attempt to declare Parliament's amending power as absolute and unlimited. The Supreme Court, once again in Minerva Mills (1980), struck down this clause as unconstitutional. The Court held that limited amending power is itself a basic feature of the Constitution, and Parliament cannot use its limited power to convert it into an unlimited one.

The Three Types of Constitutional Amendments in India

While Article 368 is the main route, the Constitution can actually be amended in three different ways. Understanding all three gives you the complete picture.

Amendments by Simple Majority

Some provisions can be changed by Parliament passing an ordinary law with a simple majority—just more than 50% of members present and voting. These amendments are not considered amendments under Article 368. They include:

Admission or establishment of new states (Article 2)
Formation of new states or alteration of boundaries (Article 3)
Abolition or creation of Legislative Councils in states (Article 169)
Citizenship matters (Article 11)
Use of official language
Fifth Schedule — administration of Scheduled Areas and Scheduled Tribes
Sixth Schedule — administration of tribal areas

These are considered less fundamental changes and do not need the heavy procedure of Article 368.

Amendments by Special Majority

This is the standard Article 368 procedure described above. A majority of the total membership plus a two-thirds majority of members present and voting in each House. This covers most constitutional amendments, including:

Changes to Fundamental Rights (Part III)
Changes to Directive Principles of State Policy (Part IV)
Changes to the powers of the President, Governors, or Election Commission
Changes to emergency provisions
Most other provisions not covered by the other two categories

Amendments by Special Majority Plus State Ratification

This is the most difficult route. It requires the special majority in Parliament plus ratification by at least half of the state legislatures by simple majority. As listed in the proviso to clause (2), this applies to changes affecting:

The federal structure
The judiciary (Supreme Court and High Courts)
The election of the President
Distribution of legislative powers
The Seventh Schedule lists
Representation of states in Parliament
Article 368 itself

This triple-lock system ensures that the most sensitive changes require the broadest consensus.

The Great Constitutional Battle: How Courts Shaped Article 368

The history of Article 368 is not just about parliamentary debates. It is also about epic courtroom battles between Parliament and the Supreme Court. These cases fundamentally reshaped how we understand the amending power today.

Stage 1: Shankari Prasad v. Union of India (1951)

In the early years, Parliament was confident. The First Amendment had added Articles 31A and 31B to protect land reform laws from judicial challenge. When this was challenged, the Supreme Court in Shankari Prasad (1951) held that "law" in Article 13 did not include constitutional amendments made under Article 368. Therefore, Parliament could amend Fundamental Rights. The Court viewed Article 368 as giving Parliament a constituent power distinct from ordinary legislative power. This was a victory for Parliament.

Stage 2: Sajjan Singh v. State of Rajasthan (1965)

The Seventeenth Amendment added more laws to the Ninth Schedule, protecting them from judicial review. The Supreme Court in Sajjan Singh (1965) largely reaffirmed Shankari Prasad, holding that Parliament could amend Fundamental Rights. However, some judges expressed doubts. Justice Hidayatullah and Justice Mudholkar hinted that perhaps there were "basic features" of the Constitution that could not be amended. These were early warning signals.

Stage 3: The Earthquake — Golak Nath v. State of Punjab (1967)

This case changed everything. The Golak Nath family challenged the Punjab Security of Land Tenures Act, which had been placed in the Ninth Schedule by the Seventeenth Amendment. By a narrow 6-5 majority, the Supreme Court overruled Shankari Prasad and held that:

Fundamental Rights cannot be abridged or taken away by the amending procedure in Article 368.
An amendment to the Constitution is "law" within the meaning of Article 13(2) and is therefore subject to Part III (Fundamental Rights).
Parliament is not a constituent body like the Constituent Assembly. It is a constituted body created by the Constitution and must operate within its limits.
The Court introduced the doctrine of "prospective overruling" — meaning the judgment would apply only to future amendments, not past ones like the First, Fourth, and Seventh Amendments.

