Article 368 of the Indian Constitution

Article 368 is found in Part XX of the Constitution and is titled “Power of Parliament to amend the Constitution and procedure therefor.” It grants th

Article 368 of the Indian Constitution – Power of Parliament to Amend the Constitution

The Indian Constitution, adopted in 1950, is a dynamic and evolving document. It was crafted with both flexibility and rigidity in mind. Among its most significant provisions is Article 368, which grants the Parliament of India the power to amend the Constitution. This Article outlines the procedure for amendment and delineates the extent to which changes can be made. In this blog post, we delve into the text, scope, procedure, limitations, and significance of Article 368, helping readers understand how constitutional evolution takes place in the world’s largest democracy.

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🔵 What is Article 368 of the Indian Constitution?

Article 368 is found in Part XX of the Constitution and is titled “Power of Parliament to amend the Constitution and procedure therefor.” It grants the Parliament the authority to amend the Constitution, subject to certain procedures and limitations. This power is essential to adapt the Constitution to changing social, political, and economic circumstances.

The framers of the Constitution were influenced by both rigid constitutions like that of the United States and flexible ones like the British. Hence, they incorporated a hybrid model, providing a structured process for amendments that includes multiple levels of approval depending on the nature of the amendment.

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🔵 Types of Amendments Under Article 368

Article 368 outlines three types of amendments, each with a different level of legislative involvement:

1. By a Simple Majority of Parliament

Certain provisions can be amended by a simple majority of the members present and voting in each House of Parliament. These are not considered amendments under Article 368. Examples include:

• Formation of new states (Article 3)

• Changes in the names or boundaries of existing states

• Abolition or creation of legislative councils in states

2. By Special Majority of Parliament

Most constitutional amendments fall under this category. It requires:

• A majority (more than 50%) of the total membership of each House of Parliament, and

• A two-thirds majority of members present and voting

Examples:

• Amendment of Fundamental Rights

• Amendment of Directive Principles of State Policy

• Addition or removal of entries in the Union or State List

3. By Special Majority and Ratification by Half of the States

Certain amendments affect the federal structure of the country and thus require, in addition to the special majority of Parliament, the ratification by at least half of the state legislatures. These include amendments related to:

• Election of the President

• Extent of executive power of the Union and states

• Powers of the Supreme Court and High Courts

• Distribution of legislative powers between Union and States

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🔵 Procedure for Constitutional Amendment (Article 368 (2))

The procedure for amending the Constitution under Article 368 is as follows:

1. Introduction of a Bill
   An amendment bill can be introduced in either House of Parliament (Lok Sabha or Rajya Sabha). It does not require prior permission from the President.

2. Passing by Special Majority
   The bill must be passed by the prescribed special majority in both Houses.

3. State Ratification (if required)
   If the amendment falls under the third category (affecting the federal structure), it must be ratified by at least half of the state legislatures.

4. Presidential Assent
   Once the bill is passed by both Houses and ratified by states (if required), it is presented to the President for assent. The President cannot withhold assent to a constitutional amendment bill.

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🔵 Landmark Cases Related to Article 368

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

The Supreme Court upheld Parliament's power to amend any part of the Constitution, including Fundamental Rights.

2. Golaknath v. State of Punjab (1967)

The Court ruled that Fundamental Rights could not be amended by Parliament, overturning earlier judgments.

3. Kesavananda Bharati v. State of Kerala (1973)

A landmark decision where the Supreme Court ruled that Parliament could amend any part of the Constitution but not the "basic structure." This introduced the Basic Structure Doctrine, limiting the amending power under Article 368.

4. Minerva Mills v. Union of India (1980)

Reinforced the basic structure doctrine and struck down parts of the 42nd Amendment which gave unlimited power to Parliament to amend the Constitution.

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🔵 Basic Structure Doctrine: A Check on Article 368

The Basic Structure Doctrine is a judicial innovation introduced by the Supreme Court in the Kesavananda Bharati case. While Article 368 gives the power to amend, this doctrine places substantive limits on that power.

Elements considered part of the basic structure include:

• Supremacy of the Constitution

• Republican and democratic form of government

• Secularism

• Separation of powers

• Rule of law

• Judicial review

• Free and fair elections

• Federal character

Thus, Parliament cannot destroy or damage these features through constitutional amendments.

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🔵 Significance of Article 368

1. Ensures Flexibility and Adaptability
   Societies evolve, and with them, their laws. Article 368 allows India’s Constitution to adapt to modern realities.

2. Preserves the Federal Structure
   Some amendments require state ratification, which ensures that the interests of states are respected.

3. Acts as a Tool for Reform
   Landmark amendments like the 73rd and 74th (Panchayati Raj), and the Right to Education (86th Amendment) were made possible through Article 368.

4. Democratic Safeguard
   The complex procedure ensures that changes are not made hastily or without broad consensus.

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🔵 Conclusion

Article 368 is the keystone that balances the flexibility and rigidity of the Indian Constitution. It empowers the Parliament to respond to changing needs but also places necessary safeguards through judicial interpretation like the basic structure doctrine. This delicate balance helps ensure that the Constitution remains a living document, guiding India’s democratic journey through both continuity and change.

Understanding Article 368 is essential to appreciating how constitutional governance works in India and how the country continues to evolve without compromising its foundational values.