This was a massive blow to Parliament. The Court essentially said: "You cannot touch Fundamental Rights through Article 368." The judgment was deeply controversial and set the stage for a constitutional confrontation.

Stage 4: Parliament Fights Back — The 24th and 25th Amendments (1971-1972)

Unhappy with Golak Nath, Parliament struck back. The 24th Constitutional Amendment Act, 1971 made two crucial changes:

It added Article 13(4), stating that nothing in Article 13 applies to amendments made under Article 368.
It added clause (3) to Article 368, stating that nothing in Article 13 applies to constitutional amendments.

This was Parliament's way of saying: "Amendments are not laws under Article 13, and we can amend Fundamental Rights." The 25th Amendment added Article 31C, which gave primacy to certain Directive Principles over Fundamental Rights. Now the battleground shifted to whether these amendments themselves were valid.

Stage 5: The Landmark — Kesavananda Bharati v. State of Kerala (1973)

This is the most important constitutional case in Indian history. Swami Kesavananda Bharati, a religious leader from Kerala, challenged state land reform laws that affected his monastery's property. The case quickly became about the validity of the 24th, 25th, 26th, and 29th Amendments and, more fundamentally, about the limits of Parliament's amending power.

By a 7-6 majority — one of the closest decisions ever — the Supreme Court delivered a verdict that balanced both sides:

The Court upheld the validity of the 24th Amendment, agreeing that Parliament could amend Fundamental Rights. It reversed Golak Nath on this point.
But — and this was the game-changer — the Court held that Parliament cannot alter the "basic structure" of the Constitution. Even under Article 368, there are invisible boundaries that cannot be crossed.
Chief Justice Sikri listed several elements of the basic structure, including:
- Supremacy of the Constitution
- Republican and democratic form of government
- Secular character of the Constitution
- Separation of powers between the legislature, executive, and judiciary
- Federal character of the Constitution
- Rule of law
- Judicial review

The Court made it clear: Parliament's power to amend is wide, but not unlimited. The Constitution is not Parliament's plaything. It has a core identity that must be preserved. This Basic Structure Doctrine became the new constitutional reality.

Stage 6: The Emergency and the 42nd Amendment (1976)

During the Emergency (1975-1977), Parliament passed the 42nd Constitutional Amendment Act, 1976 — often called the "Mini Constitution" because it made so many changes. It was also the most controversial. Two changes directly attacked the Basic Structure Doctrine:

Article 368(4): Made constitutional amendments immune from judicial review.
Article 368(5): Declared that there was no limitation on Parliament's amending power.

These clauses were designed to overrule Kesavananda Bharati and make Parliament supreme over the Constitution. They were passed when civil liberties were suspended and the judiciary was under pressure.

Stage 7: The Restoration — Minerva Mills v. Union of India (1980)

After the Emergency ended and a new government came to power, the Supreme Court got the chance to review the 42nd Amendment. In Minerva Mills (1980), the Court delivered another landmark judgment:

It struck down clauses (4) and (5) of Article 368 as unconstitutional.
It held that judicial review is a basic feature of the Constitution, and Parliament cannot remove it.
It held that limited amending power is itself a basic feature. The Court famously said: "The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one."
It reaffirmed the harmonious balance between Fundamental Rights and Directive Principles, holding that neither can be given absolute primacy over the other.

Minerva Mills restored the Basic Structure Doctrine and ensured that Article 368 would always operate within constitutional limits. The Court made it clear: Parliament can amend the Constitution, but it cannot become the Constitution itself.

What Is the "Basic Structure"? The Invisible Fence Around Article 368

The Basic Structure Doctrine is the most important concept to understand when studying Article 368. Even though the words "basic structure" do not appear anywhere in the Constitution, the Supreme Court has identified several features that form this invisible protective fence. Over the years, through various judgments, the Court has expanded this list. Here are the key components:

Supremacy of the Constitution — The Constitution is above Parliament, not the other way around.
Republican and Democratic Form of Government — Free and fair elections, representative democracy.
Secularism — The state must treat all religions equally.
Separation of Powers — Legislature, executive, and judiciary must remain distinct.
Federal Character — The balance between the Union and the states.
Rule of Law — No one is above the law, including the government.
Judicial Review — Courts must be able to check the constitutionality of laws and amendments.
Harmony and Balance Between Fundamental Rights and Directive Principles — Neither part can destroy the other.
Limited Amending Power — The fact that Parliament's power under Article 368 is limited is itself a basic feature.
Independence of the Judiciary — Essential for the rule of law and judicial review.
Unity and Integrity of the Nation — The essential unity of India as a nation.

Any amendment that damages or destroys these features can be struck down by the Supreme Court, even if it follows the Article 368 procedure perfectly. This is the ultimate check and balance in the Indian constitutional system.

Important Constitutional Amendments Related to Article 368

Over the decades, several amendments have directly touched Article 368 or been shaped by the battles around it. Here are the most significant ones in bullet form:

24th Amendment (1971): Added clauses to clarify that Article 13 does not apply to constitutional amendments. Upheld in Kesavananda Bharati.
25th Amendment (1971): Added Article 31C to give primacy to certain Directive Principles over Fundamental Rights. Partially upheld in Kesavananda Bharati.
26th Amendment (1971): Abolished privy purses and privileges of former princes. Upheld.
29th Amendment (1972): Added two Kerala land reform laws to the Ninth Schedule. Upheld.
42nd Amendment (1976): Added clauses (4) and (5) to Article 368 to make amendments immune from judicial review and declare unlimited amending power. Struck down in Minerva Mills (1980).
44th Amendment (1978): Reversed many Emergency-era changes. Restored the position that the right to property is no longer a Fundamental Right (moved to Article 300A). Strengthened democratic safeguards.
103rd Amendment (2019): Introduced 10% reservation for Economically Weaker Sections (EWS). Upheld by the Supreme Court in 2022, though the basic structure debate was raised.
131st Amendment Bill (2026): Recently failed in Parliament due to lack of special majority, showing that Article 368's procedural hurdles are still very real.

How Does the Amendment Process Actually Work? A Step-by-Step Guide

Let us walk through the practical journey of a constitutional amendment bill to see Article 368 in action:

Step 1: Introduction: A minister or private member introduces the bill in either the Lok Sabha or Rajya Sabha. No President's permission needed.
Step 2: First Reading: The bill is introduced and its objectives are explained. There may be a general discussion.
Step 3: Second Reading: Detailed discussion, clause-by-clause scrutiny, possible amendments to the bill itself. This is the most important stage.
Step 4: Voting in First House: The bill must pass by special majority — majority of total membership plus two-thirds of members present and voting.
Step 5: Same Process in Second House: The other House must pass the exact same bill. No joint sitting is allowed if there is disagreement. The bill must go back and forth until both Houses agree.
Step 6: State Ratification (if needed): If the bill affects federal provisions, it goes to state legislatures. At least half must pass resolutions ratifying it by simple majority.
Step 7: Presidential Assent: The bill is sent to the President. The President must give assent — no veto power, no return for reconsideration.
Step 8: Notification: Once assented, the amendment is notified in the Official Gazette and becomes part of the Constitution.

This process can take months or even years. The 122nd Amendment (GST) took years of negotiation with states before it finally passed in 2016. The 131st Amendment Bill (2026) recently failed because it could not secure the required special majority, proving that Article 368's hurdles are not just theoretical.

Criticisms and Debates Around Article 368

No constitutional provision is without controversy. Article 368 has been debated intensely for decades. Here are the main criticisms and counter-arguments:

Is the procedure too rigid?: Some argue that requiring a special majority plus state ratification makes it too difficult to adapt the Constitution to urgent needs. Critics point out that the US Constitution has been amended only 27 times in over 230 years, while India has had over 100 amendments in 75 years. But defenders say this flexibility is a strength, not a weakness.
Is the Basic Structure Doctrine too vague?: Critics argue that since the Constitution does not define "basic structure," it gives unelected judges too much power to strike down amendments passed by elected representatives. They call it judicial overreach. Supporters counter that without this doctrine, a temporary parliamentary majority could destroy democracy itself, as seen during the Emergency.
Should states have more say?: Some federalism advocates argue that the state ratification requirement should apply to more provisions, not just the limited list in the proviso. They feel the Centre has too much power to change the federal structure.
Is the no-joint-sitting rule a problem?: Unlike ordinary bills, constitutional amendment bills cannot be resolved through a joint sitting if the two Houses disagree. Some see this as a flaw that gives the Rajya Sabha excessive veto power.
The President's role is ceremonial: Unlike in some countries where the head of state has a substantive role in constitutional amendments, the Indian President must give assent. Some argue this makes the President a rubber stamp in the amendment process.

Why Article 368 Matters to Every Indian Citizen

You might think Article 368 is just for lawyers and politicians. But it affects your life in direct and indirect ways:

Your Rights: Every time Parliament amends Fundamental Rights — whether to add new rights like the Right to Education (86th Amendment) or to modify existing ones — Article 368 is the tool used.
Your State's Power: When the Centre and states fight over who controls what subject — like the recent GST amendment or the Jammu and Kashmir reorganization — Article 368's state ratification requirement becomes crucial.
Your Vote: The basic structure protects free and fair elections. Without the Kesavananda Bharati doctrine, Parliament could theoretically amend the Constitution to remove elections or extend its own term indefinitely.
Your Courts: Judicial review, protected by the basic structure, ensures that if Parliament passes an unconstitutional amendment, you can challenge it in court.
Your Identity: The secular and democratic character of India, protected by the basic structure, ensures that the Constitution cannot be amended to declare a state religion or abolish democracy.

In short, Article 368 is the guardian of constitutional change and the basic structure is the guardian of constitutional identity. Together, they ensure that India remains a democratic republic no matter which party is in power.

The Current Legal Position: Where We Stand Today

As of 2026, the legal position on Article 368 is settled but still evolving:

Parliament has wide but not unlimited power to amend the Constitution under Article 368.
The Basic Structure Doctrine is the law of the land. Any amendment that damages or destroys the basic structure can be struck down by the Supreme Court.
Judicial review of constitutional amendments is a fundamental feature and cannot be removed.
Limited amending power is itself a basic feature — Parliament cannot declare its own power unlimited.
The harmonious balance between Fundamental Rights and Directive Principles must be maintained.
Clauses (4) and (5) of Article 368, added by the 42nd Amendment, remain dead letters — they were struck down and never revived.
Recent amendments like the 103rd Amendment (EWS quota) have been upheld, but only after the Supreme Court carefully examined whether they violated the basic structure.

The debate continues in new areas. Can Parliament amend the Constitution to change the collegium system for judicial appointments? Can it amend the federal structure to create new all-India services without state consent? These questions will keep Article 368 alive in India's constitutional discourse for decades to come.

The Philosophical Foundation: Why the Founders Chose This Path

When the Constituent Assembly sat down to draft the Constitution between 1946 and 1950, they had a profound debate about how easy or difficult it should be to amend the document. Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, famously argued that the Constitution should strike a balance. He said the procedure should be such that it is "neither too rigid nor too flexible." If it were too rigid, the Constitution would become a straitjacket, unable to respond to changing social, economic, and political realities. If it were too flexible, it would become a plaything of temporary majorities, losing its stability and authority.

The framers were deeply influenced by the experiences of other nations. They saw how the British Constitution could be changed by a simple act of Parliament, making it extremely adaptable but also unstable. They saw how the American Constitution required supermajorities in Congress plus ratification by three-fourths of the states, making it extremely stable but also rigid and difficult to reform. India needed something in between—a Constitution that could evolve but would not be easily manipulated.

Article 368 was their answer. By requiring a special majority in Parliament, they ensured that constitutional amendments would need broad consensus across political parties. By requiring state ratification for federal provisions, they ensured that the states—especially the linguistically and culturally distinct states of the Indian Union—would have a voice in changes that affected their autonomy. And by leaving the ultimate judicial review intact, they ensured that the courts would guard the Constitution's soul even against Parliament itself.

This philosophical foundation is why Article 368 is not just a legal provision. It is a statement of constitutional values—that India is a federal democracy where the Centre and states must cooperate, where fundamental rights are protected, and where no single institution, however powerful, can claim absolute sovereignty over the Constitution.

Comparative Perspective: How Other Countries Amend Their Constitutions

Understanding Article 368 becomes richer when we compare it with amendment procedures in other major democracies. Here is how India stacks up:

United States of America: Article V of the US Constitution requires a two-thirds majority in both Houses of Congress plus ratification by three-fourths (38 out of 50) of the state legislatures. Some amendments also require approval by state conventions rather than legislatures. This makes the US Constitution one of the most difficult to amend. Only 27 amendments have been made in over 230 years.
United Kingdom: The UK has no written Constitution in the formal sense. Constitutional changes can be made by a simple act of Parliament with a simple majority. This makes it the most flexible system but also the least stable in terms of constitutional entrenchment.
Germany: Article 79 of the German Basic Law requires a two-thirds majority in both the Bundestag and the Bundesrat (the federal council representing states). Certain "eternity clauses"—including human dignity, democratic principles, and federalism—can never be amended, even by unanimous consent. This is similar to India's Basic Structure Doctrine.
Australia: Section 128 of the Australian Constitution requires a "double majority"—a national majority of voters plus a majority in a majority of states (at least four out of six states). This makes amendments very difficult; most referendums have failed.
South Africa: Section 74 of the South African Constitution distinguishes between different types of amendments. Ordinary amendments require a two-thirds majority in the National Assembly. Amendments affecting provincial powers require a two-thirds majority in the National Assembly plus a majority in the National Council of Provinces (which represents the provinces).

India's system is unique because it combines parliamentary special majority with selective state ratification and judicial review of amendments. No other major democracy has all three layers. This makes India's Constitution both more flexible than the US or Australian models and more stable than the British model. The addition of the Basic Structure Doctrine through judicial interpretation makes India's system perhaps the most sophisticated constitutional amendment mechanism in the world.

The Role of the Ninth Schedule: A Special Child of Article 368

One fascinating aspect of constitutional amendments in India is the Ninth Schedule. Added by the First Amendment in 1951, the Ninth Schedule was created to protect certain laws from judicial review. The idea was simple: if Parliament passed land reform laws or other socially progressive legislation that might be challenged in court as violating Fundamental Rights (especially the right to property), those laws could be placed in the Ninth Schedule and would be immune from judicial scrutiny.

Over the years, more and more laws were added to the Ninth Schedule through various amendments. By the early 2000s, there were nearly 300 laws in the schedule. This raised serious concerns. Was Parliament using the Ninth Schedule as a backdoor to bypass Fundamental Rights and judicial review?

The Supreme Court addressed this in I.R. Coelho v. State of Tamil Nadu (2007). The Court held that:

Laws placed in the Ninth Schedule after the Kesavananda Bharati judgment (24 April 1973) are not immune from judicial review.
If a law in the Ninth Schedule violates the Basic Structure of the Constitution, it can be struck down by the courts.
This means the Ninth Schedule is no longer a safe haven for unconstitutional laws. The Basic Structure Doctrine extends even there.

This judgment was crucial because it closed a potential loophole in Article 368. Parliament could not simply immunize laws from review by placing them in the Ninth Schedule. The basic structure would still protect citizens.

The 44th Amendment: Restoring Democracy After the Emergency

The 44th Constitutional Amendment Act, 1978 is one of the most important amendments in Indian history because it was designed to undo the damage of the Emergency-era 42nd Amendment and restore democratic safeguards. While it did not directly amend Article 368's text, it was deeply shaped by the Article 368 battles. Here is what the 44th Amendment did:

It restored the original term of Lok Sabha and state legislatures from six years back to five years.
It made it harder to declare an Emergency by requiring a written recommendation from the Cabinet (not just the Prime Minister) and requiring the President to act on such advice.
It restored judicial review of laws made during an Emergency.
It removed the right to property from Fundamental Rights and placed it as a legal right under Article 300A, meaning it could no longer be used to challenge land reform laws.
It strengthened Article 352 and Article 356 to prevent misuse of emergency provisions.
It made it clear that the right to life and personal liberty (Article 21) cannot be suspended even during an Emergency.

The 44th Amendment was a direct response to the excesses of the 42nd Amendment and showed how Article 368 could be used not just to expand government power but also to restore constitutional balance and protect citizens from authoritarianism.

The 103rd Amendment and the EWS Quota: A Modern Test for Article 368

The 103rd Constitutional Amendment Act, 2019 introduced a 10% reservation for the Economically Weaker Sections (EWS) in educational institutions and government jobs. This was a significant departure from traditional reservation policies, which were based on social and educational backwardness (caste-based). The EWS quota was based purely on economic criteria.

When this amendment was challenged, the Supreme Court in Janhit Abhiyan v. Union of India (2022) had to decide whether it violated the Basic Structure. The key questions were:

Does the 50% ceiling on reservations (established in the Indra Sawhney case) form part of the basic structure?
Does introducing caste-neutral economic criteria violate the principle of equality?
Does the amendment breach the basic structure by excluding Scheduled Castes, Scheduled Tribes, and OBCs from the EWS quota?

By a 3-2 majority, the Supreme Court upheld the 103rd Amendment. The majority held that:

The 50% ceiling was not part of the basic structure.
Economic criteria could be a valid basis for reservation.
The exclusion of SC/ST/OBCs from EWS quota was not unconstitutional because they already had separate reservations.

However, the minority judges strongly dissented, arguing that the amendment violated the basic structure by undermining the principle of substantive equality and the 50% ceiling. This case shows that the Basic Structure Doctrine is still very much alive and continues to shape how Article 368 is used today.

The 131st Amendment Bill 2026: A Recent Example of Article 368 in Action

In 2026, the 131st Constitutional Amendment Bill was introduced in Parliament but failed to pass because it could not secure the required special majority. This real-world example demonstrates that Article 368's procedural hurdles are not merely theoretical. Even with a government majority in the Lok Sabha, the need for a two-thirds majority in the Rajya Sabha and the requirement of broad consensus can stop amendments that lack widespread support.

This failure is a healthy reminder that the Constitution is not easily changed. It requires persuasion, negotiation, and consensus-building across the political spectrum. Article 368, in this sense, acts as a filter—allowing necessary changes while blocking hasty or divisive ones.

Common Misconceptions About Article 368

Many people have misunderstandings about how Article 368 works. Let us clear up some common myths:

Myth 1: Parliament can change anything in the Constitution. This is false. While Parliament has wide powers, it cannot alter the Basic Structure. The Supreme Court can strike down amendments that violate it.
Myth 2: The President has no role in amendments. This is partially true. The President must give assent and cannot refuse. But the President's signature is still a necessary step in the process.
Myth 3: State legislatures can initiate constitutional amendments. This is false. Only Parliament can introduce constitutional amendment bills. State legislatures can only ratify certain amendments if asked.
Myth 4: All amendments need state ratification. This is false. Only amendments affecting the specific federal provisions listed in the proviso to Article 368(2) need state ratification. Most amendments do not.
Myth 5: The Basic Structure Doctrine is written in the Constitution. This is false. The words "basic structure" appear nowhere in the Constitution. It is a judicial innovation developed by the Supreme Court to protect constitutional values.
Myth 6: Article 368 is the only way to amend the Constitution. This is false. Some provisions can be amended by simple majority outside Article 368, such as matters related to citizenship, state boundaries, and scheduled areas.

The Future of Article 368: Emerging Challenges and Debates

As India enters its eighth decade as a republic, Article 368 faces new challenges and questions:

Digital Governance and Privacy: Can Parliament amend the Constitution to create new frameworks for data privacy and digital rights without violating the basic structure? The Puttaswamy judgment (2017) declared privacy a fundamental right. Any amendment affecting this would need careful scrutiny.
Federalism and Cooperative Federalism: With the rise of regional parties and state-level assertions, will there be pressure to make the state ratification requirement broader? Some states have argued that more amendments should require their consent.
Electoral Reforms: Can Parliament amend the Constitution to change the electoral system—perhaps introducing proportional representation or changing the role of the Election Commission? Such changes would likely face basic structure scrutiny.
Judicial Reforms: The ongoing debate about the collegium system for judicial appointments raises the question: can Parliament amend the Constitution to create a new judicial appointments commission? The Supreme Court has previously struck down the National Judicial Appointments Commission (NJAC) in 2015, holding that judicial independence is part of the basic structure.
Environmental and Climate Rights: As climate change becomes urgent, can Parliament amend the Constitution to add new environmental rights or duties? Would such amendments need to balance with existing fundamental rights and directive principles?

These questions show that Article 368 is not a static provision. It is a living mechanism that will continue to evolve as India faces new constitutional challenges.

Final Thoughts: Article 368 as the Conscience of the Constitution

In the end, Article 368 is best understood as the conscience of the Indian Constitution. It allows the nation to grow, learn, and adapt. But it also sets boundaries—boundaries that protect the core values of democracy, federalism, secularism, and the rule of law. The long and sometimes turbulent history of Article 368—from the early simplicity of Shankari Prasad to the revolutionary Basic Structure Doctrine of Kesavananda Bharati, from the authoritarian overreach of the 42nd Amendment to the restorative wisdom of Minerva Mills—tells us one profound truth:

A Constitution is not just a document. It is a living promise between the government and the governed. And Article 368 is the mechanism that ensures this promise can be renewed—but never broken.

Every citizen of India, whether a student, a professional, or a farmer, benefits from the protections that Article 368 and the Basic Structure Doctrine provide. When you vote in an election, when you approach a court for justice, when you speak freely, when you practice your religion, you are experiencing the fruits of a constitutional system that Article 368 helps preserve and evolve.

So the next time you hear about a constitutional amendment in the news, remember: behind that news is Article 368, the silent guardian that makes change possible while standing firm against change that would destroy the India we know.

Sources and References

Constitution of India, Article 368 (Official Text) — Indian Kanoon
Vajiram & Ravi — Indian Constitution Amendments, Procedure, Limitations — Vajiram & Ravi
Testbook — Procedure of Amendment (Article 368) — Testbook
Manupatra — Chapter 36: Amendment of the Constitution — Manupatra
Constitution of India.net — Article 368: Power of Parliament to amend the Constitution — Constitution of India
Drishti IAS — Procedure of Amendment — Drishti IAS
IJLRA — Amendments, Authority, and Accountability: Basic Structure Doctrine — IJLRA
ConstitutionNet — The Basic Structure of the Indian Constitution — ConstitutionNet
Indian Kanoon — Kesavananda Bharati v. State of Kerala (1973) — Indian Kanoon
Indian Kanoon — I.C. Golaknath v. State of Punjab (1967) — Indian Kanoon
Indian Kanoon — Minerva Mills Ltd. v. Union of India (1980) — Indian Kanoon
Delhi Law Academy — Amendments to the Indian Constitution: Part 2 — Delhi Law Academy
UnderStand UPSC — Article 368 Explained: Why Constitutional Amendment Bill 2026 Failed — UnderStand UPSC

Labels:

Indian Constitution 1

AUTHOR: RABI KR. PANDIT

Hello, I am Rabi Kr. Pandit, the founder of this platform and a resident of Kolkata, India. I hold a degree in History, Political Science, and English, and I am currently pursuing my legal studies at Jogesh Chandra Chaudhary Law College under the University of Calcutta. I manage multiple educational blogs with the aim of delivering knowledge in a clear, structured, and accessible manner. My focus is on simplifying complex topics and presenting reliable information that benefits students and readers from diverse academic backgrounds.